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Money Laundering - Case Laws
Showing 281 to 300 of 1544 Records
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2023 (4) TMI 717
Money Laundering - provisional attachment of property - despite the provisional attachment order having been passed, the Resolution Plan was approved by NCLT - allegation of the Petitioners is that Respondent No.3- State Bank of India (SBI) was fully aware of the provisional attachment order but still did not inform the Petitioner or other bidders - HELD THAT:- The Court is informed that no appeals have been filed challenging the final approval of the resolution plan dated 29th September, 2021. In effect, the Petitioner No. 2 has stepped into the management of the Petitioner No. 1 company. The Petitioners had deposited a sum of Rs.28 crores, which was kept at the disposal of the ‘Committee of Creditors’ and has also been distributed amongst the various creditors and lenders - The issue, that has obviously arisen today, is that despite the payment of Rs. 28 crores, the title deeds of the land continued to remain with the Bank in view of the fact that the attachment by the ED took place subsequent to the commencement of CIRP. Ideally, the Bank ought to have informed the Petitioner no.2 of the PAO, when it acquired knowledge in October 2021, as the amounts were deposited by the Petitioner no.2 only in March 2022, which for inexplicable reasons, it did not.
Considering the ED’s instructions that have been communicated to the Court, and the Petitioners’ willingness to deposit a sum of Rs. 3.01 crores, in the peculiar facts and circumstances of the present case, the petitioners shall be permitted to challenge the PAO order dated 25th August 2021 and the confirmation order dated 26th May 2022 before the PMLA Appellate Tribunal, within four weeks.
The legal issues raised in this petition have not been adjudicated upon by this Court. Mr. Zoheb Hossain, ld. Counsel shall inform the Petitioners of the name of the official with whom the Petitioners shall coordinate for the submission of the FDR of Rs.3.01 crores.
Petition disposed off.
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2023 (4) TMI 666
Money Laundering - predicate offence - legality of quashing the proceedings of petitioner - case of Revenue is that the proceedings against A1 to A3 and A9 have only been quashed and that in the said circumstances, when the proceedings are pending against the other accused for the predicate offence, the proceedings against this petitioner cannot be quashed - HELD THAT:- The order taking cognizance by the Magistrate was set aside and it cannot be said that proceedings are pending against other accused. However since the petitions were preferred by accused 1 to 3 and 9, the concluding portion was accordingly spelt out.
In view of the quashing of proceedings against accused in the predicate offence, following the judgment of Hon’ble Supreme Court in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT], the proceedings in ECIR/HYZO/34/2021, Directorate of Enforcement, Hyderabad Zonal Office are hereby quashed.
The criminal petition is allowed.
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2023 (4) TMI 550
Seeking grant of bail - money laundering - proceeds of crime - materials procured by the petitioner from the proceeds of the crime of illegal possession and sale of Monitor Lizard hemipenises - whether a case for exemption from personal appearance is made out? - HELD THAT:- In BHASKAR INDUSTRIES LTD. VERSUS M/S. BHIWANI DENIM & APPARELS LTD. ORS. [2001 (8) TMI 1407 - SUPREME COURT] it was held that the discretion conferred by Section 205 of Cr.P.C. on the Court is to be used only in rare cases where personal appearance of the accused would cause great hardship on him. In particular, if the accused is residing at a far-off place or has any physical ailment or is otherwise indisposed, the prayer for exemption from personal attendance can be favourbaly considered. But such discretion is not to be exercised routinely or on the mere asking.
In the present case, the petitioner claims that he is the only son of his aged parents, who are ill and require constant attention. No document is filed in this regard. This Court finds that the petitioner is a relatively young man, aged about 38 years. He is a resident of Bhubaneswar and also has his business in Bhubaneswar. Therefore, attending the Court can by no stretch of imagination be treated as causing undue hardship on him. As already stated, the power under Section 205 is not meant to be used routinely but only when circumstances so demand. In view of what has been stated hereinbefore, this Court finds the circumstances not justifying exercise of such power by the Court. To such extent therefore, this Court finds no infirmity much less any illegality in the impugned order so as to interfere.
Application disposed off.
