TMI Blog2018 (9) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... same is also fortified by the fact that none of the applicants were made an accused in the scheduled offence. Even though the accused applicants received in their bank accounts certain amounts at the instance of or from Shri Afroz Hasanfatta, the statements if taken on their face value, do not satisfy even on prima facie basis the prerequisite for trying any person on allegation of money laundering i.e. mens rea or culpable knowledge of the Scheduled Offence and Proceeds of Crime derived therefrom, and projection of such proceeds of crime as untainted. Even on prima facie basis no offence is made out against any of the accused applicants. No hesitation in holding that the impugned Order was passed mechanically and deserves to be set aside. The instant Revision Petition is accordingly allowed and the impugned Order dated 18-7-2014 is set aside qua each of the applicants with consequential reliefs. - Criminal Revision Application Nos. 1175-1177 of 2017 - - - Dated:- 23-2-2018 - S.G. Shah, J. Shri Sujay Kantawala, Malav Mulani and Digant M. Popat, Advocates, for the Applicant. Shri Sidharth Dave, Advocate for Devang Vyas, Asstt. Solicitor General of India, Manan Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore being aggrieved by taking cognizance of offence by the Sessions Judge, applicants have challenged such order in present revision application praying to quash and set aside such order dated 18-7-2014 with interim relief to stay the further proceedings of the case. 4. In addition to detail arguments on facts and merits of the case, applicants have mainly relied upon the detail judgment in Criminal Revision Application No. 926 of 2016, dated 16-2-2017 [2017 (353) E.L.T. 55 (Guj.)] between Jafar Mohammed Hasanfatta 4 v. Deputy Director 1, wherein the Coordinate Bench of this Court has already quashed and set aside the impugned order regarding issuance of summons against accused Nos. 4, 5, 6, 7 and 8. 5. It is undisputed fact that at present applicants before us are co-accused of those applicants-accused inasmuch as applicant in Criminal Revision Application No. 1175 of 2017 is accused No. 18, applicant in Criminal Revision Application No. 1176 of 2017 is accused No. 20 and applicant in Criminal Revision Application No. 1177 of 2017 is accused No. 14 in the same PMLA Case No. 3 of 2014. 6. Therefore, when all the applicants are co-accused and when impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the petitioners that the impugned Order was passed despite there being no prima facie ground and absolute lack of any material evidence qua any of the petitioners to satisfy the necessary pre-requisites for invoking Section 3 of PMLA against them and essential for taking cognizance and proceeding against each of the petitioners. The PMLA Complaint, subsequently filed two Supplementary Complaints Nos. 4/2014 and 9/2015, dated 29-10-2014 and 27-8-2015 respectively, Charge-Sheet filed against others in the Scheduled Offence and statements recorded under PMLA before and even after cognizance are placed by the petitioners on record amongst other documents to buttress this position. 2. It is undisputed fact that none of these petitioners are arraigned as accused in the Scheduled Offences in which after investigations Charge Sheet has been filed. Therefore, trial of each of these accused petitioners is sought only on the alleged commission of the offence of money laundering as prescribed under Section 3 of PMLA. Now, it is settled position of law that offence under PMLA is a distinct offence as compared to the Scheduled Offence as held by a Division Bench of this Court vide Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surat vide letter dated 27-2-2014 and 6-3-2014 which reveals that Surat based diamond companies M/s. Harmony Diamonds Pvt. Ltd., M/s. Agni Gems Pvt. Ltd., and M/s. R.A. Distributors Pvt. Ltd., have filed fake bills of entry before the ICICI Bank for making foreign remittance through bank accounts with ICICI Bank, Surat. From the information so received it has come to the notice that within a span of two months i.e. January and February, 2014 remittance worth more than ₹ 1000/- crores against fake import documents viz. bills of entry and invoices were made from the said accounts to Hongkong and Dubai. The Customs Department, Surat have confirmed that the bills of entry in question did not originate from their offices. Thus, the said bills of entry etc., against which the said remittance were attached were apparently fake. 7. He has also submitted that initially investigation was carried out under the FEMA, 1999. Enquiries revealed that Shri Afroz Mohammed Hasanfatta along with Shri Madanlal Jain and Shri Bilal Haroon Gilani are involved in this racket of sending remittances outside India on the basis of forged bills of entry. 