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Money Laundering - Case Laws
Showing 481 to 500 of 1547 Records
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2022 (9) TMI 1433
Locus of the petitioner-ED in a closure report filed by the State of Maharashtra before the Magistrate, in a case registered at the behest of respondent No.2-Akbar Travels (India) Pvt. Ltd. - HELD THAT:- There are no reason to interfere with the same. However, question of law, if any raised, is kept open.
Petition disposed off.
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2022 (9) TMI 1428
Seeking grant of bail - Money Laundering - predicate offence - independent investigation has been conducted by the E.D. or not - presence of corroborative evidences or not - HELD THAT:- Notably, the present applicant has properly cooperated with the investigation being conducted by the CBI and has never flouted the process of law. Thereafter, on the basis of aforesaid investigation of the CBI, E.D. started recording statement of some persons including the present applicant as no independent investigation has been conducted by the E.D. and the present applicant has been summoned to record his statement under Section 50 of the PMLA, 2002 on various dates i.e. 25.05.2018, 07.06.2018, 26.06.2018, 23.07.2018 and 19.06.2019. It is not a case of the E.D. that the present applicant has ever flouted the process of the law or he did not appear to record his statement on the aforesaid dates. The present applicant has been implicated on the basis of statement of one Sri Amit Yadav, the Contractor, which was recorded by the E.D. on 29.01.2019 and 05.02.2019 wherein he has stated that he had withdrawn a sum of Rs. 15 lakh cash from the Bank through his "self cheque" and paid this amount to the present applicant but there is no eye witness/witness/document of any kind whatsoever to suggest that the aforesaid sum of Rs. 15 lakh has been given to the present applicant.
Since no material has been filed with the counter affidavit of the opposite party to suggest that the allegation so levelled against the present applicant by Sri Amit Yadav, the Contractor, has been verified or corroborated and during the course of the arguments, Sri Kuldeep Srivastava, learned counsel for the opposite party has been asked to demonstrate the Court that the E.D. is having any corroborative material or any piece of material suggesting the involvement of the present applicant in accepting a sum of Rs. 15 lakh, except the bald allegation of Sri Amit Yadav through his statement, Sri Kuldeep Srivastava could not demonstrate anything suggesting, prima facie, involvement of the present applicant. However, trial proceedings are going on and the allegations may be proved or disproved before the learned trial court by adducing the evidences from both the sides, therefore, I am not giving any finding on this point inasmuch as this is the domain of the learned trial court to conduct and conclude the trial independently strictly in accordance with law and without being influenced from any observation of this order.
The twin requirements of Section 45 of PMLA, 2002 are satisfied inasmuch as the Public Prosecutor has been given ample opportunity to establish his case as the counter affidavit so filed and his arguments so advanced have been considered. Further, since thorough investigation has been conducted by the CBI pursuant to one FIR wherein the present applicant was accused and when nothing incriminating has been found against the present applicant, he has not been charge sheeted. The E.D. has not conducted its independent investigation and has reiterated the investigation of the CBI, therefore, prima facie, it appears that the present applicant is not guilty of such offence and being an old aged retired employee, his liberty may be protected.
It is directed that in the event of arrest, applicant- Siddh Narain Sharma shall be released on anticipatory bail in the aforesaid complaint case number till conclusion of trial on his furnishing a personal bond of Rs. 2,00,000/- with two sureties of Rs. 1,00,000/- each before the court concerned with the conditions imposed - bail application allowed.
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2022 (9) TMI 1427
Seeking grant of bail - money laundering - proceeds of crime - applicability of legal maxim sublato fundamento cadit opus (foundation being removed, structure/work falls) - maintainability of petition challenged for the reason that they are highly premature, because, as per Section 50 of the Prevention of Money-laundering Act, the petitioners cannot be said to be aggrieved persons by mere issuance of summons.
