|
Advanced Search Options
Money Laundering - Case Laws
Showing 61 to 80 of 196 Records
-
2021 (8) TMI 665 - TELANGANA HIGH COURT
Money Laundering - scheduled offences - hearing on charges and trial proceedings in subject Sessions Cases registered for the offences under PML Act before commencement of hearing on charges and trial proceedings in the subject Calendar Cases registered for the predicate/scheduled offences - conduct of trial proceedings of predicate/scheduled offences and offences under PML Act simultaneously or not - HELD THAT:- A bare reading of Sections 2(1)(u), 3 and 44(1)(d) of PML Act along with explanations thereof makes it clear that the offence of money laundering is a stand-alone offence and the trial proceedings are completely different to that of the scheduled offence. Trial of money laundering offence is independent trial and it is governed by its own provisions, it will not meddle with the trial of scheduled offence.
Similar question came up for consideration before the Hon’ble High Court of Madras in Smt.Soodamani Dorai Vs. Joint Directorate of Enforcement’s case [2018 (10) TMI 330 - MADRAS HIGH COURT] relied by the respondents, wherein, it was held that adjudication, prosecution and trial under PML Act is independent of scheduled offence.
Further, a reading of the provisions of PML Act makes it clear that though the commission of scheduled offence is a fundamental pre-requisite for initiating proceedings under the PML Act, the offence of money laundering is independent of the scheduled offences. The scheme of the PML Act indicates that it deals only with laundering of money acquired by committing the scheduled offence. In other words, the PML Act deals only with the process or activity of proceeds of crime, including its concealment, possession, acquisition or use and it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof - Once an offence under the PML Act is registered on the basis of a predicate/scheduled offence, then it stands on its own and it does not require support of predicate/scheduled offence. As per the scheme of the PML Act, it does not depend upon the ultimate result of the predicate/scheduled offence. Even if the predicate/scheduled offence is compromised, compounded, quashed or the accused therein is/are acquitted, the investigation under PML Act does not get affected, ceased or wiped out. It may continue till the Enforcement Directorate concludes investigation and either files complaint or closure report before the Special Court. PML Act is a special statute enacted with a specific object to track and investigate cases of money-laundering.
Therefore, if the contention of the learned senior counsel for the petitioners that when the foundation (predicate/scheduled offence) is removed, the structure/frame work thereon (offence under PML Act) falls is accepted, it will have frustrating effect on the intention of Legislature in enacting the PML Act, so also on its enforcement - Further, the burden of proof in the predicate/Scheduled offences and the offence under PML Act is different.
Unless proceeds of crime are established by putting the accused on trial, any prosecution of the person under PML Act would be premature and would be futile exercise. Since the offence under PML Act is a stand-alone offence and not dependent on predicate/scheduled offences, it can be proceeded with independently without awaiting the outcome of result of scheduled offences or commencement of trial in the predicate/scheduled offences. Further, there is no requirement under law to conduct trials of both category of cases simultaneously. Therefore, the contention that Money Laundering offence starts at the end of predicate offence and commencement of trial in offence under PML Act shall not precede trial of predicate/scheduled offence, is unsustainable.
It is well established that though the powers of this Court under Section 482 Cr.P.C., are very wide, those powers are required to be exercised sparingly and with abundant caution. The said inherent power can be exercised only when there is abuse of process of Court or to secure ends of justice - there is nothing to say that the order impugned suffers from illegality or impropriety or the Court below had acted beyond its jurisdiction.
Criminal Revision Case is dismissed.
-
2021 (8) TMI 404 - DELHI HIGH COURT
Cheating - proceeds of crime - accused induced gullible victims to invest in a bike and receive monthly pay back, including principle and rental income on that bike for one year under the scheme - accused absconded with the money - accused was not registered as a NBFC with the RBI and hence it was not authorized to initiate any collective investment scheme - HELD THAT:- The purpose of enacting the PMLA was to prevent money laundering and to prevent confiscation of property derived from or involved in money-laundering. The purpose of investigation under the PMLA is to unearth the proceeds of crime and attach the same and to punish the offenders who are involved in committing the offence of money-laundering. Section 45 (1A) mandates that no Police Officer shall investigate into an offence under the PMLA unless specifically authorised by a general or special order issued by the Central Government. Just because an investigation for an offence under the PMLA has to be conducted by an officer, unless specifically authorized, it cannot be said that no investigation can be conducted for offences which are mentioned in the schedule of the PMLA by other investigating agencies and that they are precluded from investigating those offences. The offences are distinct and a person can be convicted and sentenced to punishment under the IPC as well as under the PMLA.
