|
Advanced Search Options
Money Laundering - Case Laws
Showing 61 to 80 of 1549 Records
-
2024 (2) TMI 1023 - SC ORDER
Money Laundering - fraud in sale and purchase of land belonging to two Housing Co-operative Societies - presumption that proceeds of crime used in money transaction - shame and bogus sale deed - it was held by High Court that Under Section 22 of the PML Act, there is a presumption as to the record or property in certain cases, according to which where any record or property is found in the possession or control of any person in the course of a survey or a search, such record or property shall be presumed to be belonging to such person. There is a presumption in inter-connected transaction also Section 24 castes a burden on a person charges with the offence of money laundering under Section 3, unless the contrary is proved, the presumption that such proceeds of crime are involved in the money transaction.
HELD THAT:- There are no reason to interfere with the impugned order - SLP dismissed.
-
2024 (2) TMI 912 - JHARKHAND HIGH COURT
Seeking grant of anticipatory bail - Money laundering - predicate offence - proceeds of crime - petitioner knowingly assisted Veerendra Kumar Ram who is accused in the first prosecution complaint for laundering of bribed money which was accumulated by him from the commission/bribe amount being a public servant - said money was getting routed by the petitioner who is Delhi based CA, to the bank accounts of family members of Veerendra Kumar Ram with the help of bank accounts of petitioner's employees/relatives - HELD THAT:- As per the para 5.2 of the prosecution complaint various records, documents, digital devices, cash, jewellery, vehicles were recovered and seized during course of search conducted on 21.02.2023. The case record depicts that it was the petitioner who assisted the prime accused, Veerendra Kumar Ram, in the commission of the offence of money laundering with the help of his employees by depositing the crime proceeds in different bank accounts opened by fake names or companies, and later on the transfer of money to the prime accused in the bank accounts of his relatives to remove the taint. The material collected by the Enforcement Directorate had also not been rebutted, which prima facie reflected the involvement of the petitioner in the alleged offence. It is evident that the petitioner happens to be a Chartered Accountant and he used to divert the money which has been obtained by way of illegal means.
It is required to refer herein that the Hon'ble Apex Court in the case of Pavana Dibbur vs. The Directorate of Enforcement passed in Criminal Appeal No. 2779 of 2023 [2023 (12) TMI 49 - SUPREME COURT] has considered the effect of the appellant not being shown as an accused in the predicate offence by taking into consideration the Section 3 of the Act, 2002 - The Hon'ble Apex Court by interpreting the provision of Section 3 of the Act, 2002 has come out with the finding that on a plain reading of Section 3, unless proceeds of crime exist, there cannot be any money laundering offence. Based upon the definition Clause (u) of sub-section (1) of Section 2 of the Act 2002 which defines “proceeds of crime”, the Hon'ble Apex Court at paragraph-12 has been pleased to observe that clause (v) of sub-section (1) of Section 2 of PMLA defines “property” to mean any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible.
This Court, in view of the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.[2022 (7) TMI 1316 - SUPREME COURT] and Pavana Dibbur vs. The Directorate of Enforcement wherein it is evident from paragraph-16 therefrom that if the prosecution for the scheduled offence ends in the acquittal of all the accused or discharge of all the accused or the proceedings of the scheduled offence are quashed in its entirety, the scheduled offence will not exist, and therefore, no one can be prosecuted for the offence punishable under Section 3 of the PMLA as there will not be any proceeds of crime.
It is further evident from the discussion so made in both the judgments as would appear from paragraph-27 of the judgment rendered in Pavana Dibbur vs. The Directorate of Enforcement that the issue of whether the appellant has used tainted money forming part of the proceeds of crime for acquiring the second property can be decided only at the time of trial.
The offence becomes schedule offence by virtue of clause-3 of Part-C of the Schedule if the offence has crossed border implication as per the offence included in Part-A and B of the Schedule while the offences referred in Part-C of the Schedule will be said to be punishable under Section 3 of the Act, 2002 if the offences has crossed border implication. It needs to refer herein, the judgment rendered by the Hon'ble Apex Court in Pavana Dibbur vs. The Directorate of Enforcement is with respect to quashing of the proceeding filed by the concerned accused person invoking the inherent jurisdiction of the High Court under Section 482 of Cr.P.C. The aforesaid judgment therefore, has examined the availability of the ingredient of offence said to be committed under the Act, 2002 wherein the aforesaid judgment has been pleased taking note of the penal provision of the Act, 2002 as contained under Section 3 of the Act, 2002 and the offences enumerated under the Schedule thereof.
Applying the principle to consider the application for pre-arrest bail is required to be considered by passing an order for grant of pre-arrest bail if prima facie case is not made out.
Here, in the instant case, prima-facie it appears that the present petitioner is involved in concealment and diversification of the property/money of Veerendra Kumar Ram as would appear from the ECIR which is having cross-border implication since the money was concealed and diversified in Delhi which has been procured by Veerendra Kumar Ram while working as Engineer in Jamshedpur in the State of Jharkhand - This Court, in view of the aforesaid material available against the petitioner, is of the view, that in such a grave nature of offence, which is available on the face of the material, applying the principle of grant of anticipatory bail wherein the principle of having prima facie case is to be followed, the nature of allegation since is grave and as such, it is not a fit case of grant of anticipatory bail.