Effect of stay orders - HELD THAT:- The effect of an order of stay means that the operation of the impugned order is stayed or stands stalled as if the impugned order does not exist. Therefore, to bring the parties to the proceedings from taking further action in relation to the subject matter pending the final adjudication, stay order is granted in the interest of both parties. During the currency of stay order, if any proceedings are permitted to go on and in the meanwhile, if any damage has been caused to the reputation or the goodwill of the parties, the same cannot be compensated. Whereas if the Department waits for the final outcome of the proceedings, no prejudice would be caused to them - since the ECIR itself was only on the basis of the said three First Information Reports, when the proceedings pursuant to the said First Information Reports have been stayed by the High Court, whether the ECIR, which is also pursuant to the First Information Reports, can be proceeded with, is a question that stares at open. The considered answer is in the negative.
Generally, the summons are issued for appearance of a party on a particular date. If a party does not appear on the given date, fresh summons demanding the appearance of the person have to be issued. In the present cases, in view of the reasonings and the findings as stated, the last of the summons issued to the petitioners for their appearance on 09.05.2022 have elapsed.
Petition allowed.
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2022 (9) TMI 1423
Jurisdiction of Single Member (Adjudicating Authority) - Money Laundering - Validity of the Provisional Attachment Order - It was the submission of learned Senior Counsel who contended that a single member cannot possibly be recognised to be an Adjudicating Authority duly constituted in terms of Section 6 of the PMLA.
HELD THAT:- The issue of whether a single member can act as the Adjudicating Authority has been duly considered and answered by a Division Bench of the Court in J. Sekar V Union of India [2018 (1) TMI 535 - DELHI HIGH COURT], where it was held that There can be single-member benches of the AA and the AT under the PMLA. Such single-member benches need not mandatorily have to be JMs and can be AMs as well.
Although the Court is aware that the aforesaid decision has been placed in abeyance in an appeal preferred by the Directorate, albeit preferred with respect to certain unrelated aspects of that decision, it also bears in mind the salutary principle that while a stay of a judgment may defer its enforcement inter partes, it does not efface the dictum thereof.
The writ petitions shall stand disposed of with liberty reserved to the petitioners to appear before the concerned Adjudicating Authority and take all objections as may otherwise be permissible in law.
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2022 (9) TMI 1419
Seeking grant of anticipatory bail - violation of the terms of license - HELD THAT:- The issue is based primarily only on documents which can be construed to find out as to in how many cases if at all there has been violation of licenses - Beyond that we are not required to comment and thus we make the order dated 29th June, 2021 absolute with the stipulation that the appellant(s) will continue to cooperate in the investigation.
Criminal appeal disposed off.
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2022 (9) TMI 1416
Money Laundering - scheduled or predicate offence - non-application of mind - violation of principles of natural justice - HELD THAT:- In the instant case, the appellant was taken in custody on 19.06.2019 and has remained in custody since then. Thus, the appellant has completed more than three years of actual custody in connection with the offence in respect of PML Act.
It has been brought to notice that Accused Nos. 2, 3, 4 and 7 have not yet been arrested and though the cognizance in the matter has been taken, charges are yet to be framed.
Considering the entirety of the matter and the fact that the appellant is a senior citizen, the appellant is entitled to the relief of bail, subject to conditions imposed - application allowed.
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2022 (9) TMI 1287
Money Laundering - continuation of attachment of the property of the appellant - seeking direction to the respondent to release the said property from attachment - validity of SCN - Non-application of mind - HELD THAT:- It is evident that Appellate Tribunal found that the notice under Section 8(1) was not in conformity with the requirement of the statute and that the adjudicating authority did not form any reason to believe that the noticee had committed an offence under Section 3 or is in possession of proceeds of crime. Therefore, the very foundation for issuance of notice under Section 8(1) was absent.
Various other flaws vitiating the order of the adjudicating authority were pointed out by the Appellate Tribunal observing that the same reflected non-application of mind. Appellate Tribunal opined that no purpose would be served by continuing with the attachment. Since the trial before the Special Court may take a number of years, therefore, the State Government may take a stand about the project. However, despite saying so Appellate Tribunal adverted to Section 8(8) of PMLA including the second proviso and relegated the appellant to the Special Court to seek release of the attached property holding that till such time attachment would continue. Though Appellate Tribunal extracted Section 8(8) of PMLA, it did not say that it had passed the order of relegation on the basis of the aforesaid provision.
