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Money Laundering - Case Laws
Showing 81 to 100 of 342 Records
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2023 (9) TMI 1477
Seeking grant of bail - Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 - Jharkhand High Court in [2022 (4) TMI 1611 - JHARKHAND HIGH COURT] held that 'it is found that the conduct of the applicant in transferring the huge amount which was proceeds of the crime to the several bank accounts and also purchasing 53 vehicles revealed that there are reasonable ground to believe that the applicant is guilty of the offence of money laundering and he is likely to commit the offence, if enlarged on bail.' - HELD THAT:- There are no good ground to interfere with the impugned judgment and order passed by the High Court - SLP dismissed.
Seeking to quash the order passed by the Special Judge, C.B.I. - Direction to the C.B.I. to defreeze the bank account - criminal conspiracy with the co-ccused - utilized/transferred/ misappropriated the amounts - It was held by Jharkhand High Court in [2020 (8) TMI 945 - JHARKHAND HIGH COURT] that in the absence of any material to suggest that any bank account has been freezed during the investigation of the instant case no order to defreeze any bank account can be passed. No merit in the writ application. Accordingly, this writ application being without any merit is dismissed - HELD THAT:- There are no reason to entertain this application, it is, accordingly, dismissed.
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2023 (9) TMI 1473
Seeking grant of regular bail - Money Laundering - cheating depositors by collecting fixed deposits without authority - predicate offence - HELD THAT:- While considering the prayer for regular bail, this Court bears in mind the views of the Supreme Court in P. Chidambaram v. Directorate of Enforcement [2019 (12) TMI 186 - SUPREME COURT] that "one of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed" and that in Vijay Madanlal Choudhary's case [2022 (7) TMI 1316 - SUPREME COURT] that "The punishment provided for the offence is certainly one of the principles in deciding the gravity of the offence, however, it cannot be said that it is the sole factor in deciding the severity of the offence as contended by the petitioners. Money laundering is one of the heinous crimes, which not only affects the social and economic fabric of the nation but also tends to promote other heinous offences, such as terrorism, offences related to NDPS Act, etc." Both decisions were rendered by coordinate Benches and state that one of the principles to decide the gravity of the offence can be the sentence.
The predicate offences charged against the petitioner are under sections 420, 120B, 421, and 471 IPC. Though FIR has been registered against the petitioner for the offences under the BUDS Act and under the Kerala Protection of Interests of Depositors in Financial Establishments Act, 2013 as well, those offences are not scheduled offences under the PML Act and cannot hence be termed as predicate offences. There is nothing to indicate how the offence under section 471 IPC applies to the petitioner's case. Therefore, the main predicate offences charged against the petitioner are under sections 420 and 421 IPC.
In the absence of any presumption of guilt for the predicate offences, this Court has to consider whether there are reasonable grounds to believe that petitioner is not guilty of the offence of money laundering as alleged.
The burden of proving the predicate offence of section 420 IPC thus stands entirely on the prosecution. The offence under section 420 IPC has to be independently established. When the investigation into the predicate offence has been continuing for the last more than three and a half years, and a final report has not been able to be filed till date, it goes without saying that it cannot be assumed that the accused can be said to be guilty of the offence under section 420 IPC.
There is nothing to indicate at present that there was any dishonest or fraudulent removal, concealment or delivery of any property without adequate consideration to prevent the distribution of property to creditors.
This Court is of the considered view that the twin conditions stipulated under section 45 of the PML Act are satisfied, entitling the petitioner to be released on regular bail. It is clarified that the findings entered into in this order are purely for the purpose of this bail application and shall not affect the validity of any other proceedings under the PML Act or the investigation into the predicate offences.