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2023 (4) TMI 549
Maintainability of petition - availability of efficacious alternative remedy of an Appeal under Section 25 of the PMLA Act of 2002 - Provisional attachment order - petition was filed after expiry of 180 days of the passing of the said order - It was contended by counsel for the petitioner that on the expiry of 180 day period, the provisional attachment order comes to an end and dies a statutory death - HELD THAT:- The Hon’ble Supreme Court in the case of UNITED BANK OF INDIA VERSUS SATYAWATI TONDON AND OTHERS [2010 (7) TMI 829 - SUPREME COURT] has held that Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
This Court is of the view that the writ petition is definitely maintainable but given the effective and efficacious remedy of appeal under Section 25 the writ Court should be slow to entertain it. An appellate authority is better equipped to deal with the contentions of the petitioner given the procedural powers conferred on it - The Appellate authority is empowered to deal with all questions raised by the petitioner including the legality and or validity of the order of Adjudicating authority.
In the backdrop of the availability of the efficacious alternative remedy of appeal before the Appellate Authority under Section 25 of the Act of 2002 and the dicta of the Hon’ble Apex Court, this court is of the view that a writ petition under Article 226 of the Constitution of India may not be entertained. More so when the petitioner has already filed an appeal under Section 25 before the Appellate Authority against the order of Adjudicating Authority, confirming of order of provisional attachment.
Application disposed off.
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2023 (4) TMI 479
Money Laundering - scheduled offence - whether, it is mandatory for the PMLA authority to seek committal of the case related to the scheduled offence and in case such an option is exercised, if the Special court as a matter of course bound to allow it? - HELD THAT:- The legislative intent does not make the provision under Section 44(1)(c) of the PMLA obligatory on the authorized officer invariably to make an application for committal. Had it been so, there would have been no reason of any committal under Section 44(1)(c) of the PMLA which again depends on an application of the PMLA authority. If such was the object and purpose of the law, then it should have been expressly made clear about a joint trial of the offences under the PMLA and the Special Act. No doubt, Section 71 of the PMLA envisages an overriding effect which stipulates that the Act shall prevail upon anything which is inconsistent therewith contained in any other law for the time being force. However, on a closer reading of the provisions of the PMLA, it is clear and conspicuous that the scheme of the law beyond doubt does not contemplate an analogous trial of scheduled offences and the offence under the PMLA by the designated court in each and every case.
In the case at hand, the authority under the PMLA has not moved the learned Special court at Bolangir for committal of the case in respect of the scheduled offence to the PMLA court at Bhubaneswar and therefore, it has been challenged by the petitioners since the PMLA court on receiving complaint has already summoned them. After having a detailed discussion, the conclusion is that if an application is moved by the competent authority under the PMLA after exercising its discretion for committal of a case in view of Section 44(1)(c) of the PMLA only in appropriate cases and in the interest of justice, in and under such circumstances, the Special court shall have to examine it and take a decision for committal of the case to the designated court under the PMLA and not otherwise.
However, in the humble view of the Court, the PMLA authority should examine the plea of the petitioners applying its discretion and in the event found to be a fit case for committal may move the learned Special Judge, Vigilance, Bolangir for a judicious decision in terms of Section 44(1)(c) of the PMLA - Application disposed off.
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2023 (4) TMI 478
Seeking grant of Regular Bail - Money Laundering - scheduled offence - proceeds of crime - illegal mining activities and ferrying through ships/ferry in Sahebganj - income from legitimate source or not - HELD THAT:- There is a prima facie case about the large-scale illegal mining activities being carried out in the district of Sahebganj over the Rajmahal Hills. The scheduled offences are being investigated by the state police and in two of them, on the basis of which the ECIR registered, the petitioner has been absolved of the charges. Investigation in several other cases are in progress for offences of illegal mining loading charges under sections 414 of the IPC, Minor Mineral Concession Rule, 2004, Mines and Minerals(Development and Regulation) Act 1957, Jharkhand Mineral (Prevention of Illegal Mining Transportation and Storag) Rules 2017, Explosive Substance Act, 1908. Offences under sections 411 and 414 IPC along with the offences under sections 3, 4, 5 of the Explosive Substance Act,1908 into the matter of illegal mining are schedule offences under PMLA. Offence of money-laundering being continuous in nature, the curtain has not been rung down, with final form submitted in two of the cases, as the cases of illegal mining activities are still in the process of being investigated. The investigation is not confined to ₹ 83 lakhs so far seized in the account of the petitioner but it has revealed larger transactions that took place from his account and therefore the plea of bail for the crime proceeds being less than one crore under section 45(1) of PMLA is not sustainable in the eyes of law.
With regard to the health condition of the petitioner the jail authorities are directed to provide medical facilities and treatment as per the Jail Manual. However, there does not exist any special ground for grant of bail on health grounds at this stage.
