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Money Laundering - Case Laws
Showing 161 to 180 of 342 Records
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2023 (7) TMI 757
Money Laundering - attachment of properties - petitioner submits that the amount deposited in the Adarsh Credit Cooperative Society Limited and their claim for such amount ought to be settled by the respondents on count of the fact that the assets of the such society ought to be utilized for reimbursing the lawful depositors - HELD THAT:- This Court in the case of DIPESH MISHRA, DR. RAKHI KHANNA, MAN MOHAN RATHI, MUKESH NAHATA, ASHA GUPTA, SURENDRA KUMAR VERMA, SUBHASH GUPTA, RAJA RAM SINGH, SHEEFALI SARASWAT AND OTHER VERSUS UNION OF INDIA, THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT AND OTHER [2022 (7) TMI 1437 - RAJASTHAN HIGH COURT] has held that it is not the correct remedy at this stage to approach this Court in the writ jurisdiction, as there is an appropriate remedy under Section 26 of the PLMA.
Upon such submissions having been made, this Court is conscious of the fact that earlier orders were being passed for making representation to the liquidator by the depositors for their respective claims, but the turn of events and particularly, the judgment of this Hon’ble Court as well as the proposition under the PMLA, which includes attachment and the adjudication before the appellate Tribunal, does not call for any interference at this stage.
The present petition is disposed of with liberty to the petitioners to take-up all their issues before the appellate Tribunal under the PMLA and also make their claim before the liquidator and such claim can be decided by the appellate Tribunal and in consequence of the same the liquidator may act strictly in accordance with law.
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2023 (7) TMI 720
Money Laundering - conspiracy - misappropriation and diversion of the food grains meant for persons below poverty line, mid-day meal and Antyoday scheme in Varanasi district - HELD THAT:- It is significant to note that the offence under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 was not mentioned in the Schedule of Offences appended to PMLA originally. It was inserted in paragraph 24 of Part B of the schedule by Act 21 of 2009. Thus the offence under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981 was not a Scheduled Offence under PMLA during the period 12.09.1984 to 17.07.2007, which it was committed, yet the accused was charged with commission of offence under Section 3 of the PMLA. The co-ordinate Bench rightly did not interfere with the proceedings on the Ground that on the date of commission of the predicate offence, it was not a Scheduled Offence.
The offence of money laundering is an offence separate and distinct from the Scheduled offence. The complaint alleges that the petitioners have derived proceeds of crime and they have siphoned off the same. The petitioners have been involved in possession, acquisition and use of the proceeds of crime and they have enjoyed the proceeds of crime by it’s possession, acquisition and use.
The trial Court has ignored that the minimum threshold for all cash transaction or any transaction is given as per Rule 3 is ₹ 8,27,711/-.10 Lakh is concerned, although the ground does not specify as to which set of Rules is being referred by the petitioners, it appears that the petitioner is referring to Rule 3 of Prevention of Money-laundering (Maintenance of Records) Rules, 2005, which have been framed for regulating “maintenance of records of the nature and value of transactions, the procedure and manner of maintaining and time for furnishing of information and verification of records of the identity of the clients of the banking companies, financial institutions and intermediaries”.
Rule 3 has no relevance for deciding as to whether a person needs to be tried for commission of an offence under section 3 of PMLA - the trial Court has rightly rejected the application for discharges of the petitioners and there appears to be no illegality in the orders. In any case, the orders do not suffer from any such illegality as calls for interference of this Court in exercise of its revisional jurisdiction.
The revisions lack merit and the same are dismissed.
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2023 (7) TMI 585
Seeking grant of anticipatory bail - possession of tainted money, transfer of same to others based on telephonic instructions of her son accused Suryakant Tiwari - applicability of rigor of twin conditions, as prescribed under Section 45 of the Act of 2022, on account being an infirm woman - HELD THAT:- From the allegations contained in the complaint and statements recorded under Section 50 (2) of the Act of 2002, it is clear that applicant was in possession of tainted money, she has transferred the same to others based on telephonic instructions of her son accused Suryakant Tiwari. For considering application for grant of bail, fulfilment of twin conditions under Section 45 (1) (i) & (ii) of the Act of 2002 is must. The material collected and available in the complaint, prima facie indicates involvement of applicant in crime in question. Twin conditions also applies to anticipatory bail application. Except submission that applicant is an infirm woman, no material has been placed on record showing that applicant is suffering from any old age disease or is seriously sick. Offence under the Act of 2002 is an offence under the special Act, therefore, normal consideration for grant of bail under Section 438 or 439 CrPC may not be only consideration for grant of bail under Section 439 or 438 of CrPC and therefore, unless applicant comes out of rigor of twin conditions, as prescribed under Section 45 of the Act of 2022, he/she may not be entitled for benefit of bail.
In the case of Vijay Madanlal [2022 (7) TMI 1316 - SUPREME COURT] the Hon’ble Supreme Court observed the expression “and” occurring in Section 3 has to be construed as “or”, to give full play to the said provision so as to include “every” process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity.
