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Money Laundering - Case Laws
Showing 21 to 32 of 32 Records
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2023 (3) TMI 542 - ALLAHABAD HIGH COURT
Seeking grant of bail - disproportionate assets of the present applicant which he, allegedly, could not explain - Scheduled/predicate offence - HELD THAT:- As a matter of fact, the present applicant is not in judicial custody since November, 2019. He remained in judicial custody w.e.f. 27.02.2017 in another matter of E.D. and w.e.f. 04.11.2017 in the present case of E.D. The maximum punishment prescribed under the offence of PMLA is seven years. At the time of hearing before the Apex Court seeking bail, the arguments relating to the twin conditions as prescribed under Section 45 of the PMLA must have been placed and the Apex Court has granted interim bail to the applicant. If the proceedings of predicate offence have been stayed, as shown by the learned counsel for the applicant, however, the proceedings under PMLA may go on but the final outcome of the proceedings relating to the offence of PMLA shall dependent upon the final outcome of the proceedings of predicate offence. Notably, proper opportunity has been given to the learned counsel for the E.D. and he has filed a detailed counter affidavit. Not only the above, neither learned counsel for the Union of India nor counsel for the E.D. has shown any order to show that the stay order staying the proceedings of the predicate offence has been vacated, rather those proceedings of the predicate offence have been stayed since 07.12.2018 i.e. more than four years and three months, so considering the facts and circumstances of the issue in its entirety, more particularly the fact that the present applicant is on interim bail since 15.11.2019 in this case granted by the Apex Court and there is no adverse report of misusing the liberty or flouting any condition of bail by the present applicant, besides, there was neither a flight risk, nor would he tamper with the evidence nor is influencing the trial proceedings, it is clear that the twin conditions of Section 45 of the PMLA are satisfied in the present case.
It is not found proper to send the applicant to the judicial custody again - bail application allowed subject to conditions imposed.
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2023 (3) TMI 541 - KARNATAKA HIGH COURT
Seeking grant of bail - Money Laundering - scheduled offence - proceeds of crime - rebuttal of presumption - inviting deposits from general public promising to pay interest upto 90% per annum - effect of bar under Section 45(1)(ii) of PMLA - HELD THAT:- Admittedly, the accused was apprehended on 15.11.2022. Three months have already lapsed from the date of arrest. The complaint in the form of ECIR is filed on 13.01.2023 which is registered in PCR No. 4 of 2023. Details of the assets acquired and the money invested by the accused along with the details of bank account are stated in the complaint. It is the specific contention of the prosecution that accused No. 2 being one of the partner of accused No. 1 is in charge of investing the proceeds of crime in various assets as he has purchased the lands out of the amount so received by accused No. 1 and used to develop the same.
There are no justification for non producing any of the documents in support of the allegations made in the complaint. Apparently, the statements of the petitioner recorded by the Investigating Officer disclose that the accused invited deposits promising exorbitant rate of interest, not subjected such monetary transaction for audit, not returned the amount i.e., due to the investors on time and on the other hand, the amounts were being invested in the landed properties in the name of the accused.
Apparently, the petitioner could not justify collection of crores of rupees from thousands of depositors, promising to pay return as high as upto 90%. Prima facie, the intention of the accused may attract Section 420 of IPC, for which a criminal complaint is already lodged way back in the year 2018. To constitute the proceeds of crime as defined under Section 2(u) of PMLA, the prosecution has to prove that the properties derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence. As per Section 3 of PMLA, even concealment, possession, acquisition, use of proceeds or claiming the proceeds of crime as untainted property would amount to money laundering - to constitute the offence of money laundering, the prosecution has to establish that the petitioner had indulged in criminal activity relating to scheduled offence, the property referred to in the complaint have been derived or obtained as a result of such criminal activity and the petitioner is involved in any process or activity connected with the said property being the proceeds of crime. Unless these basic requirements are fulfilled, the presumption under Section 24 of PMLA, cannot be raised.
It is the contention of the prosecution that further investigation is still in progress. But at present, no prima facie materials, except the assertion made in the complaint are available to form an opinion that the accused is guilty of the offence which is one of the requirement under Section 45(1)(ii) of PMLA to deny bail to the petitioner. Without such materials on record, the accused is not required to be detained in custody as the same would amount to infringement of his right to life and liberty. It is not the contention of the prosecution that the petitioner would abscond as his passport is already said to have been seized. The interest of the prosecution could be safeguarded by imposing suitable conditions.
