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Money Laundering - Case Laws
Showing 1 to 20 of 25 Records
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2021 (4) TMI 1304 - BOMBAY HIGH COURT
Grant of bail - bail sought on medical grounds specifically u/s 45 of PMLA Act - HELD THAT:- On perusal of the application for bail preferred by respondent no.1 it is apparent that the application is primarily on merits with averments relating to his health condition as reflected in paragraph 13 of the application. It is also apparent that on account of the grievance of respondent no.1 with regards to his health condition, report was called for by the Special Court. The report was received. Pursuant to that permanent bail was granted to respondent no.1 pending trial. The order granting bail refers to compliance report submitted by Jail authority about the health condition of respondent no.1 - On perusal of the compliance report with regards to the health of applicant, it can be seen that after making observations about his ailment, it was stated that the accused had an appointment for CT Scan on 7th April 2021. He is taking medicine for asthama, anxiety, APD and Hematuria and once CT scan is done, the Court will be informed about its outcome. However, the Court proceeded to grant permanent bail pending trial to respondent no.1.
The respondent no.1 can be examined by Medical Board consisting of Neurologist, Endocrinologist and General Physician and report thereof be submitted to this Court on 19th April 2021 - Application disposed off.
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2021 (4) TMI 1303 - SESSIONS COURT FOR GR. BOMBAY AT MUMBAI
Seeking grant of bail - bail sought on medical grounds under Section 45 of PMLA - diversion of proceeds of crime - HELD THAT:- The applicant is currently taking medicines for Asthama, anxiety, APD and Hematuria. It is also taken into consideration that, again cases of COVID-19 is surge and situation is looking grim. In such situation, even if the applicant/accused No.5 would send to the any hospital for tests or otherwise, it would be harm to his life due to contagious disease like COVID-19. Therefore, special care and medication to the applicant/accused No.5 is need of an hour, else it will came serious prejudice to the life and limb of the applicant/accsued No.5 - On this count itself, the provisions of Section 45 sub-section (ii) of PML Act is invoked, which provides that, “where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so direct”.
Furthermore, fleeing away from justice and/or fleeing away out of country, can be taken care by directing the applicant/accused No.5 to surrender his passport before ED immediately and not to leave India without prior permission of the Court. The question of tampering and hampering of prosecution evidence does not arise, as respondent/ED has tendered private complaint before this Court and accordingly, this Court has taken cognizance of it - applicant/accused No.5 can be released on bail only on medical grounds, without going into merits of the matter, by imposing following conditions as to avoid further unwarranted results for proper medical care and treatment of the applicant/accused No.5.
The application is allowed subject to conditions imposed.
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2021 (4) TMI 1302 - DELHI HIGH COURT
Seeking withdrawal of Bail application - also seeking liberty for redressal before the learned Trial Court submitting to the effect that the supplementary chargesheet in the matter has been filed - HELD THAT:- The bail application is dismissed as withdrawn.
The date 24.05.2021 is cancelled.
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2021 (4) TMI 1272 - SC ORDER
Direction for enquiry to an independent agency - HELD THAT:- In view of the nature of allegations, the personas involved and the seriousness of the allegations do require an independent agency to enquire into the matter. It is a matter of public confidence given the factual scenario.
We are unable to accept the contentions of Dr. A.M. Singhvi, learned senior counsel that merely because the Home Minister has resigned after the impugned order would be a factor not to direct enquiry by an independent agency. The two personas held post of Home Minister and Commissioner of Police for a long period and the latter would be a post of confidence of the former. Further, we are unable to accept the contention of Mr. Kapil Sibal, learned senior counsel that even for directing a preliminary enquiry, the petitioner Mr. Anil Deshmukh is mandatorily entitled to be heard in his individual capacity even though the State Government was represented and he was a Minister at that time.
SLP dismissed.