8. He has further submitted that from Shri M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Gangeshwar Mercantile Pvt. Ltd. He has also produced invoices to show that these diamonds were purchased by him from M/s. Vidhatri Exim Pvt. Ltd., at the office of Shri Madanlal Jain but the payments for this purchase was yet to be made. On enquiries it revealed that M/s. Natural Trading Company and M/s. Gangeshwar Mercantile Pvt. Ltd., did not exist at the given addresses. 12. He has further submitted that Shri Madanlal Jain in his statement has denied having arranged any unsecurd loan to Shri Afroz Mohammed Hasanfatta or Shri Jafar Mohammed Hasanfatta from M/s. Natural Trading but stated that the amounts were paid to them for their role in the illegal foreign remittances sent abroad. Out of this amount of ₹ 16.31 crores some amounts were transferred by Shri Afroz Mohammed Hasanfatta to his family members and others for the purpose of investment. 13. He has also submitted that Shri Jafar Mohammed Hasanfatta has given instructions to Shri Madanlal Jain for transferring funds to the ICICI Bank accounts from which funds were ultimately remitted to UAE and Hong Kong on the basis of forged bills of entry. He has received the proceeds of crime in his bank account and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has further admitted having made payment as unsecured loan. He has further admitted having made payment to Shri Abdul Karim Jaka on instructions of Shri Afroz Mohammed Hasanfatta. Thus he is involved along with his wife for the purpose of receiving the proceeds of crime and its further transfer and thus knowingly involving himself in the process of money laundering. 18. He has submitted that provisional attachment Order (PAO) No. 1 of 2014, dated 17-7-2014 was issued whereby properties worth ₹ 8.35 crores belonging to Shri Afroz Mohammed Hasanfatta and his family members were attached including those of the present applicant Nos. 1 to 4. He has submitted that another PAO No. 4 of 2015, dated 31-3-2015 was issued whereby property valued at ₹ 1.39 crores in the name of applicant No. 2 Ahmed Mohammed Hasanfatta was attached. Both these PAOs have been confirmed by the adjudicating authority, PMLA vide orders dated 7-11-2014 and 21-7-2015 by holding that the properties are involved in money laundering. 19. He has submitted that bank accounts in which the petitioners received payments and made further payments were all in their names and they were signatories having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person who may not have committed the scheduled offence. It is difficult to believe that the applicant were not aware and had no knowledge of the purpose and intent of the transactions as they have willingly allowed the use of their accounts for the purpose of laying the proceeds of crime with an intention to conceal the source of the funds and thus the provisions of Sections 23 and 24 of the PMLA, 2002 will apply. Lastly he has prayed to dismiss the revision application. 25. Both sides have made lengthy arguments on factual and legal issues including the issue of maintainability of the instant Revision Petition. I have carefully perused the records and have considered the rival submissions. 26. Delay in invoking Revisionary Jurisdiction has already been condoned in the interest of justice after hearing both sides on that aspect. 27. Before adverting to the oral and written submissions on facts and merits, on the issue of maintainability an objection was raised by the Respondent by placing reliance on the following decisions - i. Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324, ii. Bholu Ram v. State of Punjab, (2008) 9 SCC 140 // 2009 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment in Rajendra Kumar Sitaram Pande, this Court has held as under in para 10 : (Om Kumar Dhankar case, SCC p. 255) 10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 Cr PC was available to Respondent 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly. 23. Therefore, the position has now come to rest to the effect that the revisional jurisdiction under Section 397 Cr PC is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons. 30. I have also considered the following judgments of the Hon ble Supreme Court in the matters concerning challenge in a Revision Petition to the order taking cognizance and issuing process. When the concerned High Court had declined to interfere in Revision Petition, the Hon ble Supreme Court had observed as follows - i. Suresh v. Mahadevappa Shivappa Danannava, (2005) 3 SCC 670 2. The present appeal was filed against the final judgment and order dated 17-2-2004 passed by the High Court of Karnataka at Bangalore in Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C; requisites are to be put in at once. 5. The appellant filed a revision petition in the High Court assailing the said order. 