The order passed in case of M. NAGARAJAN & ANR. VERSUS DIRECTORATE OF ENFORCEMENT & ORS. [2023 (1) TMI 1268 - SC ORDER], which was relied upon by learned counsel for applicant, is of no help to the applicant because facts of that case are entirely different from the facts of present case. In that case, closure report was filed which was later accepted by the Magistrate - In this case, there is no closure with respect to offence under Section 384 of IPC. In fact, police of Police Station Kadugodi, Whitefield, Banglore taking note of the place of incident alleged, forwarded the complaint to police of Chhattisgarh through proper channel, and further taking note of the fact that in the complaint there is categorical mention of applicant that she has not co-operated during investigation by non-applicant Department.
This is not a fit case to extend benefit of Section 438 of CrPC to applicant - this anticipatory bail application is rejected.
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2023 (7) TMI 440
Money Laundering - misuse of funds allocated under the National Rural Health Mission (NRHM) Scheme and irregularities in supply of medicines, equipment and other items under the NRHM Scheme - HELD THAT:- A number of pleas and contentions have been raised by the learned counsel for the appellant - Sanjay Agarwal, but we are refraining from the referring to these contentions in view of the request made by the learned counsel for the respondent - Directorate Of Enforcement. However, one of the contentions raised relates to the quantum of the amount involved. Reference can be made to the orders passed granting bail to the appellant-Sanjay Agarwal and the amount that was directed to be deposited.
The appellant - Sanjay Agarwal shall surrender before the trial court and thereupon, would be released on bail - Appeal allowed.
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2023 (7) TMI 419
Request for hearing the reply - exclusion of the days in the initial period of 15 days in the matter of claim of police custody - HELD THAT:- It goes without saying that as the question has already been framed by this court, at the time of admission and today the same being argued in detail on behalf of the petitioner, the said question is being considered.
As requested by the learned Solicitor General of India, post the case on 27.06.2023 for respondent side arguments.
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2023 (7) TMI 389
Bribe - Writ of Habeas Corpus (to produce the body before court - seeking direction to respondents to produce the body of the detenu Shri V.Senthil Balaji, S/o Velusamy aged about 48 years before this Court and set him free - petitioner was not permitted to avail the right to consent a legal counsel.
The allegation against the detenu is that, while officiating as a Transport Minister in the Government of Tamil Nadu, he had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them.
Whether or not a Writ of Habeas Corpus would be maintainable after passing of Judicial Order of Remand of the detenu and if so, on what premises? - HELD THAT:- The Hon'ble Supreme Court of India in Kanu Sanyal's case [1974 (2) TMI 85 - SUPREME COURT] held that irrespective of the pointers of legality or otherwise with regard to the initial detention, when there is a subsequent order making the detention as legal, in the application for Habeas Corpus, the Court is not concerned with the same.
The Hon’ble Supreme Court of India in Serious Fraud Investigation Office’s case [2019 (3) TMI 1411 - SUPREME COURT], while considering the ex post facto extension granted by the Central Government, by which only, the Agency had jurisdiction to proceed further, considered the issue in detail and held that the Habeas Corpus Petition will no longer be maintainable once there is an Order authorising judicial custody as the custody is the pursuant to the custodial judicial function exercised by a competent Court.
A petition for Habeas Corpus agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality.
Whether the petitioner herein had made out a case for exercise ofpowers under Article 226 of the Constitution of India to set the detenu free? - Violation of Article 22(1) - HELD THAT:- From the very nature of the allegations in this case that there was non-cooperation and threat and allegation of manhandling leading to a drama at the time of arrest, it can be prima facie concluded that there is no ground to discard the veracity in the averment made on behalf of the respondent officials - Copies of e-mails sent to the relatives of the detenu including the petitioner herein and SMS messages sent through telephone numbers are also produced. Therefore, I am satisfied that there due compliance of the Article 22 of the Constitution of India and the provisions in the Code of Criminal Procedure relating to the same in this regard.
Non-following of Sections 41 and 41-A of Cr.P.C. - HELD THAT:- It can be seen that the provisions of both the statutes absolutely make it clear that if there is a special enactment and if there is any special provision contained in respect of any particular purpose, then that special provision will apply. Wherever the special enactment does not contain specific provisions, then the provisions of the Code of Criminal Procedure would apply. The Code of Criminal Procedure and P.M.L.A are thus clearly and categorically harmonious - the issue is no longer res integra and the Hon’ble Supreme Court of India had considered that the special provision in the form of Section 19 adequately safeguards the interests of the accused and thus, the express application of Sections 41 and 41-A of Cr.P.C., stood negated in respect of the offence under P.M.L.A.
On a perusal of the counter affidavit filed by the Investigating Officer of the case, it would be clear that the accused behaved in a manner so as to intimidate the Investigating Officer and secondly, did not also furnish the particulars which were necessary to trace out the money trail relating to the offence and thirdly was hampering the investigation. Therefore, on more than one ground mentioned in Section 41(1)(b) of Cr.P.C., the arrest was necessary and the same is clearly mentioned in the grounds of arrest and thus, even in the absence of specific application, substantially the requirements under Section 41 and 41-A of Cr.P.C., stood complied in the instant case - the petitioner has not made out a case in this regard.
