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Money Laundering - Case Laws
Showing 401 to 420 of 1544 Records
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2022 (12) TMI 605
Ponzi schemes - Various persons conspired and connived with Karvy and its promoters to dupe the Petitioners - It has been estimated that the cumulative amount invested in these schemes totals Rs. 800 crores. - The Petitioners then preferred complaints before the Enforcement Directorate (ED) requesting action in accordance with law against the accused. However, till date, the Petitioners are not aware of any action taken against the private Respondents as a result of the complaint filed on 6th September, 2022
Mr. Ahluwalia, ld. CGSC appearing for the ED submits that the ED has launched a money laundering investigation against M/s Karvy Stock Brocking Ltd. and various other connected entities. Significant developments have taken place in these investigations and the matter is under examination. According to the ED, the Petitioners’ complaint has already been taken on record.
Considering the nature of allegations and the stand taken by the parties, it is directed that the contents of the present writ petition along with the annexures and documents shall be transmitted to ED. Since the ED has already stated that the Petitioners’ complaint is under examination, let the allegations made in this writ petition be also considered and proper action be taken in accordance with law.
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2022 (12) TMI 454
Seeking enlargement on regular bail - Bribery - scheduled offences - conspiracy with other accused illegally intercepted MTNL lines at National Stock Exchange - right to privacy - HELD THAT:- ISEC is primarily involved in the business of cyber security consulting, which includes conducting audits, preparing policy design and evaluation of cyber security systems and processes - tapping phone lines or recording calls without consent is a breach of privacy. The right to privacy enshrined under Article 21 of the Constitution demands that phone calls not be recorded. Only with consent of the individuals concerned, can such activity be carried out otherwise it will amount to breach of the fundamental right to privacy.
The Apex Court in K.S. Puttaswamy v. Union Of India [2017 (8) TMI 938 - SUPREME COURT] holds right to privacy inheres in every individual as a natural right. It is inalienable and attached to every individual as a pre-condition for being able to exercise their freedom.
In the present case, recording or tapping of phone lines by ISEC was not an action of the State. The facets of privacy include right of non-interference with the individual body, protection of personal information and autonomy over personal choices. Consent is essential when it comes to recording phone lines which aspect was disregarded by both NSE and ISEC. However, this aspect need not detain me any further as in the present application, I am only dealing with the bail application of the applicant and not the quashing petition - In the given case, NSE mandates to record conversations since SEBI has mandated brokers to execute trades only after maintaining inter alia telephonic recordings. The same is duly found in the SEBI circulars dated 26.09.2017 and 30.11.2017 which are detailed above. Hence, on one hand, the circulars mandate calls be recorded for the purposes of adjudication of disputes while on the other hand, it prosecutes for complying with the circulars.
The act of tapping and recording phone calls without consent of the concerned person can be penalised under various sections of the Indian Telegraph Act and Indian Wireless Telegraphy Act but the offences under the said statutes are not scheduled offences. On the other hand, invocation of sec. 72 of the IT Act is only limited to breach of confidentiality and privacy, which offence has not been made out - prima facie the ingredients of the alleged offences are not made out in the present case.
The offence under section 120-B IPC (which is also a PMLA scheduled offence) is also not made out in so far as the criminal intent i.e., agreement to do an illegal act as defined under sec.120-A IPC is not established. NSE has been involved in call-recording since 1997 through other vendors such as M/s Comtel, prior to ISEC being brought into the picture to analyse recorded calls. Since call recording was being done prior to the arrival of ISEC, there is no criminal conspiracy entered into between ISEC and NSE with the intention of committing an illegal act, namely, call recording. Thus, the element of criminal intent is not made out in the present case and no offence under section 120 B read with 409 and 420 IPC is established.
Since none of the ingredients of the scheduled offences viz., Section 72 IT Act, Section 120B r/w 409 and 420 IPC, Section 13(2) read with 13(1)(d) PC Act are made out, there is no occasion to allege acquisition or retention of ‘proceeds of crime’, which under Section 2(u) of PMLA is defined to mean proceeds arising out of ‘scheduled offences.’ - the Applicant cannot be held to have derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence.