The applicant failed to make out a special case for exercise of power to grant bail and considering the facts and parameters, necessary to be considered for adjudication of anticipatory bail, without commenting on the merits of the case, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438 of the Code of Criminal Procedure to grant anticipatory bail. Therefore, this Court is of the view that the anticipatory bail applications are liable to be rejected.
This Court is of the view that the instant application is fit to be dismissed and as such, stands dismissed.
-
2024 (2) TMI 773 - SUPREME COURT
Powers of the High Courts in staying the investigations or directing not to take coercive action against the accused pending petitions u/s 482 of Cr.PC - allegation of defaults in the repayment of loan amount - a series of litigations under the SARFAESI Act before the DRT and High Court had ensued between the parties - High Court has stayed the proceedings of the FIRs registered against the concerned respondents-accused as also stayed the proceedings of ECIR registered by the Directorate of Enforcement against the concerned respondents, and further directed not to take any coercive action against the said respondents pending the said writ petitions
HELD THAT:- As it’s a matter of serious concern that despite the legal position settled by this Court in catena of decisions, the High Court has passed the impugned orders staying the investigations of the FIRs and ECIR in question in utter disregard of the said settled legal position. Without undermining the powers of the High Court under Section 482 of Cr.PC to quash the proceedings if the allegations made in the FIR or complaint prima facie do not constitute any offence against the accused, or if the criminal proceedings are found to be manifestly malafide or malicious, instituted with ulterior motive etc., we are of the opinion that the High Court could not have stayed the investigations and restrained the investigating agencies from investigating into the cognizable offences as alleged in the FIRs and the ECIR, particularly when the investigations were at a very nascent stage.
It hardly needs to be reiterated that the inherent powers under Section 482 of Cr.PC do not confer any arbitrary jurisdiction on the High Court to act according to whims or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. In a way, by passing such orders of staying the investigations and restraining the investigating agencies from taking any coercive measure against the accused pending the petitions under Section 482 Cr.PC, the High Court has granted blanket orders restraining the arrest without the accused applying for the anticipatory bail under Section 438 of Cr.PC.
This Court in State of Telangana vs. Habib Abdullah Jeelani and Others [2017 (1) TMI 1683 - SUPREME COURT] while dealing with the contours of Section 482 and 438 Cr.PC had emphasized that the direction not to arrest the accused or not to take coercive action against the accused in the proceedings u/s 482 Cr.PC, would amount to an order under Section 438 Cr.PC, albeit without satisfaction of the conditions of the said provision, which is legally unacceptable.
As discernible from the record, number of proceedings had ensued between the parties pursuant to the actions taken by the IHFL against the complainant-borrower for the recovery of its dues under the SARFAESI Act, and the borrower M/s Shipra after having failed in the said proceedings had filed the complaints with ulterior motives. We do not propose to examine the merits of the said submissions as the writ petitions filed by the concerned respondents-accused seeking quashing of the FIRs on such grounds are pending for consideration before the High Court. It would be open for the High Court to examine the merits of the petitions and decide the same in accordance with law.
The impugned orders passed by the High Court being not in consonance with the settled legal position, the same deserve to be set aside and are hereby set aside. The impugned interim orders passed by the High Court qua the concerned respondents-accused in the present appeals stand vacated forthwith.
-
2024 (2) TMI 772 - PUNJAB AND HARYANA HIGH COURT
Money Laundering - scheduled offences - Illegal arrest/detention - Non-application of mind and non-recording of compliance of the conditions/stipulations contained in Section 19 by the Special Court while passing the impugned orders - Illegal detention/wrongful restraint of the petitioners from 04.01.2024 to 08.01.2024 amounting to arrest on 04.01.2024 itself and consequential violations of Section 19 of PMLA read with Section 167 CrPC on account of non-production of petitioners within 24 hours - Violation of the provisions of Section 19(2) of the 2002 Act - Non-compliance of Section 19(1) of the 2002 Act.
Non-application of mind and non-recording of the conditions/stipulations contained in section 19 by the Special Court while passing the impugned remand orders - HELD THAT:- A perusal of the Section 19 of PMLA would show that the same contains three Sub-Sections. Under Sub-Section 1, the concerned officer who could be the Director, Deputy Director, Assistant Director or any other officer authorized in this behalf by the Central Government, may arrest a person after, on the basis of the material in his possession, he has reason to believe, which belief has to be recorded in writing, that any person is guilty of an offence punishable under the Act. Sub-Section 1 further provides that after the arrest, the person so arrested, is required to be informed about the grounds of such arrest "as soon as may be" - Sub-Section 3 further provides that the person arrested shall within 24 hours be taken to the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be having jurisdiction.