On going through the findings returned by the Appellate Tribunal vis-à-vis the provisional attachment order and the order of the adjudicating authority on one hand and the conclusions of the Appellate Authority on the other hand, it is evident that the conclusions are not consistent with the findings returned by the Appellate Tribunal; rather wholly inconsistent. Appellate Tribunal has held that while carrying out the provisional attachment, the attaching authority did not record reason to believe that the petitioner is in possession of any proceeds of crime and that such proceeds of crime were likely to be concealed, transferred etc., which may frustrate any proceedings relating to confiscation of such proceeds as is the mandatory requirement under Section 5(1) of PMLA. Appellate Tribunal also found fault with the approach adopted by the adjudicating authority in overlooking the above conditions. The show cause notice under Section 8(1) of PMLA was issued in a mechanical manner without application of mind and without forming any reason to believe that the noticee had committed an offence under Section 3 or was in possession of proceeds of crime. The adjudicating authority did not record any reason that the provisional attachment should continue.
While the Appellate Tribunal is correct in holding that the provisional attachment order and the order of the adjudicating authority confirming attachment suffered from fundamental flaws, thus being without jurisdiction, it fell short of declaring such orders as illegal; it further fell in error in relegating the appellant to the forum of Special Court to seek release of the attached property as it amounts to abdicating its authority and allowing an illegality to continue.
The respondent are directed to release the attached property i.e., 855.7130 acres of land in Prakasham and Guntur districts of Andhra Pradesh as per Annexure – L2 enclosed with the provisional attachment order, to the appellant - appeal allowed.
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2022 (9) TMI 1286
Money Laundering - Validity of look out circular - proceeds of crime - Constitutional Validity of Section 2(1)(u), Section 50 and Explanation to Section 44 of the Prevention of Money Laundering Act, 2002 - scheduled/predicate offences or not - HELD THAT:- The Hon’ble Supreme Court in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] has been clear and categorical in its reasoning. The undeniable sequitur of the reasoning is that firstly, authorities under the PMLA cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed; secondly, the scheduled offence must be registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum; thirdly, in the event there is already a registered scheduled offence but the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or quashing of the criminal case of the scheduled offence, there can be no action for money laundering against not only such a person but also any person claiming through him in relation to the property linked to the stated scheduled offence.
No action under PMLA can be resorted to unless there is a substratum of a scheduled offence for the same, which substratum should legally exist in the form of a subsisting (not quashed) criminal complaint/inquiry or if it did exist the accused has since been discharged or acquitted by a Court of competent jurisdiction.
The relief sought regarding constitutionality or vires of various provisions of the Prevention of Money Laundering Act, 2002 is infructuous having been decided by the Hon’ble Supreme Court in Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors. - All proceedings set aside - application disposed off.
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2022 (9) TMI 1272
Seeking grant of Interim Bail - applicant had suffered an incident on 14th July, 2022 of fainting and frothing from mouth with numbness of his limbs - whether the treatment in jail was unsatisfactory or inadequate? - HELD THAT:- The Supreme Court in State of UP [2020 (10) TMI 1281 - SUPREME COURT] was dealing with an appeal against an order passed by the Allahabad High Court, Lucknow Bench granting interim bail to an accused on medical grounds for a period of two months while directing the listing of the regular bail application for hearing.
Here too the regular bail application has been listed for hearing on 26th September, 2022 in which bail has been sought on the merits of the case along with the interim bail application moved on grounds of ill health. This application as noted above is the second one pleading medical grounds. The decision of the Supreme Court has a direct bearing to this case.
From the Status Report, it is amply clear that even the incident of 14th July, 2022 was dealt with promptly and effectively by the jail authorities and neither the doctors at DDU Hospital nor at the RML Hospital considered his condition to be of such a serious nature to call for hospitalisation. They rather advised review in Neurology and Medicines OPD. The Neurologist at GB Pant Hospital has advised neurosurgery evaluation, which it appears is yet to be carried out - there is nothing in the Status Report which would suggest to this Court that treatment was unsatisfactory or inadequate. No case has been revealed justifying directions for treatment of the applicant at any other hospital/medical institute. The documents that have been placed on the record by the applicant, are of doctors at Indore and in the application, he has sought interim bail to get himself neurologically evaluated in his “home town Indore Madhya Pradesh”. While not doubting the capabilities of the doctors at Indore nor the standard of medical care available at Indore, it would be absurd to hold that the otherwise able doctors at GB Pant Cardiology and Neurology Departments would have a lower degree of skill than the doctors at Indore, to evaluate the condition of the applicant and prescribe adequate treatment.