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2021 (4) TMI 1271 - BOMBAY HIGH COURT
Seeking intervention - corrupt malpractices or not - seeking for a mandamus or any other appropriate writ, order or direction directing the CBI/Enforcement Directorate (ED), or any independent agency to conduct unbiased, uninfluenced, impartial and fair investigation in the various corrupt malpractices of Shri Deshmukh, the 6th respondent, as well as into the role played by Shri Param Bir - HELD THAT:- Registration of a case is a sine qua non for starting an investigation has been held in MOHINDRO VERSUS STATE OF PUNJAB & ORS. [2001 (1) TMI 987 - SC ORDER]. Such registration could be facilitated if information were furnished or a complaint lodged disclosing commission of a cognizable offence. The jurisdictional fact for setting the criminal law in motion is traceable in the CrWP of Dr. Patil, who seems to have provided the necessary and crucial break through by lodging a complaint. She has brought to the notice of this Court the failure of the Senior Police Inspector, Malabar Hill Police Station to follow the legislative mandate as in Section 154 of the CrPC - before considering the question of relief that could at all be granted on the CrWP, we would be failing in our duty if we do not consider the decisions cited by Shri Kumbhakoni in support of his preliminary objection to the entertainability thereof.
It is well-settled that the jurisdiction under Article 226 of the Constitution of India is very wide and the same is not and cannot be restricted by law; however, various judicial pronouncements have set the limits of exercise of such power or jurisdiction ~ the limits being the self-imposed restrictions conceptualized through judicial wisdom. In the context of the nature of the concern expressed in the CrWP, the restriction to be kept in mind in deciding the question of entertainability is, whether there exists any equally efficacious alternative remedy in a criminal court and even if such a forum of redress is available, should the writ court entertain the writ petition - Where a person or authority is vested with a duty by specific statutory provisions, to compel such person or authority to perform such duty is certainly within the power and jurisdiction of a writ court. The exercise of such power will be consistent with the Constitutional provision which binds a person, on his elevation as a Judge, by the oath of office administered to him. Where, therefore, there is a duty to act, refusal is the least the law can tolerate.
It is true that having regard to the self-imposed restrictions, a High Court exercising writ powers under Article 226 may refuse to entertain a challenge to an action/inaction of a public official who, being bound to perform certain mandatory duty, acts in disregard thereof, but it cannot be gainsaid that varying fact situations require different approaches, and it would be insensible to either envisage or lay down hard and fast guidelines of universal application. Rule of law, in terms of the Constitution, pervades over the entire field of administration and every organ of the State is regulated by it - The discretionary power that is vested in the High Court for enforcement of the Fundamental Rights or for any other purpose is meant to be exercised on considerations of justice, and for eradicating injustice.
It is well settled that the High Court under Article 226 of the Constitution and the Supreme Court under Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry. Certainly, such an inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation. If after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can make the necessary order - A decision taken in an arbitrary manner contradicts the principle of legitimate expectation. It was observed that the public authorities cannot play fast and loose with the powers vested in them. The Court also observed that functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination.
It is certainly an issue of credibility of the State machinery, which would stare at the face when confronted with the expectations of the law and when such complaints are received against high ranking public officials. This Court cannot be a mere spectator in these circumstances. There is certainly a legitimate public expectation of a free, fair, honest and impartial inquiry and investigation into such allegations which have surfaced in the public domain. The necessity to have a probe into such allegations by an independent agency, would also certainly be a requirement of the rule of law.
Application disposed off.
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2021 (4) TMI 1262 - CALCUTTA HIGH COURT
Money Laundering - provisional order of attachment - extension of time limitation - petitioner argues that extension of limitation granted by the Supreme Court on various occasions, pertained only to limitations regarding proceedings and the stipulation under Section 5(3) of the 2002 Act is not covered by said limitation - HELD THAT:- The language of Section 5(3) of the 2002 Act is very clear as to the period of 180 days operating in respect of orders of attachment and says in positive language that such order of attachment shall cease to have effect after the expiry of such period. The said restriction/stipulation does not relate to any period of limitation prescribed under the general or special laws pertaining to institution or termination of “proceedings” but directly deals with the tenure of operation of the order of provisional attachment - the writ petition is required to be heard on its merits.
