2023 (3) TMI 745 - HC - Money Laundering

Grant of Anticipatory Bail - Money Laundering - scheduled offences - proceeds of crime - discharge of burden of prove - Hawala transactions - HELD THAT - While rejecting the discharge application of the applicant learned trial court has specifically observed that on the basis of prima facie investigation made by ED it appears that the applicant is prima facie involved in Hawala ie. illegal transfer of money from nation to foreign countries. Prima facie there is sufficient material which warrants this court to arrive at prima facie inferences that applicant is involved in such serious case wherein discretion is not required to be exercised. The learned trial court has further observed that as per Section 24 burden shifted upon the accused to show that proceeds of crime are untainted property and the applicant has prima facie miserably failed to discharge his burden under Section 24. It was further observed that there is serious allegations against the applicant so far as Hawala chapter is concerned wherein the Hawala entries via Dubai (UAE) crores of rupees have been credited in the accounts of wife of the applicant as well as his children in USA and the wife of the applicant was made partner in a firm to the extent of 30% by investment of only Rs. 1 lakh and getting crores of rupees from India as well as UAE. It appears from the record that at this stage on the basis of the charge sheet and documents produced with it court should have to take decision. The defence taken and evidences produced by the accused should not be considered at this stage. At the present stage it is to see that whether prima facie offence is there against the accused or not and evaluation of evidence produced by the accused and evaluation of the evidence should not be considered at this stage. Considering the impugned order does not suffer from any illegality irregularity or impropriety and present revision is liable to be dismissed and accordingly stands rejected.

Summary

Issues Involved:
1. Quashing and setting aside the judgment dated 08.01.2018.
2. Discharge of the applicant under Section 227 of the Code of Criminal Procedure from PMLA Case No. 02 of 2016.
3. Evaluation of prima facie evidence and the burden of proof under Section 24 of the PMLA.

Summary:

Issue 1: Quashing and Setting Aside the Judgment Dated 08.01.2018
The applicant requested to quash and set aside the judgment and order dated 08.01.2018 passed below Ex. 13 in PMLA Case No. 02 of 2016 by the learned Sessions Judge and Designated Judge (PMLA) District Court Ahmedabad (Rural). The judgment arose out of ECIR/-1/AZO/2012 registered with the Enforcement Directorate, Ahmedabad. The applicant sought discharge under Section 227 of the Code of Criminal Procedure from the pending PMLA case.

Issue 2: Discharge of the Applicant under Section 227 of the Code of Criminal Procedure
The applicant was arrested on 31.07.2016 in connection with ECIR /01/AZO/2012, and after investigation, a complaint was filed for offences under sections 3 and 4 of the Prevention of Money Laundering Act, 2002. The applicant argued that the scheduled offences were committed prior to the act coming into force and that there was no evidence of money laundering or proceeds of crime. The trial court rejected the discharge application on 08.01.2018, prompting the applicant to approach the High Court.

Issue 3: Evaluation of Prima Facie Evidence and the Burden of Proof under Section 24 of the PMLA
The court noted that at the stage of framing charges, the material should be evaluated to determine if there is a ground for presuming that the accused committed the offence. The court referred to several Supreme Court judgments emphasizing that the judge should not conduct a mini-trial but should consider if there is sufficient material for the accused to stand trial. The trial court had found prima facie evidence of the applicant's involvement in illegal money transfers (Hawala) and credited amounts in the accounts of the applicant's family members in the USA. The burden of proof under Section 24 of the PMLA shifted to the accused to show that the proceeds of crime were untainted, which the applicant failed to do.

The High Court concluded that the trial court's order did not suffer from any illegality or impropriety, and the revision application was dismissed. The trial court was directed to conclude the trial within six months, preferably on a day-to-day basis. The applicant's request to extend interim relief was also rejected.