The present condition of the applicant is also reported to be stable - No ground whatsoever has been made out for grant of interim bail.
The present application is dismissed.
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2022 (9) TMI 1271
Transfer petition - Constitutional validity and interpretation of certain provisions of the Prevention of Money-Laundering Act, 2002 - procedure followed by the Enforcement Directorate (ED) while inquiring into/investigating offences under the PMLA - effect of amendment in Section 45 of the 2002 - HELD THAT:- The Transfer Petition is disposed of in terms of the judgment in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT].
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2022 (9) TMI 1216
Money Laundering - seeking grant of regular bail - sick and suffering from serious co-morbidities - commission of scheduled offences - generation, acquisition, layering and siphoning off the proceeds of crime - Section 45(1) of the PMLA - HELD THAT:- The proviso to Section 45(1) of the PMLA carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under section 45(1).
Whether the applicant falls within the category of sick or infirm so as to grant him the benefit of the proviso to section 45(1) PMLA? - HELD THAT:- In view of the medical report, it leaves no room for doubt that the applicant is both, sick and infirm. He is functioning on 30% capacity of one kidney and the other kidney is dead. He requires constant monitoring otherwise his fluctuations can cause death. He has undergone multiple surgeries for removal of his large intestine, gall bladder, peptic ulcer, colostomy and even a hernia operation. He has a pacemaker installed due to his heart condition and is also suffering from Spondylitis and Vertigo. During his period in jail, the applicant contracted Syphilis on 27.10.2021 and Covid-19 on 17.01.2022. Out of the other ailments, only spondylitis and vertigo may be of lesser degree but all other medical conditions are serious and life threatening.
Whether the applicant suffers from a condition which cannot be addressed from the jail? - HELD THAT:- Prisons provide medical facilities but the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals. The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of.
Though the medical report dated 24 May 2022 from Atal Bihari Vajpayee Institute of Medical Sciences states that the applicant is in a stable condition and no new ailments have been detected, the fact remains that the applicant is functioning on a single kidney which is only 30% functional and he has undergone major surgeries with respect to vital organs. Furthermore, during incarceration, the applicant contracted two more diseases viz., syphilis on 27.10.2021 and Covid-19 on 17.01.2022 - The fact that the applicant is suffering from these ailments from the year 2001 is also not of much help to the respondents’ as it is a given fact that ailments aggravate with age. In 2001, which is 21 years ago, the applicant would have been younger, healthier and in a better position to meet the requirements of his frail health. With age, the response, the resistance, the resilience and the capacity of the body to fight ailments and recuperate efficaciously, decreases. It is already discussed that ailments which, coupled with old age brings the applicant within the purview of “Infirm Person”. The level of care, attention, minute to minute monitoring, emergent response which the applicant can get from a hospital cannot be provided at the jail.
The Applicant continues to suffers from serious co-morbidities, including but not limited to a serious heart condition and a nonfunctional kidney, with the other working in a compromised position. Considering that the applicant is aged, sick and infirm, who is suffering from various complicated diseases, the application needs to be allowed - the bail application is allowed subject to conditions imposed.
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2022 (9) TMI 1215
Money Laundering - seeking grant of bail - allegations of money laundering pertain to the year 2011-2013; at that time, the petitioner's age would be around 15-17 years - petitioner had connection with the business's day-to-day affairs or not - HELD THAT:- Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
In the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to furnishing a personal bond of Rs. One lac only (INR 1,00,000/-), and furnishing one surety for Rs. Five lacs, to the satisfaction of the Trial Court - In the alternative, the petitioner may furnish a personal bond of Rs. One lac only, and hand over to the the attesting officer, a fixed deposit(s) for Rs. One lac only, made in favour of the Trial Court. Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the well-established and stable private banks, with the clause of automatic renewal of principal, and the interest reverting to the linked account. Such a fixed deposit need not necessarily be made from the applicant's account.
Petition disposed off.