On the basis of the material collected and referenced by the ED, the ED has not substantiated that the Applicant has derived or obtained any property as a result of a scheduled offence or indulged in any activity or process relating to that property - according to section 45 PMLA, prima facie, there are reasonable grounds to believe that the Applicant is not guilty of the offence and he is not likely to commit any offence while on bail.
the application is allowed and the applicant is granted bail subject to conditions imposed.
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2022 (12) TMI 313
Money Laundering - scheduled offences - In the light of the law laid down by the Supreme Court in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT], the learned counsel for the petitioner prayed for quashment of the proceedings before the Enforcement Directorate.
HELD THAT:- It was held in the case of in Vijay Madanlal Choudhary that The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.
This Writ Petition is allowed and impugned order passed by the respondent in his proceedings is quashed.
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2022 (12) TMI 270
Money Laundering - scheduled offences - provisional attachment - cash - gold and silver ornaments - driver of the vehicle was one Suresh Kumar, the driver of the car, which was used for transporting illicit liquor - HELD THAT:- The remedy that is available to Suresh Kumar is to approach the Tribunal u/s.26 of the Prevention of Money Laundering Act, 2002 [PMLA] and thereafter, u/s.42 of the PMLA to the High Court. In the light of the order of the Adjudicating Authority passed u/s.8(3) of the PMLA confirming the provisional order of attachment, the ornaments cannot be handed over to Suresh Kumar. However, we are of the opinion that since the ornaments are not liable for confiscation u/s.14 of the Tamil Nadu Prohibition Act nor are they material evidence to connect the accused with the crime in question, no useful purpose will be served by keeping the ornaments in the custody of the learned District Munsif-cum-Judicial Magistrate, Thirukalukundram, as that would be an additional burden for the said Court.
The learned District Munsif-cum-Judicial Magistrate, Thirukalukundram, are directed to hand over the ornaments in P.I.No.41/2015 dated 07.03.2015 in PEW Mamallapuram Crime No.96/2015 (now S.C.No.196/2017) on the file of learned Assistant Sessions Judge cum Principal Sub Judge, Chengalpet, to the Deputy Director, Directorate of Enforcement, Chennai, under proper receipt.
Petition allowed.
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2022 (12) TMI 269
Money Laundering - scheduled offences - proceeds of crime - allegation is that the property has been acquired by D.Sridhar’s family via criminal activities - provisional attachment of properties - HELD THAT:- Admittedly, the Pothys had paid Rs.5,30,74,500/- as sale consideration to Kumari and Dhanalakshmi for purchasing the property. It is not the case of the Enforcement Directorate that the Pothys were benamies of Sridhar or Kumari or Dhanalakshmi. The Pothys have disclosed the entire payments that were made for the purchase of the said property. The Enforcement Directorate was not able to trace Rs.5,30,74,500/-, which had gone into the kitty of Kumari and Dhanalakshmi and therefore, they are now holding on to the property of the Pothys.
When it is not the case of the Enforcement Directorate that the Pothys had purchased the property for a nominal consideration and that they are benamies of Sridhar and his family, the immovable property in the hands of the Pothys cannot be said to be "proceeds of crime". At the risk of repetition, this Court has quashed the prosecution against Ramesh Pothy holding that he was not involved either directly or indirectly in the money laundering offence with Sridhar and his family members.
Section 8(7) of the PMLA came up for consideration before a Division Bench of this Court in The Assistant Director v. Canara Bank [2021 (10) TMI 894 - MADRAS HIGH COURT], wherein, this Court has held that Section 8(7) of the PMLA is a stand alone section and is not governed by the proviso to Section 8(8) of the PMLA, as the latter would come into effect only after the culmination of the trial, but, whereas the former could be invoked during the pendency of the trial, if it is found that the trial is not progressing "for any other reason". In this case, there was no progress in the trial from 2017 onwards for various reasons - the property in question, which belongs to the Pothys cannot be confiscated in lieu of Rs.5,30,74,500/- in the hands of their vendors, to wit, Kumari and Dhanalakshmi. Of course, it would be open to the Enforcement Directorate to attach other properties of Kumari and Dhanalakshmi, if they are not able to trace the sum of Rs.5,30,74,500/-, but, that can, by no stretch of imagination, empower them to attach the buyers' properties for the sin of having purchased the same for a valid consideration from a tainted seller.
