TMI Blog2015 (4) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... n 164 of Cr.P.C. of namely Mr. Anil Vaid, Mr. Devki Nandan Taneja and Mr. Ravindra Taneja dated 04.08.2014 recorded by Special JM, CBI, Uttarakhand (Annexure A to C of rejoinder to the reply filed by the respondent) relied upon by the respondent, revealing the facts that they have no knowledge of the petitioner and were coerced to make statements for wrongfully indicting the petitioner; (v) Final report filed by SIT (UP) in case FIR No.01/2007 which was accepted by the learned Special Judge, CBI vide order dated 10.03.2014; and (vi) Charge-sheet filed by SIT (UP) in case FIR No.02/2007 exonerating the petitioner. In view of the above, the impugned ECIR No.03/DZ/2011/AD (SC)/SDS dated 24.02.2011 under Sections 3 and 4 of PMLA is quashed qua the petitioner only. - CRL. M.C. 5508/2014 - - - Dated:- 9-4-2015 - HON'BLE MR. JUSTICE VED PRAKASH VAISH For the Petitioner Mr.Neeraj Chaudhari Mr.Naveen Dabas Advocate For the Respondent Mr. Sanjay Jain, Sr. Advocate with Mr.Ajay Digpaul, CGSC with Mr. P.K. Sharma, Advocate. JUDGMENT V.P.Vaish 1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two groups one pertaining to five accounts and the second group pertaining to remaining 66 accounts. 4. The respondent, Enforcement Directorate registered a case bearing ECIR No. 03/DZ/2011/AD(SC)/SDS dated 24.02.2011 against the aforementioned five persons and other unknown persons for committing an offence under Section 3 of PMLA punishable under Section 4 of the said Act. On the basis of the said facts, the respondent concluded that as the aforementioned five persons cheated the PNB by manipulating the records of the bank by abusing their official position for their personal gain, it is therefore essential to conduct investigation under the provisions of Prevention of Money Laundering Act, 2002 since the amount involved is more than ₹ 30 lakhs which is threshold limit of Part B of PMLA-2002. 5. On the basis of aforesaid FIR, CBI/ Dehradun investigated the matter and during the course of investigation, the petitioner was arrested by CBI on 27.04.2011. The police remand of petitioner was obtained on 05.08.2011. Vide order dated 01.10.2011 passed by learned District Additional Sessions Judge, Karkardooma Courts, Delhi, bail was granted to him. 6. On the completion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings arising out of the said FIR against the petitioner, the very basis of the ECIR has ceased to exist. Without the predicate offence there can be no question of the respondent proceeding with the investigation against the petitioner. No offence under the Schedule of PMLA is established. Even if all the allegations are admitted, the act of depositing money in various bank accounts and later withdrawing the same from those accounts cannot be said to be a criminal act. It would not fall under the category of Scheduled Offence just because the amount is valued at more than ₹ 30,00,000 (Rupees Thirty lakhs). Since the above act of opening bank accounts, depositing and withdrawing monies from those accounts are not Scheduled Offences , no offence is made out under Section 3 PMLA. The offence punishable under Section 120B IPC and Section 13 of the PC Act, were inserted in PMLA with effect from 01.06.2009. ECIR admitted itself that the alleged offence had taken place between November 2005 and December 2006 and thereby offences cannot be retrospectively applied to the petitioner. Article 20(1) of the Constitution prohibits the conviction of a person or his being subjected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claims will expose the illegal and wrongful acts of the respondent of falsely implicating the petitioner. 13. The counsel for petitioner also submitted that the respondent has failed to establish any nexus between M/s. Ajanta Merchants Pvt. Ltd. and the petitioner. Further, M/s. Ajanta Merchants Pvt. Ltd. does not seem to have any prima facie nexus with the petitioner and the Enforcement Directorate has failed to produce any evidence of such a link. In fact, a bare perusal of the statements recorded under Section 164 Cr.P.C. reveal that the representatives of the company have no knowledge about the petitioner and they were coerced by the respondent to make statements for wrongfully indicting the petitioner. 14. Another submission of learned counsel for the petitioner is that the provisions under which the ECIR was registered as a scheduled offence under the PMLA was brought in 2009 by Act 21 of 2009 w.e.f. 01 st June, 2009. The alleged offence in question related to the period of 2005-2006 when the said offences were not scheduled offences. He pointed out that in the original complaint No.167/2012 dated 22.11.2012 before the adjudicating authority shows that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering 18. The term proceeds of crime‟ has been defined in Section 2(u) of PMLA, which reads as under: - 2. Definitions. - (1)........ xxx xxx xxx (u) proceeds of crime means any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property; 19. At the outset it may be mentioned that the ECIR discloses the commission of the alleged offences during the period from November, 2005 to December, 2006. Section 3 of the PMLA specifically mandates that the act of money laundering should be intentional, therefore, it has to be traced to the point of time when the actual transaction took place. The offence punishable under Section 120B IPC and Section 13 of the PC Act were inserted in the schedule of PMLA w.e.f. 01.06.2009 i.e. after the period in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the SIT UP Police in FIR No.04/2011 dated 03.05.2011. 23. The petitioner when challenged the charge sheet dated 09.09.2011 and the entire proceedings pursuant to it, before the High Court of Uttrakhand, the said charge sheet and the entire proceedings pursuant thereto were quashed qua the petitioner only vide order dated 13.10.2014. 24. At this juncture it may be mentioned that after the judgment was reserved on 22nd December, 2014, Crl. M.A. No.2905/2015 was filed by the petitioner seeking permission to bring on record additional facts and documents concerning the ECIR No.11/2013 dated 22.10.2013 being investigated by the respondent Enforcement Directorate, related to the investigation conducted by SIT (UP) of two FIR Nos.01/2007 and 02/2007. An opportunity was granted to the respondent to file reply but the counsel for respondent preferred to argue the matter and oppose the said application. 25. Mr. Neeraj Chaudhary, Advocate appearing for the petitioner has put forth his apprehension that some hostile individuals are attempting to use Enforcement Directorate as a tool to falsely implicate the petitioner in certain unrelated investigations of SIT (UP). 26. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