8. On a perusal of the order under challenge it is clear that the Learned Single Judge disposed of the revision petition filed by the appellant for setting aside the cognizance order and for quashing the criminal proceedings without entering into the merits of the case. The Learned Single Judge did not consider the nature of the contract between the parties, the arrangement for payment of dues by the accused persons to the complainant, nor did he record a finding that the ingredients of the offence of cheating defined under Section 415 IPC were prima facie made out from the averments in the complaint petition and the statement on oath by the complainant before the Learned Magistrate. While judging the question whether the cognizance order passed by the Learned Magistrate was sustainable in law it was incumbent for the Learned Single Judge to go into the question whether the complainant has been able to make out a prima facie case for the offence of cheating on the averments in the complaint petition and his statement on oath. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court, I shall now ascertain whether such duties and obligation cast on the Special Court were duly discharged while issuing summons against all or any of the accused petitioners or whether the criminal law was set into motion as a matter of course without applying mind to the facts, nature of allegations, sufficiency of evidence both oral and documentary in bringing charge home to these accused petitioners and the law applicable in context of the facts. 34. The brief facts of the case which led to the issuance of the impugned Order are as follows - i. Crime Branch, Surat registered two FIRs No. 1/16/2014, dated 11-4-2014 and I/17/2014, dated 13-4-2014 under Sections 120B, 420, 465, 467, 468, 471, 477A of IPC on receipt of Complaint from ICICI Bank against certain Companies (Indian Entities) and their Directors alleging preparation of fake bills of entry and making outward remittances from ICICI Bank to Hong Kong and Dubai on the basis of the such fake Bills of Entry. After investigations Charge Sheet has been filed against several persons. The main accusations in the Scheduled Offence are inter alia against Shri Madanlal Jain, Shri. Afroz Mohammed Hasanfatta and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 10 Crores i. It is a matter of record that the receipts of amounts in the account of accused petitioner no. 1 Shri Jafar Mohammed Hasanfatta to the tune of ₹ 3 Crores at the instance of his real brother Shri Afroz Hasanfatta is also noticed in the Charge Sheet for the Scheduled Offence in Para (7) at Pages 355-356, however, merely on that basis he has not been arraigned as a co-accused in the Scheduled Offence. ii. The investigation further revealed transactions between M/s. Natural Trading Co. and one M/s. Gangeshvar Mercantile Pvt. Ltd., both managed by Shri Madanlal Jain. It was further seen that on 17-2-2014 M/s. Gangeshwar Mercantile had made payments to M/s. Nile Trading Corporation proprietary concern of Shri Afroz Mohammed Hasanfatta as under : SR NO. DATE AMOUNT IN RS. 1 17-2-2014 1,71,90,517 2 17-2-2014 1,44,36,831 3 17-2-2014 1,44,98,627 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 6.31 crores received in his firm s account, Shri Afroz has stated that this amount was received on sale of diamonds to M/s. Gangeshwar Mercantile Pvt. Ltd. He has also produced invoices to show that these diamonds were purchased by him from M/s. Vidhatri Exim Pvt. Ltd. at the office of Shri Madanlal Jain but the payment for this purchase was yet to be made. Enquiries however revealed that M/s. Natural Trading Co. and M/s. Gangeshwer Mercantile Pvt. Ltd., did not exist at the given addresses. xiii. The petitioner No. 1 in his statement recorded under Section 50 of PMLA had stated that he had not heard of M/s. Natural Trading Co. and his brother Shri Afroz had arranged ₹ 3 Crore in his account. He further stated that he has no business dealings with M/s Natural Trading Co. and ₹ 3 Crore have been invested in share trading. He also stated that he neither knew M/s. Natural Trading Co. nor Shri Madanlal Jain. xiv. Statement dated 5-5-2014 of Shri Madanlal Jain (at Page 281-282) contain the following relevant questions and answers - i. Q.2 Do you know Shri Hasan Fatta Afroj Mohammed, If so how? i. A.2 In this regard, I know Shri Hasan Fatta Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f transactions made with M/s. Angel Broking Pvt. Ltd. and with Shri Abdul Karim Jaka. (xviii) The petitioner No. 5 in his statement stated that he operates all the accounts of his wife (petitioner No. 4) and she had no knowledge of the transactions in her accounts at all. He further stated that Shri Afroz gave an unsecured loan amounting to ₹ 1,15,00,000/- to Petitioner No. 4 from M/s. Nile Trading Corporation and on the directions of Shri Afroz, he had made an RTGS transfer to Shri Abdul Karim Jaka from the Account of Petitioner No. 4. (xix) Thus, the evidence available shows that all the petitioners had received amounts in their accounts through banking channels from or through their close relative Shri Afroz Mohammed Hasanfatta. It is also seen that amounts so received in bank account was further invested or utilized under instructions of Shri Afroz Mohammed Hasanfatta. However, neither statements of Shri Afroz Mohammed Hasanfatta, nor those of the petitioners impute against any of the accused petitioners, any culpable knowledge of Scheduled Offence or proceeds of crime or motive to project proceeds of crime as untainted. (xx) On the basis of the above inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as untainted. She had involved herself in investing in stock market and parking the part of the proceeds of crime amounting to ₹ 1,15,00,000/- received from Shri Afroz Mohamed Hasanfatta which was invested with Shri Abdul Karim Jaka who one of the directors of M/s. I.B. Commercial Pvt. Ltd., Mumbai. It is humbly submitted that the exact purpose for the said investment with Shri Jaka is under investigation. 