Criminal revision allowed.
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2022 (12) TMI 143
Money Laundering - proceeds of crime - Petitioner claimed as being whistle blower made an accused - The mens rea behind the accused / petitioner was to check and hamper the ongoing PIL which has further come in the investigation - registration of the ECIR case is condition precedent and commission of scheduled offence - grant of interim bail - HELD THAT:- The Court has gone through the materials on the record and finds that admittedly only the ECIR is under challenge in this petition, which is internal document of the ED and that might have been communicated to the Court and this aspect of the matter has been considered by the Hon'ble Supreme Court about internal document of the ECIR in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], where it was held that since the inquiry in due course ends in identifying the offender who is involved in the process or activity connected with the proceeds of crime and then to prosecute him, it is possible for the department to outline the situations in which that course could be adopted in reference to specific provisions of 2002 Act or the Rules framed thereunder; and in which event, what are the options available to such person before the Authority or the Special Court, as the case may be. Such document may come handy and disseminate information to all concerned.
Looking into Section 3 of Prevention of Money Laundering Act, it is crystal clear that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money laundering. Admittedly, this petitioner has handed over the sum of Rs.50 Lakhs to Mr. Rajeev Kumar. Section 7A of the Prevention of Corruption Act speaks that giver and taker of bribe, both are liable to be prosecuted, which comes under scheduled offence in light of Section 2(1)(u) of the Prevention of Money Laundering Act - In the case in hand, serious allegation is there against this petitioner, who tried to malign the image of judiciary and high officials of the Government and ED. Thus, that case is not helping the petitioner. Thus, the argument of Mr. Nigam, learned senior counsel appearing for the petitioner with regard to jurisdiction is not accepted by this Court and the same is negated.
The prayer of the petitioner with regard to release on interim bail under Article 226 of the Constitution of India is not made out and that prayer is rejected.
Whether the accused would have any say in selecting the method of inquiry or the investigating agency? - HELD THAT:- It is well settled that the High Court under Article 226 of the Constitution and the Hon'ble Supreme Court under Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry. There is no doubt that such inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation and if after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can pass necessary order.
In the case in hand, this petitioner has tried to scandalize the judiciary, ED officials and Government officials particularly considering that Hare Street P.S. Case was registered with the police station, which was not within the jurisdiction of resident or office of the petitioner, which suggests that there is larger conspiracy to malign the image of judiciary, ED and other officials including the Court staff, which is a serious matter and this all has come in the investigation of the ED. Such type of allegation brought to the knowledge of the Court cannot be allowed to go unattended - Once the preliminary inquiry report is submitted, the Director, CBI shall be at liberty to choose further course of action, in accordance with law.
Petition dismissed.
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2022 (12) TMI 142
Money Laundering - Onus on Chartered Accountant (CA) for giving certificate - scheduled offences - whether mere issuance of five numbers of Form 15CB at the request of client, would by itself, brings the CA into the net of conspiracy to indulge in money laundering? - HELD THAT:- As regards the requirements for submission of Form 15CB, we find from the records that only the State Bank of Travancore had insisted upon the said certificates and not the other six banks through which, foreign remittances were made by Kiyam Mohammed [A7] and Abdul Haleem [A8]. The complaint and the accompanying background show that Abdul Haleem [A8] had operated the bank accounts and Kiyam Mohammed [A7] had facilitated the opening of the bank account and preparation of various documents by availing the services of various persons including Murali Krishna Chakrala, an Auditor, for the limited purpose of obtaining Form 15CB for transferring monies from State Bank of Travancore, Mount Road Branch. A reading of paragraph Nos.81 and 143 of the impugned complaint, which have been extracted supra, shows that Murali Krishna Chakrala had issued five numbers of Form 15CB in favour of B.K.Electro Tool Products, which were handed over by him to his client Kiyam Mohammed [A7] for which, a sum of Rs.1,000/- per certificate was given to him as remuneration.