The prayer for regular bail is rejected.
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2023 (4) TMI 444
Money Laundering - proceeds of crime - scheduled/predicate offence - monetary limit involved in the offence of money laundering - crux of the case is under Part-B of the Schedule under which the total value should be Rs. 1/- crore or more for the offence of money laundering to be brought against any person - issue in the case at hand as projected by the learned counsel for the petitioner is that, the Legislature has consciously introduced minimum value by amending the definition from time to time - HELD THAT:- A charge sheet comes to be filed in C.C. No. 15987 of 2012 against the petitioner and several others on 08.06.2012. If the charge sheet is taken note of, it is for the offences punishable under Sections 120B, 465, 468, 471, 477(a), 409 and 34 of the IPC. The attachment orders attaching the properties of the petitioner is confirmed by the Adjudicating Authority on the ground that they are proceeds of crime. Cognizance is taken by the Special Court on a private complaint so filed by the ED in P.C.R. No. 25 of 2020. It is not only against the petitioner but, it is against 66 Officers and the total amount involved against all those Officers put together is Rs. 9,03,89,803/-.
Summons was issued to the petitioner on 07-05-2018 and 13.08.2018 and his voluntary statements were recorded under Section 50(3) of the Act on two dates i.e., on 24-05-2018 and 17-09-2018. It is his own statement that he has received an amount of Rs. 1,05,66,288/-. Therefore, the contention that the charge sheet in the predicate offence alleges that the petitioner is involved only in an offence to which the proceeds of crime indicates that it is Rs. 46,46,225/-is unacceptable as on questioning the petitioner, he himself has given the details about all the immovable properties possessed by him and the amount received in terms of the table given by him was Rs. 1,05,66,288/-. Therefore, it is well within the amount stipulated under Section 2(y) of the Act - there is no warrant of interference at this juncture particularly, in the teeth of the fact that further investigation against all others is pending consideration. In the event, the petitioner would get absolved of the allegations in the charge sheet, it would be an altogether different circumstance. There need not be any interpretation of definition of 'scheduled offence' and its threshold limit. That situation is yet to come about.
Petition dismissed.
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2023 (4) TMI 412
Money Laundering - seeking transfer of Sessions Case from the Court of the Special Judge, PMLA, Lucknow to the Court of the Special Judge, PMLA at Ernakulam, Kerala - unlawful association - Sections 43 and 44 of PMLA - HELD THAT:- The Special Court, PMLA, Lucknow cannot be said to be lacking in territorial jurisdiction to entertain the complaint. In any case, the lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer. A congenital defect of lack of jurisdiction, assuming that it exists, inures to the benefit of the accused and hence it need not be cured at the instance of the accused to his detriment. Therefore, the first ground on which transfer is sought, is liable to be rejected.
The second ground on which transfer is sought is that 7 out of 10 accused persons are residents of Kerala. But this can hardly be a ground for ordering the transfer of investigation. Similarly, the third ground that a majority of witnesses are also from Kerala/ South India is also no ground to order the transfer of the complaint - The fact that the petitioner was remanded to custody by the learned Special Judge at Ernakulam under Section 167(2) of the Code and that, therefore, the filing of the complaint at Lucknow is impermissible, is not legally well-founded. The petitioner was arrested on 12.12.2020 in Kerala and, hence, he was produced before the Magistrate on 13.12.2020, who remanded him to judicial custody till 24.12.2020. Therefore, the NIA moved an application under Section 167 of the Code before the Principal Sessions Judge, Ernakulam for the grant of Enforcement Directorate custody for a period of 14 days.
An order under Section 167(2) of the Code had to be passed necessarily by the Magistrate “to whom an accused person is forwarded”. In fact, Section 167(2) contains the words “whether he has or has not jurisdiction to try the case”. Therefore, the argument revolving around Section 167(2) of the Code also fails.
This transfer petition is dismissed.
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2023 (4) TMI 411
Money Laundering - framing of charges - Scheduled Offence - proceeds of crime - impugned order rejecting the application preferred by the petitioner No.2 for discharge is legally sustainable or not - Whether the charges framed against the petitioner No.2 are liable to be quashed by exercising the revisional jurisdiction? - HELD THAT:- Section 3 of PMLA states inter alia that whoever knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use shall be guilty of offence of money-laundering - PMLA deals only with the process or activity connected with the proceeds of a scheduled crime, including its concealment, possession, acquisition or use and it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof. Scheduled offence is only a trigger point to initiate investigation under PMLA and once ECIR is recorded, case registered under PMLA is independent, distinct and stand alone. Even if the predicate/scheduled offences are compromised, compounded, quashed or even in case the accused is acquitted, it does not affect proceedings under PMLA.