The petitioner is entitled to be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2023 (9) TMI 1472
Money Laundering - seeking grant of bail - source of income - acquiring huge properties in the name of their family members - HELD THAT:- Considering the facts and period of custody, let the petitioner be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2023 (9) TMI 1469
Money Laundering - proceeds of crime - predicate offence - proceeds of the offence in the custody of the main accused were used to infuse amount in the share capital of the bank of which the appellant was Vice Chairman - main accused was allowed to take over the said bank - persons who were shown as members/shareholders were not eligible to become members - HELD THAT:- The only allegation against the appellant is that he allowed the principal accused to invest the proceeds of the crime in the share capital of a bank of which he was the Vice Chairman - Though it is alleged that close associates/relatives of the main accused were made members and they were not entitled to become members, it is not the case of the prosecution that the share holders are fictitious persons.
The appellant has undergone incarceration for a period of 1 year and 9 months and there is no possibility of the trial commencing in the near future. Conclusion of trial will take a very long time.
It is directed that the appellant shall be produced before the competent Court within a period of one week from today. The competent Court shall enlarge the appellant on bail on appropriate terms and conditions. However, the respondent shall be heard before fixing the terms and conditions.
Appeal allowed.
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2023 (9) TMI 1462
Money Laundering - seeking quashing of ECIR - Continuance of investigation for the offence under the PML Act - pending adjudication of the petitioner’s prayer for discharge from the scheduled offence by the Supreme Court - invocation of inherent jurisdiction - Section 482 of Cr.P.C. - HELD THAT:- Section 482 envisages three circumstances under which the inherent jurisdiction may be exercised (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. Obviously, such power is to be exercised in relation to a proceeding which is criminal in nature. It would now be proper to examine whether the proceeding ‘purportedly emanating from the ECIR’ registered against the petitioner can be treated as criminal proceedings so as to come within the sweep of the power under Section 482 of Cr.P.C. Be it noted that under the scheme of Cr.P.C., the criminal law is set into motion after registration of the FIR under Section 154 of Cr.P.C. and/or filing of a complaint under Section 200 of Cr.P.C. The PML Act, 2002 also prescribes for filing of complaint before the Special Court under Section 44 thereof.
Scope of ECIR - HELD THAT:- The ECIR is an internal document created by the Department before initiating penal action or prosecution against the person involved with process or activity connected with the proceeds of crime. In other words, registration of ECIR is not akin to launching of prosecution, which can only be done by way of lodging a complaint under Section 44 of the PML Act. Thus, a document or an act, which is administrative in nature, cannot partake the nature of criminal prosecution so as to attract judicial review.
In the case of STATE OF WEST BENGAL AND ORS. VERSUS SUJIT KUMAR RANA [2004 (1) TMI 684 - SUPREME COURT], the Supreme Court held Once it is held that the criminal court had no power to deal with the property seized under the Act, the question of the High Court exercising its jurisdiction under Section 482 of the Code of Criminal Procedure would not arise.
In so far as the case laws cited at the bar, particularly by learned Senior Counsel appearing for the petitioner, this Court finds that in the case of Sukesh Gupta [2023 (4) TMI 263 - TELANGANA HIGH COURT], the Telengana High Court held on the facts of the case before it that since there is no evidence of criminal activity nor any property being derived as a consequence of such criminal activity, the proceedings in the concerned ECIR cannot be permitted to continue. In arriving at such finding, learned Single Judge of Telengana High Court relied upon the observations of the Supreme Court in the case of State of Harayana v. Bhajanlal [1992 (12) TMI 234 - SUPREME COURT], State of Karnataka v. M. Devendrappa [2002 (1) TMI 1340 - SUPREME COURT] and Anil Khadkiwala v. State (NCT of Delhi), [2019 (7) TMI 1455 - SUPREME COURT] were relied upon. This Court is however, unable to agree with the reasoning of the learned Single Judge for the reason that the nature of the proceedings emanating from registration of ECIR short of filing of the complaint under Section 44 of the PML Act was not specifically taken into account vis-à-vis the distinction made between the ECIR and FIR by the Supreme Court in Vijay Madanlal Choudhury [2022 (7) TMI 1316 - SUPREME COURT].