Even on a demurrer, on a perusal of Form 15CB, we find that a Chartered Accountant is required to only examine the nature of the remittance and nothing more. The Chartered Accountant is not required to go into the genuineness or otherwise of the documents submitted by his clients. This could be compared with the legal opinion that are normally given by panel lawyers of banks, after scrutinizing title documents without going into their genuinity. A Panel Advocate, who has no means to go into the genuinity of title deeds and who gives an opinion based on such title deeds, cannot be prosecuted along with the principal offender. Applying the same anomaly, we find that the prosecution of Murali Krishna Chakrala, in the facts and circumstances of the case at hand, cannot be sustained.
This Criminal Revision is allowed.
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2022 (12) TMI 141
Seeking grant of anticipatory bail - Hawala transactions - proceeds of crime - predicate offence/scheduled offence or not - allegations are that the accused on the basis of forged documents, obtained illegally, a total number of 263 Reliance WLL PCO phone connections which were activated during the period between 18.04.2011 and 30.07.2011 and through the said phone connections, earned illegal money by making calls on certain pre-fixed international numbers and putting on hold such calls in the manner described in the complaint.
HELD THAT:- The role of Shri Shafaat Ejaz Siddiqui was found to be clearly covered by the definition of offence of money laundering as defined under Section 3 of the PML Act. The proceeds of crime was projected in the form of two immovable properties and bank balance available in various accounts in which proceeds was received from abroad - Shri Tabish Mansoor was found to be involved in running of 112 out of 263 numbers of Reliance WLL phones in association with Shri Shafaat Ejaz Siddiqui and he was found to be in possession of proceeds of crime in cash worth Rs.10,20,000/- which was concealed by him for the purpose of money laundering.
Rigors of Section 45 of the PMLA have to be applied while considering the prayer for grant of anticipatory bail. This court is of the view that there is sufficient documentary evidence available on record to substantiate involvement of the accused-applicants in the offence of money laundering. Economic offences constitute a class apart and need to be visited with a different approach in the matters of bail. The proceedings of predicate offence and that of money laundering are separate and mere grant of bail in predicate offence does not become basis to grant of bail in case of money laundering.
Details of proceeds of crime have been mentioned in the complaint which would disclose crores of rupees was transferred in the accounts of the accused-applicants and they utilized the said proceeds of crime for their own purposes or some other purposes - Trial court has noted that the accused-applicants have been avoiding due process of the court and, therefore, their anticipatory bail applications had been rejected by the learned trial court.
These applications for anticipatory bail are hereby rejected.
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2022 (12) TMI 140
Seeking grant of anticipatory bail - predicate offence - proceeds of crime - allegation is that the accused-applicant took 30% commission in cash from the said company, inter alia, and passed the bills and he was instrumental in awarding the tender to the said company from where the medicines were purchased on exorbitant rates - HELD THAT:- It would be apt to take note of the relevant paragraph of the judgement/order passed by the Supreme Court in the case of Parvathi Kollur and another Vs. State by Directorate of Enforcement [2022 (8) TMI 1256 - SC ORDER] where it was held that the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence.
This Court is of the view that the accused-applicant is entitled to be enlarged on anticipatory bail - Let accused-applicant, Mehar Singh be enlarged on anticipatory bail with the conditions imposed - application allowed.
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2022 (12) TMI 57
Cheating - offence of money laundering or not - it is alleged that some of the foreigners invested thereby huge amounts in Indian Companies for the purpose of purchasing flats in Quepem - offence under Section 120B, 420 of IPC or not - HELD THAT:- The fact remains on record that FIR No.86/2017 registered at Quepem Police Station remains on record and no investigation has been carried in it till date. Report of the Sub-Divisional Police Officer clearly shows that it was a civil dispute in which attempt was made to convert it into a criminal offense. It is now well settled that powers of this Court under Section 482 of CrPC though extraordinary in nature, could be exercised so as to quash the FIRs which are practically considered to be civil disputes.