The petitioner is ordered to be enlarged on bail on obtaining the bond in a sum of Rs. 2,00,000/- with two sureties for the likesum to the satisfaction of the jurisdictional Court, subject to the conditions imposed - application allowed.
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2023 (3) TMI 421 - SC ORDER
Money laundering - scheduled offences - attachment of property - petitioners have already suffered pre trial custody for more than four years in respect of the scheduled offence, the investigating agency did not arrest the petitioners under Section 19 PMLA when investigation begins, that they are senior citizens of approximately 66 ,70, 68 and 67 years of age respectively and properties of petitioners have even attached and petitioners have deposited the alleged amount of Rs. 11,88,000/- and 50,00,000/- in the respective matters.
It is further submitted that the total period of incarceration in case of conviction is only seven years and Section 45 PMLA will not be applicable as it is pre-amendment.
HELD THAT:- Issue notice.
In the meantime, the petitioners be not arrested but shall continue to cooperate with further investigation.
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2023 (3) TMI 387 - TELENGANA HIGH COURT
Maintainability of petition - petition for mandatory bail under Section 16(2) has been filed even after filing of alleged charge sheet - Section 167(2) of Cr.P.C. - HELD THAT:- The present petition was filed on 17.01.2023 nearly after 53 days after the statutory period of 60 days, as such, it cannot be said that the right of bail under Section 167(2) of Cr.P.C and the petition are maintainable. In the event of an application being made on 26.11.2022, the approach of this Court would have been on the circumstances prevailing then. However, when no application was made on the 60th day and the petitioner suffering dismissal order of bail on 07.12.2022, cannot urge the Special Court to entertain an application for default bail which was filed on 17.01.2023 taking recourse to the judgment of this Court in the case of C.Parthasarathy’s case [2022 (6) TMI 164 - TELANGANA HIGH COURT].
The prayer for directing the Special Judge to entertain the default bail application vide SR No.548 of 2023 which was filed on 17.01.2023 nearly 113 days after his arrest. Statutory bail application under Section 167(2) of Cr.P.C has to be made on the date on which the right accrues which may be 60 or 90 or 180 days or 12 months as the case may be. Filing an application subsequently and asking the Court to entertain the application as ‘status quo ante’, cannot be permitted.
The Criminal Petition is dismissed.
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2023 (3) TMI 386 - KARNATAKA HIGH COURT
Territorial Jurisdiction - FIR is registered in Mumbai and properties seized were all forwarded to the Adjudicating Authority in Delhi - predicate Offence - Search and Seizure - Constitutional Validity of search conducted under Section 17 of the Prevention of Money Laundering Act - HELD THAT:- The Hon'ble Supreme Court in the case of Vijay Madanlal Choudhary and others vs. Union of India and others [[2022 (7) TMI 1316 - SUPREME COURT]] has held that once the predicate offence is ended in discharge or acquittal, the proceedings initiated by the ED cannot be proceeded. Of course, there is no second thought in the decision rendered by the Hon'ble Supreme Court and the Co-ordinate Bench of this Court.
However, in this case the main objection by the learned Special counsel for respondent is that the FIR in predicate offence and FIR in ED case were all registered at Mumbai and the properties seized were all forwarded to the Adjudicating Authority at Delhi and this Court cannot quash or stay the proceedings which has no territorial jurisdiction.
The judgment of the Madras High Court in S. Ilanahai vs. The State of Maharashtra [2015 (1) TMI 1487 - MADRAS HIGH COURT] and the Delhi High Court in Sayed Mohd. Masood vs.Union of India and Another [[2014 (3) TMI 300 - DELHI HIGH COURT]] were categorically held that when the FIR is registered in some other State, merely the petitioner-accused staying in Karnataka State and bank account is operating at Karnataka, this Court cannot take the cognizance and quash or stay the criminal proceedings in favour of the petitioner. The decision rendered by the Madras High Court as well as the Delhi High Court is agreed upon that this Court has no jurisdiction to entertain the petition and pass any order against the respondent-ED when the case was registered at Mumbai and properties were seized and forwarded to the Adjudicating Authority at Delhi. Therefore, the only option available to the petitioner is to approach the Mumbai Court having territorial jurisdiction and also an alternative and efficacy remedy available before the Adjudicating Authority at Delhi. Therefore, this Court cannot interfere and pass any order with the action taken by the respondent-ED in the case registered at Mumbai.
Petition dismissed.
