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Money Laundering - Case Laws
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- 2021 (7) TMI 1258 - DELHI HIGH COURT
Seeking grant of Bail - procedure under Section 19 PMLA was followed or not - Enforcement Directorate can be complainant and the Investigating Officer at the same time or not - effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra virus. Non-compliance under Section 19 of the PMLA - HELD THAT:- Admittedly, Bimal Jain was arrested in execution of the NBW by the learned Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA. The very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused No.2, prima facie show there were reasons to believe the person was guilty of offence punishable under Section ....... + More
- 2021 (7) TMI 1256 - KARNATAKA HIGH COURT
Money Laundering - Proceeds of crime - scheduled offences - cheating more than 13,000 investors who are the members of the Society - mis-used of funds of the public and re-investment of the money - diversion of deposits from the Financial Institutions to other businesses - Section 420 of IPC - HELD THAT:- The ED produced the documents and also the petitioner counsel has produced an Observation Report, which reveals that the petitioner is one of the Directors; one Harish was the President; Siddegowda was the Vice President and there were other 13 Directors. All other Directors and President were not arrested by the ED except this petitioner. The observation report reveals that the total investment was ₹ 650,41,68,190/-. The reserved amount is ₹ 12,93,42,844/-; the share investment is ₹ 24,74,89,000/-; the loan obtained fo....... + More
- 2021 (7) TMI 1065 - CHHATTISGARH HIGH COURT
Provisional attachment of properties - inherited property - property acquired prior to commission of scheduled offence - HELD THAT:- The properties on which the petitioner claims ownership have been attached and the petitioner has been served with a notice dated 14.07.2021 (Annexure P-1 Colly), pursuant to the order of provisional attachment confirmed by the adjudicating authority on 23.06.2021. Prima facie, the documents which are placed on record would show that the nucleus of the property is from inheritance and gift through the family members prior to availing the loan. The non payment and divertion of fund of loan is now subject issue of scheduled offence. The judgment relied on by the petitioner of SEEMA GARG, SAIYRAH @ DEEPIKA GARG, SANGEETA GARG VERSUS THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT (PREVENTION OF MONEY LAUNDERING....... + More
- 2021 (7) TMI 972 - SC ORDER
Seeking grant of Bail - illegal transfers of valuable foreign exchange - allegation of transmission of more than ₹ 518 Crores to the alleged exporters from Hong Kong - HELD THAT:- Without going into the question whether the rigor of Section 45 of the Act would still apply as a result of the amendment, the appellant is entitled to the benefit of bail principally for the reasons: a. The length of custody undergone by the appellant as against the maximum sentence that could be visited upon the appellant under the offences in question. b. The fact that the investigation in the matter is complete and draft charges have been circulated. c. All other three co-accused have been released on bail. Subject to the appellant furnishing cash security in the sum of ₹ 25,00,000/- with two like sureties to the satisfaction of the Trial Court, the appellant shall be released on bail, subject to other conditions as the Trial Court may deem appropriate to impose - appeal allowed.
- 2021 (7) TMI 963 - GUAJRAT HIGH COURT
Protection of rights of the Union of India - attachment of property - HELD THAT:- In view of the matter being remanded to the Adjudicating Authority, who is still seized of the matter, the Undertaking given by the parties in the connected Appeals are directed to maintain the Status-quo about the property shall continue till the Adjudicating Authority decides the matter again in pursuance of the said remand directions in the order dated 13.12.2017 passed by the learned Tribunal. Appeal disposed off.