Non-application of mind at the time of remand - HELD THAT:- It cannot be said that there is non-application of mind much less total nonapplication of mind. The contention of the learned Senior Counsel for the detenu is that when the objections are raised in the petition to reject the remand, the said petition ought to have been considered while making the order of remand and it was incumbent on the part of the learned Presiding Officer to apply his or her mind in respect of those objections and if those objections are found to be genuine or valid, then the remand should be refused and if the objections are liable to be rejected, then the remand should be authorised.
Even though a petition for objections has been taken up subsequently, all the substantive allegations of non-information of the grounds, non-existence of prima facie case and other concerns were independently considered by her which reflects in the order of remand and therefore, the violation complained is only of procedure and becomes technical in nature, as there is substantive application of mind in the order of remand. Therefore, in this context, even though, the submissions of the learned Senior Counsel agreed upon that the procedure adopted by the learned Pricipal Sessions Judge could have been better, substantive compliance relating to the application of mind as to the compliance of the Article 22 of the Constitution of India, Section 19 of P.M.L.A for arrest and consideration of other apprehensions expressed by the detenu himself are made and therefore, there the exercise of power cannot be termed as “absolute mechanical manner” or 'total non application of mind'.
Therefore, it can be seen that the petitioner is unable to make out any ground. Every ground raised is untenable or to say the least is arguable both in terms of law and on facts and therefore, this is not a case of patent illegality or absolute nonapplication of mind or case of lack of jurisdiction so as to grant any relief to the petitioner.
If the detenu is not be set free, then whether the period from the moment of his arrest on 14.06.2023, whereby, he is admitted in the Hospital till his discharge is to be excluded while computing the time of initial 15 days from the date of remand to judicial custody under Section 167 of Cr.P.C., so as to entrust him for the custody of the respondents? - HELD THAT:- From Section 65 of P.M.L.A and if Section 65 is read along with Section 4(2) and 5 of Cr.P.C., it can be seen that in respect of the investigation of the offences under P.M.L.A, since no other contrary or separate procedure is contained in P.M.L.A, the provisions relating to investigation would be applicable to the offences relating to P.M.L.A - the word “Police” is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word “Police” has to be read as Investigating Agency or the Enforcement Directorate. Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits.
In this case, after the arrest and before the production before the learned Principal Sessions Judge and after the remand, not even a minute, for which, the detenu / accused was available to the respondents for custodial interrogation. In the offences like P.M.L.A, especially in the current scenario, when money trail is difficult to be unearthed on account of huge advancement of technology wire transfers, off-shore investments and transfers, it is extremely essential to unearth the truth and the custodial interrogation assumes significance - The accused, in this case, was unwell and it was due to his Coronary Artery Disease. The reason is attributable not to the Enforcement Directorate. Similarly, not permitting him in the custody for interrogation, is only taking into consideration of his own health and his health condition so that he will not be put to undue stress when he is ailing from a serious disease and post operative care. In such circumstances, when the first 15 days goes in the Hospital for his own benefit, then the benefit of custodial interrogation cannot be denied in its entirety to the respondents Enforcement Directorate.
By the interim order dated 15.06.2003, this Court, based on the medical reports of the detenu, had agreed that the detenu needs emergency medical treatment and ordered shifting to Cauvery Hospital for treatment. As a matter of fact, the respondents Enforcement Directorate had every right to feel aggrieved by our interim order and also to approach the Hon'ble Supreme Court for redressal and has been rightly done so in this case. But, at the same time, the custody was also pressed on the next day. Had the learned Principal Sessions Judge, Chennai had granted the prayer, then virtually, it would amount to overruling the order that there is necessity for emergent treatment.
What reliefs are to be granted in the present Habeas Corpus Petition? - HELD THAT:- By the interim order, it was directed shifting of the detenu / accused to the Cauvery Hospital, Chennai to undergo treatment for his ailment. It is also submitted before us that already, the surgery is performed and he is out of the Intensive Care Unit and at present, continuing his treatment in the Hospital. Considering the fact that he has undergone surgery and he can continue to undergo the treatment at the Cauvery Hospital for a period of another 10 days from today or until discharge whichever is earlier. If he needs treatment even after the 10th day, the same shall be continued at the Prison Hospital and his physician / surgeon can also visit him there and continue the treatment/follow up.
In the result,
(i) The Habeas Corpus Petition in H.C.P.No.1021 of 2023 shall stand dismissed;
(ii) The period from 14.06.2023 till such time the detenu / accused is fit for custody of the respondent shall be deducted from the initial period of 15 days under Section 167(2) of the Code of Criminal Procedure;
(iii) The detenu / accused shall continue the treatment at Cauvery Hospital until discharge or for a period of 10 days from today whichever is earlier and thereafter, if further treatment is necessary, it can be only at the Prison/ Prison Hospital as the case may be;
(iv) As and when he is medically fit, the respondents will be able to move the appropriate Court for custody and the same shall be considered on its own merits in accordance with law except not to be denied on the ground of expiry of 15 days from the date of remand;
(v) However, there shall be no order as to costs.
