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Gautam Kundu Versus Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement (Prevention of Money Laundering Act) Govt. of India

Rejection of Bail Application under Section 439 of the Code of Criminal Procedure, 1973 - offence alleged to have been committed under Section 3 of the Prevention of Money Laundering Act, 2002 - A complaint was filed by the respondent authorities, being C/14214 of 2013, alleging that the Rose Valley transferred the money raised by issue of debentures from the account of one company to that of another company. It is also alleged that the money collected by issuing the debentures for the purpose o .....

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nything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Sect ion 24 provides that unless the contrary is proved, the Authority o .....

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4 of PMLA. The complaint reveals that SEBI received a letter from the Ministry of Corporate Affairs, Office of the Registrar of Companies, West Bengal, with reference to Rose Valley in which the ROC had stated that Rose Val ley has repeatedly issued debentures in the years 2001-2002, 2004-2005, 2005-2006 and 2007-2008 to more than 49 persons in each financial year without filing offer documents with either the ROC or the SEBI and requested SEBI to investigate into the matter. - case is relating .....

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which were subsequently laundered in associated companies of Rose Valley Group and were used for purchasing moveable and immoveable properties. - allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PML Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. .....

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rdingly, we do not find any reason to interfere with the impugned order so passed by the High Court and the bail, as prayed before us, challenging the said order is refused - Decided against the appellant. - Criminal Appeal No. 1706 of 2015 ( Arising out of SLP (Crl.) No. 6701 of 2015 ) - Dated:- 16-12-2015 - Pinaki Chandra Ghose And R. K. Agrawal, JJ. JUDGMENT Pinaki Chandra Ghose, J. 1. Leave granted. 2. This appeal, by special leave, is directed against the judgment and order dated 21st July, .....

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referred to as the "Rose Valley"), a public company incorporated in the year 1999 and registered under the Companies Act, 1956. Certain non-convertible debentures were issued by the Rose Valley by 'private placement method.' No advertisements etc. were issued to the public. The said debentures were issued to the employees of the Company and to their friends and associates after fulfilling the formalities for private placement of debentures. Thus, the appellant collected money b .....

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Tribunal, Mumbai. A letter was issued on 26.06.2013 by the Securities and Exchange Board of India ("SEBI") to the appellant Rose Valley informing the appellant about the offences alleged to have been committed by it under the Companies Act, SEBI Act & Regulations, and Section 405 of the Indian Penal Code. The appeal filed by the appellant before the Securities Appellate Tribunal was allowed on 12.12.2013, holding that the appellant Company has repaid all the money collected from th .....

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mplaint was filed by the respondent authorities, being C/14214 of 2013, alleging that the Rose Valley transferred the money raised by issue of debentures from the account of one company to that of another company. It is also alleged that the money collected by issuing the debentures for the purpose of one business has been invested in some other business. The proceedings under Section 24 of the SEBI Act has been challenged in the High Court by way of revision and the said revision is pending for .....

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(1) of the PMLA was served upon Rose Valley and its officials. Rose Valley filed a writ petition before the High Court of Calcutta challenging the said Show Cause Notice. The said writ petition was dismissed by the learned Single Judge of the High Court. Thereafter, the matter was taken in appeal before the Division Bench of the Calcutta High Court, being AST No.345 of 2014. The Division Bench of the High Court dismissed the said appeal and directed the appellant Rose Valley to appear before the .....

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iled by the respondent on April 2, 2015, in the Court of learned Chief Judge, City Sessions Court at Kolkata, against the appellant under Section 4 of PMLA, though no offence is made out against the appellant under Section 3 of the PMLA. The said complaint has been registered as ML Case No.3 of 2015. Despite having fully cooperated with the investigation, the appellant was arrested on 25.03.2015 on suspicion of having committed an offence punishable under the provisions of the PMLA and is detain .....

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ef Judge, City Sessions Court at Kolkata. 10. On 06.07.2015, the appellant filed a fresh bail application under Section 439 of the Code of Criminal Procedure before the High Court of Calcutta, being CRM No.6285 of 2015. Vide impugned judgment and order the High Court has rejected the said application of the appellant holding that no order has yet been passed by any competent Court of law that no offence is made out against the appellant under Section 24 of the SEBI Act. It is pertinent to mentio .....

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learned Solicitor General for India. For proper appreciation of submission made by learned counsel appearing for the parties, it would be necessary to consider the authorities cited on behalf of the both parties. 13. Mr. Gopal Subramanium, learned senior counsel appearing for the appellant submitted that there is no offence made out under PMLA against the appellant as Section 24 of the SEBI Act is not a separate scheduled offence under the PMLA. Section 12A read with Section 24 of SEBI Act is t .....