The Hon'ble Supreme Court in the case of V.Senthil Balaji [2023 (8) TMI 410 - SUPREME COURT] had observed that the provisions of Section 19 are mandatory and the compliance of the said provisions is a solemn function of the arresting authority which brooks no exception and that the officer concerned is to strictly comply with the mandate of Section 19 in its letter and spirit, failing which he would be visited with the consequences as have been mentioned under the 2002 Act.
It is incumbent upon the Special Court/concerned Court at the time of remanding the accused to the custody of ED, to peruse the order of arrest and to see due compliance of provisions of Section 19 of the 2002 Act and also reflect the same in the order of remand by making a specific observation regarding the same.
Whether the Special Court, in the present case, has passed the order of remand in accordance with law and in accordance with the provisions of Section 19? - HELD THAT:- Since, the petitioners were produced before the Special Court at Gurugram on 09.01.2024 thus, it was incumbent upon the said Court to consider the material to see as to whether as on 09.01.2024, any cause had arisen so as to produce the petitioners before the said Court and in case any such cause had arisen then to specifically state so in the order of remand. In the instant case, the same has not been done by the Court concerned.
Importantly, the Special Court has also not made any observations with respect to the due compliance by the authority of Section 19(1). There is no reference in the order of remand to state that the Court had perused the order, if any, recording the reason to believe that the petitioners are guilty of the offence punishable under the 2002 Act or the grounds of arrest in writing and had satisfied itself that the arresting officer, on the basis of material in his possession, had reason to believe that the petitioners were guilty of the offence punishable under the Act. No such fact has been recorded in the impugned order. On the said aspect, it has only been observed in the impugned order that once ECIR has been registered and during investigation, a prima facie case for the commission of the offence under the 2002 Act has been found, then the Directorate of Enforcement is bound to trace the money for which it required to interrogate the petitioners in custody. The said order is thus, illegal and deserves to be set aside on the said ground alone.
Illegal detention/wrongful restraint of the petitioners from 04.01.2024 to 08.01.2024 amounting to arrest on 04.01.2024 itself and consequential violations of section 19 of PMLA read with section 167 CrPC on account of non-production of petitioners within 24 hours - HELD THAT:- It is apparent that respondent authorities had illegally confined/unlawfully restrained the petitioners in the premises in question from 04.01.2024 to 08.01.2024 and thus, in effect had arrested the petitioners on 04.01.2024 itself but had not produced the petitioners before the concerned Court within 24 hours from the date of their actual arrest i.e. 04.01.2024 nor had complied with the other conditions mentioned in Section 19(1), 19(2), 19(3) and thus, arrest and all subsequent orders including remand orders are illegal and against law and deserve to be set aside.
The judgment of the Single Bench of the Delhi High Court in case of Gautam Thapar (supra) relied upon by the counsel for the respondents would not further the case of the respondents. The facts in the said case were completely different from the facts in the present case inasmuch as the said case was not a case where there was unlawful restraint/illegal detention for a period of more than four days nor there was any averment of the respondent authorities in the said case in the reply as is there in the present case which clearly shows that the petitioners, in the present case, were confined to the four walls of the premises in question from 04.01.2024 to 08.01.2024. The judgments relied upon on behalf of the petitioners, relevant portion of which is reproduced hereinabove, are on the other hand fully applicable to the facts of the present case.
The order of arrest and the impugned orders of remand and all the subsequent proceedings arising thereto deserve to be set aside on this ground also.
Violation of provisions of section 19(2) of the Act, 2002 - HELD THAT:- In paragraph 311 of Vijay Madanlal Chaudhary [2022 (7) TMI 1316 - SUPREME COURT] while considering the provisions of Section 5 (2) and 17(2) of the 2002 Act, which also require the competent officer to immediately after attachment under Section 5(1) and after search and seizure under Section 17(1), to forward a copy of the order along with material in his possession to the Adjudicating Authority, the Hon’ble Supreme Court of India was pleased to use the term “contemporaneously” and had observed that the reasons to believe were required to be recorded in writing and contemporaneously forwarded to the Adjudicating Authority along with the material in possession in the sealed envelope.
In the present case, admittedly, the compliance of Section 19(2) was not done till 09.01.2024, and the orders of remand dated 09.01.2024 of both the petitioners do not even remotely show that the Special Court had observed anything regarding its compliance. Even the order dated 16.01.2024 passed by the Special Court extending the remand of both the petitioners does not even remotely mention that there was any compliance of Section 19(2).
It is apparent that compliance of Section 19 including Section 19(2) is mandatory and brooks no exception. Accordingly, in view of the facts and circumstances, it is held that there is violation of the provisions of Section 19(2) of the 2002 Act on account of which also the impugned action is bad in law and is liable to be set aside.
Non-compliance of section 19(1) of Act, 2002 - HELD THAT:- In the present case it is the admitted case of the parties that both the petitioners are not accused till date in the 8 FIRs which have been reproduced in the grounds of arrest of both the petitioners. It is further the admitted case of the parties that no notice under Section 50 which empowers the competent authority to summon any person and also to produce the documents as required, has been issued to either of the two petitioners. From the discussion made hereinabove, it is also clear that the petitioners were in the premises where the search was being conducted from 04.01.2024 to 08.01.2024. A perusal of the grounds of arrest of both the petitioners would show that although it has been stated by the competent officer that the petitioners have adopted an attitude of non-cooperation by evading the queries and by giving misleading answers but no specific instance regarding the same has been mentioned.
