9911796707
TMI Blog2024 (9) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... which provided a cause for the Enforcement Directorate to institute the present revision petition. CONTENTIONS OF THE RESPONDENT: 3. Mr.M.S.Krishnan, the learned Senior Counsel appearing on behalf of the respondent would mainly contend that the Criminal Revision Petition is not maintainable and beyond the scope of Section 397 (2) of Cr.P.C. He would urge the Court that the order impugned cannot be construed as final order and the trial alone is postponed pending disposal of the criminal appeal filed by the respondent against the order of conviction passed in the predicate/schedule offences. 4. It is not in dispute between the parties that the predicate offence registered against the respondent ended with an order of conviction and an appeal preferred is still pending. During the pendency of the criminal appeal, if PMLA case is tried, there is likelihood of causing prejudice to the respondent. Therefore, the trial court considered the fact that the predicate offence and the PMLA offence are inter-linked and in the event of an acquittal, there is possibility of exonerating the respondent from the PMLA proceedings and under those surmises, the petition filed under Section 309 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 397 Cr.P.C. 10. It is contended that after recording ECIR, investigations are conducted to trace out the offence of money laundering under PMLA. Once the offence of money laundering is traced out, complaint under Section 44 and 45 of PMLA has been registered. Therefore, the investigation conducted for the offence of money laundering is independent and distinct. Thus, it cannot be linked with the pendency of criminal appeal filed against the order of conviction in the scheduled offence. Once the investigations are completed under PMLA, the process become standalone process. Thus, the trial must go on. ANALYSIS: 11. Considering the arguments as advanced between the learned Senior Counsel for the respondent and the learned Special Public Prosecutor for the petitioner to the lis, Section 309 of Cr.P.C. provides power to postponement or adjourn proceedings. Sub-Section (2) to Section 309 of Cr.P.C stipulates that " If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and legality of the order, the revision petition would lie. Thus, the maintainability point raised deserves to be rejected. 18. The learned Senior Counsel for the respondent mainly contended that in the event of an acquittal in the criminal appeal in the schedule offence, the respondent is entitled to be exonerated from the PMLA proceedings. In this context, it is relevant to consider the scope of PMLA. 19. Section 65 of PMLA stipulates that "Code of Criminal Procedure, 1973 to apply." Accordingly, the provisions of Code of Criminal Procedure, 1973 shall apply, in sofaras they are not inconsistent with the provisions of the Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. 20. When Section 65 of PMLA stipulates that the special enactment namely PMLA would prevail over Cr.P.C. Thus, the reliance placed on by the learned Senior Counsel would have no assistance to support the case of the respondent. When the procedures contemplated under PMLA are independent and distinct to other penal laws, the same would prevail over the general provisions and the commencement of proceedings under PMLA, thereafter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of offence of money-laundering and more so being a complaint procedure prescribed under the 2002 Act. Further, the authorities referred to in Section 48 of the 2002 Act alone are competent to file such complaint. It is a different matter that the materials/evidence collected by the same authorities for the purpose of civil action of attachment of proceeds of crime and confiscation thereof may be used to prosecute the person involved in the process or activity connected with the proceeds of crime for offence of money-laundering. Considering the mechanism of inquiry/investigation for proceeding against the property (being proceeds of crime) under this Act by way of civil action (attachment and confiscation), there is no need to formally register an ECIR, unlike registration of an FIR by the jurisdictional police in respect of cognizable offence under the ordinary law. There is force in the stand taken by the ED that ECIR is an internal document created by the department before initiating penal action or prosecution against the person involved with process or activity connected with proceeds of crime. Thus, ECIR is not a statutory document, nor there is any provision in 2002 Act req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage, it is not a viable ground to take a view that pendency of criminal appeal against an order of conviction is a bar for the continuance of trial with reference to offence under PMLA. 30. A blanket application of the observations made by the Apex Court in Vijay Madhanlal Choudhary's case will not advance the object set out under PMLA, 2002 and in turn will defeat its primary object. The Vijay Madhanlal Choudhary's case is a binding precedent for all Courts below and on careful application of the judgement, analysing on a case to case basis, the output shall defer for each case and not render the same result. 31. Therefore, the preposition laid down in Vijay Madhanlal Choudhary's case being applied with reference to the petition filed for quashment of ECIR or complaint need not be applied in the present case, in view of the fact that the respondent has been convicted in the schedule offence and the conviction as on today stands against him and mere pendency of the criminal appeal need not be a ground for postponement of trial in PMLA case. 32. In any angle, pendency of a criminal appeal cannot be an absolute bar for proceeding with the PMLA trial, which is now be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