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2023 (7) TMI 384
Judgement pronounced with split verdict by Division Bench of the High Court - HELD THAT:- The Chief Justice of the High Court is requested to place the matter before the 3rd Judge at the earliest, with a further request to the assigned Bench to decide the issues as noticed in our previous order dated 21.06.2023, as early as possible.
Post these special leave petitions for hearing on 24.07.2023.
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2023 (7) TMI 383
Maintainability of the Habeas Corpus Petition - exclusion of the period of treatment undergone by the detenu from the period of custodial interrogation - HELD THAT:- Since both these issues are likely to be examined by the High Court on the date fixed, i.e., 22-06-2023 or soon thereafter, it is deemed appropriate to post these Special Leave Petitions for further hearing on 04-07-2023.
It is clarified that the pendency of these Special Leave Petitions shall not be taken as a ground to adjourn the matter, pending adjudication before the High Court.
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2023 (7) TMI 381
Maintainability of writ of Habeas Corpus against an order of remand under Section 167 of Criminal Procedure Code - Illegal detention of the husband of the petitioner - it is alleged that the detenu had obtained money from third parties, promising jobs in the Transport Department and thereafter cheated them - HELD THAT:- The medical bulletin issued by the Government Medical College and Hospital, Omandurar Government Estate is extracted. At this juncture, lightly and without any material, it cannot be doubted that the opinion of the doctors, when there has to be an emergent treatment. As prima facie, the detenu is in custody by judicial order of remand, there is no question of enlarging him on bail. He shall continue to be in judicial custody.
The only question is whether he has to undergo an emergent treatment at the Omandurar Government Hospital itself or the hospital of their choice. In this regard, when the petitioner pleads that they have a regular physician at Cauvery Hospital, Chennai which is also a reputed hospital in Chennai, regarding the treatment in Cardiology, when the matter is concerning a life of an individual, the prayer on behalf of the detenu to undergo treatment at the hospital of their choice, at his own cost, can be acceded to even while he continues to be in judicial custody.
But however, since there is a concern which is expressed on behalf of the respondents / Enforcement Directorate, even after shifting the detenu from the Omandurar Government Hospital to Cauvery Hospital, a panel of doctors constituted by the respondents, can also visit and examine the detenu and the medical records and the treatment which is being given to the detenu - the detenu is directed to be shifted to Cauvery Hospital, Chennai, for undergoing the emergency treatment as mentioned in the Medical Bulletin of the Omandurar Government MultiSpeciality Hospital, Chennai, dated 14/06/2023.
Call the main Habeas Corpus Petition on 22.06.2023 for final disposal.
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2023 (7) TMI 112
Money Laundering - seeking review of order of Supreme Court - SCN sought to be quashed on the ground that Bench constituted under clause (b) of sub-section (5) of section 6 of the PMLA, 2002, did not have a Judicial Member - HELD THAT:- The Supreme Court in numerous judgments has held very clearly that such practice of filing application for modification/clarification of judgment rendered must be deprecated as in actual what it seeks is a review or revision of the judgment which is not permissible.
In INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION VERSUS UNION OF INDIA & OTHERS [2011 (7) TMI 1109 - SUPREME COURT] the Supreme Court examined whether a final judgment of the Supreme Court could be reopened by merely filing interlocutory applications. It was held that a final judgment cannot be reopened by merely filing interlocutory applications where all possible legal remedies have been fully exhausted. In the case before the Supreme Court two interlocutory applications had been filed after the Supreme Court had pronounced the judgment. It was held that permitting the parties to reopen the concluded judgments by filing repeated I.As is clearly an abuse of the process of law and would have a far reaching adverse impact on the administration of justice.
It was open for the applicant to have preferred a review petition before the learned Single Judge or an appeal before the Division Bench of this Court or even a Special Leave Petition before the Supreme Court against the judgment dated 22.09.2015 within the prescribed time if they were not satisfied with it - Even if this Court was to consider the application for modification/clarification as one filed under Section 482 Cr.P.C. which is the inherent power of this Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice it cannot come to aid a litigant to abuse the process of administration of justice.
Application dismissed.
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2023 (7) TMI 36
Seeking grant of bail - Money Laundering - creation of fake Fixed Deposit receipts, which were created on the basis of the original FD receipts - tampering the evidence - HELD THAT:- About non-compliance of 41(A) notice, as per submission of the respondent, statement recorded under Section 50(a) under Act, Judicial Statement, need not be issued 41(A) notice - on perusal of the materials relied on by the respondent / Police, prima facie established that he was actually involved in the process connected with the crime, and he not only created fake FD receipts, but also intentionally assisted A1 and other accused persons to open the fake Current Account by preparing fake documents,forging the specimen signatures of the officials and Rubber Stamp of Port Trust and "Port of Chennai's logo and also possession and enjoyment of the proceeds of the Crime by concealing its original documents and transferring the amounts to other accounts projecting and claiming the same as untainted.