5. Samir Godil (Petitioner No. 5) : Shri Samir Godil Jikar has admitted in his statement dated 13-5-2014 that he had full control over the bank account in the name of his wife Smt. Foziya Samir Godil and has knowingly involved himself in the process and activity connected with the proceeds of crime including its concealment and possession and therefore projected the same as untainted. It is humbly submitted that Shri Samir Godil admittedly had received the amount of ₹ 1,15,00,000/- which was claimed to be unsecured loan. However no supporting document could be produced by the said Shri Godil leaving no room for the doubt of the said amount forming part of the proceeds of crime. (xxi) On the same date i.e. on 18-7-2014, the impugned Order was passed. Cognizan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, an attempt to indulge would necessarily require not only a positive intention to commit the offence, but also preparation for the same coupled with doing of an act towards commission of such offence with such intention to commit the offence. Respondent failed to produce any material or circumstantial evidence whatsoever, oral or documentary, to show any such intention and attempt on the part of any of the petitioners. 2. Re; Knowingly assists or Knowingly is a party : In Joti Parshad v. State of Haryana, 1993 Supp (2) SCC 497 the Hon ble Supreme Court has held as follows - 5. Under the Indian penal law, guilt in respect of almost all the offences is fastened either on the ground of intention or knowledge or reason to believe. We are now concerned with the expressions knowledge and reason to believe. Knowledge is an awareness on the part of the person concerned indicating his state of mind. Reason to believe is another facet of the state of mind. Reason to believe is not the same thing as suspicion or doubt and mere seeing also cannot be equated to believing. Reason to believe is a higher level of state of mind. Likewise knowledge will be slightly on a higher p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial under Section 3, and mere assistance in handling proceeds of crime even without knowledge would attract offence of money laundering, and burden would shift on the accused to prove that he is not involved in money laundering. It was submitted that the petitioners are all adults having knowledge of right and wrong. The bank accounts in which they received payments and-made further payments were all in their names and they were the signatories having power to operate the accounts. None of them had the slightest hesitation in allowing their account to be used as a transit point for further transfer of the proceeds of crime. It shall thus be presumed that they have thus knowingly allowed the use of their bank accounts and knowingly involved themselves in this activity having full knowledge of the purpose and intent of the transactions and helped in the process of layering. Thereby they are involved in the process of money laundering. 41. I find no merit in this stand of the Respondent. I am of the view that this amended Section 24 shows legislative intent of attachment and confiscation of proceeds of crime by presuming involvement of proceeds of crime in money laundering irrespe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners without due application of mind on the material available before the Court and is thus wholly illegal. There is manifest error in mechanically taking cognizance and issuing process without there being any prima facie case against the petitioners for the offence punishable under Section 3 of PMLA from the averments made in the Complaint, and the material placed on record. 45. The Respondents submitted that the Provisional Attachment Order (PAO) Nos. 1/2014, dated 17-7-2014 and 4/2015, dated 31-3-2015 have been confirmed by the Adjudicating Authority, PMLA vide orders dated 7-11-2014 and 21-7-2015 respectively by holding that the properties are involved in money laundering. Reliance was also placed on paras 30 and 36 of Gautam Kundu v. Directorate of Enforcement, (2015) 16 SCC 1. 