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2022 (9) TMI 1214
Money laundering - Seeking grant of bail - petitioner’s age at the time of commission of the present offence - case is that the accused Vikram Seth operated a few bogus entities in his name and also in the name of the family members - HELD THAT:- Given the petitioner’s age at the time of the offence and that he was a student at Jalandhar, coupled with the nature of allegations against him, there would be no justification to send the accused to pre-trial custody at the stage of framing of the charges.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT] a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail.
The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions - Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
In the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to furnishing a personal bond of Rs. One lac only, and furnishing one surety for Rs. Five lacs, to the satisfaction of the Trial Court - In the alternative, the petitioner may furnish a personal bond of Rs. One lac only, and hand over to the the attesting officer, a fixed deposit(s) for Rs. One lac only, made in favour of the Trial Court.
Petition allowed.
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2022 (9) TMI 1160
Pre-arrest Bail application - Obtaining loan fraudulently - running of bogus firms and inflating the turnover - Correctness of decision of the Directorate of Enforcement not to arrest all the accused - framing of charges - HELD THAT:- Given the nature of allegations against the petitioner, there would be no justification to send the accused to pre-trial custody at the stage of framing of the charges.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT], a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail.
In the present case, without commenting on the case's merits, in the facts and circumstances peculiar to this case, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973 - in the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to furnishing a personal bond of Rs. One lac only, and furnishing one surety for Rs. Five lacs, to the satisfaction of the Trial Court. Before accepting the sureties, the concerned officer must satisfy that if the accused fails to appear in Court, then such surety is capable of producing the petitioner before the Court.
Petition allowed.
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2022 (9) TMI 1124
Money Laundering - proceeds of crime - scheduled offence - presumption in interconnected transactions - burden of proof - HELD THAT:- The Court has gone through the materials on record and finds that there are allegations against the petitioners, the company as well as the Directors who are the petitioners in the respective petitions. In paragraph no.17 of the complaint it has been disclosed that their transactions were limited to provide accommodation entries in lieu of cash only that on receipt of cash, cheques were issued to the companies either as share application or loan. One of the witness Shri Mridul Bhowmick at paragraph no.18 of the complaint has stated that he is not knowing that whether any share certificate is in possession and he was not aware whether any share certificate has been issued at all. Vivek Kumar Goenka has said so in paragraph no.19 of the complaint. Thus, prima facie it appears that intentionally the proceed of the crime has been transferred in the name of share to the petitioners and the petitioners’ firm.
For issuance of process against the accused it has to be seen only whether there is sufficient ground for proceeding against the accused and for that the Court is not required to weigh the evidentiary value on the basis of materials on record and the only thing the Court is required is to apply its judicial mind and in the case in hand the learned court has taken cognizance by a speaking order. There is no illegality in the order taking cognizance.
Admittedly, section 23 of the Prevention of Money Laundering Act, 2002 speaks of presumption in interconnected transactions and the burden of proof is on the accused in light of section 24 of the said Act which can be proved in the trial - The complaint does base on the certain statement evidence of certain persons it is not necessary to obey the factual prosecution which is said out of running proceeds of crime and the Court is not required to go into the details of that statement while will hamper or embarrass the learned trial court.
Petition dismissed.
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2022 (9) TMI 563
Seeking grant of bail - money laundering - proceeds of crime - incorporation and operation of 450 Indian entities and 104 foreign entities for routing proceeds of crime and also enabling purchase of offices and properties as if with untainted funds - applicability of Section 45 of the PMLA - HELD THAT:- In the present case, therefore, since this is a fresh bail application, the court would be required to consider whether there are fresh circumstances or subsequent events that call for a fresh application of mind or whether it is a mere repetition of previous grounds. Even without the application of the principle of issue-estoppel, the court in order to maintain consistency in the decision making, would be slow in entertaining such pleas, which are mere repetition of the earlier pleas, which had not found favour with it - Since the question of adherence or non-adherence to the provisions of Section 19 of the PMLA have been raised and rejected by a Coordinate Bench, there is no cause to discuss that again here. The conclusions remain the same.