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ographical error. The description of offence given under paragraph 11 of the Schedule to PMLA for Section 24 of the SEBI Act reads as "acquisition of securities or control", which is different from the description given to the Section under the SEBI Act, which describes the Section as "Offences". Rather the heading "acquisition of securities or control" is part of the heading of Section 12A read with Section 24 which is the scheduled offence. The relevant extract of .....

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1992 (15 of 1992) 12A read with Section 24 Prohibition of manipulative and deceptive devices, insider trading and substantial. Section 24 Acquisition of securities or control 15. The learned senior counsel for the appellant submitted that if the offences prescribed against the sections in paragraph 11 in both the rows are read together, the same will appear as the heading of Section 12A of the SEBI Act. A conjoint reading of two rows under paragraph 11 of Part A of the Schedule would show that .....

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listed or proposed to be listed on a recognized stock exchange, any manipulative or deceptive device or contrivance in contravention of the provisions of this Act or the rules or the regulations made thereunder; (b) employ any device, scheme or artifice to defraud in connection with issue or dealing in securities which are listed or proposed to be listed on a recognized stock exchange; (c) engage in any act, practice, course of business which operates or would operate as fraud or deceit upon any .....

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or the regulations made thereunder; (f) acquire control of any company or securities more than the percentage of equity share capital of a company whose securities are listed or proposed to be listed on a recognized stock exchange in contravention of the regulations made under this Act." Section 24 of the SEBI Act reads as follows: "24. Offences. - (1) Without prejudice to any award of penalty by the Adjudicating Officer under this Act, if any person contravenes or attempts to contrave .....

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h may extend to ten years or with fine, which may extend to twenty-five crore rupees or with both." 16. According to the learned senior counsel for the appellant, the fact that no new offence was meant to be added by way of the 2012 amendment, is clear from a plain reading of the "Statement of Objects and Reasons" to the Amendment of 2012, as well as the "Notes on Clauses" on the Amendment Act, 2012 and from a comparison of the Schedules of PMLA of 2009 and amended PMLA .....

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one as an offence, in that event, there would have been no necessity to incorporate "12A read with Section 24" inasmuch as Section 24 of the SEBI Act prescribes that all violations of provisions of SEBI Act would be punishable in terms of Section 24 of the SEBI Act, 1992. Had that been the intention of the legislature, the legislature would have mentioned either "offences and penalties under SEBI Act, 1992" or only Section 24 and the heading thereof, as scheduled offence. The .....

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ions S.12A r/w 24 of the SEBI Act as the scheduled offence and not Section 24 alone. This reflects the authority/government's own understanding of the Schedule. Thus, it can be safely said that the printing of Section 24 of SEBI Act separately under the Schedule to the PMLA is vide an inadvertent typographical error that has crept into the legislation as is apparent from the marginal note therein. It is an accepted principle of interpretation of statutes that where an inadvertent grammatical .....

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he words used in the description have to be given meaning to and its application has to be restricted to the offence described under it in the Schedule. The learned senior counsel for the appellant further submitted that this Court has held in numerous judgments that the Court should give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surplus, if they can have a proper application in cir .....

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egislature will not be accepted except for compelling reasons." [Visitor, AMU v. K.S. Misra, (2007) 8 SCC 593, at para 13)]. 20. Therefore, learned senior counsel for the appellant submitted, the words "acquisition of securities or control", appearing next to Section 24 of the SEBI Act in the Schedule to the PMLA must be given due meaning and cons t rued to mean that only that extent of the offence which pertains to ""acquisition of securities or control" is a punis .....

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usion of Section 24 as a separate offence would be a violation of the basic principle of criminal jurisprudence that 'criminal law has to be clear and unambiguous.' It has been held by this Court in numerous judgments that criminal law ought to be absolutely clear, specific and not vague, failing which it would suffer from arbitrariness . [Ref : ( i ) State of Madhya Pradesh v . Baldeo Prasad, (1961) 1 SCR 9 7 0 ; (ii) Harakchand Ratanchand Banthia & Ors. v. Union of India & Ors. .....

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defines "proceeds of crime" and states that it must be as a result of criminal activity relating to a scheduled offence. Under Section 3 of the PMLA, in order for the offence of money laundering to be triggered, it must be established at the threshold that the "proceeds of crime" was as a result of criminal activity relating to a scheduled of fence on the date such crime was committed. He submitted that the offences are alleged to have been committed between the years 2001 an .....

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as 27 companies although two out of them, i.e. Rose Valley Real Estate Construction Ltd. ("Rose Valley") and Rose Valley Hotels Entertainment Ltd. were the front runners to allure the investors to invest in (i) Ashirbad Scheme, ( ii )Time Share Scheme, and (iii ) Debenture Scheme, promising high returns to the investors and the funds so collected from the public at large were subsequently laundered in associated companies. Rose Valley made a public issue of debentures without filing a .....