The matter shall next be enlisted for hearing fairly at the top of the list on May 12, 2021.
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2021 (4) TMI 1247 - SUPREME COURT
Fraudulent availment of VAT refund - Validity of Provisional Attachment Order - Money Laundering - proceeds of crime - Adjudicating Authority confirmed the attachment for a period of 90 days during the pendency of investigation or pendency of the proceeding before a court under PMLA - HELD THAT:- There are no reason to exercise our jurisdiction under Article 136(1) of the Constitution of India.
The SLP is dismissed.
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2021 (4) TMI 1221 - CALCUTTA HIGH COURT
Money Laundering - siphoning of funds - petitioners prayed for withdrawal of the writ petition on the ground that the order of provisional attachment had expired by efflux of time under the provisions of Section 5(1)(b) of PMLA - The petitioners were opposed on the ground that the order of provisional attachment according to the said respondents did not expire by efflux of time - bifurcation of offence under PMLA into "Scheduled Offence" and "Offence of money-laundering" - HELD THAT:- The Director or an Officer not below the rank of Deputy Director while exercising jurisdiction under Section 5(1), therefor, has the discretion either to provisionally attach the property or not to do so. If the officer chooses to provisionally attach the property, he has to forward a copy of the order along with materials in his possession to the Adjudicating Authority. The Prevention of Money-Laundering (Issuance of Provisional Attachment Order) Rules, 2013 specifies the manner of issuance of provisional attachment order. The manner of forwarding a copy of the order of provisional attachment of property with materials as required under Section 5(2) of PMLA is provided in Rule 3 of the Prevention of Money-Laundering (the Manner of Forwarding a Copy of the Order of Provisional Attachment of Property along with the Material, and copy of the Reasons along with the material in respect of Survey, to the Adjudicating Authority and its Period of Retention) Rules, 2005. Rule 6 of the 2005 Rules provides for the period of time such order of provisional attachment, the materials and copy of the reasons are required to be retained by the Adjudicating Authority. Section 5(2) of PMLA, therefor, does not trigger the initiation of any Adjudication under Section 8(1) of PMLA -
The Adjudicating Authority after conclusion of hearing under Section 8 (2) of PMLA, therefor can either declare that the property or properties are involved in money-laundering or hold that they are not so. The adjudication process, by the Adjudicating Authority is thus not dependent on the order of provisional attachment being in force, though the initiation of adjudication under Section 8(1) of PMLA had commenced after a complaint being lodged under Section 5(5) of PMLA pursuant to an order of provisional attachment under Section 5(5) of PMLA. Even Section 8(1) of PMLA empowers the Adjudicating Authority to form a prima facie independent opinion before issuing a notice under such Section after receiving a complaint under Section 5(5) of PMLA. The adjudication by the Adjudicating Authority is, therefor, independent of the fact whether the order of provisional attachment on the date of completion of the adjudication under Section 8(2) of PMLA is in operation or not.
In the instant case, the jurisdiction of the Adjudicating Authority was attracted on a complaint under Section 5(5) being lodged after an order for provisional attachment under Section 5(1) was made. The Deputy Director under PMLA in the instant case on 19th February, 2020 i.e., within 30 days from the date of passing the order of provisional attachment had filed the complaint under Section 5(5) of PMLA. The Adjudicating Authority on receiving the complaint under Section 5(5) upon having reasons to believe that the petitioner no. 1 has committed an offence under Section 3 or is in possession of proceeds of crime, served a notice under Section 8(1) of PMLA on 19th February, 2020 upon the petitioner no. 1 and its Directors calling upon them to indicate the source of income, earnings or assets out of which or by means of which the property attached under the provisions of Section 5(1) of PMLA was acquired. It is an admitted position that immediately upon expiry of the minimum 30 days' notice period for show cause under Section 8(1) was over, the country went into a national lockdown. As a natural consequence, the matter being fixed on 4th May, 2020 before the Adjudicating Authority for a hearing under Section 8(2) could not take place - The embargo to confirm an order of provisional attachment in a given case where such order of provisional attachment has lost its force by efflux of 180 days, however cannot be an impediment for the Adjudicating Authority in hearing a matter in terms of section 8(1) and 8(2) of PMLA. The narrow construction of the stature as sought to be made by the petitioners, therefore cannot be accepted as it will lead to holding 180 days to be the time period for completing adjudication under Section 8(2) of PMLA.