- 2021 (7) TMI 961 - JAMMU AND KASHMIR HIGH COURT
Validity of notice of eviction - direction to vacate the property mentioned in the notice within 10 days of receipt of the said notice - HELD THAT:- Mr Tahir Majid Shamsi, the learned Assistant Solicitor General of India (ASGI), appearing on behalf of the Respondents, when asked, seeks some time to get instructions in the matter qua availability of Appellate Tribunal. That apart, the learned Assistant Solicitor General of India submitted that when the Petitioner, admittedly, has already availed the remedy of appeal as provided under the Statute, therefore, pending such appeal, there is no scope for the Petitioner to approach this Court through the medium of the instant Petition. Before proceeding further in the matter, it is thought just and proper to grant one opportunity to Mr Shamsi for reporting instructions in the matter. Accordingly....... + More
- 2021 (7) TMI 463 - PATNA HIGH COURT
Money Laundering - proceeds of crime - scheduled offences - attachment of tainted property - respondents were of the view that since no tainted property of respondent No.5 was available for attachment the property which was acquired by untainted money could also be attached - HELD THAT:- A conjoint reading of the aforesaid provisions of SARFAESI Act and Bankruptcy Law makes it clear that the secured creditors have preferential right of realization of their dues against all other debts and government dues. Provisional attachment of the “proceeds of crime” under Section 5 of the PML Act is not an exercise for recovery of government dues of any nature; rather it is an exercise to seize /confiscate the property acquired by unlawful means of money laundering. Therefore, both the laws SARFAESI and Bankruptcy Act on the one hand; and....... + More
- 2021 (7) TMI 305 - GUJARAT HIGH COURT
Money Laundering - seeking release of provisionally attached of movable properties - waterfall mechanism - overriding provisions of IBC - NCLT had already passed an order appointing an Official Liquidator for the sale of the assets of the Company In Liquidation - Adjudicating Authority under the PMLA ought not to have passed the Provisional Attachment Order - HELD THAT:- On a plain reading of the provisions of the IB Code, it is clear that statutory dues, which come within the meaning of ‘operational debt’, could be claimed against the Corporate Debtor only under the provisions of the IB Code and not under any other law. All such claims have to be lodged with the Official Liquidator and are payable under the waterfall mechanism provided in Section 53 of IB Code - the dues relatable to the vehicles belonging to the Corporate De....... + More
- 2021 (6) TMI 1048 - JAMMU & KASHMIR HIGH COURT
Validity of attachment of property - whether it is permissible for the Assistant Director, Directorate of Enforcement, acting under the provisions of Prevention of Money Laundering Act, 2002, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-à-vis certain properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment order already made by and confirmed by the competent authority? HELD THAT:- In the instant case, except issuing the impugned communication dated 18.03.2020 to the concerned Tehsildar directing him not to issue revenue extracts of even those properties earlier belonging to Zahoor Ahmad Shah Watali and his family members, that too, by an officer of the rank of Assistant Director, not designated in sub-section (1) of Sectio....... + More
- 2021 (6) TMI 1044 - MADHYA PRADESH HIGH COURT
Attachment of property involved in money laundering - proceeds of crime - interpretation of statute - expression “reason to believe” which is different from “reason to suspect” - HELD THAT:- Section 5(5) of the PML Act, 2002 makes it clear that order of attachment of competent authority shall be provisional in nature and said authority is under a statutory obligation to file a complaint before the adjudicating authority within 30 days from the date of attachment - Section 8(1) of the PML Act, 2002 makes it obligatory for adjudicating authority to examine the complaint and if he has “reason to believe” that any person has committed an offence, it may serve a notice to said person calling upon him to indicate the sources of income, earning or assets. It may also issue show-cause notice to such person. Aft....... + More
- 2021 (6) TMI 1039 - ANDHRA PRADESH HIGH COURT
Seeking pre-arrest bail - scheduled offences - first contention of respondent is that the offences under PML Act cause a serious threat not only to the financial system of the country but also integrity and sovereignty and for the offences under the PML Act, pre-arrest bail should not be granted - HELD THAT:- There cannot be any straitjacket formula for exercising jurisdiction under Section 438 Cr.P.C. and it all depends on the facts and circumstances of the case and where the fundamental right to personal liberty of accused is involved Courts cannot exercise jurisdiction mechanically - In the case on hand admittedly summons were issued to the petitioner in the year 2017 directing him to appear before the officials whereas the case of the petitioner is that he received summons in the year 2020 only and he mentioned reasons why he was not ....... + More
- 2021 (6) TMI 990 - MADRAS HIGH COURT
Money Laundering - illegal diversion of funds - schedule offence - supply of Gold Bullion or there was only paper transaction - Section 33 of the Sale of Goods Act - HELD THAT:- In the case at hand, the picture is totally different. The criminal Court can independently come to a conclusion that the 22 fixed deposits were proceeds of crime and they were projected as untainted money from MJPL (A3) and Suresh Khatri (A4). The other distinguishing feature in this case is that, the total proceeds of crime is ₹ 318.75crores, out of which, the 22 fixed deposits represent only ₹ 143crores and for the balance amount which has gone into the kitty of MJPL (A3), they can be prosecuted as abettors of the offence of money laundering committed by KGPL (A1). Lastly, the order of the Adjudicating Authority in this case, has not attained finali....... + More
- 2021 (6) TMI 804 - SUPREME COURT