There is already a report given by the Sub Divisional Officer of Quepem that it was a civil dispute. Even Final Report for grant of 'A' Summary was filed before the Quepem Court and then it was subsequently withdrawn. However, fact remains that complaint lodged by respondent no.2 discloses that it is a civil dispute and specifically in connection with the sale and purchase of flats in the project which the petitioner was constructing - it is deemed fit and proper to quash and set aside such FIR registered at Quepem Police Station under Section 482 of CrPC as continuance of such FIR is clearly an abuse of the process of law and no purpose would be served.
Petition allowed.
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2022 (12) TMI 14
Money Laundering - seeking pre-arrest bail - predicate offence - illegally raising iron/manganese ores of a higher value than what has been declared from the Ulliburu Mining Lease area - illegally raising mineral from areas adjacent minor mining lease areas and selling such minerals to his own concern thereby causing huge loss of revenue to the State exchequer - provisions contained in Section 45 of the PMLA Act, 2002 complied with or not - HELD THAT:- On a conspectus of the background facts of the case as well as upon a close scrutiny of the materials placed before this Court for consideration by either side and futher taking into consideration the affidavits filed by the learned counsel for the Opp. Party as well the written note of submissions, this Court, at the outset, would like to observe that it is the settled position of law that except where there are specific provisions in the PMLA that provides an alternative procedure, the provisions and procedure of CrPC shall apply to the cases registered and tried under the PMLA.
Given the mandate of Articles 21 and 22 of the Constitution of India, the powers under the PMLA in relation to the offences under the PMLA, have to be governed by the CrPC, if not expressly provided for alternatively in the PMLA. This is expressly recognized and acknowledged by Section 65 PMLA. Therefore, there exists absolutely no doubt with regard to the applicability of the procedural law in the case of the present nature.
The Petitioner in the case at hand has been charged under Sections 4 of the PML Act which provides for a maximum punishment of seven years. Section 13 (1) (c) (d) of the Prevention of Corruption Act which provides for the maximum punishment of seven years and under Sections 120 B, 379,409, 411 and 420 of the IPC. A perusal of Section 2(y) of the PML Act provides for the scheduled offences thereunder and Paragraph 1 relates to offences under the IPC which are “scheduled offences” within the meaning of the PML Act. Section 409 of the IPC does not figure as a scheduled offence under the schedule to the act. Therefore, all the other offences including the offences under the IPC have a maximum punishment of up to 7 years imprisonment.
The Petitioner in the present enforcement case has never been “formally arrested” by the Enforcement Directorate but has been remanded to their custody for the purposes of investigation. In the said context, the argument advanced before this court by Mr. Agarwal, learned counsel for the E.D. has substance in it. Therefore, it appears to this court that most likely the Enforcement Directorate officials have chosen to not exercise their discretionary power to “formally arrest” the Petitioner, probably because they did not feel the need to do so. Furthermore, since lodging of the ECIR to till date, the E.D. officials never bothered to formally arrest the petitioner and while the petitioner was in custody in connection with the vigilance case, he was taken on remand for interrogation by E.D. officials. After investigation was concluded, probably the necessity of arrest was never felt by E.D. The Petitioner had cooperated with investigation and had recorded his statement before the Enforcement Directorate which had led the Enforcement Directorate to state that they no longer require the custody of the Petitioner for the purposes of investigation
On considering the surrounding facts and circumstances of the present case as well as the fact that the petitioner was in custody for almost 6 years in connection with the vigilance case which forms part of scheduled offence for the present case under PML Act and the fact that the custodial interrogation of the petitioner is over and the E.D.’s statement before court that custody of the petitioner is no more required and above all the fact that the petitioner was not formally arrested by the E.D. in the present case since the institution of the case by registering the ECIR further considering the factual background of this case - Furthermore, the mining operation as well as the mining laws, in the meanwhile, has undergone a drastic change, therefore, prima facie there exists no possibilities of such offences being repeated in the future.
