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Money Laundering - Case Laws
Showing 21 to 25 of 25 Records
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2021 (4) TMI 282
Maintainability of petition - provisional attachment order lost its force with the expiry of 180 days - writ petition having been filed much beyond 180 days commencing from 20th January, 2020 - HELD THAT:- Pendency of the writ petition will, however, not be an embargo on the respondents in proceeding with the complaint no.1262 of 2020 made under the provisions of Section 5(5) of PMLA as the same will not amount to any coercive step in terms of the provisional order of attachment.
The matter can be more effectively heard after calling for affidavits - Let affidavit-in-opposition be filed within a period of four week from date. Reply, if any, thereto be filed by two weeks thereafter.
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2021 (4) TMI 279
Seeking grant of Bail - commission of economic offence - predicate or scheduled offence - burden to prove guilty - whether, in view of amendment to Section 45 of PMLA, the twin conditions stipulated therein stands revived post decision of Hon’ble Supreme Court in the case of Nikesh Tarachand Shah Vs. Union of India [2017 (11) TMI 1336 - SUPREME COURT]? - HELD THAT:- The question of the constitutional validity of Section 45 of PMLA was dealt with by Apex Court before amendment in the case of Nikesh Tarachand Shah. The grounds of challenge were that, Section 45 of the Act, when it imposes two further conditions before grant of bail is manifestly arbitrary, discriminatory and violative of petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution. The Apex Court enumerated illustrations while examining validity of twin conditions. The first would be cases where the charge would only be of money laundering and nothing else, as would be the case where the scheduled offence in Part A has already been tried and persons charged under the scheduled offence have or have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted.
The question is the provision which was held constitutional by Apex Court in the case of Nikesh Shah stands revived in view of Amendment as stated above to Section 45 of the Act - In view of amendment, the original sub-Section (ii) of Section 45 (1) which imposes the said twin conditions automatically stands revived and the said condition therefore remain on statute book. The original Section 45 (1) (ii) has to be inferred and treated as it still exists on the statute book and holds the field even as of today for deciding application for bail by an accused under PMLA. It was further argued that by inserting words “under this Act”, the Judgment delivered by Supreme Court in Nikesh Shah has become in effective. The Court held that the Apex Court in Nikesh Shah (supra) has declared Section 45 (1) of PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of Constitution of India. After effecting amendment to Section 45 (1) of PMLA. The words “under this Act” are added to sub-Section (1) of Section 45 of PMLA. However, the original Section 45 (1) (ii) has not been revived or resurrected by Amending Act. Even notification dated 29.03.2018 amending Section 45 (1) of PMLA which came into effect from 19.04.2018 is silent about its retrospective applicability. Hence, contention of respondent cannot be accepted.
In the case of Nikesh Tarachand Shah as stated above the Hon’ble Supreme Court has declared Clause (ii) of sub-Section 1 of Section 45 of PML Act ultra vires Articles 14 and 21 of the Constitution. Sub-Section 2 the said decision the amendment referred to hereinabove was carried out. Clause (ii) of sub-Section 1 of Section 45 of PML Act places two conditions for release of a person accused of an offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The question is whether substitution of the words “under this Act” in place of words punishable for term of imprisonment of more than three years under Part A of the Schedule in Section 45 of the Act, has impact of meeting with reasonings discussed by the Supreme Court in the case of Nikesh Tarachand Shah for declaring clause (ii) of sub-Section 1 of Section 45 of the Act ultra vires.
The Adjudicating Authority had dismissed the original complaint under Section 5 (5) of the PMLA. The appeal is pending, the order is under challenge before the Appellate Tribunal and there is an order of status quo. The applicant was arrested after the period of about 18 months pursuant to registration of ECIR. Ms. Chanda Kochhar and Mr. V. N. Dhoot has been granted bail by Special Court under PMLA. The entire loan amount was repaid to ICICI bank. The applicant is in custody for more than 6 months. The transactions in question were for the period of 2009. The entire loan of ICICI Bank was repaid in 2012. Prior to arrest, applicant had appeared before respondent No.1 on several occasions. His statements were recorded and documents were tendered - The question of absconding does not arise. Considering the circumstances, further detention of the applicant is not necessary. Hence, case for grant of bail is made out.
Bail application allowed.