By filing the said additional reply dated 29.01.2024, respondent no.2 has tried to show the sequence of events in order to explain the delay in compliance of Section 19(2) but a closer perusal of the said paragraph would show that in case the preliminary scrutiny of documents had been done on 10.01.2024, subsequent to 08.01.2024 when the petitioners were arrested, then the question of the arresting officer having formed the reason to believe in writing that the petitioners were guilty of an offence under the 2002 Act on the basis of the material in his possession, becomes highly doubtful. Moreover, no reference has been made in the sequence of events as to when the reasons to believe as required under Section 19(1) of the 2002 Act were reduced into writing.
The argument raised on behalf of the petitioners to the effect that such vague grounds of arrest violate the fundamental right of the petitioners as it is very difficult for the petitioners to prepare their defence in view of the provisions of Section 45 of the 2002 Act is also weighty. In the said circumstances, it cannot be said that respondent no.2 has rendered full compliance of the mandatory provisions of Section 19(1) of the Act.
Since in the present case, the order of arrest, arrest memo and the remand order dated 09.01.2024 are held to be illegal and against law, thus, the subsequent order of remand and other consequential orders are also liable to be set aside. Moreover, this Court is of the view that even the order dated 16.01.2024 is illegal and thus, deserves to be set aside.
Petition allowed.
-
2024 (2) TMI 734 - SC ORDER
Money Laundering - commission of eight predicate offences - proceeds of crime were derived or obtained as a result of any criminal activity relating to scheduled offences or not - HELD THAT:- Prima facie, it is found that nothing is stated therein to even indicate that the proceeds of crime were derived or obtained as a result of any criminal activity relating to scheduled offences. The existence of proceeds of crime as defined in Section 2(u) of the PMLA Act is a condition precedent for the commission of offence of money laundering under Section 3 of the PMLA Act.
Therefore, on the basis of material placed on record, as of today, as far as the appellant is concerned, it is found that both the grounds in clause (ii) of sub-section 1 of Section 45 of the PMLA Act have been satisfied in this case. Therefore, the appellant deserves to be enlarged on bail, pending the disposal of the complaint under the PMLA Act - no adjudication made as regards the role played by any other accused in the same complaint. At highest, the allegation against the appellant is of possession of unaccounted money and illegal acquisition of immovable properties. But, prima facie, there is nothing to link the assets of the appellant with the predicate offences.
Appeal allowed.
-
2024 (2) TMI 733 - ALLAHABAD HIGH COURT
Rejection of anticipatory bail - Money Laundering - Bike Bot Scam - Funds were diverted to shell companies for concealing the true purpose of collecting it and for rotation - proceeds of crime - economic offence - trial not joined by applicant despite issuance of summons - HELD THAT:- Admitted case of the applicant is of receipt of Rs. 61 crore in the company account of Bhasin Group from company account of GIPL and Independent TV Ltd., both belong to Sachin Bhati. Subsequently Rs. 25 crore from the same was transferred to the personal account of the applicant on the very next date from the account of Bhasin Group. The applicant has been summoned by the trial court vide order dated 28.05.2022. Since then without proceeding to appear before the court concerned, he has been absconding till date. The said property as stated to have been sold out to GIPL is under attachment by Enforcement agency.
In Pokar Ram v. State of Rajasthan and others [1985 (4) TMI 341 - SUPREME COURT], the Apex Court had observed that relevant considerations governing the court's decision in granting anticipatory bail under Section 438 Cr.P.C. are materially different from those when an application for bail by a person who is arrested in the course of investigation. It further held that courts must be cautious and circumspect in exercising powers of anticipatory bail as it intrudes the sphere of investigation.
In Vijay Madanlal Choudhary and Others Vs. Union of India and Others [2022 (7) TMI 1316 - SUPREME COURT] the Apex Court observed we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering.
Looking to the nature of case, gravity of offence, the facts that the present matter relates to an economic offence, the fact that the applicant has not joined the trial court concerned despite issuance of summons to him, the law as laid down by the Apex Court, the fact regarding receipt of money from the companies and transfer of it in his personal account, the magnitude of offence, the fact that the property in question stands attached by the Enforcement authorities as a part of laundered money and the rigours of the twin conditions of Section 45 of the PMLA, 2002, the applicant being charge sheeted in the predicate offence and the long criminal antecedents of the applicant, this Court does not find it to be a fit case to grant anticipatory bail to the applicant.
The present anticipatory bail application under Section 438 Cr.P.C. is, accordingly, rejected.
-
2024 (2) TMI 732 - TELANGANA HIGH COURT
Validity of provisional order of attachment and SCN - Composition of Adjudicating Authority under PMLA and its Jurisdiction - grounds for questioning such validity is that single member cannot pass an order of attachment, as Section 6 of PMLA contemplates the constitution of adjudicating authority by a chairperson and two members - another ground attack is that the adjudicating authority was not a judicial member, and as such cannot perform quasi-judicial function of passing of the provisional order of attachment.