Furthermore, as per the submission made by the learned Special Public Prosecutor, petitioner had not disclosed the two facts pertaining to the end-use of mis-appropriated amount, which is the proceeds of the crime, and as of now Rs.7 crores were recovered and nearly about Rs.35 crores is yet to be recovered by the investigating agency and crores of rupees of Port trust which is a public money, were mis-appropriated by the petitioner /A22 along with other accused persons. Therefore, the authority relied on by the petitioner's counsel to show that the role of the petitioner is restricted only in respect of creation of the alleged fabricated fake FD receipts, as such is unsustainable one.
Considering antecedence of the petitioner that he had already involved in Bank fraud case during the year 2009 in FIR.No.RC.14/E/2009- CBI-EOW/Chennai dated 04.09.2009, which was registered by the CBI, EOW, Chennai. In that case, Rs.25 Crores belonging to M/s.Northern Coal fields Limited (M/s.NCL), were fraudulently transfered by one Krishnan Rao to the Current Account No.3014563150 of his Company and subsequently, they transfered the amounts to several Accounts. In that case, the petitioner also opened an Account in ICICI Bank, for nearly about Rs.2 crores, which were credited to his Account, and subsequently, the amount were withdrawn. Thus, petitioner has not complied with the second conditions to avail the benefit of bail i.e. he was already charged for the offences of like nature.
The Special Public Prosecutor said that, in the instant case, the proceedings of the Directorate of Enforcement had clearly reflected that the respondent / Police have collected sufficient materials against the petitioner to proceed under Section 3 of the Prevention of Money laundering Act.
Statement recorded by Assistant Director under Section 50 PMLA for this petitioner also enclosed in counter statement by the respondent. The active participation on the part of this accused also primafacie reveals that he, knowing well the purpose of creation of the fake documents he has involved in the present offence, as stated by the learned Special Public Prosecutor. The petitioner/A22 is one of the main person and he played active role with the prime accused person, so the authorities relied on Hon'ble Division Bench of this Court, N. RAVEENDRANATHA REDDY VERSUS THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT, GOVERNMENT OF INDIA [2022 (3) TMI 196 - MADRAS HIGH COURT] by the petitioner, is not applicable to the facts of the present case.
Considering the antecedence of the petitioner / A22 as well as huge amount of public exchequer is involved, this Court is not inclined to grant bail to the petitioner at this stage, that too when further investigation is yet to be done by the respondent / Police. Furthermore on considering the nature of the offences committed by the petitioner and also the previous antecedents, possibility of indulge in similar offence, and that there is a possibility of tampering with witnesses and hampering the evidence and investigation, and as there is no change of circumstances, this Court is not inclined to grant bail to the petitioner.
This Criminal Original Petition is dismissed.
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2023 (6) TMI 1473
Money Laundering - second charge relating to conspiracy - framing of charges - twin conditions under Section 45 of PMLA - HELD THAT:- Having regard to the fact that the petitioner was the President of West Bengal Board of Primary Education and that there are materials to show that the Enforcement Directorate has been able to collect materials which would satisfy the presumptions attached under Sections 22 and 23 of Prevention of Money Laundering Act, it is not possible to hold for this Court at this stage that the petitioner is “not guilty of such offence” although the aforesaid fact is restricted for the consideration of bail.
It is opined that at this stage when the Enforcement Directorate is about to frame the charges, it would not be fit and proper to release the petitioner on bail.
Conclusion - There was sufficient evidence to continue proceedings against the petitioner for money laundering. The bail application was rejected, with the petitioner granted the liberty to reapply post charge framing.
The prayer for bail of the petitioner namely Manik Bhattacharya is rejected - Application disposed off.
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2023 (6) TMI 1436
Money Laundering - time limitation - refusal to provide copies of the seized records before filing of reply to the SCN.
Whether the provisions of Section 21(2) of PMLA gives any scope for flexibility as to the timeline for giving copies of the seized records to the person from whom such records are seized? - HELD THAT:- The seized records can only be retained for the maximum of 365 days for the cases which are under investigation or for longer period i.e. till the pendency of the proceedings relating to money laundering offence before the Court. Furthermore, if such seized records are sent within 30 days of the seizure to the Adjudicating Authority under sub-section 17(4) along with the Original Application, the provisions of retention for 180 days by the Investigating Officer on his own reasons to believe under sub-section 21(1) becomes redundant and also takes away the time required by him for conducting investigation. Therefore, it again follows that the seized records are not included in the word "material" as referred to under the provisions of the Act and Rules thereunder.