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ents and Indian currency of ₹ 37.07 lacs. The respondent's action of search and seizure was challenged by the appellant by filing a writ petition before the High Court of Calcutta which was dismissed on 7.7.2014. 24. He further submitted that the investigation conducted by the respondent revealed that Rose Valley illegally and fraudulently collected public money from the general public in the State of West Bengal, Assam, Tripura and Odisha, amounting to ₹ 12363.63 crores (approx) .....

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fence of money laundering" are mutually exclusive and independent of each other. Section 3 of the PMLA deals with the offence of money laundering punishable under Section 4 of the said Act, whereas the 'Schedule' to PMLA involving offences under 28 paragraphs enable the respondent to conduct the investigation for the collection of evidence relating to offence of money laundering. In the present case, the respondent filed the complaint under Section 45 of PMLA and cognizance of the s .....

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PMLA refers only to the term 'Special Court' and therefore has to be given restricted meaning. According to him, PMLA is a 'Special Law' applicable to the subject of money laundering, and deals with economic offenders and white collar criminals. The object of PMLA is to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering. To enable the scheme of the Act, reliance was placed on various provisions of the PMLA. He furt .....

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s been given an opportunity to oppose the application for such release. 27. The learned Solicitor General lastly submitted that 'money laundering' being an economic offence poses a serious threat to the National Economy and National Interest and committed with cool calculation and deliberate design with the motive of personal gain regardless of the consequences to the society. Hence, for Money Launderers 'jail is the rule and bail is an exception, which finds support from many landma .....

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ed by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Sect ion 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Sec .....

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are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. 30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 .....

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e provisions of Sect ion 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. 31. I t was submitted on behalf of the appellant that Section 12A read with Section 24 of the SEBI Act does not include Section 24 of the said Act as a scheduled offence but it is only Section 12A which is to be construed as a scheduled o .....

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ng global dimensions and cannot be confined to national boundaries of our country. Moreover , its legislative intent has to be gathered from the plain reading of the language used in the provisions of the Act and the Schedule appended thereunder. Hence, there is no ambiguity that Section 24 of the SEBI Act is a scheduled offence under Paragraph 11 of the Schedule. The fact remains that Section 24 of the SEBI Act is inclusive in nature and also includes Section 12A within its ambit and scope. Fur .....

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of PMLA. The complaint reveals that SEBI received a letter from the Ministry of Corporate Affairs, Office of the Registrar of Companies ("ROC"), West Bengal, with reference to Rose Valley in which the ROC had stated that Rose Val ley has repeatedly issued debentures in the years 2001-2002, 2004-2005, 2005-2006 and 2007-2008 to more than 49 persons in each financial year without filing offer documents with either the ROC or the SEBI and requested SEBI to investigate into the matter. Fr .....

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SEBI (Disclosure and Investor Protection) Guidelines, 2000 and the provisions of Section 117(A) of the Companies Act, 1956 and other provisions of SEBI Act which is a Scheduled Offence under PMLA. 32. We have heard the learned counsel for the parties. At this stage we refrained ourselves from deciding the questions tried to be raised at this stage since it is nothing but a bail application. We cannot forget that this case is relating to Money Laundering which we feel is a serious threat to the .....

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ore a Division Bench of the High Court in writ jurisdiction, as has been pointed out before us. Hence, any observation or remarks made by us may cause prejudice to the case of both the sides. Therefore, we feel that it would be proper for us only to deal with the matter concerning bail. We note that admittedly the complaint is filed against the appellant on the allegations of committing the offence punishable under Section 4 of the PMLA. The contention raised on behalf of the appellant that no o .....

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ion 24 of SEBI Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a .....

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ion 439 of the Code of Criminal Procedure. 34. We have further noted the directions given by this Court in Subrata Chattoraj v. Union of India and Ors., (2014) 8 SCC 768, in particular to paragraph 35.4. 35. We cannot brush aside the fact that the appellant floated as many as 27 companies to allure the investors to invest in their different companies on a promise of high returns and funds were collected from the public at large which were subsequently laundered in associated companies of Rose Va .....

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aterial collected during the investigation and further to be considered by the competent court of law. We do not intend to express ourselves at this stage with regard to the same as it may cause prejudice the case of the parties in other proceedings. We are sure that it is not expected at this stage that the guilt of the accused has to be established beyond reasonable doubt through evidences. We have noted that in Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439, this .....

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d in the said paragraph that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PML Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. Janata Jha v. Assistant Director, Directorate of Enforcement (CRLMC No. 114 of 2011 decided on December 16, 2013). Th .....

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