The act of registration of ECIR is an administrative act in contradistinction with a penal act and therefore, the ratio of Sujit Kumar Rana would be squarely applicable.
This Court is of the considered view that the act of registration of ECIR against the petitioner and the investigation/enquiry said to be in progress on such basis are not amenable to judicial review by this Court in exercise of its inherent power under Section 482 of Cr.P.C. - Further, the present motion, which is at a stage when the investigation/enquiry initiated on the basis of the ECIR registered against the petitioner has not culminated in lodging of a complaint under Section 44 of the PML Act, is premature. In view of such finding, the contentions raised by the parties touching upon the merits of the case are not required to be gone into.
The CRLMC is dismissed being not maintainable in the eye of law.
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2023 (9) TMI 1456
Grant of anticipatory bail - Money Laundering - proceeds of crime - siphoning off of funds - Section 45(1)(ii) of the PMLA - HELD THAT:- Considering the fact that petitioner is knowingly involved in acquisition, concealment and transfer of proceeds of crime and projection of the same as untainted, as referred to hereinabove. Further, Section 45(1)(ii) of the P.M.L.Act provides that notwithstanding anything contained in the Cr.P.C., no person accused of an offence under the P.M.L.Act shall be released on bail unless the Court is satisfied that there are reasonable grounds for believing that he/she is not guilty of such offence and that he/she is not likely to commit any offence while on bail.
Taking into consideration the rival submissions of learned counsel for the parties and materials available on record as also in view of section 45 of the P.M.L. Act and the fact that prayer for anticipatory bail of other two co-accused has been rejected by a coordinate Bench of this Court in RANJEET KUMAR MANDAL AND SAUDAGAR MANDAL VERSUS UNION OF INDIA THROUGH ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT (PMLA) , PATNA [2023 (7) TMI 1392 - PATNA HIGH COURT], this Court does not find any ground to grant anticipatory bail to the petitioner and as such, the application for grant of anticipatory bail to the petitioner is rejected.
Petition dismissed.
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2023 (9) TMI 1452
Money Laundering - seeking grant of bail - bail sought on medical grounds - right to medical treatment - HELD THAT:- The petitioner like any other citizen has a right to get effective and proper medical treatment, this court also cannot lose sight of the fact that a person is presumed to be innocent till he is proven guilty. The petitioner is yet to be announced guilty and therefore proper medical treatment cannot be denied to him. However, this court is also conscious of the serious allegations against him and the gravity with which the legislation has viewed such offences.
In the totality of the facts and circumstances and in view of the advice of the BLK-Max Super Speciality Hospital, the court disposes of the present application with the following directions:-
a) The Superintendent Jail shall take custody of the petitioner from VNA Hospital, situated at 1, Navjeevan Vihar, Geetanjali Enclave, Malviya Nagar today before 8 p.m. in a proper ambulance taking care of his medical condition. The ambulance should be accompanied by a doctor and proper medical facilities.
b) The petitioner, if required, shall be taken to VNA Hospital, situated at 1, Navjeevan Vihar, Geetanjali Enclave, Malviya Nagar as an OPD patient for removal of stitches, as advised by Dr. Abhishek Kumar Mishra.
c) The petitioner shall be taken in custody for follow-up with Operating Spine Surgeon for post-operative spine review, as and when required.
d) The Superintendent Jail shall strictly follow up the medical advice as given in the discharge summary of BLK-Max Super Specialty Hospital; and
e) The petitioner be also taken for rehabilitation sessions twice a week at Centre for Sports Rehabilitation, VNA Hospital, situated at 1, Navjeevan Vihar, Geetanjali Enclave, Malviya Nagar for gait training on an anti-gravity treadmill and strengthening on isokinetic machine.
f) The petitioner be provided appropriate medical treatment as per rules.