This bail application would have to be considered in terms of the provisions of Section 45 of the PMLA and the twin requirements, namely, (i) that there are reasonable grounds for believing that he is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail, will have to be met. The allegations against the applicant are very serious in nature. A huge amount of rupees ninety-six thousand crores is supposed to have been laundered. There has been multiple layering, calling for painstaking and detailed investigations. The applicant has fully participated in the money laundering by lending his companies accounts to his brother and making accommodating entries. A sum of Rs. 35 crores is directly traceable to the applicant. A mere exculpatory statement to the respondent can never suffice to form a ground, leave alone a reasonable ground to believe that the applicant is not guilty of the offence - the pendency of those investigations does not enure in favour of the applicant. Rather, considering his previous conduct, in furnishing fake addresses and remaining out of bounds of the investigating agencies for almost two years, necessitating the issuance of NBWs, interference with investigations is a possibility that cannot be ignored. His remaining away from the reach of the law is also suggestive of his being a “flight risk”.
Considering the gravity of the offence, the previous reluctance of the applicant to co-operate with the investigating agencies, providing of fake addresses as well as absconding from law, are all factors indicative of the non-fulfillment of the twin conditions under Section 45 of the PMLA, to justify the grant of bail to the applicant.
Bail application dismissed.
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2022 (9) TMI 218
Seeking grant of regular bail - Smuggling - Opium - country made pistol - magazine having 5 live rounds - spare magazine having six live rounds - HELD THAT:- The FIR in the present case was registered on 31.05.2022 under Sections 3 and 4 of PMLA, Section 25 of Arms Act and under Section 18 of NDPS Act. As per the reply submitted on behalf of the State, offences punishable under Sections 3 and 4 of PMLA have been deleted upon the verification by Surender Singh, HPS, ACP-III, Panchkula. So, now the FIR in question is with regard to Section 25 of Arms Act and Section 18 of NDPS Act.
As per the allegations appearing on record 432 grams of opium was recovered from the possession of petitioner Anju Bhalla while 265 grams of opium was recovered from the petitioner Anjali Bhalla. The aforesaid quantity of opium comes under non-commercial quantity of contraband and thus the embargo provided in Section 37 of the NDPS Act is not applicable to the instant case. All the recoveries have already been effected in this case and after completion of investigation police has presented the challan but charges are yet to be framed - It will take considerable time for the trial to conclude, after the framing of charges. Coaccused Gaurav Pahwa who was apprehended at the spot along with both the petitioners and from whom cash worth Rs.1.75 crores was recovered, has been granted concession of regular bail by the Court of Additional Sessions Judge, Panchkula vide order dated 13.06.2022.
This Court is of the view that no purpose is going to be served by prolonging the judicial incarceration of both the petitioners for any further period. Consequently, both the petitions are allowed and the petitioners namely Anju Bhalla and Anjali Bhalla are ordered to be released on regular bail on their furnishing bail bonds and surety bonds to the satisfaction of Chief Judicial Magistrate/ Duty Magistrate concerned - Application disposed off.
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2022 (9) TMI 168
Money Laundering - proceeds of crime - Withdrawal/cancellation/ quashing/discontinuation/recalling of the Look Out Circular issued in the name of the Petitioner - seeking permission to Petitioner to return to his home in the United Kingdom - principles of res-judicata - HELD THAT:- The rule of res judicata is based on public policy as finality should attach to the binding decisions pronounced by courts of competent jurisdiction. This is applicable to writ proceedings through the process of judicial interpretation and a party is precluded from initiating fresh legal in respect of same cause of action. If a writ petition is filed in a High Court or Supreme Court and is rejected on merits then a subsequent writ petition cannot be moved on the same cause of action. Even if in the first petition a plea which could have been raised is pot raised, the matter cannot be agitated in a subsequent petition because of constructive res judicata. It is also based on public policy and to prevent harassment and hardship to the opposite party - The principle of res judicata applies not only when an issue has actually been adjudicated by a court of competent jurisdiction but also when the issues that were actually raised but in fact not decided.