Whether the power under Section 8 of PMLA conferred on an Adjudicating Authority can be exercised only by a member having experience in the field of law? - HELD THAT:- If the functions of Adjudicating Authority under Section 8 of PMLA, which is a creature of statute under Section 6 of PMLA, are considered, it is evident that it has authority to determine the questions which affects the rights of the persons and is required under PMLA to comply with the mandate contained in Section 8(2) of PMLA, undoubtedly performs quasi-judicial function.
Whether the aforesaid quasi-judicial function under Section 8 of PMLA can be performed by an Adjudicating Authority, which can be exercised only by a member having experience in the field of law? - HELD THAT:- The Adjudicating Authority, is an authority constituted by a statute, namely PMLA, which confers the power on it under Section 8 of PMLA. An adjudication is a function which is performed by several statutory authorities under different enactments, namely under the Foreign Exchange Regulation Act, 1973; the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976; the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Foreign Exchange Management Act, 1999. Thus, when legislature confers the function of adjudication on an authority under the statute, the same can be performed by such authority within the four corners of the power conferred on it. It is pertinent to note that under PMLA, the Adjudicating Authority neither has power to decide on the criminality of offence nor does it have power to impose punishment.
In ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. & OTHERS [2019 (11) TMI 716 - SUPREME COURT], the Constitution Bench dealt with the challenge made to the constitutional validity of Part XIV of Finance Act, 2017 and Rules made thereunder and held that whenever Parliament decides to divest the traditional courts of their jurisdiction and transfer the same to other analogous court/tribunal, the qualification and acumen of member in such a tribunal must be commensurate with that of court from which adjudicatory function is transferred.
Thus, it is evident that whenever the traditional Court is divested of its jurisdiction and the same is transferred to any other analogous Courts/tribunal, the qualification and acumen of such a member in the tribunal must be commensurate with that of the court from which such an adjudicatory function is transferred. In the instant case, it is noteworthy that Adjudicating Authority is neither a tribunal constituted under Article 323A or under 323B of the Constitution of India. None of the adjudicatory functions which are being performed by the Court had been transferred to the Adjudicating Authority.
Thus, powers under Section 6 can be exercised by an Adjudicating Authority comprising single member. Therefore, the proposition that powers under Section 8 of PMLA can be exercised by the Adjudicating Authority comprising only from member in the field of law does not deserve acceptance as the same would render provisions of Section 6(5) and 6(7) of PMLA nugatory and ineffective.
Appeal allowed.
-
2024 (2) TMI 731 - CALCUTTA HIGH COURT
Discharging the accused from the case upon allowing the petition u/s 227 of the Code of the Criminal Procedure, 1973 - fraudulent act of encashment of Railway Cheques - proceeds or crime - criminal activity relating to a scheduled offence - proceeds of crime and scheduled offence - parallel proceedings or not - benefit of Section 132 Evidence Act. - The accused was previously made an approver in a related CBI case.
It is submitted by the petitioner that the Ld. Spl Court while passing the impugned order failed to consider that the two proceedings were independent of each other and dependent on two separate enquiry and complaint under two separate offence having separate effects and it has no binding with other proceedings.
HELD THAT:- Though the proceeds of crime may be an independent offence, the total case under Section 3 of the PLMA Act rests on the case registered in respect of a scheduled offence in which the opposite party turned approver. If the case for a scheduled offence fails, the case under PLMA Act also fails, as the case under PLMA Act has been prima facie made out of the materials and evidence on record in the case in respect of a scheduled offence (herein registered by the CBI).
Without the evidence provided by the opposite party as an approver, the case under PLMA would have not been made out and thus the opposite party is entitled to the relief provided under the law to an approver, not only in the case registered in respect of a scheduled offence but also in respect of all cases which are dependent on the materials and evidence in the case registered in respect of a scheduled offence, in which the accused has turned approver.
Admittedly, the opposite party herein turned an approver in the case registered by CBI in respect of scheduled offences and was examined by the Court under Section 306(4)(a) of Cr.P.C. as a witness.
Thus keeping with the observation of the Supreme Court in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT] and the materials on record in the present case, it is clear that the present case against the opposite party, under Section 3 of the PMLA 2002, Act is dependent on the process and activity in a scheduled offence (CBI) and thus directly connected.
The total case under Section 3 of the PLMA Act rests on the case registered in respect of a scheduled offence in which the opposite party turned approver. If the case for a scheduled offence fails, the case under PLMA Act also fails, as the case under PLMA Act has been prima facie made out of the materials and evidence on record in the case in respect of a scheduled offence (herein registered by the CBI).
In view of the fact that the two cases have a direct connection, the opposite party is entitled to the benefit of Section 132 Evidence Act and Section 307 of Cr.P.C. in the present case.
The findings of the learned Trial Court in the order under revision being in accordance with law requires no interference - Revision dismissed.