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2023 (3) TMI 385 - ALLAHABAD HIGH COURT
Seeking grant of Regular Bail - Money Laundering - predicate offence - huge bungling, fraud and forgery - twin conditions of Section 45 of the PMLA satisfied or not - HELD THAT:- In the present case, this is an admitted case of the prosecution that after lodging the ECIR on 14.04.2012, the E.D. has not tried to arrest the present applicant under Section 19 of the PMLA. Even after release of the present applicant from jail in the predicate offence in the year 2015, the present applicant was called twice by the E.D. under Section 50 of the PMLA to record his statement on 23.12.2016 and 10.06.2019 where the applicant appeared and recorded his statement but the E.D. has not arrested the applicant under Section 19 of the PMLA. Therefore, it is clear that considering the proper cooperation of the present applicant in the investigation and evidences, material and allegations against the applicant, the Investigating Officer did not find it proper to arrest the applicant under Section 19 of the PMLA.
Notably, the statutory rights of the present applicant defined under Section 204 (3) & 208 Cr.P.C. have been violated by the Investigating Agency inasmuch as he has not been provided copy of complaint, copy of statements and other relevant documents.
The Apex Court in re; Aman Preet Singh [2021 (10) TMI 1 - SUPREME COURT] and Satender Kumar Antil [2022 (8) TMI 152 - SUPREME COURT] has categorically observed that arrest of any person is not mandatory in each and every case but before curtailing the liberty of an accused person, the relevant facts and circumstances should be visualized. In the present case, prima facie, there was no requirement to take the applicant into custody when he appeared before the learned trial court pursuant to the summons being issued inasmuch as he has never flouted the process of law, he cooperated in the investigation throughout, the Investigating Agency has never thought to arrest him under Section 19 of the PMLA despite he appeared before the E.D. to record his statement twice pursuant to the summons being issued under Section 50 of the PMLA and there was no request of the E.D. before the learned trial court to the effect that arrest of the present applicant is warranted - thus, it appears that the learned trial court has taken the custody of the present applicant without following the settled proposition of law of the Apex Court in Aman Preet Singh and Satender Kumar Antil.
The applicant- Govind Prakash Pandey directed to be released on bail in the aforesaid crime case on his furnishing a personal bond and two sureties of Rs.1,00,000/- each before the Trial Court concerned with the conditions imposed - bail application is allowed.
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2023 (3) TMI 301 - CALCUTTA HIGH COURT
Money Laundering - issuance of production warrant - Jurisdiction of the Trial Court and also the authority of the Head Investigation Unit (HIU), Enforcement Directorate to investigate into the matter - HELD THAT:- Petitioner’s case is that the Enforcement Directorate orally assured the Hon’ble Bench at Delhi High Court that they would not execute production warrant issued against the petitioner by the Trial Court on 19th December, 2022. Such assurance was not recorded in any of the orders passed by the Hon’ble Judges at Delhi High Court in different proceedings. The learned Advocate for the petitioner relies on a report published by “Live Law” in support of his contention. Though it is needless to say that this Court cannot take judicial notice on publication of certain news in an Online News Portal, it is pertinent to mention that the said report states that the ED gave an oral assurance to Delhi High Court that it would not execute the production warrant against the petitioner till 9th January, 2023. There is absolutely no record that after 9th January, the opposite party renewed such oral assurance before any judicial forum.
In the instant case, the petitioner was sent to District Hospital, Asansol on 2nd March, 2023 when he complained of his illness. It is submitted by the learned Deputy Solicitor General on instruction that the petitioner has been discharged from the hospital. Therefore, it is presumed that there is no acute reason to hold that the petitioner is unfit by reason of his sickness from being removed to Delhi.
Since Section 482 can only be invoked to give effect to any order under this Code, or to prevent abuse of the process of the Code or otherwise to secure the ends of justice. In the instant case, it is found from the pleadings and the relief sought for by the petitioner that the petitioner has been trying to obstruct the process of the Court. This is not the only instance. The petitioner repeatedly filed series of applications to resist the Enforcement Directorate from executing production warrant issued against him - Since there is no order of stay of execution of production warrant dated 19/20th December, 2022 by any judicial forum, and the impugned order is absolutely interlocutory in nature, there are no merit in the instant revision.
The revisional application being not maintainable, fails.