46. I am of the view that prima facie findings of adjudicating authority are not substitute for the requisite satisfaction required by the Special Court for taking cognizance. Final confiscation of proceeds of crime or value thereof under PMLA would always be subject to final outcome of trial and is not final merely by Adjudication. Moreover, the Respondent failed to point out any prima facie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to co-accused Shri Afroz Mohammed Hasanfatta or Shri Jafar Mohammed Hasanfatta from M/s. Natural Trading but has also stated that the amounts were paid to them as a part of illegal proceeds in the ensuing foreign remittances abroad. He has also stated that commission was also paid to Afroz Mohammed Hasanfatta through cheque discounters. 50. Firstly, such an exercise after cognizance on the Complaint is prima facie alien to any criminal jurisprudence. Moreover, it remains uncorroborated statement of a co-accused in respect of which a Constitution Bench of the Hon ble Supreme Court in Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 // AIR 1964 SC 1184 has clearly laid down the law in this regard with the following observations - 13. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. 51. In the instant case, there is absolutely no evidence against any of the petitioners to have any occasion to turn to the confession of co-accused in order to receive assurance to the conclusion of guilt. Therefore, trial on such statement of co-accused collected subsequent to cognizance would be futile and abuse of process of law. In the material before the Special Court for PMLA, none of the statements of any witness even remotely referred to the petitioners. None of the statements either of the petitioners, or of any witness or even of any co-accused imputed on any of the petitioners even remote knowledge of commission of Schedule Offence and knowingly laundering of any Proceeds of Crime. Moreover, there is not even any circumstantial evidence garnered in the entire investigation to remotely impute such pre-requisite knowledge or mens rea, existence of which is essential at least on prima facie basis for taking cognizance of offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that there is no material whatsoever either mentioned in the FIR or produced by the prosecution to show that Vijaya Satardekar was in any way involved in the alleged criminal offence committed by her husband Ranjit Satardekar. The only allegation against her is that the sale deed was in her favour. In our opinion this does not prima facie make out any offence. In our opinion, therefore, the criminal proceeding against Vijaya Satardekar was rightly quashed by the High Court and the criminal appeal in which Vijaya Satardekar is the respondent is dismissed. 39. However, as indicated by my Learned Brother, the complaint made does make out a prima facie case against accused Ranjit Satardekar and the cognizance taken by the Learned Magistrate cannot be faulted and the appeal as far as he is concerned, must be allowed. However, even prima facie, none of the offences referred to in the charge-sheet can be made out against accused Vijaya Satardekar and she has been roped in only with the aid of Section 120B which is also not substantiated. The appeal as far as she is concerned, must be dismissed. Thus, in a case of executing sale deed in favour of wife by deceit an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on behalf of the accused Petitioners and I have no hesitation in holding that the impugned Order was passed mechanically and deserves to be set aside. 54. I deem it proper to clarify that I have neither decided the correctness or otherwise of any provisional attachment or adjudication order in that regard by any authority under PMLA, nor have I decided the issue as to whether alleged proceeds of crime amounting to ₹ 16,31,19,941/- received by Shri Afroz Hasanfatta directly or indirectly is involved in money laundering. These issues are subject matter of different proceedings and trial. The issues decided in the instant petition is limited to the legality or otherwise of the impugned Order dated 18-7-2014 taking cognizance and issuing process by way of summons qua each of the petitioners herein. 55. The instant Revision Petition is accordingly allowed and the impugned Order dated 18-7-2014 is set aside qua each of the petitioners with consequential reliefs. Rule is made absolute to the aforesaid extent. Bail bond, if any, shall stand cancelled. (Z.K. SAIYED, J.) KKS After pronouncement of the judgment Mr. Amin, learned advocate appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent has disclosed on oath that the order dated 16-2-2017 passed by this Hon ble High Court in Criminal Revision Application No. 926 of 2016 is with respect to certain co-accused whose role are different from those played by the applicants herein, magnitude and impact of role played by each and every accused is different with respect to its severity and effect on the economic and there is no parity applicable. Therefore, the said order cannot be considered as proceeded. Even otherwise the said order is not final and department is entitled to avail remedy as is available under law. In this regard, the department has already initiated the process of filing Special Leave Petition before the Hon ble Supreme Court and the matter is pending to the Department of Revenue, Government of India . 