Since the offence under the IPC and the offence under the PMLA are distinct offences, investigations for offences under the IPC and for offences under Section 3 of the PMLA can be carried out by different agencies. Section 45(1A) of the PMLA does not exclude other agencies from conducting investigations into the offences mentioned in the schedule of the PMLA.
The prosecution for the offences under the IPC and other offences mentioned in the schedule of the PMLA, under which the petitioner is charged, are entirely different and mutually exclusive. It cannot be said that the rights of the petitioner under Article 20 (2) of the Constitution of India are infringed. The contention of the learned counsel for the petitioner that conducting two parallel investigations would infringe the rights of the petitioner under Article 20(2) of the Constitution of India is completely unfounded - Petition dismissed.
-
2021 (8) TMI 264 - DELHI HIGH COURT
Seeking grant of Bail - criminal conspiracy - cheating and fraud - fraudulent import of fertilizers and other materials for fertilizer production at inflated prices and claimed higher subsidy from Government of India causing loss of several crores of rupees - siphoning off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies - Flight risk - HELD THAT:- Even if the allegation was one of grave economic offence, it was not a rule that bail should be denied in every case.
Flight risk - HELD THAT:- It is the admitted case of the department that over the period of last 10 years the petitioner has gone abroad atleast 90 times for various purposes - The petitioner was even allowed to travel abroad by this Court twice subject to conditions despite the opening of LOC against him and the registration of the FIR by the CBI. Therefore, when such is the conduct of the petitioner, he cannot be said to be a flight risk. Moreover, nothing has been placed on record that the petitioner/accused is a flight risk nor much emphasis was laid on this during the argument.
Medical condition of petitioner - HELD THAT:- Petitioner is suffering from cancer since 2002 which is not denied by the department. The petitioner is under the treatment of one doctor namely Morton Coleman of U.S. and he visits the doctor for his follow up from time to time. It is on record that the petitioner was granted special permission to travel to America by the American Embassy aided by the Ministry of External Affairs and his sister was also allowed to travel with him due to his medical condition. Looking into the medical condition of the petitioner, this Court permitted the petitioner to travel to USA for his medical treatment subject to conditions, despite the registration of the FIR - No doubt, as argued by the Ld. ASG, the condition of the petitioner is not serious and do not require immediate attention and his present condition is manageable, but one also cannot lose sight of the fact that the petitioner is a known case of cancer and is suffering from various diseases for which he is taking medicines as submitted by Ld. Sr. counsel for the petitioner.
The petitioner is entitled to be released on bail on merits as well as on medical grounds - petitioner shall be released on bail on the terms and conditions imposed.
Application allowed.
-
2021 (8) TMI 134 - MADRAS HIGH COURT
Money Laundering - Bribe - proceeds of crime - seeking to quash the proceedings that has been launched by the Enforcement Directorate for the offence under Section 3 read with 4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- In this case, the proceeds of crime quantified by the Enforcement Directorate at ₹ 25,00,000/-, being the bribe amount that was received by Dr. S. Murugesan (A1) in his clinic on 07.01.2013, was seized by the CBI and therefore, there was no scope for Dr. R. Gunaseelan (A2) to project it as untainted money. Superadded, Dr. R. Gunaseelan (A2) is not a co-accused even in the prosecution that has been launched by the CBI in C.C.No.15/2014 against Dr. S. Murugesan (A1) and the representatives of Adhiparasakthi College.
The impugned complaint of the Enforcement Directorate shows that Dr.S.Murugesan (A1) had demanded ₹ 1 crore from Asan Memorial educational institution to give them permission for starting dental course. In connection with this allegation, the CBI registered a case in RC.MA1.2013. A.0004 dated 08.02.2013 and after completing the investigation, filed a final report in C.C.No.13/2014 in the IX Additional Special Court for CBI Cases against Dr. S. Murugesan (A1) and Dr. R. Gunaseelan (A2) for the offences under Sections 120-B read with Sections 7, 8, 12 and 13(2) read with 13(1)(d) of the PC Act.
The impugned complaint filed by the Enforcement Directorate is predicated on the bribe amount of ₹ 25,00,000/- relating to Adhiparasakthi College, which, cannot form the basis for prosecuting Dr. R. Gunaseelan (A2) - petition allowed.