Application disposed off.
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2023 (9) TMI 1450
Money Laundering - Seeking grant of Interim Bail - bail sought on medical grounds - HELD THAT:- There is no doubt in the mind of the Court that every individual has a right to get proper and effective medical treatment. There is also no doubt that an accused has a similar right to proper and effective treatment. However in the present case, the petitioner has been given concession of interim bail on the medical grounds on several occasions. This Court cannot raise a suspicion at the ground of the petitioner’s health condition but at the same time, this extension of interim bail from time to time sets a very bad precedent and is prone to be misused. Thus, this Court does not find any ground to further extend the interim bail.
The petitioner shall be remained hospitalized in the custody of the Superintendent Jail till the petitioner is discharged from the hospital, which should not exceed two weeks except in case of some medical advice. During this period, the wife, children and parents of the petitioner may meet the petitioner in the hospital as per the rules and the permission of the Superintendent Jail. However, during these meetings, the members of the family of the petitioner shall not be allowed to take phone with them. The petitioner shall also not be allowed to use a phone during this period. The petitioner may be allowed to take home cook meal during the period of hospitalization.
Let the medical documents on record be verified from the AIIMS. Medical Superintendent, AIIMS is requested to constitute a medical board and give a definite opinion about the medical condition of the petitioner and also to suggest whether the present disease and all the medical problems taken together or singly, require hospitalization in a particular hospital or can the petitioner be treated in the jail or the referral hospital.
Application disposed off.
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2023 (9) TMI 1416
Seeking release of the applicant on bail - Money Laundering - proceeds of crime - large scale financial loss bunglings - loss irregularities - misappropriation of MGNREGS funds - HELD THAT:- The aforesaid application was disposed off directing that if the applicant appear before the trial court within three weeks from the date of the order and apply for bail, the same shall be decided in view of the law laid down by the Apex Court in the case of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2021 (10) TMI 1296 - SUPREME COURT].
The applicant has not availed the aforesaid remedy and he has not appeared before the trial court in spite of a non bailable warrant being in existence since prior of 11.08.2023.
The applicant is not entitled to be receive discretion of this Court by granting the him pre arrest bail - this anticipatory bail application stands rejected.
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2023 (9) TMI 1414
Second bail application for grant of anticipatory bail - illegally earned the money and purchased the property in the name of his wife - HELD THAT:- Since the matter is related to the economic offences containing property worth Rs.1,55,87,861/-, the applicant cannot be released under the provisions of anticipatory bail and therefore, anticipatory bail application filed under Section 438 of the Cr.P.C is hereby dismissed.
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2023 (9) TMI 1381
Money Laundering - Enforcement Directorate has an independent right to conduct an investigation into the Teachers’ Recruitment Scam or not - HELD THAT:- Reading the order of the Single Judge in its entirety, it is evident that the Single Judge has duly applied her mind to the question whether the investigation should be stayed. The Single Judge was of the view that such a direction could not be issued at the present stage to stultify the investigation.
There are no reason to interfere with the impugned order since the consequence of doing so would be to stifle the investigation at the incipient stage. However, the petitioner is at liberty to pursue all remedies which are available in law, including under Section 482 of the Code of Criminal Procedure 1973.
Since this Court had permitted the filing of applications before the Single Judge while disposing of the proceedings on 28 April 2023, the direction for the payment of costs would stand deleted - SLP disposed off.
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2023 (9) TMI 1380
Money Laundering - seeking quashing of the ECIR - summons dated 8.6.2023 issued by the Enforcement Directorate - provisional attachment of property - HELD THAT:- In the instant case, cash amounting to a total of Rs. 49.80 Crore and gold & jewellery valued at more than Rs. 5.08 Crore has already been seized from Ms. Arpita Mukherjee, a close associate of Shri Partha Chatterjee. The ED has also provisionally attached properties worth Rs. 71.18 Crores in this recruitment scam by way of issuance of 3 Provisional Attachment Orders (PAOs) so far in addition to the cash and gold seizure. The total seizure and attachment in the case stands at Rs. 126 Crore (approx.).