The Adjudicating Authority does not become functus officio on expiry of the period of 180 days from the passing of the order of provisional attachment unless such order is confirmed under Section 8(3) in view of the provisions of Section 5(3) of the PMLA, the Adjudicating Authority in the instant case, is, free to proceed with the Complaint Case being Complaint no. 1262 of 2020 till the Sec. 8(2) stage i.e., to give a finding whether the property is involved in money-laundering or not.
The order dated 26th March, 2021 is accordingly clarified that hearing of Complaint No. 1262 of 2020 now pending before the Adjudicating Authority shall continue up to the stage indicated in Section 8(2) of PMLA but the confirmation provided under Section 8(3) of PMLA shall take place after the final hearing of the writ petition depending upon the final result - Application disposed off.
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2021 (4) TMI 1202 - MADRAS HIGH COURT
Scheduled offence - proceeds of crime - Indian citizen or not - offence under Section 420 IPC - DEPB Scheme - HELD THAT:- From a reading of Section 2(u) of the PML Act which defines the expression “proceeds of crime”, it is limpid that the profit derived or obtained must be a result of a criminal activity which relates to a schedule offence. Even if we take the allegations in the FIR in Cr.No.123 of 2008 as gospel truth and that Viswanathan (A.1) had committed a criminal activity of obtaining an Indian passport and has thereby committed an offence under Section 420 IPC, there is no scope for him to obtain or derive any property as a result of the said criminal activity. To put it more plainly, Viswanathan (A.1) represented to the passport authorities that he is an Indian citizen and obtained passport suppressing the fact that he is a Sri Lankan citizen.
The Directorate of Revenue Intelligence had found only irregularities in the exports and had not launched a criminal prosecution against the petitioners. Even the adjudication order that was passed by the Commissioner of Customs has been set aside in appeal by the CESTAT.
An illegal immigrant from Bangladesh enters Kolkata; obtains Aadhaar card and ration card from the authorities concerned by projecting himself as a local Muslim; carries on a lawful business and earns by working hard; pays income tax, GST, etc. and buys properties. Can the properties purchased by him be categorised as proceeds of crime on the ground that subsequently, an FIR is registered against him under Section 420 IPC, provisions of the Passports Act and Foreigners Act on the ground that he is not an Indian citizen? The answer to this question is an emphatic 'No', for, there should be a nexus between the criminal activity and the property acquired therefrom. In the absence of this nexus, the provisions of the PML Act cannot be invoked.
This criminal original petition stands allowed.
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2021 (4) TMI 878 - CALCUTTA HIGH COURT
Validity of Look-Out Circular (LOC) issued against the petitioner - company defaulted in repayment of a term loan availed from the State Bank of India (SBI) - the petitioner was a Director of the borrower-Company - HELD THAT:- The only reason disclosed in the request of the Bank as well as in the LOC itself was that the petitioner was a Director of the borrower-Company. Such allegation was made in the present tense in both the request and the LOC. However, such allegation is, by itself, insufficient to fall within any of the grounds for issuance of LOC, as contemplated in the relevant Office Memoranda - The petitioner has clearly shown that the petitioner had resigned long back, even before the discovery of alleged fraud in 2014 by the Bank.
Economic offence or any other ground contemplated in the relevant Office Memoranda was not disclosed either in the request of the Bank or the LOC itself to justify the issuance thereof. Apart from the CBI Court and Sessions Court having given a clean chit to the petitioner on similar allegations, the loan-in-question is sufficiently secured in view of the DRT award obtained by the Bank against the borrower- Company and the attachment order passed by the Adjudicating Authority under the PMLA at the instance of the ED relating to the writ petitioner's movable and immovable properties - in the present case, the LOC would not only amount to curtailing the fundamental right to liberty of the petitioner, as guaranteed by the Constitution of India, it would also take away the livelihood of the petitioner which would directly affect his life, also guaranteed by the Constitution.