Whether refusal to provide copies of the seized records before filing of reply to the Show Cause Notice issued by the Office of the Ld. Adjudicating Authority u/s 8(1) of PMLA causes prejudice to the appellants herein? - HELD THAT:- The provisions of section 8(1) require that the Adjudicating Authority on receipt of an application under sub-section 17(4) has to issue a notice, if he has reason to believe that any person has committed an offence u/s 3 of PMLA or is in possession of proceeds of crime, to such person as to indicate the sources of his income, earning or assets, out of which or by means of which such person has acquired the property attached under section 5(1) or seized under section 17 along with the evidence on which such person relies and other relevant information. The Adjudicating Authority has issued Show Cause Notice to the appellants on 2-3-2023 under section 8(1) - It is observed that section 8(1) only mentions the issuing of a notice where the property has been attached or seized. The provisions of section 8(1) do not refer to seized records. The definition of property under section 2(v) of the Act includes deeds and instruments evidencing title/interest in such property or assets.
The mere mention of the seized records in the Show Cause Notice so as to disclose the purpose of issuing the Show Cause Notice so as to make it clear that it is for the decision with regard to further retention of the seized records does not make such records as relied upon documents. From the reading of the order dated 26-5-2023 of the Adjudicating Authority it is clear that he does not intend to rely upon the seized record for the determination of further retention of seized records. In fact, he has not even received such records. It is, therefore, obvious that the Ld. Adjudicating Authority for the aforementioned adjudication proposes to rely upon the material for which copies thereof has already been supplied to the appellants - there does not appear to be any contravention of the principles of natural justice as the Ld. Adjudicating Authority has ensured supply of all documents on which he intends to rely upon for the adjudication proceedings.
The documents which are in the form of material before the Ld. Adjudicating Authority are those on which he will be relying upon to adjudicate the proceedings relating to retention of the seized records beyond 180 days. Whether such records will be sufficient for the adjudication process is a question of subjective satisfaction of the Ld. Adjudicating Authority. In any case the appellants have chosen to challenge the interim order dated 26-5-2023 without allowing the Show Cause Notice dated 2-3-2023 to be finally adjudicated - The plea by the appellants that their reply to the Show Cause Notice for retention of seized records, cannot be effective in defending them in the proceedings before the Adjudicating Authority in the absence of the copies of the seized records, is not sustainable.
Appeal dismissed.
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2023 (6) TMI 1340
Seeking grant of Bail - Money Laundering - proceeds of crime - present applicant and the main accused Suryakant Tiwari were involved in illegal extortion from the coal transporters working in the Coal Mines within the State of Chhattisgarh - HELD THAT:- What is apparently evident is that the prosecution in the course of the investigation has collected substantial materials showing strong nexus between the applicant and the other accused persons in the said crime. From the documents produced in the Court during the course of hearing, there seems to be prima-facie materials collected establishing Money Laundering at the hands of the present applicant and the other accused persons. The prosecution has been able to show documents collected in the course of the search and seizure showing incriminating evidences in the form of handwritten diaries and digital devices, like mobile phones, laptops, etc. which would disclose numerous cash transactions and other illegal transactions operated by the main accused Suryakant Tiwari as per the dictates of the present applicant, who being a public servant used Suryakant Tiwari and Manish Upadhyay her a front men.
Having perused the entire voluminous documents produced by either side, the magnitude of the amount involved in the so called scam or the economic offence is incomprehensible. Further, the number of persons involved in the commission of the offence directly or indirectly and many of them being part of the bureaucracy itself and the period of commission of the offence spanning considerable period of time makes the gravity of the offence graver. What is required to be seen is the gravity and magnitude of the offence - An economic offence is a rampant and pervasive social wrongdoing; each country on the planet is confronting this socio-economic challenge in one or the other form. It is the most consequential threat to a nation’s economy at large. It's nothing but another attempt to satisfy an individual’s greed over need.
For the law enforcement agencies, it becomes a Herculean task to conduct interrogation and gather evidence since tampering of evidence is easy given the nexus of the accused parties with the system. 20. In such circumstances, the need of impartiality and fair play requires distinctive modus operandi to lift the veil off of economic offences. One way is to keep the accused parties in custody for longer period, so that there will be minimum hinderance and maximum efficiency in the investigation not just that of the applicant but also of all others who are involved in the offence. For that purpose, bail ought not be allowed in the same way as conceded in the event of regular offences.
Taking into consideration the magnitude of the offence, this Court is not inclined to grant bail to the present applicant as of now - bail application rejected.
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2023 (6) TMI 1325
Money Laundering - seeking grant of interim bail - bail sought on medical grounds - whether the petitioner is entitled to interim bail as being "sick or infirm" in terms of the proviso to Section 45(1) of the PMLA?
HELD THAT:- Health condition of a human being deserves utmost importance and right to health is one of the most significant dimensions of Article 21 of the Constitution of India. Every person has a right to get himself adequately and effectively treated. The exercise of discretion of the grant of bail is not to be exercised only as a last resort rather freedom is a cherished fundamental right.
Hence, in view of the health conditions of the petitioner, the medical records being furnished on behalf of the petitioner and the same being verified by the ED as authentic, the non-denial of the condition of the petitioner which is worse than the co-accused who has been granted regular bail, and on the perusal of all other precedents this Court finds that the petitioner is suffering from life-threatening diseases warranting immediate medical attention and post-operative care. This Court is of the opinion in view of the aforesaid discussion, the petitioner's case satisfies the test of the proviso to Section 45(1) of the PMLA.