-
2024 (2) TMI 730 - JHARKHAND HIGH COURT
Money Laundering - predicate offence - seeking grant of regular bail for second time - earlier bail application of the petitioner was rejected on merits - main ground for renewal of the bail application by the petitioner is that after earlier rejection, bail applications of the similarly situated co-accused persons have been allowed by Hon’ble the Supreme Court as well as by this Court - HELD THAT:- It is apparent that case of this Petitioner cannot be equated with that of coaccused, Bachu Yadav or co-accused, Krishna Kumar Saha who have been granted bail. Petitioner is the main accused and Bachhu Yadav was his henchman as the per the prosecution case. Accused, Krishna Kumar Saha was not named in the earlier two prosecution complaints and his name came up in the 3rd supplementary prosecution complaint submitted by the ED. Petitioner being the political representative of the then Chief Minister enjoys political and administrative connection. Matter involves crime proceed being generated by large scale illegal mining activity being carried out, and the Petitioner appears to be the king pin. There are prima facie materials to suggest his pivotal role in laundering of the crime proceed generated in illegal mining activity. Trial is at its nascent stage with charge being framed on 03.03.2023 and out of 42 only 10 witnesses having been examined. Petitioner’s health condition is monitored by the Jail doctors and was referred to and treated in higher centre at Delhi.
There are no change of circumstance to enlarge the petitioner on regular bail and accordingly, the same is again rejected.
-
2024 (2) TMI 720 - MADRAS HIGH COURT
Money Laundering - proceeds of crime - Constitutional Validity of Sections 6 (2), 6 (3)(a)(ii) and 6 (5)(b) of the Prevention of Money Laundering Act, 2002 - violation of Article 14 of the Constitution of India - HPZ token, an application based token promised users, of large gains against investment by investing in mining machines for Bitcoin and other crypto currencies - application stopped working and the investors were not allowed to withdraw the money.
Whether the composition of Adjudicating Authority is bad in law, in as much as it is not manned by a Judicial Officer/person eligible to be appointed as Judicial Officer? - HELD THAT:- Originally Section 6 (1) of the Act envisaged more than one Adjudicatory Authority to exercise jurisdiction, powers and authority conferred under this Act. The said provision has been amended to make the Adjudicating Authority as a single entity and the current provision is extracted in paragraph No.7, which establishes now a single Adjudicating Authority for the entire country.
Any law providing for the constitution of any authority would be legal if only it is manned by Judges/Judicial Officers or persons who were or eligible to be appointed as Judicial Officers (i) if it is a Judicial Tribunal created under Article 323A or 323B of the Constitution of India; (ii) if it transfers any adjudicatory functions hitherto exercises by the Courts in India; (iii) if it adjudicates the rights of parties has the trappings of a Court/Tribunal - In the instant case, the Adjudicating Authority is constituted under Section 6 of the PMLA. Admittedly, the said authority is not a Tribunal, constituted under Article 323-A or 323-B of the Constitution of India. It cannot also be said that any power which was being hitherto exercised by the Courts are transferred to the authority. The submission made on behalf of the petitioner is that since a complaint is filed and the authority hears the aggrieved person whose properties are attached, decides the lis and as such discharges judicial function.
It can be seen that the function of the Adjudicatory Authority is that of the original authority exercising the administrative function under the Act, that is, formation of an opinion as to ‘reason to believe’ and making the orders absolute after satisfying as to the correctness of its opinion after hearing the parties. It can be seen that the Adjudicating Authority itself is in place as a check and balance so that the power is not exercised solely by the investigating officer - It is trite that even in an administrative actions, principles of natural justice are to be followed. The Administrative Authority conducts a statutory hearing and in that process, it only deals with the ‘administrative case’. The enquiry is limited to confirmation of prima facie opinion / reason to believe. The same does not manifest into a lis.
In the scheme of PMLA, it transforms the issue into a ‘lis’ only from the stage of appeal to the Appellate Tribunal, thus, the Adjudicating Authority remains the Original Authority which makes the decision. Accordingly, the question answered that constitution of Adjudicating Authority as such by Section 6 is not illegal for want of Judicial Officers/persons qualified to be appointed as Judicial Officers or who were Judicial Officers.
When the Adjudicating Authority is considered to be a single entity / institution, whether the power conferred on the Chairman to constitute single / two member Benches which an be even without a legal Member is illegal? - HELD THAT:- The provisions of a statute have to be read harmoniously. A careful reading of Section 6, would make it clear that the statute creates one Adjudicating Authority with a Chairperson and two members. All the three of them have to be from the three different fields of expertise. The provision only envisages that in a given case, that the expertise of the persons in these fields, namely, law, administration and finance/accountancy would be relevant in forming an opinion. The Chairperson is given the discretion as to whether in a given case, the authority would make its decision with a full quorum or in Benches including single member Bench would decide the matter. Such discretion does not make the provisions incongruous or self contradictory.