Neither the LOC nor the request therefor discloses any ground as envisaged in the relevant Office Memoranda to justify the issuance of the LOC and/or the subsequent renewal thereof.
The petitioner has successfully demonstrated that he was not a Director of the Company at the relevant juncture when the borrower- company is alleged to have committed fraud. Thus, there is no basis whatsoever for issuance of the impugned LOC and the consequential subsequent extension thereof against the petitioner - Petition is allowed.
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2021 (4) TMI 877 - KERALA HIGH COURT
Maintainability of petition - petition challenged on the premise that the petitioner has filed the case in his individual capacity cannot hold good - prohibition under Section 195(1)(b)(i) of Cr.P.C - HELD THAT:- Undoubtedly, the writ petition is filed by the petitioner in his capacity as the Investigating Officer in ECIR/ACZO/31/2020. The fact that, the writ petition is filed with official sanction is evident from the appearance of the learned Solicitor General. At the same time, I find substance in the objection raised by the Sri. Raval against the manner in which the documents pertaining to the ED case is produced and persons, who are not made parties, named in the writ petition. The explanation offered for production of the documents is that they form part of Exhibit P5 complaint. If that be so, the petitioner ought to have produced the entire set of documents appended to Exhibit P5 complaint, rather than producing the documents of his choice. Even though the petitioner's action is liable to be deprecated, that does not warrant dismissal of the writ petition.
The reason behind bringing certain specified offences under the purview of Section 195 of the Cr.P.C is because the commission of those offences have direct impact on an ongoing judicial proceeding and thereby, on the administration of justice. Section 193 of the IPC being one such offence, the prohibition under Section 195 of the Cr.P.C will apply.
Whether the prohibition under Section 195(1)(b)(i) of Cr.P.C is from taking cognizance only or whether the Police is interdicted from conducting investigation of the offences enumerated in the section? - HELD THAT:- In Nirmaljit Singh Hoon v. State of W.B., [1972 (9) TMI 147 - SUPREME COURT], the offences were under Sections 463, 471, 475, 476 of the IPC and hence the Apex Court held that police authorities have a statutory right under Sections 154 and 156 of the Code to investigate into a cognizable offence, without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561-A of the Code (Section 482 of the new Code) to interfere with the exercise of that statutory power - The Special Court has taken cognizance of the offences under the PMLA on 12.10.2020. As such, recording of the accused's statements would undoubtedly fall within the import of the words "in relation to any proceeding in any court" mentioned in Section 195(1)(b) (i).
Whether the prohibition under Section 195(1)(b)(i) could be made applicable to all the offences or should be confined to the offences enumerated therein? - HELD THAT:- The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied, nor the administration of justice not meddled with, if the other offences are interwoven and inseparable from the offences within ambit of Section 195(1)(b)(i), necessarily, the prohibition will have to be extended to the other offences also - the only possible conclusion of the bar under Section 195(1)(b)(i) Cr.P.C being applicable to the offences mentioned in the two FIRs, the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that, if such attempts had fructified, it would have definitely sullied the proceedings of the court and impacted administration of justice. Therefore, even though the other offences alleged are under Section 167 and 195A of IPC, they are undoubtedly interwoven with and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.PC.
The Special Court has already received a complaint from Sri.Sandeep Nair and has allowed the application submitted by the Crime Branch to question him in jail. The 161 statement of Sri.Sandeep Nair recorded thereafter was made available to me in a sealed cover. In my considered opinion, while interdicting the Police from continuing the investigation, interest of justice requires that the Special Judge be permitted to look into the materials collected by the Crime Branch, treating it as the information mentioned in Section 340(1), so as to decide whether it is expedient to conduct an enquiry.
Petition disposed off.