-
2021 (8) TMI 85 - MADRAS HIGH COURT
Illegal quarrying - quarrying illegally in Government lands which were not allotted to appellant - scheduled offence or not - inadequate evidence/conclusion - case of petitioners is that when the report submitted by Mr. Sagayam, I.A.S. (who was appointed to conduct an enquiry into the allegations) itself has not been disclosed or made public and when the said report is also being contested by the licencees, the foundation for the present prosecution under the PML Act is weak - HELD THAT:- The issue decided by this Bench very recently in M. SURESH KHATRI AND M/S. MOHANLAL JEWELLERS PVT. LTD. VERSUS DIRECTORATE OF ENFORCEMENT DEPUTY DIRECTOR GOVERNMENT OF INDIA MINISTRY OF FINANCE [2021 (6) TMI 990 - MADRAS HIGH COURT] where it was held that The prosecution has to prove the offence, by adducing evidence and this opportunity has to be given to the prosecution in this case too.
Petition dismissed.
-
2021 (7) TMI 1452 - SC ORDER
Grant of bail - Money Laundering - scheduled offences - HELD THAT:- The petitioner may be enlarged on bail, especially in view of (i) his disability; (ii) the fact that he has been released on bail in connection with the FIR for the scheduled offences on 23.08.2019; and (iii) that he is under detention in connection with the complaint under the Prevention of Money Laundering Act from October, 2018. In other words, the petitioner has undergone more than 2½ years of imprisonment even in connection with the complaint under the PMLA.
Therefore, the special leave petitions are disposed of and the petitioner is directed to be enlarged on bail subject to the terms and conditions as may be imposed by the special Court.
-
2021 (7) TMI 1409 - CALCUTTA HIGH COURT
Money Laundering - Provisional attachment Order - proceeds of crime - case of appellant is that events in subject matter of the alleged offences for the properties-in-question are stated to be proceeds of crime, have occurred much after the date of acquisition of the said properties - typographical errors resulting to show suspicious transactions - connection of petitioners with the accused - HELD THAT:- This Court notes that in terms of Section 8 of the PMLA Act, the petitioners have been issued show cause notice on 8th June, 2021. The matter is pending adjudication before the Adjudicating Authority. The writ petition is premature - question of jurisdiction raised in respect of a quasi judicial proceeding by the writ petitioners, is first required to be addressed by the authority created under the statute to adjudicate the matter.
The writ petitioners also have a remedy of an appeal before a Tribunal against the order of the adjudicating authority - This Court, therefore, is of the view that it may be rather premature for the writ petitioner to approach the writ court against the provisional findings by the authority under the statute.
This Court directs the adjudicating authority under Section 8 to complete proceeding against the writ petitioners within the period specified under the statute. No unnecessary adjournment shall be granted by the adjudicating authority to any of the parties - Petition disposed off.
-
2021 (7) TMI 1332 - SUPREME COURT
Seeking grant of Bail - bail sought on medical grounds - HELD THAT:- Issue notice.
In the meanwhile, the bail granted to the petitioner by the High Court for two months from the date of release, shall continue till further orders.
-
2021 (7) TMI 1322 - DELHI HIGH COURT
Seeking release of attached bank account of petitioner - parties jointly submit that after the filing of the present petition, the bank account stands defreezed and, therefore, the grievance of the petitioner stands satisfied - HELD THAT:- The petition is disposed of as having been rendered infructuous.
-
2021 (7) TMI 1321 - DELHI HIGH COURT
Seeking release of provisionally attached Bank Accounts of petitioner - petitioners had submitted that the petitioners were ready and willing to secure the amount as presently available in these attached accounts - HELD THAT:- Once the stated amount is secured by way of an FDR, the banks will permit the petitioners to operate these accounts, in the normal course of business.
The petition is disposed off.
-
2021 (7) TMI 1294 - DELHI HIGH COURT
Provisional attachment of properties - proceedings in respect of the provisional attachment order are still pending before the Karnataka High Court - HELD THAT:- In view of the appointment of an Official Liquidator she is no longer representing the company, seeks to contend that the shareholders have a vital interest in the outcome of the present petition and therefore, ought to be heard. However, when queried as to why, in light of the admitted position that the issue raised in the present petition flows out of the initial order dated 27.02.2017, proceedings in regard whereof are pending before the Karnataka High Court; the petitioner, as also the applicant, ought not to approach the same court. She prays for time to obtain instructions.
At request, list on 04.08.2021.
-
2021 (7) TMI 1293 - KARNATAKA HIGH COURT
Seeking direction to Enforcement Directorate to release the interest and income accrued and receivable on the attached assets of the company - HELD THAT:- Shri Dhyan Chinnappa submitted that the background of the case before the Delhi High Court is, Devas had filed an application for release of seized amount and the same was rejected. The said order was challenged before the Delhi High Court. The Delhi High Court has stayed the proceedings before the adjudicating authority. Therefore, the said case has no bearing insofar as present writ petition is concerned. He is right in this submission.