Since the petitioner has ample opportunity to contest before the Adjudicating Authority and even if the ad-interim order of attachment is made, a right of appeal is provided to a Appellate Tribunal and ultimately all contentions that the properties or materials are not the proceeds of the crime are not involved in money-laundering etc., has to be established and finally determined only by the Special Court and when such remedy is wide open to the Writ Petitioner herein, we do not find any reason to grant any other relief to the petitioner. Accordingly the question is answered that merely because there is power to the Chairman to constitute Single Member Bench, the same will not render the provision unconstitutional.
Thus, finding no merits, the Writ Petition stands dismissed.
-
2024 (2) TMI 674 - SC ORDER
Seeking grant of bail - money laundering - offence punishable under Section 3 of the Prevention of Money-laundering Act, 2002 - HELD THAT:- The appellant is entitled to be enlarged on bail in accordance with Section 45(1)(ii) of the PMLA on appropriate terms and conditions, till the disposal of the complaint case filed by the first respondent/Directorate of Enforcement under the PMLA. In view of the fair stand taken by the learned ASG, the detailed reasons not recorded.
Appeal allowed.
-
2024 (2) TMI 673 - SC ORDER
Violation of principles of natural justice - order was passed without giving opportunity to the petitioner – Enforcement Directorate to file a reply - on seeking of bail, high court held that the petitioner qualifies the triple test under Section 45 of the Act and, therefore, the present application is allowed - HELD THAT:- Though there are some reservations with the impugned order, as it appears that the order was passed without giving opportunity to the petitioner – Enforcement Directorate to file a reply, the impugned order need not be interfered with.
Hence, the special leave petitions are dismissed.
-
2024 (2) TMI 672 - SC ORDER
Illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody - it was held by the High Court that the learned ASJ-04 has rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of learned ASJ-04 - HELD THAT:- There are no reason to interfere with the impugned order - SLP dismissed.
-
2024 (2) TMI 620 - SC ORDER
Maintainability of petition - Seeking cancellation of bail which is granted by the High Court - High Court in [2021 (12) TMI 78 - KARNATAKA HIGH COURT] earlier held that The petitioner is not required to be detained in custody for any other purpose except to ensure his presence before the Trial Court and to see that he will not commit such offence while on bail. Under such circumstances, his further detention in custody would amount to infringement of his valuable right to life and personal liberty. Therefore, the petitioner is entitled to be enlarged on bail.
HELD THAT:- Since the petitioner seeks cancellation of bail which is granted on 28th October, 2021 by the High Court and there is no allegation against the respondent that he is misused the liberty after granting the bail, we are not inclined to entertain the present petition.
The special leave petition is, accordingly, dismissed.
-
2024 (2) TMI 507 - DELHI HIGH COURT
Provisional Attachment Order - Money Laundering - proceeds of crime - Petitioner being Housewife - company had prepared 17 fake bills of entry and presented the same before the ICICI Bank for making foreign outward remittances - HELD THAT:- Section 5 of the PMLA postulates that where the Director or any other officer not below the rank of Deputy Director authorised by the Director, on the basis of material on possession has reason to believe, which has to be recorded in writing, that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings, he may, by order in writing, provisionally attach such property for a period not exceeding 180 days from the date of the order. The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.
It is well settled that where any Statute provides a procedure to deal with the issues which arises under the Statute, the High Court while exercising its jurisdiction under Article 226 of the Constitution of India ordinarily must not interfere with the scheme unless there is a patent lack of jurisdiction.
The present case is not a case of patent lack of jurisdiction. The Adjudicating Authority has the power to look into the facts of the case of the Petitioner before coming to a conclusion as to whether the properties in question are proceeds of crime or not. It has been contended by the Petitioner that one accused has been discharged and proceedings against one accused has been abated because of his death. It is pertinent to mention that apart from individuals, even companies have been made accused. Merely because proceedings have been dropped against some individuals does not mean that the proceedings against the Petitioner should or will be dropped. The offences under the PMLA Act are distinct from offences under the IPC. The companies can still be convicted for the predicate offence and the Petitioner can be prosecuted under the PMLA Act.
This Court is not inclined to interfere under Article 226 of the Constitution of India - the writ petition is dismissed.
-
2024 (2) TMI 441 - DELHI HIGH COURT
Seeking grant of regular bail - Money Laundering - proceeds of crime - paper/bogus sale and purchase for projecting paper/bogus revenue and paper/bogus profit of Bankey Behari Group of Companies - HELD THAT:- Having perused the prosecution complaint filed in the present case and statements of applicant recorded under Section 50 of PMLA as well as other material on record, it appears prima facie that the applicant herein, through his companies namely M/s Jindal Agro International, M/s Fagir Chand Dalip Kumar and M/s Jindal Green Crop International Pvt. Ltd., had indulged in paper/bogus sales and purchase of goods, even though there was no actual movement of goods. As per prosecution complaint, the applicant was asked during his examination to provide transportation bills, kanta parchi or any other supporting documents in order to prove the movement of goods from his entity to Bankey Behari Group of Companies or vice -versa. However, he had failed to provide any documents to prove his transactions with Bankey Behari Group of companies as genuine. Further, he had accepted in his statement that he had shown paper purchase and paper sales with Bankey Behari Group of Companies.