The offence under the 2002, Act deals only with laundering of money acquired by committing a scheduled offence. Except that it starts with an offence of possessing, concealing, using, converting or projecting proceeds of a scheduled crime as untainted money, it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof and once a case is registered under PMLA, it is an independent offence.
In the present case, the husband of petitioner no. 2 has been prosecuted for amassing disproportionate assets. He had been prosecuted for that offence under Section 13(2) r/w 13(1)(e) of the PC Act. It is alleged that she knowingly assisted in activities connected with the proceeds of scheduled crime committed by her husband. She assisted her husband by concealment, possession, use etc. of tainted money and also by claiming it as untainted property and thus, abetted the offence punishable under section 13(1)(e) r/w 13(2) of the PC Act. They have been prosecuted, convicted and sentenced for amassing disproportionate property as well as abetting the offence of amassing disproportionate property. There cannot be any dispute that amassing disproportionate property as punishable under section 13(1)(e) of the PC act is a scheduled offence under the PMLA. Thus, she had abetted a scheduled offence and has been convicted accordingly with the aid and assistance of section 109 of the Indian Penal Code.
It is held that there is no infirmity in the impugned order dated 03.06.2022 of the learned trial Court holding that prima facie case exists against petitioner No.2 of the alleged commission of the offence under Section 3 of the PMLA, 2002 punishable under Section 4 of the said enactment, inasmuch as, she allegedly acted prima facie in the company of her husband i.e. petitioner No.1 in a careful deliberate manner and engaged in money laundering with the proceeds of crime and thus, obtained property as the result of the criminal activity relatable to the scheduled offence as the proceeds of crime to make her prima facie culpable under Section 3 of the PMLA, 2002.
Petition dismissed.
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2023 (4) TMI 410
Seeking grant of bail - Money Laundering - proceeds of crime - twin conditions under Section 45 (1) of the Prevention of Money Laundering Act, 2002, satisfied or not - HELD THAT:- The bail application of the applicant has to be decided keeping in view the provisions contained in Section 45 (1) of the PMLA, including proviso appended thereto - the instant case has been lodged primarily with the allegation that the named co-accused Yadav Singh had committed corrupt practices while awarding certain engineering works, regarding which agreement bonds for Rs. 954.38 Crores were executed. The applicant happens to be the wife to Yadav Singh. She is a director of M/s Kusum Garments, in whose account Rs. 50,00,000/- were deposited. The amount deposited is claimed to have been given to M/s Kusum Garments by way of loan and it is the case of the Enforcement Directorate, that the amount has been transferred by layering so that it could not be detected and in fact it was a part of the proceeds of crime committed by the co-accused Yadav Singh.
The applicant is a woman and one of her kidneys has been removed and she is surviving with one kidney and she is suffering from anxiety, depression and panic attacks. The Proviso appended to Section 45 (1) of PMLA provides that a woman or a sick or infirm person may be released on bail. The amount deposited in the account of M/s Kusum Garments is Rs.50,00,000/- and the Proviso also provides that a person who is accused of money-laundering a sum of less than one crore rupees, may be granted bail - The principal co-accused Yadav Singh has already been granted bail. Sri Mohan Lal Rathi, who had deposited the amount in the account of Kusum Garments, and who has stated in his statement recorded by the Enforcement Directorate, that he had given this amount to Kusum Garments as loan, has not been made accused in the present case. Sri Mohan Lal Rathi had received the amount from co-accused Pradeep Garg and Pradeep Garg has also been granted bail. Other co-accused person Pankaj Jain and Vinod Kumar Goel have also been granted bail. It is only the applicant who is in jail in connection with the present case.
Bail application allowed.
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2023 (4) TMI 265
Seeking grant of bail - Money Laundering - proceeds of crime - mandatory twin conditions u/s 45 of the PMLA satisfied or not - HELD THAT:- Section 3 (ii) of PMLA provides that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. Bare perusal of the definition of “beneficial owner” as provided under Section 2 (1) (fa) of the Act makes it clear that it includes a person who exercises ultimate effective control over a juridical person.