This Court has also appreciated the other factors as required to be considered while granting bail to an accused. It is evident that there is nothing on record to show that the liberty granted to the petitioner has been misused by him during his previous interim bails and neither has he been found to be an absconder.
The petitioner is admitted to interim bail for a period of six weeks on his furnishing a personal bond in the sum of Rs.10,00,000/- with two sureties of the like amount to the satisfaction of the Trial Court concerned, subject to the conditions imposed - application is disposed of.
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2023 (6) TMI 1324
Grant of Regular bail - bail sought on medical and humanitarian grounds for a period of 3 months alleging precarious health of the petitioner - whether the petitioner, who is in custody, is entitled to interim bail on medical grounds? - HELD THAT:- Article 21 of the Constitution provides for protection of life and personal liberty. The said right cannot be curtailed "except according to procedure established by law". The liberty of a person who is accused or convicted of an offence can be curtailed according to procedure established by law. However, right to health is also recognized as an important facet of Article 21 of the Constitution. Merely because a person is an under trial or for that matter even a convict, lodged in jail, this facet of right to life cannot be curtailed. It remains an obligation of the state to provide adequate and effective medical treatment to every person lodged in jail, whether under trial or a convict.
A Co-ordinate Bench of this Court in Kewal Krishan Kumar V. Enforcement Directorate, [2023 (3) TMI 746 - DELHI HIGH COURT], referring to the relevant clauses of the Finance Bill introduced on 1st February, 2018 for amending Section 45 of the PMLA, observed that a purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford 'relaxation' to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA.
The power to grant bail on medical grounds under the first proviso to Section 45(1) of the Act is discretionary, therefore, the same has to be exercised in a judicious manner guided by principles of law after recording satisfaction that necessary circumstances exist warranting exercise of such a discretion.
In the absence of an opinion of the experts it is difficult for this Court to come to the conclusion as to whether it is a case for grant of interim bail on the medical grounds. The Court cannot assume the role of an expert and make assessment of its own as regard the medical condition of the petitioner on the basis of medical records placed on the Court file - on humanitarian grounds, the medical condition of the petitioner as articulated in the affidavit of petitioner's wife cannot be simply brushed aside given the fact that there is material on record suggesting that the petitioner is heart patient, as well as having spine related issues, besides other ailments
This Court deems it appropriate, to constitute a medical board to evaluate the medical condition of the petitioner - List on 12.06.2023.
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2023 (6) TMI 1005
Money Laundering - alleged collection of huge amount of money from the public by M/s. Fine Indisales Private Limited and of misappropriation thereof - HELD THAT:- The Court below could have issued a bailable warrant at that stage if it was not inclined to grant time or had any reason to believe that the Petitioners were avoiding appearance, but directing issuance of N.B.Ws. straight away cannot at all be held to be justified in the facts and circumstances of the case. It is stated that the Petitioners were engaged in marketing jobs at different places of Raipur and Mumbai and therefore, could not personally appear.
This is a reasonable explanation for non-appearance, which ought to have been considered by the Court below. Even the fact that the Petitioners were never arrested during investigation and prosecution does not allege that they had not cooperated with the investigating agency, does not seem to have been considered by the Court at all. Therefore, there seems to be no justified reason to take coercive steps against the Petitioners for their appearance.
This Court is strongly persuaded to hold that the impugned order in so far as it relates to the direction for issuance of N.B.W. cannot be sustained in the eye or law - Petition allowed.
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2023 (6) TMI 1004
Seeking enlargement on Bail - Money Laundering - Scheduled offences - swindling of money invested by the Government in a dubious manner - discrepancies including diversion of APSSDC funds through various shell companies - diversion of Government funds - Section 45 of the PMLA - HELD THAT:- It has been revealed about diversion of major funds to suspicious entities done by SEPL under the pretext of supply of software/ hardware/materials/services. It is alleged that in reality, the supply of such goods and services was not done. On examination of data and analysis of bank account statements shows that about Rs. 56.00 crores, out of the funds received from APSSDC, was transferred by SEPL to the entity ACI, and the said amount was diverted through a web of shell entities by way of layered transactions.
The petitioner had knowledge that no goods or services were being provided by the shell companies to DTSPL. An amount of Rs. 241.00 crores was received by SEPL from DTSPL and a significant part of the said government funds were diverted through SEPL and complex web of shell companies under the guise of supply of software/ hardeware/materials/services - government funds were diverted by DTSPL, belonging to Vikas Khanvelkar, through SEPL and a web of shell companies, and in lieu of transfer of funds, cash was provided by entry operators who were managing the shell companies, and the said cash was moved from entry operators to Suresh Goyal. In the said diversion of government funds, the petitioner, Suman Bose and Vikas Khanvelkar played pivotal roles. Hence, the petitioner committed the offence of money laundering under Section 3 of the PMLA punishable under Section 4 of the PMLA.