Bail application - Money Laundering - proceeds of crime - possession of moveable and immoveable assets - misuse of official position - Section 13(2) read with Section 13(1)(e) of the P.C. Act - HELD THAT:- Continuing with the detention of the appellant to face the trial in the present case would not serve the cause of justice. Even if the appellant had earlier not appeared, the fact of the matter remains that he had faced trial in the P.C. Act matter and his appeal remains pending. The High Court, in the impugned order dated 25.11.2020, declined the bail at the given stage but directed the Trial Court to proceed with the trial on day-to-day basis and also gave liberty to the appellant to apply for bail afresh, if trial did not conclude within six months from the date of production of copy of its order. The fact remains that this appeal is....... + More
- 2021 (6) TMI 803 - MADRAS HIGH COURT
Scope of review petition - error apparent on the face of the record or not - validity and/or legality of the registration of Enforcement Case Information Report (ECIR) in proceedings - effective alternative remedy under Section 8 of The Prevention of Money Laundering Act - territorial jurisdiction - HELD THAT:- It has to be observed that the scope of the Review petition is very limited. The learned Additional Solicitor General appearing for the respondent-Enforcement Directorate submitted that under the guise of Review, the review applicants are only trying to re-argue the case. Therefore, we are not traversing into the submissions made by the parties. For the purpose of reviewing the matter, the matter has to fall within Order 47 of CPC. In the guise of seeking review, it cannot be reargued. This Court has dismissed the writ petition on ....... + More
- 2021 (6) TMI 801 - ORISSA HIGH COURT
Seeking pre-arrest Bail - Money Laundering - cheating gullible depositors by attracting them towards different schemes of money investment with false promise of providing high returns - creation and growth of ponzi firms - HELD THAT:- Existence of a prima-facie case regarding nexus of the petitioner with the Saradha Group cannot be denied. Grant of bail to him by the Supreme Court of India in another case also cannot afford him a ground to seek pre-arrest bail in the present case, inasmuch as he was granted bail in the said case solely on health ground while he was admitted in Apollo Hospital, Bhubaneswar. Admittedly, he has since been discharged from the said hospital. There is no reproach on contention of the counsel for the petitioner with regard to invoking the jurisdiction under Section 438 of Cr.P.C. in respect of the person accused....... + More
- 2021 (6) TMI 631 - MADRAS HIGH COURT
Money Laundering - scheduled offences - will the judgments of the Supreme Court rendered under the NI Act can be simply applied to the PML Act? - scope of Section 141 of the NI Act and Section 70 of the PML Act - HELD THAT:- The NI Act offences are not economic offences, unlike offences under the PML Act. A prosecution under Section 138 of the NI Act stems from a civil dispute between the drawer and the drawee of a cheque. It gets a criminal colour, only when the drawer fails to pay the drawee within the stipulated period. Whereas, offences under the PML Act are economic offences and can by no stretch of imagination be equated to a prosecution between a drawer and a drawee under the NI Act. It is well settled that statutes not dealing with the same subject matter cannot be said to be in pari materia. Constitution Bench of the Supreme Cour....... + More
- 2021 (6) TMI 583 - BOMBAY HIGH COURT
Petition pertains to the stage prior to completion of investigation and filing of complaint by Respondent - Summons issued pertaining to the same ECIR, in respect of which present petition is filed - HELD THAT:- An arguable issue arises in the present case, which needs consideration. There is no dispute about the fact that petitioner nos. 1 to 3 are already enjoying an order of interim protection given by the Supreme Court in the pending writ petition. It is only the petitioner no. 4 who is presently apprehending coercive action in pursuance to summons issued by respondent no. 2. Further investigation undertaken by respondent no. 2 can proceed, subject to the result of the present writ petition - issue notice to respondents, returnable on 30.04.2021.
- 2021 (6) TMI 558 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of Regular Bail - Money Laundering - Scheduled Offences - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - requirment for fulfilment of two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- The declaration by the Supreme Court in Nikesh Tarachand Shah's case [2017 (11) TMI 1336 - SUPREME COURT] would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under ....... + More
- 2021 (6) TMI 428 - TELANGANA HIGH COURT
Money Laundering - scheduled offences - Material present to constitute offence - amendment of PML Act in the year 2009 - applicability of schedule offences’ is concerned to an act committed prior to amendment - HELD THAT:- Part B of the Schedule provides that in Paragraph one, besides several offences under the Indian Penal Code, Sections 120-B, 419 and 420 are included vide Section 13 of the Prevention of Money Laundering (amendment) Act, 2009 (since repealed by Repealing and Amending Act, 2019 (31 of 2019) - It is apt to note that the Complaint of the ED in S.C.No.1 of 2019 impugned and is challenged under Section 482 of the Cr.P.C., simply adopts the Charge Sheet contents/accusations against the Accused No. 13 therein who is the Petitioner/Accused No. 12 in this Criminal Petition. There was a Charge Sheet and Supplementary Charge....... + More
- 2021 (6) TMI 427 - PUNJAB & HARYANA HIGH COURT
Grant of anticipatory bail - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - Money Laundering - scheduled offence - HELD THAT:- By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” as occurring in Section 45(1) before the judgment of the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] were substituted with the words “under this Act”. As per learned ASG, after such amendment, the defect on the basis of which the....... + More
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