It is correct that as per Status Report filed by the respondents no. 4 & 5/CBI a case was registered vide RC 13/2016/EOW Mumbai on 19.09.2016 at CBI/EOW/Mumbai Branch for commission of offences under section 120-B IPC read with section 420 IPC and section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against Hasan Ali Khan, unknown public servants, and others and said case is still under investigation by GBI/AG-VI/SIT, New Delhi but the petitioner has not been implicated as an accused in said FIR/RC and during investigation the role of the petitioner was not clearly established and the petitioner was not made an accused by CBI in any FIR registered at Mumbai.
Whenever a suit/writ is instituted before the court, the initial issue is to be decided whether the court has jurisdiction to deal with the matter. If the court does not have jurisdiction then it will be recognized as lack of jurisdiction and irregular exercise of jurisdiction. If the court does not have jurisdiction to decide the case then such decision would be regarded as void or voidable depending upon the circumstances. Jurisdiction is not defined and explained in Code of Civil Procedure, 1908. Jurisdiction is power and competence of the court to adjudicate case. Jurisdiction is boundary of court in exercise its judicial authority.
The respondent no. 4/CBI, EOW, Mumbai registered FIR bearing no. RCD682016E0013 dated 19.09.2016 under section 120-B read with section 420 of the Indian Penal Code, 1860 read with Section 13(1) (d) of Prevention of Corruption Act, 1988 and thereafter the respondent no. 2 considering nature of scheduled offences and involvement of proceeds of crime of Rs. 36000 crores initiated investigation under PMLA vide ECIR/HQ/02/2017 dated 24.01.2017 at Delhi.
Mere fact that the respondent no. 2 through the respondent no. 6 on the request of the respondent no. 3 issued LOC dared 10.02.2016 at Delhi does not create or vest territorial jurisdiction in courts at Delhi. No cause of action either wholly or in part has ever been arisen in Delhi for filing the present petition. This court is lacking territorial jurisdiction to entertain the present petition.
Petition dismissed.
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2022 (9) TMI 132
Seeking grant of Bail - money laundering - cheating large number of investors of Jharkhand by inducing them to purchase plots of land - siphoning off of funds - twin conditions under section 45 of PMLA attracted or not - HELD THAT:- This Court is of the considered view that the provisions of Section 45 of the Act, 2002 prior to judgment of Ho’ble Apex Court in the case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] had been declared unconstitutional; but the defects in provisions of the said Act was cured by Parliament by way of Amendment Act 13 of 2018 and consequently, the twin conditions of Section 45 while disposing of the bail application under the Act, 2002 stood revived.
The twin conditions under Section 45 (1) for the offences classified thereunder a Part-A of the Schedule was held arbitrary and discriminatory and invalid in the case of Nikesh Tarachand Shah. Subsequently, the Section 45 of the Act, 2002 has been amended by Amendment Act, 13 of 2008, whereby the words “imprisonment for a terms of imprisonment of more than three years under Part A of the schedule” has been substituted with “accused of an offence under this Act.”
The Hon’ble Apex Court in THE ASST. DIRECTOR ENFORCEMENT DIRECTORATE VERSUS DR. V.C. MOHAN [2022 (1) TMI 511 - SUPREME COURT] held once the prayer for bail is made for the offence under PMLA 2002, the rigors & principle underlying Section of 45 get triggered on.
There are reasonable grounds for believing that applicant is guilty of the offences of money laundering and he is likely to commit any offence, if enlarged on bail - Bail application dismissed.
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2022 (8) TMI 1504
Cancellation of warrant of arrest filed by petitioner u/s 70 of sub-section (2) of Cr.P.C. - petitioner accused did not appear when the prosecution filed their charge-sheet alleging offences punishable u/S 120-B r/w Sections 407, 420, 201 of IPC and Sections 13(2) r/w Section Section 13(1)(d) of Prevention of Corruption Act, 1988 - HELD THAT:- This Court is of the considered view that since it is not disputed that the present petitioner had cooperated in the investigation which now stands concluded by filing of charge-sheet, the question of arresting the petitioner would be an exercise in futility.
Since the factum of petitioner's cooperation during investigation is not denied by the investigating agency, this petition stands disposed of with a direction to the petitioner to furnish surety and security to the satisfaction of the Trial Court, which if done latest by 26th August, 2022 shall be accepted for grant of anticipatory bail on such terms and conditions as found fit by the Trial Court, provided there is no other legal impediment.
Petition allowed.
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