In the aforesaid identical case in SANJAY RAGHUNATH AGARWAL VERSUS THE DIRECTORATE OF ENFORCEMENT [2023 (4) TMI 874 - SUPREME COURT], lodging of the prosecution complaint is sequel to the registration of the FIR in the predicate offence way back in the year 2021. In the present case on hand also, no charge sheet has been filed in the predicate offence for the last more than 15 months. The petitioner herein has been in jail from 04.03.2023. It is the first offence insofar as the petitioner is concerned. There are no other complaints registered as against him. The said argument gives room to say that second condition in clause (2) of sub-section (1) of Section 45 of the PMLA would be satisfied. In the aforesaid circumstances, continued incarceration of the petitioner is not justified.
In respect of a query raised by the investigating agency, the petitioner herein gave response to each and every question that has been asked for. Prosecution complaint was also filed on 01.05.2023. The petitioner was arrested on 04.03.2023 and since then he is in judicial custody. When time and again, petitioner is continuously attending before the investigating agency and co-operating with the investigation, this Court is of the opinion that it is not necessary to detain the petitioner in jail further. In view of the aforesaid facts and circumstances, this Court feels that request of the petitioner for grant of bail can be considered, however, on certain conditions.
The petitioner shall be enlarged on bail on his executing a personal bond for a sum of Rs. 50,000/- with two sureties each for the like sum to the satisfaction of the Additional Sessions Judge-cum- Metropolitan Sessions Judge, Visakhapatnam - the Criminal Petition is allowed.
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2023 (6) TMI 792
Seeking unconditional withdrawal of the writ petition - constitutional validity of Sections 50, 63 and other provisions of the PMLA - HELD THAT:- Having said that the Court is constrained to observe that despite the Three-Judge Bench decision in the case of Vijay Madanlal Choudhary and Others vs. Union of India and Others [2022 (7) TMI 1316 - SUPREME COURT], upholding the vires of various provisions including Sections 50 and 63 of PMLA, a new trend is developed in this Court to file writ petitions under Article 32 of the Constitution of India again challenging the constitutional validity of Sections 50, 63 and other provisions of the PMLA, also seeking consequential reliefs which otherwise would tantamount to by-passing the other alternative efficacious forums available to the petitioners under the law.
The writ petition stands dismissed as withdrawn with limited liberty.
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2023 (6) TMI 791
Jurisdiction of the Adjudicating Authority under the Prevention of Money-Laundering Act, 2002 - quasi-judicial statutory authority and not a Central Agency - petitioners challenges the impugned order of the PMLA authority on the ground of coram non judice.
HELD THAT:- Insofar as the objection as to coram non judice is concerned, there are two interpretations possible regarding the provisions of Section 6 of the PMLA - The one in favour of the petitioners is on the basis of sub-section (2) of Section 6, which stipulates that an Adjudicating Authority shall consist of a Chairperson and two other Members. The qualifications of the Members have also been provided in the proviso. Hence, as per the Scheme of the Act, the Adjudicating Authority has to comprise of three Members in total, out of whom one will be the Chairperson. However, it has been argued that at present the Adjudicating Authority is functioning only with a Chairperson, without any other Member having been appointed to fill the vacancies. Thus, the question of coram non judice arises - On the other hand, sub-section (5)(b) provides that a Bench may be constituted by the Chairperson with one or two Members, as the Chairperson of the Adjudicating Authority may deem fit. Hence, it is evident that the Chairperson has the discretion even to function with only one Member, which can very well be herself/himself. Proceeding on such premise, the objection as to coram non judice cannot be accepted.
Hence, on a comprehensive interpretation of Section 6, it is clear that not only has the Chairperson the discretion to constitute a Bench with only one Member, but the norm also as per Section 6(7) is that the Bench will consist of a single Member and, only if the case is of a critical nature, a Bench consisting of two Members will be assigned the hearing - In the present case, the Chairperson, as a single Member, has proceeded to take up the hearing of the application under Section 17 of the PMLA which, in the light of Section 6, cannot be held to be vitiated on the ground of coram non judice.
Apprehension of bias - Chairperson has been proceeding in hot haste and fixed the first hearing at the office of the ED, which is itself the complainant - HELD THAT:- The respondents have sought to explain away such venue by arguing that the CGO Complex, where the sitting was scheduled, houses all the offices Central Government including the ED office. Although in the Notice it was indicated that the meeting would be held in the ED office, it was held in a different Government office of the same building which was on the same floor as the ED office - That apart, the petitioners’ counsel participated in the hearing and never took the objection as to the venue.
The mere selection of the ED office as a venue in the present context, in the absence of any other clinching factor to indicate bias, would not vitiate the proceeding, more so since the matter has not yet reached the final hearing stage - Hence, it cannot be said that the Chairperson committed any jurisdictional error in himself, as a single Member, to entertain and proceed with the hearing of the application pending before the Authority.
There is no scope of entertaining the writ petition at this stage. However, in order to allay the apprehension of bias in the mind of the petitioners, a further opportunity of hearing ought to be given to the petitioners before closing the hearing on the pending interim applications - Application is disposed of by directing the Adjudicating Authority to afford an opportunity of hearing to the petitioners and/or their counsel and thereafter to pass necessary orders.
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