10. Therefore, even if there is substance in such submissions, though there is not, facts remain that instead of simple disclosing the factual details about challenging the order dated 16-2-2017 in Criminal Revision Application No. 926 of 2016, whereby similar situated co-accused were discharged from the charges under the PMLA, the Assistant Director of the Department of Revenue viz., K.S.R.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and argument of the respondents are not only unwarranted but against the settled principal of law, that all the accused are entitled to equal treatment and parity in deciding the case against them and there cannot be different decision for different persons when the facts, circumstances and evidence are common amongst them, though the factual details like the name of the companies and amount involved are different. 14. In support of such submission, the Learned Advocate for the applicant has relyed upon the judgment, in case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association reported in (1992) 3 SCC 1, wherein it has been made clear that the stay of operation of order does not lead to consider that such order is quashed, it only means that the order which has been stayed could not be operative from the date of passing stay order and it does not mean that the said order is wiped out from existence. Therefore, when there is no stay against the judgment and order dated 16-2-2017 in Criminal Revision Application No. 926 of 2016 and even if the respondents were not able to challenge the operation of such judgment pending this revision, even then the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not suit to the litigant like present respondent being Statutory Government Agency. Such practice and attitude by the Statutory Authority simply results into wastage of precious judicial hours of working, when same issues are repeatedly pressed before different Court and thereby Court has to dictate such lengthy judgment at the cost of adjourning other matters, more particularly when there is shortage of judges and huge pendency of old cases in all Courts. At the same time such matters needs to be disposed of at the earliest instead of keeping it pending for year together, which would simply increase the pendency and arrears. 18. It is also surprising to note that though such revisions are to be dealt with based upon the documentary evidence produced before the Trial Court with the complaint or charge-sheet, and thereby though no additional documents can be looked into at such revisional stage, and attempt is made to rely upon some documents without making it clear that those documents are part of the record of the trial Court or not. However, before examining further factual details pursuant to submission by the respondent, it would be appropriate to recollect settled law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 14085 of 2013 reported in 2013 SCC Online (Mad.) 2961, wherein Hon ble Madras High Court has dealt with the issue of double jeopardy , holding that the adjudication proceedings under the PMLA and summons issued under the said Act cannot attract the ambit of Article 20(2) of the Constitution. Whereas there is no such issue raised by either side in the present petitions and therefore, only because once such petition by some accused under the PMLA has been rejected by one of the Hon ble High Court, it cannot be said that all the complaint registered or filed under the PMLA can never be dismissed, even if there is no proper evidence to proceed further. Issue before Hon ble Madras High Court was to the effect that when the proceeding under Sections 419 and 420 of the Indian Penal Code has been initiated, there cannot be proceedings under the PMLA against the same person from the same transaction since it may amounts to double jeopardy, whereas there is no such issue in the present case inasmuch as in the present case the applicants have specifically came forward with specific facts and evidence that in fact they are nowhere involved in any illegal activity and they have not committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which is binding upon it. Merely because some arguable point is raised it is not possible to ignore a binding precedent. Judicial discipline and propriety demands that another learned Single Judge of this Court should follow the prior view unless it is shown that the same is per incuriam. That aspect has not been highlighted. Even otherwise, the matter being pending before the Supreme Court, it would not be proper to brush aside the judgment of the learned Single Judge. More so, when it is followed by Punjab and Haryana High Court and a Special Leave Petition from its decision is summarily dismissed. I would therefore proceed to decide the matter on the touchstone of the law laid down by the learned Single Judge of this Court (Shri Khanwilkar, J.) ... xxx xxx xxx 23. As against that the applicants have relied upon the decision in case of Nikesh Tarachand Shah v. Union of India reported in 2017 SCC Online 1355, wherein recently the