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2023 (3) TMI 134 - DELHI HIGH COURT
Rejection of an application filed by the Petitioner seeking transfer of the proceedings to a bench in terms of Section 6(7) of the PMLA - territorial jurisdiction - HELD THAT:- The judgment in J Sekar [[2018 (1) TMI 535 - DELHI HIGH COURT]] clearly covers the issue. The Adjudicating Authority is located in Delhi and in terms of the ratio in J Sekar, this Court has the jurisdiction to entertain the present petition.
Alternate remedy before the Appellate Tribunal constituted under the PMLA - HELD THAT:- The power of the Appellate Tribunal as held in Sanjay Jain [[2023 (1) TMI 298 - DELHI HIGH COURT]] and U. S. Awasthi [[2023 (1) TMI 595 - DELHI HIGH COURT]] is wide. The Tribunal adjudicates appeals arising out of orders passed by the Adjudicating Authority on a daily basis.
In the present case, the Petitioner seeks the constitution of a Bench under Section 6(7), consisting of two members at the Adjudicating Authority level for the purpose of deciding the confirmation of the impugned Provisional Attachment order.
A perusal of the provision of Section 6(7) of the PMLA, would show that it is only at the time of hearing in any matter, if the Chairperson or a member feels that the matter or case is such a nature that it ought to be heard by a Bench of two members, then the Chairperson may assign a two-member Bench for hearing of the said order - In the present case, there has been no opinion expressed by the Adjudicating Authority to the effect that the matter is so complex so as to require a two-member Bench. The Petitioner in this case has moved an application seeking constitution of two-member Bench, the maintainability of which itself could be suspect inasmuch as there has been no opinion expressed by any member of the A that such a Bench is required.
The Adjudicating Authority has rejected the application filed by the Petitioner and the matter is now stated to be for final hearing before the Adjudicating Authority. In such a situation, this Court is of the view that an application under Section 6 and 7 would not even be maintainable - In any event, even if the said order of the Adjudicating Authority is to be challenged, an appeal under Section 26 would be the appropriate remedy and not a writ petition. There are no grounds that have been raised in this case for exercise of the extraordinary writ jurisdiction under Article 226.
Petition disposed off.
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2023 (3) TMI 133 - ALLAHABAD HIGH COURT
Seeking grant of bail - money laundering - commission of the scheduled/predicate offence - proceeds of crime - foreign funds have been remitted to India through hawala/ underground channels and through remittance sent to the accounts of members/ activists/office bearers of PFI/CFI and other related organizations - Applicability of Section 45 of the PMLA - HELD THAT:- It is clear that a person may not be involved in original criminal activity that had resulted in generation of proceed of crime but he can join the main accused either as abettor or conspirator for committing the offence of money laundering by helping him in laundering the proceed of crime. Therefore, just because the applicant was not named or not prosecuted for the predicate offence, his prosecution for money laundering cannot be said to be illegal.
The Apex Court in re; Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] has held that provision in the form of Section 45 of PMLA, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the PMLA to combat the menace of money laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the country. While granting bail of an accused person, twin conditions of Section 45 of the PMLA will have to be adhered to.
Considering the facts and circumstances of the issue in question, the bail application of the present applicant does not qualify the twin conditions of Section 45 of the PMLA inasmuch as at this stage it cannot be observed that the present applicant has not committed the offence for which the complaint has been filed against him. The proceed of crime is also in crores. The applicant is based at Abu Dhabi. The factum of guilt can be proved or disproved before the learned trial court. Learned counsel for the E.D. has informed that the trial in the present case is going on with good pace and the same may likely be concluded very soon, therefore, bail cannot be granted to the present applicant, rather direction issued to the learned trial court to conclude the trial with expedition.
The bail application is rejected.
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2023 (3) TMI 132 - TELANGANA HIGH COURT
Money Laundering - provisional attachment of property on the ground of being proceeds of crime - seeking extension of time granted by the learned Single Judge, to file effective reply to the show cause notices since a large number of properties have been provisionally attached - HELD THAT:- From a conjoint reading of relevant provisions of Sections 5 and 8 of PMLA, it is seen that there is no such time limit statutorily prescribed for submission of reply to the show cause notice issued under Sub-Section (1) of Section 8 of PMLA though it has to be borne in mind that under Sub- Section (3) of Section 5 every order of attachment made under Sub-Section (1) of Section 5 which is the subject matter of proceedings under Section 8 shall cease to have effect after expiry of 180 days or on the date of an order made under Sub-Section (3) of Section 8, whichever is earlier.