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2021 (4) TMI 869 - ANDHRA PRADESH HIGH COURT
Provisional attachment of property - allegation of diverting huge amounts of money given to the loanees and used the diverted funds for purchase of some of the properties - proceeds of crime - scheduled offences - HELD THAT:- At the inception, the legislative intent was to bring within the fold of the definition, such property, whose source of acquisition can be traced, directly or indirectly, to the benefits obtained from the commission of the scheduled offences. At that stage, the question of the proceeds of the crime not being available for being attached/confiscated, either on account of their dissipation in the hands of the person holding the property or on account of the property being moved out of India and the reach of the authority under the Act, does not appear to have been contemplated. This issue was addressed by Act 20/2015, whereby the words “or where such property is taken or held outside the country, then the property equivalent in value held within the country” were added - This amendment contemplates only one situation, namely the proceeds of the crime being moved out of India. In such a situation, the amended definition permitted the attachment of property, in India, equivalent to the value of the proceeds of thecrime, which were moved out of India. Later, by Act 13 of 2018 the words “or abroad” were added. By virtue of this amendment the property, which was moved abroad, could also be attached and confiscated. This amendment did not envisage a situation of dissipation of the property in the hands of the person holding the property.
The amendments would be unnecessary if the term “or the value of such property” was understood to authorize the attachment of any property, when the actual proceeds of the crime are not available - The explanation to this provision which was brought in by Act No.2 of 2019 also speaks only of properties derived or obtained from the proceeds of a crime and expands the scope of the definition to include properties obtained not only from the scheduled offences but also criminal activity relatable to the scheduled offence. The explanation did not expand the definition to include any other property of equivalent value where the proceeds of the crime are lost even by the offender.
Thus, the properties purchased before the commission of the offence, cannot fall within the definition of “proceeds of crime” and cannot be attached or confiscated under the Act.
The impugned order of provisional attachment set aside - petition allowed.
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2021 (4) TMI 821 - MADRAS HIGH COURT
Money Laundering - incriminating materials against the petitioners to connect the petitioners in the involvement of the offence under PMLA Act, present or not - HELD THAT:- Admittedly, the respondent authority filed the complaint against 15 persons u/s.245(2)Cr.P.C., read with Sections 3, 4 and 8 (5) of PMLA Act, in which these petitioners have been arrayed as A-14, A-15 respectively - A reading of the averments made in the complaint in paragraph 7.14 reveals that there is allegation against A-14 and in paragraph 7.15 prima facie there is allegation against A-15. In order to support the said allegation, the Government Advocate produced copy of the statements given by A-14, A-15 and further statement given by A-4, which clearly reveal the role of the present petitioners. Therefore, once prima facie allegations against these petitioners are made out, trial court can proceed with the complaint by framing charges.
While deciding petition u/s.245(2) Cr.P.C., the court need not conduct a roving enquiry on the materials placed by the prosecution and the admissibility and the validity of the statement given by the other accused have to be decided only at the time of trial and the defence taken by the accused need not be considered in deciding the petition u/s.245(2) Cr.P.C. It can be decided only after trial and therefore, this court finds that prima facie there are averments in the complaint and also to support the averments, the prosecution also relied on the statements given by the Revision Petitioners/A14 and A15. Therefore, under these circumstances, this court does not find any illegality or infirmity in the order passed by the trial court.
Criminal Revisions are dismissed.
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2021 (4) TMI 607 - MADHYA PRADESH HIGH COURT
Seeking release of public amenities such as road, garden, STP plant, club, electricity grid, etc. from the purview of attachment order - property involved in money- laundering - Proceeds of crime - HELD THAT:- The petitioners are having remedy to appear in the proceedings pending before the adjudicating authority and they can put their claim before the adjudicating authority. The order passed by the adjudicating authority is appellable u/s. 26 of the PMLA Act, therefore, the petitioners are not remedy-less against the impugned order. They are having alternative and efficacious remedy. The PMLA Act is a complete code in itself.
This petition is disposed of with liberty to the petitioners to remedy available to them in law.