Hon ble Supreme Court, while dealing with the PMLA cases observe as under in Para-7 of the judgment which needs to be referred, it reads thus : 7. Having heard learned counsel for both sides, it is important to first understand what constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged under the scheduled offence have or have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted. The proceeds of crime from such scheduled offence may well be discovered much later in the hands of Mr. X, who now becomes charged with the crime of money laundering under the 2002 Act. The predicate or scheduled offence has already been tried and the accused persons convicted/acquitted in this illustration, and Mr. X now applies for bail to the Special Court/High Court. The Special Court/High Court, in this illustration, would grant him bail under Section 439 of the Code of Criminal Procedure - the Special Court is deemed to be a Sessions Court - and can, thus, enlarge Mr. X on bail, with or without conditions, under Section 439. It is important to note that Mr. X would not have to satisfy the twin conditions mentioned in Section 45 of the 2002 Act in order to be enlarged on bail, pending trial for an offence under the 2002 Act. 30. The second illustration would be of Mr. X being charged with an offence under the 2002 Act together with a predicate offence contained in Part B of the Schedule. Both these offences would be tried togeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Part A of the Schedule. In perpetrating this offence under Part A of the Schedule, Mr. X may have been paid a certain amount of money. This money is ultimately traced to Mr. Y, who is charged with the same offence under Part A of the Schedule and is also charged with possession of the proceeds of crime, which he now projects as being untainted. Mr. X applies for bail to the Special Court/High Court. Despite the fact that Mr. X is not involved in the money laundering offence, but only in the scheduled offence, by virtue of the fact that the two sets of offences are being tried together, Mr. X would be denied bail because the money laundering offence is being tried along with the scheduled offence, for which Mr. Y alone is being prosecuted. This illustration would show that a person who may have nothing to do with the offence of money laundering may yet be denied bail, because of the twin conditions that have to be satisfied under Section 45(1) of the 2002 Act. Also, Mr. A may well be prosecuted for an offence which falls within Part A of the Schedule, but which does not involve money laundering. Such offences would be liable to be tried under the Code of Criminal Procedure, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the Hon ble Supreme Court has struck down Section 45 of the PMLA of 2002. 26. Therefore, though it can be stated that such judgment is not dealing with Section 3 of the PMLA and dealing with Section 45 only, the facts remains that in Para-7 of the judgment, which is quoted hereinafter, the Hon ble Supreme Court has categorically observe that under Section 3 of the Act, kind of persons responsible for money-laundering is extremely wide and words used in such Section would show that all persons who are even remotely involved in this offences are sought to be roped in. However, it is made clear in this judgment that Section 3, confirms that any persons must not only involved in any process or activity connected with proceeds of crime but also project or claim such property as untainted property. 27. Therefore, in absence of prima facie and sufficient evidence as discussed by the Hon ble Supreme Court in above para, it cannot be said that there is sufficient material before the Trial Court/Special Court to proceed further against anyone/everyone who is even remotely connected with prime accused for Scheduled offence under the Act. For the sake of argument, the assumption can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA. Though, it is submitted that the huge amount has been transferred between the few companies wise i.e. M/s. Avon Organics (Ajit Kamath), M/s. Sudar Industries (Deepak Shenoy), M/s. Jyoti Structure (Santosh Naik), M/s. GT Traders, M/s. Aarzoo Enterprises, M/s. Jash Traders, M/s. MD Enterprises, M/s. Maruti Trading, M/s Millennum Co., M/s. Vandana Co., M/s. Natural Trading Co., M/s. Sidh Corporation, M/s. Saloni Enterprises, M/s. Saibaba, M/s. Pushpa Enterprises, M/s. RA Distributors Pvt. Ltd., M/s. Agni Gems Pvt. Ltd., M/s. Harmony Diamonds PL, M/s. M.B. Offshores Distributors Pvt. Ltd., M/s. Hem Jewels Pvt. Ltd., M/s. Riddhi Exim Pvt. Ltd., M/s. Trinetra Trading Pvt. Ltd., M/s. Maa Mumba Devi Gems Pvt. Ltd., M/s. Ramshyam Exports Pvt. Ltd., between India, Hong Kong and Dubai when all such transactions are through bank, unless it is proved that all such amount is collected or earn by anyone by indulging in any Scheduled Offences, only because, huge money transaction between different companies, more particularly through bank, would not amount to commission of any offence either under the Indian Penal