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TMI Blog2024 (1) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... does not exist at all. Hence, the appellant cannot be prosecuted for the offences punishable under Section 3 of the PMLA. The petitioner was convicted for the offence of 409 r/w 109 and 120B of the IPC. Therefore, the predicate offence alleged and proved is conspiracy to commit offence under Section 409 of the IPC which is not a scheduled offence. Therefore, even assuming that there are proceeds of crime, it cannot be said to be as a result of commission of a scheduled offence, which is a prerequisite to maintain a complaint under Section 3 of the PMLA. Since the respondent has no jurisdiction to invoke the provisions of PMLA, as there are no proceeds of crime relating to any scheduled offence, the proceedings impugned in the Writ Petition is also liable to be set aside. Consequentially, though the Provisional Attachment Order has not been challenged, it is held that the said attachment order is also without jurisdiction. The Criminal Original Petition and the Writ Petition are allowed. - Hon'ble Mr. Justice S.S. Sundar And Hon'ble Mr. Justice Sunder Mohan For the Petitioner in both cases : Mr. B. Sathish Sundar. For the Respondent : Mr. Rajinish Pathiyil (for R1 R2) in b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 420 and 34 of IPC on the complaint given by one Sathak Ahmed Shaw, S/o. M.S. Hameed (de-facto complainant in Cr.No.815 of 2006), alleging that the petitioner and others cheated the de-facto complainant by entering into a joint venture with another company. (f) The petitioner and others filed quash petitions before this Court in Crl. O.P. Nos.7 325, 11095, and 11427 of 2018, praying for the quashing of FIR in Cr.No.73 of 2018. This Court, by order dated 15.02.2020, quashed the said FIR. It is reported that this order has not been challenged before the Hon'ble Supreme Court. (g) Similarly, another FIR was registered against the petitioner and others in Cr.No.100 of 2014 for the offence under Sections 406, 420, and 506(i) of the IPC which was also quashed by this Court in Crl.O.P.Nos.15716/2017 and 8609 of 2019, etc. batch on 16.08.2022. The SLP preferred against the said order was also dismissed by the Hon'ble Supreme Court on 01.09.2023 in SLP (Crl.) Diary No.5737/2023. (h) Meanwhile, the respondent herein recorded an ECIR in F.No.ECIR/CEZO-1/39/2021 and attached the properties belonging to the petitioner and others to the tune of Rs.62 Crores. The respondent also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o submitted that even if two FIRs were quashed, the equivalent property to the value of the property derived or obtained as a result of criminal activity could be attached. Therefore, the learned Special Public Prosecutor submitted that the grounds on which the writ petition was filed, are unsustainable. 6. We have perused the complaint and the impugned orders in the Writ Petition and the Criminal Original Petition. Though initially we had ordered notice in the Criminal Original petition to enable the respondent to file a counter, we were inclined to take up the matter along with the Writ Petition since the facts necessary to decide the above petitions are not in dispute and the issue is directly covered by the decision of the Hon'ble Supreme Court. 7. The impugned complaint is on the basis that the petitioner was convicted for the predicate offences under Sections 120B, 409 r/w 109 of the IPC. There is no dispute with regard to the said fact. The offence under Section 409 of the IPC is not a scheduled offence. The question is whether the respondent can maintain the complaint if the predicate offence is the offence of criminal conspiracy. The Hon'ble Supreme Court answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge sheets filed in the alleged scheduled offences, there is no allegation of the commission of criminal conspiracy to commit any of the offences included in the Schedule. As pointed out earlier, except for Section 120-B of the IPC, no other offence in the schedule has been applied. Therefore, in this case, the scheduled offence does not exist at all. Hence, the appellant cannot be prosecuted for the offences punishable under Section 3 of the PMLA. 8. In the complaint, the respondent has stated in paragraph 3 (i) as follows: (i) As submitted above, Shri Dhanraj Kocha and his family members in connivance with the said three Authorised Signatories of M/s. D R Foundations and Estates Pvt. Ltd. cheated Shri M.S Hameed through a criminal conspiracy and this fact i.e., the commission of scheduled offence [Section 120 B] is proved in the trial held in the predicate offence. 9. As stated earlier, the petitioner was convicted for the offence of 409 r/w 109 and 120B of the IPC. Therefore, the predicate offence alleged and proved is conspiracy to commit offence under Section 409 of the IPC which is not a scheduled offence. Therefore, even assuming that there are proceeds of crime, it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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