The E.D. in this case before this Court has relied upon only the 4th Supplementary Complaint. As such, except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge - no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002.
Revision disposed off.
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2023 (9) TMI 1379
Seeking a direction to the respondent to close / drop the proceedings against the petitioner - money laundering - Predicate offence - HELD THAT:- It is clear that in the case on hand, there is closure of predicate offence and there is no disputation or contestation that this closure of predicate offence has attained finality and has been given legal quietus.
As regards THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT VERSUS EMTA COAL LIMITED & ORS. ETC. [2023 (7) TMI 885 - SC ORDER], we remind ourselves of the principle as laid down in KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [2000 (7) TMI 67 - SUPREME COURT] to say that Hon'ble Supreme Court has declined to interfere with the Delhi High Court order which vide paragraph 16 specifically deals with the stand alone offence argument but the Hon'ble Supreme Court has put in a caveat and the caveat is recording of statement of learned Additional Solicitor General that in the event of any further action in respect of the predicate offence liberty has to be preserved for the Enforcement Directorate for reviving the proceedings. To be noted, this is captured in the third paragraph of the 06.07.2023 order of Hon'ble Supreme Court - this caveat will apply to the case on hand also and therefore when we accede to the prayer in the captioned WP it will clearly be with a similar caveat.
The prayer of the writ petitioner answered in the affirmative.
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2023 (9) TMI 1258
Legality of Bail granted - Money Laundering - offence of siphoning of money to Foreign Country - failure to co-operate with investigation and withholding the trail of proceeds of crime - adjudication not completed even after expiry of five years - detailed order not made ready and there is only a docket order - reasons for satisfaction of the twin condition imposed under Section 45 of PMLA Act not present - HELD THAT:- After examining the earlier order of this Court, the order of the Hon'ble Supreme Court on appeal and trial Court orders passed subsequently, this Court is constrained to interfere in the bail order for the following reasons:-
(i) The trial Court patently erred in passing a docket order on 16.08.2023 and thereafter, the detailed order which was made ready to the parties only on 21.08.2023.
(ii) On 17.08.2023, the learned Special Public Prosecutor moved this Court for stay of the bail order and reported certain irregularities. This submission prompted the Court to issue oral direction to the Registrar (Vigilance) of the High Court to bring records from the trial Court (which is hardly two km away from the High Court Campus). The case bundle secured and produced to the shock of this Court did not contain the detail order, neither the docket order indicated that a detailed order passed separately. The enquiry made in the trial Court by the Registrar (Vigilance) revealed that the learned Judge had not made ready the detailed order. While so, the grant of bail in haste without making the detail order throw suspicion over the conduct of the trial Court.
(iii) However, this Court is not dwelling upon that aspect since this matter is for the High Court administrative side to take note and proceed. Except to reinforce the view of the Hon'ble Supreme Court in THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA & ANR. VERSUS SRI M. NARASIMHA PRASAD [2023 (4) TMI 1251 - SUPREME COURT], which had observed that a judicial officer cannot pronounce the concluding portion of its judgement in open Court without the entire text of the judgement being prepared which dictated. In this case, the material collected immediately on the next day of pronouncing the order of granting bail, there was no prepared text of detailed order.
(iv) The detail order made available on 21.08.2023 though runs to several pages, it does not contain the reasons for satisfaction of the twin condition imposed under Section 45 of PMLA Act.
(v) The gravity of offence, the length and breath of crime committed has forced the Enforcement Directorate to request the trial Court to issue letter of rogatory and the trial Court had issued letter of request on 03.10.2022 to two countries. The responses from those countries are awaited. While so, it is incorrect to say that the Enforcement Directorate has not taken any steps to proceed with its investigation in respect of offshore entities.