In the circumstance, it would be appropriate to direct first respondent to release the interest and income accrued on the attached sum of Devas.
Petition allowed.
-
2021 (7) TMI 1273 - CALCUTTA HIGH COURT
Continuation of an adjudication pursuant to a provisional attachment order - sub-section (1) of Section 5 of the Prevention of Money Laundering Act, 2020 - HELD THAT:- This Court is of the view that the order of the Hon’ble Supreme Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER] has clearly extended the time for all pending proceedings both judicial and quasi-judicial by reason of the order dated 27th April, 2021. The first order was made on 6th May, 2020. The period of 180 days, therefore, did not expire and the time limit for adjudication of 180 days may be deemed to have extended.
This Court is not inclined to stay the proceeding before the adjudicating authority - Let affidavit-in-opposition be filed to the writ application within a period of four weeks from date. Reply, if any, be filed within one week thereafter.
-
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 PMLA as the complaint is filed only against a person who is presumed to be guilty. Admittedly, the learned Special Judge, PMLA took cognizance of the complaint filed by the Enforcement Directorate as he reasonably believed petitioner Bimal Jain, being guilty of offence of money laundering.
Whether the complainant and the Investigating Agency cannot be same? - HELD THAT:- Issue decided in the case of MUKESH SINGH VERSUS STATE (NARCOTIC BRANCH OF DELHI) [2020 (9) TMI 419 - SUPREME COURT] where it was held that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal.
Twin conditions of 45 of the PMLA - HELD THAT:- Admittedly the Hon’ble Supreme Court in Nikesh Tarachand Shah (supra) declared the Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out by the Hon’ble Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] were cured by the Legislature and an amendment to section 45(1) was made vide the Finance Act, 2018 (No.13 of 2018). Under the amendment Act, section 45(1) was revived and for the words “punishable for a term of imprisonment of more than three years under part A of the Schedule”, the words “under this Act” were substituted in section 45(1) of the PMLA.
Therefore, merely because the entire section is not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable. Therefore, once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision - there is a presumption in favour of constitutionality since the amended section 45(1) of the PMLA has not been struck down.
If Section 45(1) of the PMLA is ignored, whether the petitioners are entitled to bail per parameter of Section 439 Cr P C.? - HELD THAT:- The investigation conducted by the Directorate of Enforcement so far has revealed Naresh Jain along with his brother Bimal Jain and other accomplices hatched a criminal conspiracy to cause loss to the exchequer and banks by indulging in illegal foreign exchange transactions on the basis of forged/ fabricated documents. For the furtherance of conspiracy, documents like identity proof, birth and education certificate, voter ID, PAN Card and signatures were forged/fabricated to incorporate entities, operating bank accounts, facilitating bogus/over-invoiced/ under invoiced import and export transactions and rotation of the funds through web of shell companies to cause undue benefit to the parties involved and loss to the exchequer and banks. Naresh Jain also facilitated parking of funds abroad by Indian nationals through his international Hawala transaction structure created in India and in various other jurisdictions - During the investigation conducted so far, out of 450 shell companies, 603 bank accounts of 311 companies have been examined and it has been gathered that Naresh Jain and his accomplices including the Bimal Jain rotated funds approximately to the tune of ₹ 96,000 Crores for providing accommodation entries of approximately ₹ 18,679 Crores to 973 beneficiaries. Petitioner Bimal Jain was made a director in various companies in which proceeds of crime generated by Naresh Jain and his accomplices were projected as untainted properties and is in possession of proceeds of crime to the tune of ₹ 35,78,53,638/-.
Even the allegations are the petitioners have forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved - It is also alleged if enlarged on bail there is every likelihood the petitioners may flee to Dubai or elsewhere to avoid the process of law and they are flight risks.
Bail cannot be granted to both the petitioners - petition dismissed.
-
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 for an amount of ₹ 6,09,73,928/-. The investment is ₹ 6,35,12,658/-. The Property is 7,68,69,008 and the loan lent is ₹ 702,28,44,385/-. As per the report of the petitioner, the Society was running under profit, but not under loss. But the contention of the respondent is that the accused himself has borrowed huge loan without security and has reinvested in various businesses like Kanva Fashion, Kanva Developers, Kanva Health Care, Kanva Resorts and other businesses - Looking to the entire facts reveals that the petitioner was involved in reinvesting the money by borrowing it from the Society out of the deposits which is nothing but proceeds of the crime is nothing but Money Laundering which attracts the offence under the PML Act. On merits, absolutely there is no case for the petitioner.