In the case of Vijay Madanlal Choudhary and others vs. Union of India [2022 (7) TMI 1316 - SUPREME COURT] it was inter alia held that offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. It was further held that the process or activity can be in any form — be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Therefore, involvement in any one such process or activity connected with the proceeds of crime would constitute offence of money-laundering. Thus, this offence has nothing to do with the criminal activity relating to a scheduled offence — except that the proceeds of crime derived or obtained as a result of that crime - The intention of the legislature in enacting the PMLA is that money laundering poses a serious threat not only to the financial systems of countries but also to their integrity and sovereignty and, therefore, the legislature thought it fit to provide a comprehensive legislation for this purpose. Thus the courts while dealing with matters under PMLA have to take into account the object and purpose of legislation.
The statements made under Section 50 of PMLA have been held to be an admissible piece of evidence. The term ‘admissible evidence’ means that such evidence can be considered by the court at the time of appreciation of evidence. A statement recorded under Section 161 Cr.P.C. is not an admissible piece of evidence and can be used only for the limited purpose as provided under Section 162 Cr.P.C. - statements under Section 50 of PMLA carry much more weight than a statement recorded under Section 161 Cr.P.C. These are specific legislations enacted to handle specific crimes.
The rejection of MOU by the learned trial court cannot be faulted as it has admittedly been never presented before any authority and moreover it is a self serving document. The petitioners took a plea that the companies were doing business but even a shred of document has not even been shown to reflect any business being undertaken by them - the constant changing pattern of the shareholding in the companies clearly indicates that Sh. Satyendar Kumar Jain was indirectly controlling the affairs of the companies. The evidence on record though speaks in volumes but has not been discussed or examined in detail so as to not cause prejudice to the petitioner.
The order rejecting the bail applications are well-reasoned orders based on material on record - the bail applications are rejected.
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2023 (4) TMI 264
Validity of search - Money Laundering - scheduled offences - purchase of gold bullion under the Buyer’s Credit Scheme which resulted in wrongful loss to MMTC - reasons to believe - Section 120-B read with Section 420 IPC and Section 13 of the PC Act - HELD THAT:- Sub-section (1) of Section 17 of PMLA deals with two stages: one is at the stage of pre-authorisation and the next is the stage of post-authorisation.
In the first stage, the Director or any other officer authorised by him not below the rank of Deputy Director must have in his possession certain information; on the basis of such information in his possession, he must form reason to believe which must be recorded in writing that any person has committed any act of money laundering etc. Therefore, the information in his possession must have a causal relation with the recording of reasons which in turn must be the basis for forming the belief that any person has committed an act which constitutes money laundering - possession of information, derivation of reason from such information and thereafter formation of belief on the basis of the reasons that any person has committed an act which constitutes money laundering etc., are the sine qua non or conditions precedent for invoking the power under sub-section (1) of Section 17 of PMLA.
Insofar the second stage is concerned, once the Director or the authorised officer has come to the above conclusion, he may authorise any officer subordinate to him to enter and search any building etc., where he has reason to suspect that records or proceeds of crime are kept; break open the lock of any door etc; seize any record or property found as a result of such search etc. Insofar the second stage is concerned, the authorised officer must have reason to suspect that in any building etc., records relating to money laundering or proceeds of crime are kept etc.; he can enter and search such building and seize any record or property found as a result of such search - It is recorded that there is suspicion that the accused persons are in possession of documents and properties related to the scheduled offence. It is likely that if summoned, the suspects would not disclose the documents and may take steps to further conceal the trail of documents and other evidence. Therefore, it was necessary to conduct search under Section 17 of PMLA in the premises mentioned in the note; to identify and seize available incriminating record/documents relating to the predicate offence and to the offence of money laundering; relating to the whereabouts of the proceeds of crime; to identify and trace the proceeds of crime; to recover incriminating documents relating to commission of the offence of money laundering.
The learned Single Judge had erred in holding that no reasons to believe were recorded by the Additional Director which vitiated the search action carried out in the premises of respondents No.1 to 4 on 17.10.2022 and in setting aside the search action including the search warrant/ authorisation dated 17.10.2022, further directing the appellants to release the seized jewellery, cash etc., to respondents No.1 to 4.
Appeal allowed.
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2023 (4) TMI 263
Money Laundering - proceeds of crime - criminal activity or property arising from criminal activity, or not - Whether an outstanding arising out of any agreement or condition in MOU between the parties with respect to forex fluctuation amounts to proceeds of crime - not an FIR registered under Section 154 of Cr.P.C. - HELD THAT:- To prosecute under Section 3 of the Act, a person has to be actually involved in any process or activity connected with Proceeds of Crime. Proceeds of Crime is defined under Section 2(1)(u) of the said Act, defining that proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property; or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad. - It is specifically stated that any property derived or obtained by any person as a result of criminal activity relating to a scheduled offence would amount to Proceeds of Crime.