(vi) The delay in completing the investigation by the CBI, Delhi cannot be a ground to presume that accused is not guilty of money laundering offence. Closure of investigation in a similar case also cannot be a reason to presume that the present case will also end in closure report. Ifs and buts cannot be an adequate reason to hold this petitioner, not prima facie guilty of the alleged offence.
(vii) This Court is conscious of the dictum that, it is not the expectation of law that Court must arrive at a positive finding that applicant for bail has not committed an offence under PMLA Act and if such is the expectation, it will be impossible for an applicant to establish that he has not committed the offence. However, in this case, records reveal that about 169 consignments with inflated price being encashed fraudulently by this petitioner through his Company and the money has gone out of the country. The provisional attachment of the property by efflux of time had lost its enforceability and therefore if the petitioner is enlarged on bail, apart from repeating similar crime by floating new Company, the danger of he fleeing from the hands of justice also cannot be ruled out.
This Criminal Original Petition filed by the Enforcement Directorate is allowed.
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2023 (9) TMI 1145
Money Laundering - applicability of provision of Section 436-A of the Code of Criminal Procedure, 1973 - HELD THAT:- The impugned judgment/order set aside, which had restricted the grant of bail to the appellant for a period of six months, with a direction that the appellant will appear before the trial court and would be released on bail, which is pending adjudication before the Court of Sessions Judge, Khurda, Bhubaneswar, Odisha on terms and conditions to be fixed by the trial court.
Application disposed off.
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2023 (9) TMI 1144
Money Laundering - Seeking grant of bail - Practicing chartered accountant (CA) - assisting the co-accused to convert the tainted money into untainted money and connived in the laundering thereto - petition dismissed primarily on the ground that the petitioner has failed to meet the threshold of Section 45 of PMLA - HELD THAT:- As per the law laid down that in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], it has inter alia been held that at the stage of considering the bail application, the court is expected to consider the question from the perspective of whether the accused possessed the requisite mens rea. It was further held that no definite finding is required whether the accused has not committed an offence under the Act. It is a well settled proposition of law that the jurisprudence of bail lays down that the liberty of a person should not be interfered with except in exceptional cases. At this stage, the court has to examine the case on the scale of broad probabilities.
The apparent role of the petitioner is filing of the income tax return. It is a settled a proposition that at the stage of consideration of the bail even under PMLA the court has only to see the preponderance of probability. The court at this stage is not required to record the positive finding of acquittal. Such finding can be recorded only after recording and appreciation of the evidence by the learned trial court. The case of the petitioner that Anubrata Mondal is shifting his blame on the petitioner only to save himself has to be tested during the course of the trial. Generally speaking, the professional would act on the instructions of his client. However, whether he has gone beyond his professional duty is something which is required to be seen and examined during the trial.
The allegation against the present petitioner is not that he has done something which was beyond his scope of profession i.e. indulging in some activities which are totally unconnected with the chartered accountancy. The plea of the petitioner that he has acted on the basis of information and record provided to him cannot be rejected outrightly at this stage. This is required to be tested during the course of the trial.
It has repeatedly been held that stage of bail cannot convert into a mini trial. It is also pertinent to mention here that that the court has only to take a prima facie view on the basis of the material on record.
The petitioner is admitted to bail on furnishing personal bond in the sum of Rs. 5 lakhs with a surety of the like amount to the satisfaction of the trial court on the terms and conditions imposed - application admitted.