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2021 (4) TMI 507 - BOMBAY HIGH COURT
Seeking enlargement on Bail - Money Laundering - fraudulent transfer of funds abroad - HELD THAT:- As it appears from record, the applicant has floated various bogus entities, several money transactions/transfers, have been traced between the companies/firms owned by applicant and accused companies. Prima-facie, evidence suggests, applicant was managing and controlling financial affairs of accused and beneficiary companies. Whereas, one co-accused was an employee of a beneficiary company and another, was director. Besides, evidence suggests, both co-accused had joined the investigation; soon after they were summoned and co-operated investigation.
Reply fled by the Enforcement Directorate suggests, that the investigation is not complete and non-co-operation of the applicant has resulted into lack of financial information available with the respondent in respect of over-seas companies, their bank accounts and financial transaction. Prosecution in their reply has submitted that the applicant has not co-operated in respect of financial information of over-seas companies; that investigation is still going on and there is likelihood of applicant meddling with the investigation, if released on bail.
The applicant cannot be released on Bail - application dismissed.
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2021 (4) TMI 313 - JAMMU AND KASHMIR HIGH COURT
Attachment of various property belonging to the petitioner - Applicability of PML Act to the erstwhile State of Jammu and Kashmir - action of the Authorities under the PML Act - HELD THAT:- It can be seen that the proceedings initiated against Ahsan Ahmad Mirza were challenged by him in a petition AHSAN AHMAD MIRZA AND OTHERS VERSUS ENFORCEMENT DIRECTORATE & ANOTHER [2019 (10) TMI 1408 - JAMMU AND KASHMIR HIGH COURT], which petition was, however, dismissed by a Coordinate Bench of this Court vide Judgment and Order dated 15.10.2019. Counsel for the parties state that a Letters Patent Appeal is filed and is pending before a Division Bench of this Court.
Having gone through the writ petition as also the Judgement of the Coordinate Bench in Ahsan Mirza’s case, it can be seen that some of the issues raised by the petitioner in the present petition were also issues, which were raised and decided by the Coordinate Bench, which now, form the subject matter of consideration by the Division Bench of this Court - Considering the fact that the genesis of the proceedings both against the petitioner, Dr. Farooq Abdullah as also the appellant, Ahsan Ahmad Mirza, lies in the case which is pending trial before the Designated Court and the issues being common, in my opinion, therefore, are required to be considered together.
The matter be considered by a Division Bench of this Court.
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2021 (4) TMI 288 - BOMBAY HIGH COURT
Rejection of prayer of applicant to grant custody of respondent Nos.2 and 3 for further period of 7 days for the purpose of investigation - Section 420 of the Indian Penal Code - HELD THAT:- The respondent Nos.2 and 3 were in custody of the applicant from 6 pm of 27th January 2021 to 2nd February 2021. According to this Court, five complete days period for confronting the respondent Nos.2 and 3 with the alleged devices is sufficient. During the course of arguments, the learned Special P.P. produced a file of investigation carried out by the Investigating Agency containing statements of the respondent Nos.2 and 3/accused allegedly recorded under Section 50 of the said Act. Even if the respondent Nos.2 and 3 are remanded to judicial custody, the Investigating Agency can confront them with the aforesaid documents in jail, after taking necessary permission from the Trial Court, as per the provisions of law. And only for that purpose their custody for interrogation is not necessary - Otherwise also the investigation of the present crime pertains to documents/digital files on electronic devices, which are already seized by the Investigating Agency.
The Trial Court after taking into consideration various attending circumstances has rejected the request of the applicant for further custodial interrogation of the respondent Nos.2 and 3 - there is no error or illegality committed by the Trial Court while passing the impugned Order - revision application dismissed.
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2021 (4) TMI 287 - BOMBAY SESSIONS COURT
Extension of judicial custody of both the accused - alleged crime of money laundering done by both the accused - HELD THAT:- It is proceeds of crime which construes an offence of money laundering under Section 3 punishable under Section 4 of P.M.L.Act, if such a person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following process or activities connected with proceeds of crime namely concealment or possession or acquisition or use or projecting as untainted property or claiming as untainted property in any manner whatsoever, the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.