Insofar the concern of the Enforcement Directorate pertaining to the overall limitation of 180 days is concerned, the 3rd proviso to Sub-Section (1) of Section 5 clearly protects the interest of the Enforcement Directorate. While computing the period of 180 days, the period during which proceedings under Section 5 is stayed by the High Court shall be excluded and thereafter a further period not exceeding 30 days shall be counted to arrive at the figure of 180 days. The direction of the learned Single Judge granting two months of further time to respondent Nos.1 to 29 to file reply to the show cause notice is in the nature of a stay order passed by the Court and therefore, the 3rd proviso to Sub-Section (1) of Section 5 will come into play - the period extended by the learned Single Judge would expire on 22.02.2023. If by that time respondent Nos.1 to 29 do not file their reply, it would be open to the appellant to proceed in accordance with law.
Appeal dismissed.
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2023 (3) TMI 69 - DELHI HIGH COURT
Seeking a writ of Habeas Corpus (to present/produce the person before the court) to forthwith release the petitioner from illegal custody - only ground urged for seeking a writ of habeas corpus is that the learned Special Judge granted remand of more than 15 days in one go and not there was no valid remand order - HELD THAT:- The issue whether an order of remand is required to be passed under Section 167 CrPC even if the accused is not entitled to default bail, when no cognizance is taken despite filing of chargesheet has been considered in SSURESH KUMAR BHIKAMCHAND JAIN VERSUS STATE OF MAHARASHTRA & ANR. [2013 (2) TMI 821 - SUPREME COURT]. Hon’ble Supreme Court noted that from the provisions of Section 167 CrPC, it would be amply clear that the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that there are adequate grounds for doing so, but no Magistrate is authorized to detain the accused person in custody for a total period exceeding 90 days. The power of remand is vested in the Court at the very initial stage before taking cognizance under Section 167(2) Cr.P.C and once cognizance is taken, power to remand shifts to the provisions of Section 309 Cr.P.C. It was thus categorically held that in case, on the filing of the charge sheet, cognizance is not taken, the Magistrate may postpone the commencement of, or adjourn, any inquiry or trial, for reasons to be recorded and may by a warrant, remand the accused if in custody for a period of 15 days at a time. Thus, in cases, where though charge sheet is filed, however, sanction is not received, the accused will have no right to bail, however, his remand under Section 167 CrPC will be required to be continued if necessary.
In the decisions reported as NATABAR PARIDA VERSUS STATE OF ORISSA [1975 (4) TMI 132 - SUPREME COURT], it was held that before the Court proceeds to the next stage of Section 309 CrPC, the accused has to be remanded in custody of some Court. The two stages i.e. one under Section 167 CrPC and the other under Section 309 CrPC though different but one follows the other so as to maintain a continuity of the custody of the accused with the Court. Thus, it is clear that on 13th January 2023 or even on the adjourned date i.e. 24th January 2023 after the complaint was filed on 13th January 2023, no order of judicial remand was passed against the petitioner.
Though learned counsel for the petitioner has seriously challenged that the learned Special Judge could not have taken up the file suo-moto on the request of the Reader on 13th February 2023. Be that as it may, passing of a remand order is a judicial act and realizing the error committed, the learned Special Judge corrected the mistake and vide order dated 14th February 2023, directed the Rehnumai remand of the petitioner. Thus, even if on the date of filing of the petition, the custody of the petitioner was illegal in the absence of an order of remand, however, before the date of return which was 20th February 2023, when the matter was to be heard, the said defect had been rectified and the custody of the petitioner was no more illegal.
There is no dispute to the proposition raised by the learned counsel for the petitioner that an order of remand is a judicial remand and the same cannot be passed on chits of paper. However, in the present case, the learned Special Judge took up the file, issued notice to the parties and thereafter, directed the Rehnumai remand.
There are no ground to issue a writ of Habeas Corpus releasing the petitioner from the custody - petition dismissed.
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2023 (3) TMI 68 - PUNJAB AND HARYANA HIGH COURT
Seeking grant of regular bail - Money Laundering - predicate/scheduled offence - smuggling of contraband (Heroin) from Pakistan - HELD THAT:- This Court is not in a position to record its prima facie satisfaction on the three ingredients in order to dilute the rigour of presumption arising out of Section 45 of the PMLA, 2002. In view of law laid down in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT], all the three conditions under Section 45 of the PMLA, 2002 are to be satisfied.
Thus, no ground is made out to grant indulgence in favour of the petitioner. The petition is dismissed.
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