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2023 (9) TMI 1143
Legal arrest or not - grounds of arrest need to be orally informed or given in writing - requirement to comply with mandate of Section 19(1) of PMLA or not - violation of fundamental rights - denial of right to consult - HELD THAT:- The reading of Para 458 and 459 which has been relied upon by both the parties makes it clear that the Apex Court in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] inter alia held that so long as the person has been informed about the grounds of his arrest, it is sufficient compliance of the mandate of Article 22(1) of the Constitution. It has also been inter alia held that it is enough if ED at the time of arrest contemporaneously discloses the grounds of such arrest to such person. Thus it cannot be said that the law laid down in V. Senthil Balaji is any way per incurium or irreconcilable with the judgment of Hon’ble Supreme Court in Vijay Madanlal Choudhary. However, as has been held and relied upon by the Hon’ble Supreme Court in V. Senthil Balaji [2023 (8) TMI 410 - SUPREME COURT] that the decision of a court cannot be read like a statute out of context and in ignorance of the requisite provisions.
The question is that whether this meaning as given in Black Laws Dictionary has to be taken literally in the present case. The service of the pleadings in a civil case are entirely different in nature and the law has to be interpreted as a whole and it cannot be taken out of context. In the present case, we are dealing with a situation where the arrestee is accused of a serious offence under PMLA. Any sensitive information disclosed prematurely in such cases may hamper the case of the prosecution/investigating agency.
The orders passed by learned Special Judge on 28.06.2023 whereby he found sufficient material on the record and recorded a finding that the investigating agency has complied with the provisions of law while arresting the applicant accused this judgement rather favours the ED.
There is no violation of Fundamental Rights of the petitioner. There is nothing or the record to suggest that petitioner has been denied right to consult and defended by legal practitioner - there is nothing on record to suggest that reason to believe “as required under Section 19(1) of the PMLA was not recorded in writing and, therefore, it cannot be held that petitioner was arrested illegally - petitioner here failed to show that the arrest of the petitioner is in violation of Section 19 of the PMLA.
Petition dismissed.
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2023 (9) TMI 1101
Provisional order of attachment - seeking to quash the complaint lodged under Section 5 (5) of PMLA Act - Misappropriation of public money - Reasons to believe - HELD THAT:- In the instant case, an attempt has been made on behalf of the petitioners to submit that there were no materials which can form reasons to believe and in absence of such conditions precedent, the authorities do not assume the jurisdiction to proceed. However, a perusal of the materials would show that the impugned action is preceded by a subjective satisfaction arrived at by the competent authority based upon information received regarding commission of an offence. Running of the University without any authority, grant of degrees which appeared to be fake, withdrawal of endowment fund and closure of such account are few of the relevant factors which were available before the authorities to come to such satisfaction.
This Court is of the view that the reliefs prayed for appear to be pre-emptive in nature whereby proceedings under the Act, which are yet to reach a final stage, has been sought to be interfered with. Under those circumstances, this Court is of the opinion that the burden on the part of the petitioners would be on a higher pedestal to make out a case that the proceedings under the Act as well as the provisional attachment order are prima facie bad in law. Such prima facie projection would necessarily require the party to show that either there is a jurisdictional error in the proceedings or that there is blatant violation of the provisions of the Act. This Court in exercise of the extra ordinary powers under Article 226 of the Constitution of India has to confine its scrutiny only to the decision making process.
This Court is of the view that when the challenge to the action of the respondent authority in declaring the degrees awarded by the petitioner- University was negated, there may not remain much scope for the petitioners to make out a case for assailing the PMLA proceedings, the edifice of which is the action of grant of fake degrees by the petitioner-University.
This Court is of the view that when the challenge to the action of the respondent authority in declaring the degrees awarded by the petitioner- University was negated, there may not remain much scope for the petitioners to make out a case for assailing the PMLA proceedings, the edifice of which is the action of grant of fake degrees by the petitioner-University.
What intrigues this Court is that the RTI reply is given by the petitioner- University whose entire action is under cloud and is rather, part of criminal cases with allegations of huge misappropriation of public money leading to registration of PMLA proceedings - A writ court in exercise of powers under Article 226 of the Constitution of India cannot embark upon a matter involving disputed questions of fact and in this case, almost all the factual issues are disputed in nature.