Every commercial activity where an outstanding arises would not fall within the ambit of Section 3 of the Act. It is not merely criminal activity relating to commission of a predicate offence but property has to be derived directly or indirectly as a result of such criminal activity to be tried and prosecuted under Section 3 of the Act - In the present case, no such property is derived or obtained either directly or indirectly by the petitioner herein either involving in criminal activity or handling any such property derived as a result of criminal activity. The question of concealing or being in possession or acquiring such property does not arise. The amount accrued as discussed earlier is on account of dollar- rupee fluctuation and it cannot in any manner be held that the petitioner had derived or obtained any property. Though, it was agreed that differential amount of rupee dollar fluctuation would be paid, at most it can be termed as an outstanding which can be recovered in a civil suit and by no stretch of imagination can it be called as Proceeds of Crime or the outstanding amount can be called as property as defined under Section 2(1)(v) of the Act.
When there is no criminal activity nor any property which is derived as a consequence of criminal activity, it is opined that the proceedings cannot be permitted to continue.
Criminal petition allowed.
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2023 (4) TMI 171
Seeking grant of bail - Validity of Look Out Circular - money laundering - predicate offence - scheduled offences - Section 50(2) of the P.M.L.A. - HELD THAT:- The Ministry of Home Affairs relying upon certain decisions of the Delhi High Court in SUMER SINGH SALKAN VERSUS ASSTT. DIRECTOR & ORS. AND COURT ON ITS OWN MOTION VERSUS STATE VS. GURNEK SINGH ETC. [2010 (8) TMI 1083 - DELHI HIGH COURT] has issued an Office Memorandum dated 27.10.2010 in the context of the issue of L.O.C.s. This O.M. provides that recourse to L.O.C. should be taken in cognizable offences under I.P.C. or other penal laws. The details regarding the reason for the opening of L.O.C. invariably be provided in the prescribed format, without which the subject of L.O.C. should not be arrested/detained. In cases where there is no cognizable offence under the I.P.C. or other penal laws, the L.O.C. subject cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases.
The reply on behalf of the Respondent refers to L.O.C. being issued consistent with the M.H.A. guidelines. However, the response does not elaborate upon whether the safeguards provided in the O.M. have indeed been complied with. This was necessary because no prosecution complaint was filed against the Petitioner under Section 45 of the P.M.L.A. Further, scheduled offences have not been invoked in the charge sheet filed by the Crime Branch against the Petitioner. The charge sheet is only for offences punishable under Sections 3 and 4 of the Goa, Daman and Diu Public Gambling Act, 1976.
For the reasons, including but not restricted to the circumstance that no prosecution complaint is filed against the Petitioner and even the charge sheet which is filed in F.I.R. No.10/2022 is only limited to the offence under Sections 3 and 4 of the Goa, Daman and Diu Public Gambling Act, 1976 and not to any of the scheduled crime under the P.M.L.A., the impugned L.O.C. will have to be quashed. Moreover, in this case, there is no allegation of any non-cooperation by the Petitioner. The Petitioner is enlarged on bail. The Court considered and modified the bail conditions for traveling outside the State after hearing the learned Public Prosecutor. Any material does not support the apprehension expressed on behalf of the Respondent. Even the affidavit in reply is quite vague, and details necessary to support such apprehension are not even stated in this affidavit.
The impugned L.O.C. dated 04.02.2022 is quashed - petition allowed.
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2023 (4) TMI 152
Seeking issuance of Writ of Mandamus directing the respondents to remove the petitioner's name from the data base maintained by them, pertaining to those individuals, who are not allowed to travel abroad - seeking revocation of Look Out Circular (LOC) erroneously issued qua the petitioner - HELD THAT:- It is true that the petitioner is the defacto complainant in the FIR in Crime No.39/2019 for the offences under Sections 420, 465, 468, 471 and 120B IPC and Crime No.282/2019 for the offences under Sections 409, 420, 465, 468, 471 and 120B IPC registered against the accused. The FIR allegations in Crime No.39/2019 shows that petitioner owns 92,00,000 shares in M/s. 8K Miles Software Services Ltd. He is the promoter of this Company. It is a listed company in BSE and NSE. To meet his business financial requirements, Shri.R.S.Ramani, the Whole time Director introduced one Mr. Rohit Arora (Loan Broker) and he assured that he can arrange loan against his shares being provided as 'collateral security' - The accused criminally conspired with an illegal intention to cheat and without his knowledge, illegally and fraudulently fabricated the documents and forged his signature on various Delivery Instruction Slip and criminally breached the trust and transferred 23,00,000 shares from his DP Account to their DP account and sold their shares in the open market for a sum of 144crores and criminally misappropriated the same.