Merely the fact that FIR of scheduled offence on which ECIR was registered has been compounded by accepting ‘C’ report by concerned J.M.F.C at Aurangabad, in my view cannot be derooted the commission of offence of money laundering, as described in Section 3 punishable under Section 4 of PMLA. Because sub-clause (i) of the explanation of Section 3, which elaborates the activities connected with proceeds of crime i.e may be concealment, may be possession, may be acquisition, may be use, may be projecting as untainted property or may be claiming as untainted property in any manner whatsoever - accepting ‘C’ summary final report or compounding of scheduled offence will not give automatic nullification of the acts done by the accused under PMLA.
There are no hesitation to extend judicial custody of both the accused till ED may file final report. Further, under Section 167 of Cr.P.C., there is adequate grounds, for authorize detention of the accused. Hence, judicial custody of both the accused is extended for next 14 days.
The accused has to be remanded to judicial custody. Therefore, question of releasing them on any bond, as prayed does not arise - Application dismissed.
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2021 (4) TMI 284 - GUJARAT HIGH COURT
Remittance of huge money abroad - fake/forged bill of entries - Accusation of committing offences punishable u/s 3 of the Prevention of Money Laundering Act - HELD THAT:- It is a matter of fact that the offence pertains to the year 2014 and as of now, trial has not proceeded. There is no any possibility or likelihood of completion of trial in near future or at least say 3 years. There is no disagreement on this fact situation. Secondly, though 7 to 8 years have passed, there is no any possibility of completion of investigation even in near future or say at least for 3 to 5 years. These facts are not in dispute since the prosecution agency was not in a position to state at bar as to what further period would require to complete the remaining investigation in the offences alleged against private respondent and other co-accused persons - Since the private respondent, when permitted to travel abroad during the year 2018 to 2020, observed all the conditions in its letter and spirit and there is no grievance ventilated at bar that he committed breach of any of the conditions or there is any material placed before the Court at the time of hearing of previous applications for permission for a short period. Not only that, no any order, whereby the private respondent was permitted to travel abroad, has been challenged by the applicant.
The private respondent is granted permission to visit for limited period of 3 months at a time, to provide complete itinerary and contact details both to the Court and the investigating officer, to file undertaking to remain present at the time of conducting trial and not to leave India when crucial witnesses are going to be examined by the Court and further not to stay continuously for more than three months in foreign country at a time and more particularly to move out of India for the purpose of business activities only, are sufficient safeguards provided in the impugned order.
On combined reading of the conditions imposed upon the private respondent, it transpires that the Designated Court took all care and caution to secure the presence of the private respondent at the time of trial, to trace the accused as and when he goes out of India as he is required to provide complete itinerary and contact details in advance and not to stay continuously for more than three months in foreign countries. Thus, there is complete check on the movement of the private respondent to the knowledge of the concerned investigating agency and the Court and therefore, to impose condition to seek leave of the Court is futile exercise on the part of the Court.
There are no reason to interfere with the impugned order - revision application dismissed.
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2021 (4) TMI 283 - JAMMU AND KASHMIR HIGH COURT
Provisional attachment order - money laundering - siphoning of funds - scheduled offence as per the Schedule-A of the Act or not - reason to believe present or not - HELD THAT:- Looking to the fact that presently the petitioner has only been served with a show cause notice in which we are told 20th April, 2021 is the next date fixed and the fact that the order of attachment is provisional in nature which is valid for a period of 180 days only, we do not consider it to be an appropriate case to pass any interim order at this stage particularly when the laundering of 43.69 crores of the amount is not in dispute which in all fairness ought to be returned to the public body i.e., JKCA.
The petitioner, in addition, is faced with an order of dismissal of an identical writ petition and as such, has to overcome all the findings returned and the reasoning recorded by the writ court therein before establishing a prima facie case and balance of convenience in his favour for the grant of interim order or to be successful in this petition - the respondents are directed to file their counter affidavit to this petition within a period of three weeks, one week thereafter is allowed to the petitioner to file rejoinder affidavit.
List for admission/ final disposal on 11th May, 2021 along with LPA No. 293/2019 which shall also be considered finally on the said date.
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