This Court, considers this the present case to be a deserving case for exercising it’s discretion under Section 438 CrPC and to grant anticipatory bail to the present Petitioner and accordingly it is directed that the petitioner be released on bail in the event of his arrest by the E.D. officials in connection with Complaint Case (PMLA) No. 40 of 2018 pending before the Ld. Special Judge, Special Court, Bhubaneswar, Khurdha subject to such terms and conditions as the arresting officer would deem fit and proper in the facts and circumstances of the present case.
Anticipatory bail application allowed.
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2022 (12) TMI 13
Seeking grant of Regular bail - Money Laundering - scheduled offences - commission of fraud with the Bank of India - alleged offence under section 3 read with section 70 of the Prevention of Money Laundering Act, 2002 (PMLA) and punishable under section 4 of the PMLA - twin conditions of section 45 of PMLA fulfilled or not - HELD THAT:- Admittedly the petitioner is Director of five companies namely, M/s Dwarikadhish Udyog Pvt. Ltd., Sriram Comtrade Pvt. Ltd., represented through Gyan Prakash Sarawgi (petitioner), M/s Global Traders (proprietorship firm), Badri Kedar Udyog Pvt. Ltd. and Sunbeam Dealers Pvt. Ltd., represented through Amit Sarawgi and the C.B.I. has registered the case and subsequently the E.D. has c o me into the picture and registered the ECIR complaint against the petitioner and others. In the investigation it has come that the petitioner has taken loan in the name of Vikash Khetawat, Amit Sarawgi and Abhishek Agarwal and others - It is strange that when the petitioner was having the company why the loan in question was not taken in the name of the said company whereas the private persons have been involved who are alleged to be the employee and close relatives of the petitioner. However, this fact has been disputed by the learned counsel appearing on behalf of the petitioner and has submitted that the loan in question was taken in the name of the company itself.
There is no doubt as has been discussed by the Hon’ble Supreme Court in the case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (12) TMI 186 - SUPREME COURT], that even in economic offences the bail is a rule, however, the Court before granting the bail is required to come to the definite conditions and look into the graveness of the nature of the crime.
Requirement to comply with twin conditions of section 45 of PMLA - HELD THAT:- Admittedly the petitioner is not under the age of sixteen years or is a woman or is sick or infirm and the proviso thereof speaks that if the money is below Rs.One crore the rigor can be relaxed. In the case in hand, there is allegation of Rs.77 crores of diversion of the loan amount - In the case of ROHIT TANDON VERSUS THE ENFORCEMENT DIRECTORATE [2017 (11) TMI 779 - SUPREME COURT], it is said that economic offence is said to be white collar crime/ the economic offenders are having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole It is a white collar crime which is done in a well planned manner and they are grievous in nature and against the society.
The Court is not inclined to grant regular bail to the petitioner - bail application dismissed.
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2022 (12) TMI 1
Seeking grant of bail - money laundering - proceeds of crime - twin conditions under Section 45 of the PMLA - HELD THAT:- Since the observations in the impugned order of the High Court are confined to the question as to whether the respondent was entitled to the grant of bail, we clarify that these observations shall be construed only for that purpose. In other words, the observations shall not affect the merits of the trial or be pressed in any other collateral proceedings.
SLP dismissed.
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2022 (11) TMI 1462
Seeking withdrawal of this application with liberty to file a fresh application, if occasion so arises - HELD THAT:- This application is dismissed as withdrawn.
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2022 (11) TMI 1450
Seeking grant of bail - it was held by High Court that In the present case, if the applicant is released on bail, it will give setback to the efforts which are being done by the Government as well as the local administration for release of the land in favour of members of the society. In view of the above, I do not find a case for grant of bail to the applicant at this stage - HELD THAT:- SLP disposed off.
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2022 (11) TMI 1423
Money Laundering - predicate Offence - Sections 406, 420, 468 471 and 506 of IPC - HELD THAT:- In the given circumstances, at least there cannot be any prosecution against the present petitioner under Sections 3 and 4 of PMLA Act.
Issue notice, returnable on 9th January, 2023.