Section 12A deals with Prohibition of manipulative and deceptive devices, insider trading and substantial acquisition of securities or control. Section 12A (c) prohibits engagement in any act, practice, course of business which operates or would operate as fraud or deceit upon any person in connection with the issue, dealing in securities which are listed or proposed to be listed on a recognised stock exchange, in contravention of the provisions of this Act or the rules or the regulations made thereunder - it is too early for the petitioner to contend that there is no offence made out against him for prosecuting him under Section 12A r/w Section 24 of SEBI Act. Prima facie as per the orders of the SEBI, commission of offence under Section 12 A (c) of the SEBI Act, 1992 is made out against the petitioner. Therefore, petitioner cannot contend that Enforcement Directorate has no jurisdiction to investigate the case against him for violating/committing the offences under the SEBI Act, 1992.
This Court is of the considered view that as of now, petitioner is not entitled to seek for removal of his name from the database maintained in respect of the persons, who are not allowed to travel abroad on account of the Look Out Circular issued against them and to revoke the Look Out Circular issued against the petitioner until the completion of investigation. The first respondent is directed to complete the investigation in ECIR bearing reference No. ECIR/CEZO-1/17/2020 as early as possible and file the complaint before the competent Court within a period of three months from the date of receipt of the copy of this order.
This Writ Petition is dismissed with a direction to the first respondent to complete the investigation and file the complaint before the competent Court within a period of three months from the date of receipt of the copy of this order.
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2023 (4) TMI 151
Seeking grant of Bail - Money Laundering - challenge to decision in the case of Directorate of Enforcement, Lucknow vs. Yadav Singh and others - HELD THAT:- There are no infirmity, illegality or perversity in the case of Yadav Singh.
However, considering the request of learned Senior Advocate and also considering the ailments and physical condition of the present applicant, as considered in earlier order liberty is given to the present applicant to appear before the learned trial court within one week from today. To be more precise on or before 1.2.2023 and file her bail application. The said bail application shall be heard and disposed of expeditiously preferably on the same date, if possible.
It is further provided that the learned counsel for the applicant shall supply the advance copy of the bail application to the learned counsel for the opposite parties by 30.1.2023, so that the learned counsel for the opposite parties may seek instructions and may file objection, if so needed.
Application disposed off.
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2023 (4) TMI 13
Money Laundering - Freezing of Bank Accounts of petitioner - Section 26 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The appeal has been filed before the Appellate Tribunal under the PMLA in February, 2023 and is now pending in the Appellate Tribunal. Insofar as the Petitioner in W.P.(C) 12650/2022 is concerned, ld. Counsel for the Petitioner submits that the appeal is in the process of being filed.
Considering the fact that the writ petitions itself were directed against the initial debit freeze orders, which have now merged with the final order passed on 21st December, 2022 and the Petitioner has already availed of the appellate remedy, it is deemed appropriate to relegate both the Petitioners to pursue their appellate remedies before the Appellate Tribunal, under the PMLA, in accordance with law.
The Petitioners in both the writ petitions shall, along with their appeals, prefer interim applications before the Appellate Tribunal. The said interim applications, if not already listed, may be taken up by the Appellate Tribunal within 4 weeks and shall be adjudicated expeditiously - Petition disposed off.
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2023 (4) TMI 12
Seeking grant of Anticipatory Bail - Money Laundering - scheduled offence - cash deposits not in commensurate with illicit source of income - deposits subsequently used for acquisition of immovable and movable properties - twin conditions in section 45(1) of PMLA 2002, complied with or not - HELD THAT:- This Court is in complete agreement with the Division Bench decision of the Bombay High Court (Nagpur Bench) in AJAY KUMAR VERSUS DIRECTORATE OF ENFORCEMENT THROUGH THE ASSISTANT DIRECTOR, SUB-ZONAL OFFICER, NAGPUR [2022 (2) TMI 949 - BOMBAY HIGH COURT] that the legislature have the power to and competence to amend the provision of the Act. The amended provision has not been struck down by the Court and as such the same cannot be watered down. Thus, it cannot be said that until and unless the entire section gets amended, the decision in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] will prevail - Thus in the considered view of the Court the twin conditions in section 45(1) of the 2002 Act after amendment stands revived until any decision comes in the matter by the Hon’ble Apex Court.