Code or under the PMLA. It seems that the respondents have failed to realiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court has also considered that there cannot be double jeopardy and simultaneous proceeding is permissible under both the Acts i.e. for the scheduled offence and also under PMLA, the facts remain that there has been no doubt that unless one is held guilty for the scheduled offences, he cannot be held guilty of the offence punishable under the PMLA. If it is so, there is no reasons to continue the proceeding simultaneously or in any case unless the proceeding for scheduled offence are over either by conviction or even by acquittal, but leaving prima facie evidence that though accused cannot convicted for scheduled offence, there is prima facie evidence that the proceeds of the crime has been deprived and obtained, directly or indirectly as a result of criminal activity relating to scheduled offence, the Special Court can proceed further under PMLA. However, it is also made clear in above observation that the Special Court trying the offence under the PMLA will have to wait for the result of the trial relating to scheduled offence. Therefore, only because of absence of specific provision under PMLA, though Special Court can proceed further for the offence under PMLA, in absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts remain that though quantum of amount of transactions are not small, there is no evidence to prove the involvement of the applicant either directly or indirectly in the commission of either scheduled offences or offence under the PMLA and when there is lack of evidence regarding actual involvement or knowledge of all the applicants, with reference to concealment of proceed or direct involvement in any scheduled offence any manner whatsoever, only possession of huge amount with its transaction through Bank, cannot considered as an evidence so as to initiate the proceeding under the PMLA. On the contrary, due to such huge transaction through Bank, there is least chance of concealing such fact by anyone. Therefore, there may be an irregularity in dealing with such amount but such activity can never be termed as proof to confirm that offence under the PMLA has been committed. Though it is submitted by the respondent that for such transactions false companies were created and therefore it amount to forgery; when the complaint under scheduled offence against main accused has been quashed, now there is no evidence regarding forgery. Learned Advocate for the respondent has also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factual details regarding statement referred and relied upon by the respondents are also taken care and discussed in the judgment dated 16-2-2017. Therefore, when there is no substance in the complaint itself, it becomes clear that the respondents have dragged the matter unnecessarily for no valid reasons. 35. If we perused the documents attached with the affidavit in rely, it becomes clear that the transaction are through bank and therefore, there is no reason to say that such transaction are illegal, at the most, if such transaction are not disclosed then Income Tax Department may imposed liability of tax upon concerned party but it does not amount to commission of either scheduled offence or offence under PMLA. 36. The respondent are also relying upon the decision in case of Bhushan Kumar Anr. v. State (NCT of Delhi) Anr., reported in (2012) 5 SCC 424, wherein, while dealing with Sections 190 and 204 of the Code of Criminal Procedure, on the contrary the Hon ble Supreme Court had held that such order is challengable but refuse to quash and set aside the order of summons on merit of the case and therefore, inasmuch as merit of that case if scrutinize, only because of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eption in his affidavit in reply. However, it is settled legal position that the single sentence from judgment could not be considered as a binding decision but entire judgment needs to be checked so as to rely upon ratio of such judgment with reference to law involves in such cited case. 40. In view of above facts and circumstance, it becomes clear that by the impugned order dated 18-7-2014, the Special Court for PMLA mechanically took cognizance of the alleged offence punishable under Section 4 of PMLA qua each of the accused applicants, without even prima facie material showing existence of any mens rea or culpable knowledge with all or any of them, or of any proceeds of crime emanating from the said scheduled offences. Neither there is any tangible evidence, nor even any circumstantial material to impute culpable knowledge to the applicants and to even prima facie conclude that they were either aware of the commission of the Scheduled Offence or the generation of the alleged proceeds of crime by or out of such Scheduled Offence by main or other accused. As per the material produced, it cannot be even prima facie held that the applicants had any reason or even have any reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