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2021 (4) TMI 263
Money laundering - proceeds of crime - tainted money - amount found in a car outside his house - HELD THAT:- For attracting the penal provisions of the PML Act, the accused should have projected the proceeds of a crime as untainted money. In this case, the sum of ₹ 50,00,000/- as long as it was in the hands of Padmanabhan Kishore (A2) could not have been stated as a tainted money because it is not the case of the CBI in C.C.No.3 of 2013 that Padmanabhan Kishore (A2) had mobilised ₹ 50,00,000/- via a criminal activity. The sum of ₹ 50,00,000/- became the proceeds of a crime only when Andasu Ravinder (A1) accepted it as a bribe. Even before Andasu Ravinder (A1) could project the sum of ₹ 50,00,000/- as untainted money, the CBI intervened and seized the money in the car on 29.08.2011.
The prosecution of Padmanabhan Kishore (A2) under the PML Act, is misconceived - Petition allowed.
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2021 (4) TMI 227
Provisional attachment with respect to the four sugar mills of the petitioner - Right to property - violation of the provisions of Section 5 of PML Act - HELD THAT:- In the instant case, assailing the provisional attachment order, no ground has been taken that the order has been passed by an incompetent authority or by an authority having no jurisdiction. In this view, it is not a case of lack of jurisdiction. Further, in this writ petition, the vires of the Act has not been challenged.
In this case, Right to Property is involved. Right to property is a constitutional right, which is always subject to restriction imposed by law. Further, the Right to Property has not been included under Part-III of the Constitution of India, which deals with the Fundamental Rights. Article 300-A is under Chapter IV of Part-XII of Constitution of India and it provides Right to Property. Thus, this is also not a case of enforcement of Fundamental Right. On the other hand, this is a case of right over the property, which can efficaciously be adjudicated by Forums provided under the Act.
It is trite law that the writ petition at the stage of show cause notice is not maintainable. - It is also found that in addition to remedy available under Section 8 of the Act, the party/person aggrieved by an order made by Adjudicating Authority can prefer an appeal under Section 26 of the Act before the Appellate Tribunal and thereafter any person aggrieved by any decision or order of Appellate Tribunal can file an appeal before the concerned High Court, as provided under Section 42 of the Act.
The fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pas orders which can be settled only through a mechanism prescribed by the Statute.
Considering various aspects including the multilayered remedies are available to the petitioner under the statute in which the impugned order of provisional attachment has been passed, we are not inclined to entertain this writ petition challenging the provisional attachment orderunder Section 5 of the Prevention of Money Laundering Act, 2002 - petition dismissed.
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2021 (4) TMI 69
Permission for withdrawal of application - second application seeking grant of interim bail on medical grounds - reports given by the Doctors, posted in jail was forged and misused by appellant - HELD THAT:- This Court finds that the Senior Medical Officer, in his report dated 15.08.2020, has specifically opined that the accused-applicant was required to be worked at for surgery since surgical issue had got deteriorated which means that accused needed urgent surgery at a High Referral Hospital. This report became the basis for enlarging the accused-applicant on interim-bail by the Delhi High Court vide order dated 17.09.2020 as well as the order dated 14.08.2020 passed by this Court.
The Doctors, posted at the Jail Hospital, are required to remain careful, while issuing medical certificates, which may be misused by an accused. In the present case, the accused-applicant pressurized the AIIMS, New Delhi for his admission, but no urgency was found by the AIIMS, New Delhi for his admission for any surgery. However, the report dated 15.08.2020 of the Senior Medical Officer of Central Jail, 11 Mandoli, Delhi points out extreme urgency of surgical intervention for ailment of the accused-applicant - Mr. Lalit Kumar, the Senior Medical Officer, Central Jail, 11 Mandoli, Delhi is cautioned to remain careful in future, while issuing medical report in respect of an accused as the same may be used for an accused to obtain favourable order from the Court.
The Director, AIIMS, in his affidavit dated 14.02.2021 has stated that the accused-applicant was mounting pressure upon the authorities and Doctors of the AIIMS for admission, but none of the Departments recommended for his admission or surgery - the accused-applicant then submits that he would not like to press this second application for interim bail on medical ground and, he prays that the same may be dismissed as withdrawn.
This second application for interim bail is dismissed as withdrawn.
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