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2022 (11) TMI 1387
Seeking grant of bail - committing large scale fraud with the investors and misappropriating their hardearned money - rigour of Section 45 of the Prevention of Money Laundering Act - HELD THAT:- Considering the allegations and the fact that the Enforcement Directorate has already attached the properties of worth Rs.1,28,08,640/-, this Court can not record a finding that the accused-applicant is not, prima facie, guilty for committing the offence.
This Court is not satisfied that the accused-applicant is entitled to be enlarged on anticipatory bail - the anticipatory bail application is rejected.
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2022 (11) TMI 1381
Maintainability of petition - petitioner is neither accused in the FIR nor in the remand application - Money Laundering - illegal demand and extortion of money by the accused - HELD THAT:- The case of the prosecution is that the defacto complainant, the Income Tax officials said to have raided the hotel Sheraton Grand at Whitefield Bengaluru, where accused Suryakanth Tiwari had occupied in the hotel and it is alleged that on 30.06.2022 he has destroyed the electronic evidence and attempted to chew the paper having some entries and used criminal force on the IT officials and prevented them from discharging official duty. Admittedly, the complaint came to be filed after 12 days ie., on 12.7.2022 which is registered as Crime No. 129/2022 for the offence punishable under Sections 186, 204, 120B, 353 of IPC. Admittedly, there is no offence of 384 of IPC has been registered by police. However, it is brought to the notice of the Court by SPP II, that there is averments at Para "5" of the complaint, it was mentioned that the accused persons i.e., Suryakanth Tiwari, his brother Rajanikanth Tiwari, his associates Hemanth Jaiswal and others were conspiring and parallely collecting illegal levy on coal and Suryakanth Tiwari has admitted in his statement about the collection of illegal levy.
Though the learned senior counsel has rightly contended that the Kadugodi police at Bengaluru may not investigate the offence under Section 384 of IPC which is said to be committed at Chhattisgarh State and the Karnataka police can investigate only in respect of the offence under Sections 353, 186 and 204 of IPC, however, the Section 120B has been inserted by the police, where there was allegation of conspiracy between the Suryakanth Tiwari and other accused in collecting illegal levy on coal mining. That apart, destroying the electronic evidence is pertaining to the information found in the mobile phone, in respect of the offence committed at Chhattisgarh under Section 384 of IPC. Even otherwise, merely a provision of any Section of IPC has been left out in the FIR or in the complaint, that itself does not mean the police should not investigate the matter. They are very much having power to investigate the matter for the offence which were not mentioned in the FIR in addition to the sections in the FIR, however, they should obtain the permission of the Magistrate.
On bare reading of the sub-section 1 and 3 of the 156 of Cr.P.C which empowers the police to investigate any cognizable offences which the Court having jurisdiction and the Magistrate is empowered under Section 190 may order such an investigation as above mentioned and on reading of Section 181 (3) of Cr.P.C, the place of trial in case of the theft, extortion or robbery which may incurred into or tried by the Court within whose local jurisdiction the offence was committed - On the bare reading of the provisions of Section 181 (3) of Cr.P.C which empowers the Court having jurisdiction of four places i.e., (1) The Court within whose local jurisdiction the offence was committed, Or (2) the stolen property which is the subject matter of offence was possessed by any person committing it, Or (3) By any person who received, Or (4) retain such property, knowing or having reason to believe it to be stolen property. Therefore, it cannot be said the Court having jurisdiction to try to the offence only if the offence is committed within the local jurisdiction, but also the other three places of Courts can try the offence as per Section 181 (3) of Cr.P.C.
But here in this case, the name of the present petitioner has neither appeared in the first information nor in the complaint/first information or in the requisition of the police for investigating for the offence under Section 384 of IPC, in order to challenge the FIR and investigation in Crime No. 129/2022 registered by Kadugodi police. This petitioner has no locus standi to question the investigation or quashing the FIR which was registered against the accused Surykanth Tiwari - The matter requires to be investigated by the police to verify whether the accused/Suryakanth Tiwari is involved in destroying the electronic and other documentary evidence at Bengaluru in respect of offence under section 384 of IPC, which may be committed at Chhattisgarh.