Looking to the entire medical documents, it reveal that the petitioner is in danger due to various ailments and therefore, he require proper treatment in the good multi-Specialty Hospital at Bengaluru. It is not possible to provide proper treatment by the Jail Authorities which requires more expenses, which cannot be borne by the Government. The Government cannot spend tax payers money.
The Court will not grant bail to the accused where economic offences are involved and huge public money is involved. But only on the ground for the purpose of providing medical treatment this Court is required to consider medical ground but not on merits of the case. Therefore, by looking to the facts and circumstances of the case, in order to provide proper medical care and protection to the petitioner, if bail is granted to the petitioner, no prejudice would be caused to the prosecution case - the petitioner is required to be released on bail on medical ground.
Both the criminal petitions are allowed.
-
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 ACT) , GOVT. OF INDIA [2020 (3) TMI 460 - PUNJAB & HARYANA HIGH COURT] wherein also it has been laid down that the property acquired prior to commission of scheduled offence cannot be attached unless property obtained or acquired from scheduled offence is held or taken outside the country.
Therefore, prima facie, if the properties were held by the petitioner prior to the scheduled offence that cannot be subject of attachment by the authority. The another aspect is that Section 26 (3) of the Act, 2002 gives a right to file an appeal and 45 days time has been provided. The facts would suggest that the orders by the adjudicating authority were passed on 23.06.2021 which was received by the petitioner on 05.07.2021, therefore, the limitation to file the appeal still exists up to 19.08.2021 - if the limitation still exists but before that any enforcement order is executed to takeover the property, it would amount to defeat the right which is guaranteed under Section 26 (3) of the Act, 2002. Further as has been stated that the appellate tribunal is non-functional as on date, as such the petitioner cannot be left in lurch when the right has been given by the statute which requires to be appreciated.
It is directed that pursuant to the order dated 23.06.2021 notice dated 14.07.2021 in respect of the petitioner for taking over the possession of the aforesaid two properties shall not be given effect to till the next date of hearing - List it after four weeks.
-
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, let the matter come up for consideration on Wednesday, the 7th of July, 2021 in the ‘Daily Supplementary Cause List’ in order to enable Mr Shamsi to get instructions in the matter, as aforesaid.
-
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 PML Act on the other; operates in two different fields - the two statutes neither covers the same field nor overlaps against each other. Since SARFAESI Act only protects the interest of secured creditors against other debts and government dues.
Whether in the facts and circumstances of the case, the petitioner should be relegated to the cumbersome litigation before the referred statutory body? - HELD THAT:- It is well settled by a catena of judicial pronouncements that the jurisdiction of the High Court under Article 226 of the Constitution of India is broad, plenary, equitable and discretionary one. It is equally settled that the writ jurisdiction of the High Court cannot be completely excluded by statute. However, certain self-imposed limitations are there. To illustrate the High Court should not act as Court of Appeal or entertain disputed question of fact while exercising writ jurisdiction under Article 226. Ordinarily, the High Courts should refrain to exercise jurisdiction under Article 226 if alternative remedy is there to the petitioner.
In the case on hand what is noticeable that the statutory authority under Section 5 of the P.M.L.A., 2002 has not acted in accordance with the provisions of the enactment in question rather acted in defiance of the fundamental principles of judicial procedure and in total violation of the principles of natural justice.
What can be provisionally attached under Section 5(1) of the P.M.L. Act is a ‘proceeds of crime’ and to establish that the property attached is ‘proceeds of crime’, there must be material in possession of the authority to ventilate that the authority had “reason to believe”. In the case on hand, the authority appears to have passed the order contained in Annexure-3 in flagrant violation of the mandate of Section 5(1) of the P.M.L.A, 2002, as there was no material before the authority to come to the conclusion that the property-in-question was ‘proceeds of crime’ or such ‘proceeds of crime’ was likely to be concealed, transferred etc. - the property in question was not proceeds of crime as defined under the Prevention of Money-Laundering Act nor the impugned order reveals that there was a direct nexus between the property in question and the proceeds of crime. Therefore, evidently, there was no material before the authority concerned to have “reason to believe” that the property in question was proceeds of crime. Only perfunctory recording of the fact that the authority has “reason to believe” and has material before him for such belief would not suffice unless there is evident material for such belief.
This is a fit case wherein this Court should exercise its jurisdiction under Article 226 of the Constitution of India - Application allowed without any costs.
........
|