This Court is of the opinion that no case for interference, at this stage, has been able to be made out in these two writ petitions - Petition dismissed.
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2023 (9) TMI 1070
Maintainability of application - Seeking deferment of the proceedings before Adjudicating Authority - Bench at that point of time suffered from “coram non-judice” as no Adjudicating Authority had been constituted in terms of Section 2 (a) read with Section 6 (1) and (2) of the PMLA, 2002 - money laundering - proceeds of crime - HELD THAT:- A perusal of the Order of the Adjudicating Authority shows that at the time when the application of the Appellant was considered by the learned Chairperson, the case was only at a nascent stage. Further, a perusal of the material on record and the application filed by the Appellant does not indicate that the issue involved at that stage was of such a nature that it ought to be heard by a Bench of two Members. Section 6 does not postulate filing any application for reference to a larger Bench. When the adjudication under Section 8 of the PMLA commences and during the hearing of the matter if the Chairperson sees that the matter is of such a nature that it should be heard by a Bench of two Members then the Chairperson needs to constitute a two Member Bench.
In fact, it has rightly been noted by the learned Single Judge that the application itself was not maintainable. Further, the Judgment of the learned Single Judge discloses that the matter was ready for final hearing before the Adjudicating Authority, and therefore, this Court is of the opinion that no interference is required at this juncture.
The Apex Court in COMMISSIONER OF INCOME TAX & OTHERS VERSUS CHHABIL DASS AGARWAL [2013 (8) TMI 458 - SUPREME COURT] has observed the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals).
The writ petition before the learned Single Judge was itself not maintainable - this Court is of the opinion that the Judgment of the learned Single Judge confirming the Order dated 25.01.2023 passed by the Adjudicating Authority does not warrant any interference by this Court.
Application dismissed.
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2023 (9) TMI 1069
Validity of the cognizance/ summoning order - non-bailable warrant issued against the applicant - grant of pardon under Section 306 Cr.P.C. would fall within the purview of ‘finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him’? - HELD THAT:- An order for discharge of the accused is passed or the criminal proceedings against him are quashed when on the face of the allegations, no triable offence is made out against the accused person and an order of acquittal is passed when the accused could not be proved guilty even after facing the trial. On the other hand, pardon is granted to a person who is ‘supposed to have been directly or indirectly concerned in or privy to an offence’. Pardon is granted only to persons who were involved in commission of the offence and not to a person against whom no case is made out or no case could be established. Therefore, a person who is granted pardon under Section 306 Cr.P.C. in a scheduled offence, would not be a person who has been ‘finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him’ mentioned in Vijay Madanlal Chaudhary [2022 (7) TMI 1316 - SUPREME COURT], against whom no proceedings under PMLA can continue.
Section 46 of the Prevention of Money Laundering Act, 2002 provides that the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor. However, the public prosecutor conducting the trial of the offence under PMLA before the Special Court cannot file objections regarding concealment of facts relating the processes or activities connected with proceeds of the offence, namely - (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property before the Court trying the scheduled offence.
Grant of pardon under Section 306 Cr.P.C. would not fall within the purview of the words ‘finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him’ - The pardon granted under Section 306 Cr.P.C. to a person in a scheduled offence would not ipso facto result in his acquittal in the offence under the PMLA, unless, of course, the accused person seeks pardon in the case under PMLA also by making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence under PMLA also.
The power under Section 482 Cr.P.C. can be exercised to secure the ends of justice, as held in State of Haryana v. Bhajan Lal, [1990 (11) TMI 386 - SUPREME COURT], wherein the Hon’ble Supreme Court gave a word of caution by stating that “the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases”. In case the contention put forth by the learned Counsel for the applicant is accepted, it would result in a person accused of committing an offence under PMLA going scot free without facing trial and without seeking pardon in PMLA case by making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and it would defeat the ends of justice.
There is no illegality in the cognizance/ summoning order - Application dismissed.
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