It is prima facie reflected from the records that the applicant herein, through his entities, had sold goods of about Rs. 314.57 crore and purchased goods of Rs. 200.83 crore, between the period 2013- 14 to 2016-17. However, on account of such false sale and purchase, the applicant had settled these transactions by passing journal voucher entries to the tune of Rs. 201.32 crore between the period 2013-14 to 2016-17, and a sum of Rs. 113.25 crore had been diverted to the bank accounts of the applicant.
Though the learned Senior Counsel for the applicant took this Court through the entries and other documents so as to point out as to how the same will not lead to conclusion of money laundering, however, while dealing with the present bail application, this Court is of the opinion that it cannot go through the entire list of entries of accounts for the purpose of appreciating their genuineness or authenticity. The cognizance of prosecution complaint has already been taken by the learned Trial Court vide order dated 24.02.2023.
This Court is of the opinion that twin conditions under Section 45 of PMLA are not satisfied since the material on record at this stage points out that the applicant herein was involved in the process of acquisition, possession, concealment of proceeds of crime obtained by way of cheating and forgery and projecting the same as untainted, thereby committing an offence of money-laundering under Section 3 of PMLA.
This Court is not inclined to grant bail to the present accused/applicant, at this stage - the present application stands dismissed.
-
2024 (2) TMI 260 - SC ORDER
Seeking grant of bail - Money Laundering - huge quantity of gold has been recovered from the petitioner - Section 45 of the PMLA - HELD THAT:- In an appeal arising out of predicate offences the petitioner was granted bail by the High Court on 20.07.2022. Indisputably, the said order has not been challenged. In the present offence also, the accused Sukhpal Singh Khaira has already been granted bail. It is also considered Section 45 of the PMLA and find that in the facts and circumstances of the present case the rigor of the said section are duly satisfied more particularly looking to the custody period and parity of the petitioner’s case with that of Sukhpal Singh Khaira.
The petitioner is directed to be released on bail to the satisfaction of the Trial Court. The conditions of granting bail would be same as imposed by the High Court in the order dated 27.01.2022 passed in CRM-M No.51885/2021 in the case of Sukhpal Singh Khaira - SLP disposed off.
-
2024 (2) TMI 259 - SC ORDER
Maintainability of SLP - money laundering - predicate offence - The High Court has allowed the petition of the respondent and quashed the ground that, "If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him."
HELD THAT:- The Special Leave Petition filed by the ED is dismissed as not pressed.
-
2024 (2) TMI 201 - SC ORDER
Maintainability of SLP - Action against the Chartered Accountant under PMLA for issuing bogus CA certificates - High Court had granted the of Bail - the respondent is regularly attending the Court - HELD THAT:- Taking into consideration this aspect of the matter and considering the fact that the petitioner is a Chartered Accountant and further that the impugned order has been passed two years three months before, we are not inclined to entertain the present petition.
The special leave petition is, accordingly, dismissed.
-
2024 (2) TMI 141 - DELHI HIGH COURT
Money Laundering - proceeds of crime - attachments of the property - meaning to be prescribed to the words ‘the proceedings relating to any offence under this Act before a Court’ in Section 8(3)(a) of PMLA - HELD THAT:- The retention of the documents and properties has been allowed for the purposes of investigation/adjudication. The same would, therefore, extend for a period of 365 days in terms of Section 8(3)(a) of the Act unless a proceeding relating to the offence under the Act has been filed prior thereto. As noted hereinabove, the proceeding relating to any offence under this Act has to mean proceeding filed before the Special Court in relation to the property or the record so attached, seized or frozen.
The interpretation to Section 8(3)(a) of the Act as propounded by the learned counsel for the respondent would, in fact, make the said provision confiscatory and violative of Article 14 of the Constitution of India inasmuch as it would allow the seizure to continue endlessly even though the same does not culminate into any “proceedings relating to any offence under the Act before a court” within the period of 365 days as prescribed by that very provision.
Explanation (ii) to Section 44 of the Act states that the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted “to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence” for which complaint has already been filed, whether named in the original complaint or not. From the said provision also, it is apparent that the investigation may lead to filing of a subsequent complaint to bring on record further evidence in form of seized documents and records, either against the accused named in the original complaint or subsequent thereto - it is held that the period of 365 from the passing of the order dated 10.02.2021 by the Adjudicating Authority having been passed, the documents/digital device/property seized from the petitioner in the search and seizure conducted on 19th and 20th August, 2020 from the premises of the petitioner are liable to be returned.
Therefore, the natural consequence of the investigation for a period beyond three hundred and sixty five days not resulting in any proceedings relating to any offence under the Act, in terms of Section 8(3) of the Act, is that such seizure lapses and the property so seized must be returned to the person from whom it was so seized.
The respondents are directed to return the documents, digital devices, property, and other material seized from the petitioner pursuant to the search and seizure operation conducted on 19th and 20th August, 2020, forthwith to the petitioner, subject to any order to the contrary passed by any competent Court - The petition is allowed.
........
|