Now, coming to case in hand, admittedly, the disproportionate asset assessed by the Enforcement Directorate is/are to the tune of Rs.82,10,661/- which is less than one crore.
Further, the petitioner Ramadhar Ram (Cr. Misc. No. 24534 of 2022) is 67 years old man, sick and infirm and has suffered brain hemorrhage and was operated in Paras HMRI Hospital, Patna (Annexures-6 Series of the petition), the cases having been registered against him, he will be ultimately facing the music, this Court is inclined to grant him privilege of anticipatory bail with conditions - The petitioner herein is son of Ramadhar Ram and as stated above, the amount under question is less than one crore. Further, according to the case of the petitioner, he is suffering from epilepsy (Epileptic Seizure) since 2000 and has been treated by different Neurologist/ Neuro Surgeon in Ranchi (Jharkhand) as well as Patna, (Annexure-8 Series) as relief is being granted to his father, Ramadhar Ram and he will also be facing the trial, this Court is inclined to extend him too the benefit of anticipatory bail with conditions.
Let the two petitioners namely Ramadhar Ram (Cr. Misc. No. 24534 of 2022) and Bikash Kumar @ Vikash Kumar (Cr. Misc. No. 24928 of 2022), be released in the event of their arrest or surrender before the Sub-ordinate court within a period of four weeks from the receipt of this order, on furnishing bail bond of Rs.1,00,000/- each with two sureties of the like amount each in connection with Complaint Case subject to the conditions as laid down under Section 438(2) of the Cr.P.C. with further conditions imposed - application allowed.
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2023 (4) TMI 11
Seeking grant of Regular Bail - Money Laundering - proceeds of crime - it is alleged that the co-accused Vikram Seth operated a few bogus entities in his name and also in the name of the family members - allegations against the petitioner are that being an accountant, he has sanctioned the loan without any verification - HELD THAT:- Till the time of filing of the complaint, the Enforcement Directorate chose not to arrest the accused. Only when the concerned trial Court summoned the accused, as they failed to put in an appearance, the court issued bailable and non-bailable warrants, which led to the arrest of the accused Vikram Seth and in the interregnum also of the petitioner-Suresh Seth. Thus, it is clear that ED filed the complaint without arresting any of the accused.
The most important aspect is the decision of the Directorate of Enforcement not to arrest all the accused; coupled with the nature of allegations attributed to each accused, the case of every accused in the FIR stood on a different footing and decided independently of the other.
In GUDIKANTI NARASIMHULU AND ORS. VERSUS PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH [1977 (12) TMI 143 - SUPREME COURT], Supreme Court held that the delicate light of the law favors release unless countered by the negative criteria necessitating that course. In PRAHLAD SINGH BHATI VERSUS N.C.T., DELHI AND ANR. [2001 (3) TMI 1053 - SUPREME COURT], Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considerations. In DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. [2018 (2) TMI 410 - SUPREME COURT], Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner.
If the petitioner finds bond amount beyond social and financial reach, it may be brought to the notice of this Court for appropriate reduction. Further, if the petitioner finds bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition - This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law.
In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offence in this FIR, and if the new section prescribes maximum sentence which is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above, then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days providing an opportunity to avail the remedies available in law - Petition allowed.
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2023 (3) TMI 1474
Grant of Anticipatory bail - Money Laundering - proceeds of crime - twin conditions as prescribed u/s 45 of the PMLA - HELD THAT:- The Hon’ble Supreme Court in THE ASST. DIRECTOR ENFORCEMENT DIRECTORATE VERSUS DR. V.C. MOHAN [2022 (1) TMI 511 - SUPREME COURT] has held that once the prayer for anticipatory bail is made in connection with offence under the PML Act, the underlying principles and rigors of Section 45 of the PMLA must get triggered-although the application is under Section 438 of the Code of Criminal Procedure.
Further, the three judge Bench of Apex CoVIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT] has held that twin conditions shall apply irrespective of the nature of proceedings i.e. regular bail or anticipatory bail.
The petitioner cannot be enlarged on anticipatory bail - prayer for anticipatory bail of the petitioner is hereby rejected.
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