As regards to the another contention raised by the learned senior counsel for petitioner that the offence took place at Bengaluru in Crime No. 129/22 cannot be a predicate offence for registering case under PML Act by the ED at Chhattisgarh, wherein this petitioner was made as co-accused along with accused Suryakanth Tiwari and others for involving in the money laundering case. In this aspect, when the Suryakanth Tiwari was accused in predicate offence and when money laundering case has been registered against him and this petitioner was arrested in the money laundering case as co-accused, therefore, he has to challenge the same before the Special Court at Chhattisgarh or before the High court of Chhattisgarh against registering of case by the ED by taking the offence committed at Bengaluru as predicate offence.
Thus, when the petitioner is not an accused in crime No.120/2022 and his name was neither found in the FIR or the first information statement or in the request made by the police for investigating the offence under Section 384 of IPC, this petitioner cannot question the same. If the ED consider the Crime No. 129/2022 as a predicate offence and Section 384 of IPC has schedule offence for initiating any proceedings it has to be challenged before the Chhattisgarh State where this petitioner is an accused. Therefore, the petition filed by this petitioner is liable to be dismissed.
Petition dismissed.
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2022 (11) TMI 1380
Money Laundering - proceeds of crime - Validity of the Supplementary Complaint under sections 44 and 45 of the Prevention of Money Laundering Act, 2002 - vicarious liability can be fastened against the petitioner who is one of the director - HELD THAT:- It is crystal clear that there is allegation against the petitioner who happens to be director of the company whose case has been considered and dismissed. Merely because he has been cleared by the Income Tax Department allegation made against the petitioner are not rendered infructuous. It is not known whether in that income tax return the proceeds of crime have been shown by the petitioner in that return or not.
Moreover in the judgment relied by Mr. Rai in the case of J. Sekar Alias Sekar Reddy [2022 (5) TMI 309 - SUPREME COURT], the facts of that case are different. The C.B.I. and E.D. has closed the case and the income tax department has also closed the case and in that scenario the Hon’ble Supreme Court came to the conclusion that finding of the High court is not sustainable.
So far as reliance placed in Ram Kishan Rohtagi [1982 (12) TMI 218 - SUPREME COURT], the fact of that case is on different footing. That case was arising out of Food Adulteration Act and the director of the company has been made accused on presumption and in that scenario the Hon’ble Supreme Court has given finding that when there is no averment of the role of director and who is looking day to day affairs of the company, the prosecution is bad. Where as in the case in hand there is averment in the complaint that the petitioner is looking after day to day affairs of the company. The petitioner is facing charge in money laundering case. How the white collor criminals affect the fibre of country economic structure, has been considered by the Hon’ble Supreme Court in the several judgments. This crime has been made in well planned manner and not in the hit of moment as occurred in section 302 of I.P.C. Further the petitioner has not taken care of the order of the High Court whereby he has been provided interim protection.
The Magistrate is only required to pass an order issuing summons to the accused. Such an order issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the chargesheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the chargesheet and for not taking on file. Cognizance was taken considering the report filed by the E.D. Order of issuance of process is not illegal. Mens rea is subject matter of trial.
No case of interference is made out. Accordingly, this petition is dismissed.
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2022 (11) TMI 1375
Seeking grant of Anticipatory bail - undue pecuniary gain to by selling the items/goods on quite exorbitant rates in connivance and with the criminal conspiracy hatched with Chief Medical Officers - HELD THAT:- Looking at the allegation against the accused-applicant, this Court is of the considered view that the satisfaction, as required under Section 45 of the Act, 2002, that the accused-applicant, prima facie, has not committed offence, is not made out. The provisions of Section 438 Cr.P.C. have limited scope to prevent humiliation of the applicant by having him so arrested that the accused-applicant is an innocent person and he has not, prima facie, committed the offence for which complaint and chargesheets have already been filed.
There is no ground to take a different view from the view taken by the learned Sessions Judge/Special Judge, PMLA, Lucknow - anticipatory bail application is accordingly rejected.
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