TMI Blog2019 (12) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ready been taken by the Hon'ble Special Court for the offence under section 3, punishable under section 4 of the PMLA and the same is pending for trial before the Hon'ble Special Court. It is no doubt true that the complaint has been made by the respondent only in pursuant to the scheduled offence. In a given case, the complaint may emanate from a registration of a case involving scheduled offence. But the fate of the investigation in the said scheduled offence cannot have bearing to the proceedings under the Prevention of Money Laundering Act, 2002. Section 2(u) of the Act merely speaks of a criminal activity relating to a scheduled offence. Therefore, we are concerned with the criminal activity qua a scheduled offence. Going through the averments made in the complaint petition and submissions advanced on their behalves and also the judgments relied upon by them and considering the fact that cognizance has already been taken against the petitioner in this case, at this stage, the document which have been relied by the petitioner and the filed by the petitioner for quashing of order dated 10.09.2013 passed in R.C. Case No. 01(A) of 2011- R, whereby cognizance of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er proceeding in connection with ECIR No. 12/PAT/2012 13/PAT/2012 in Complaint Case No. 02 of 2018, pending in the court of learned Additional Judicial Commissioner-I-cum-Special Judge for PMLA at Ranchi, so far petitioner is concerned was stayed. On 02.08.2019, learned Hon'ble Coordinate Bench directed the office to list this case before another Bench after obtaining necessary approval of Hon'ble the Acting Chief Justice, but in the meanwhile, it appears that I.A. No. 8028/2019 was filed on behalf of the opposite party on 22.08.2019 with a prayer to recall / modification of the order dated 02.08.2019 passed in Cr.M.P. No. 1399/2019 and the Hon'ble Coordinate Bench after hearing the parties under order dated 03.09.2019 allowed the I.A. No. 8028/2019 and further re-called the paragraph no. 3 of the order dated 02.08.2019 as the protection has already been granted by the Hon'ble Supreme Court. Thereafter, this case was assigned to this Court and the matter was listed on 06.09.2019 and thereafter on 18.09.2019 and subsequent dated and finally the matter was heard on 11.11.2019 and order was reserved. 4. The fact giving rise to the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Kumar and he has given the loan on the advice of Sri Naresh Kumar Kejriwal who is the Chartered Accountant. Accordingly, in the complaint, it has been concluded that Naresh Kumar Kejriwal was involved in acquisition, concealment, transfer of proceeds of crime and remained involved in the activity connected with the proceeds of crime and projected the same as untainted. As such, it was alleged that Sri Naresh Kumar Kejriwal has committed offence of Money Laundering as defined under section 3 of the PMLA and punishable under section 4 of the PMLA Act. 5. Learned senior counsel appearing for the petitioner during course of argument would submit and also made averment in his petition that the petitioner is quite innocent and has been falsely implicated in this case with some ulterior motive and mala fide intention that too without any evidence on record. 6. It was further stated that the predicate offense of the instant case is one of the case instituted by the CBI vide RC- 01/A/2011-R registered against Dr. Pradeep Kumar, I.A.S. who was the then Secretary, Health Department, Govt. of Jharkhand, Ranchi. 7. The allegation against Dr. Pradeep Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disproportionate to his income and accordingly quashed the order taking cognizance dated 10.9.2013 vide order dated 12.3.2014 passed in Cr.M.P. No. 2651/2013. 12. That the aforesaid judgment of the Hon ble High Court of Jharkhand was not challenged by the CBI and therefore, has attained finality. Consequently, the allegations against the petitioner made by the CBI under Charge-Sheet No. 12/2013 dated 31.08.2013 stands quashed. 13. Learned senior counsel for the petitioner further submitted that the foundation of the impugned complaint ECIR no. 02/2018 arising out of ECI/12/PAT/2012 and ECIR/13/PAT/2012 was filed by the Directorate of Enforcement dated 03.11.2018, so far as the petitioner is concerned, is the aforesaid CBI Charge Sheet No. 12/2013 dated 31.08.2013 [see para. 2(iii) of the complaint]. Undeniably, the foundational CBI charge sheet stands quashed so far as the Petitioner is concerned. 14. Once that be so, the very substratum of the impugned ED complaint has been removed and therefore, the same is liable to be quashed so far as the petitioner is concerned. 15. In view of the quashing of the CBI charge sheet against the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Prevention of Corruption Act since he is not a public servant. It is primarily an offence under sec. 109, IPC with which he has been charged with. Since the same is not a scheduled offence, the Petitioner cannot be charged for an offence under sec. 3 of the PML Act. In view of the aforesaid, no case is made out against the petitioner under sec. 3 of the PML Act even if the allegations in the impugned ED complaint is taken to be correct in its entirety. 18. In State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335, the Hon ble Supreme Court held (at para. 102 SCC) that where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, the same is liable to be quashed. 19. That without prejudice to the aforesaid submission, even if it be presumed only for the sake of arguments that the ED can maintain a complaint against the Petitioner even in absence of sec. 109, IPC being not declared a scheduled offence, yet, the the impugned complaint is liable to be quashed vis- -vis the Petitioner in view of the following: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UF maintained in Allahabad Bank. 24. That Hindustan Credit Corporation is a company which provides loan to its customer and said Hindustan Credit Corporation on 26.12.2008 transferred ₹ 4 lakhs in the account of Nandlal HUF and said transfer was duly reflected in the bank statement as well as balance-sheet of Hindustan Credit Corporation under the heading of loan and advance. The said bank statement and balance-sheet were filed before the Income Tax Authorities in the name of Hindustan Credit Corporation for the Financial Year 2008-09 and Assessment Year 2009-10. 25. That Hindustan Credit Corporation has provided loan amounting to ₹ 1,95,000/- to Nandlal HUF on 31.7.2009 and said amount was transferred from the account of Hindustan Credit Corporation to the Account of Nandlal HUF and said transaction were duly reflected in their balance-sheet under the heading of loan and advance and same was filed before the Income Tax Authority while filing the Income Tax Return of Hindustan Credit Corporation for the Financial year 2009-10 and Assessment Year 2010-11. 26. That against the above mentioned loan of ₹ 5,95,000/- provided by Hindustan C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. has provided loan to Nandlal HUF from its Cash Credit Account meaning thereby the bank has provided facility to the said company to withdraw the amount on which 16.75% interest will be charged by the bank, as such it is not a case that any cash deposit were made in the account of Pathak Telecom Pvt. Ltd. and same was transferred in the account of Nandlal HUF. 31. That it has wrongly been mentioned in the complaint that Nandlal HUF in its income tax return had not shown the said transaction but the said allegation is completely false and same can be ascertained from the income tax return filed for the assessment year 2012-13. 32. Learned senior counsel for the petitioner submitted that the loan were advance by Pathak Telecom Pvt. Ltd. and Hindustan Credit Corporation to Nandlal HUF and said amount of loan has also been returned with interest by Nandlal HUF to the above mentioned two companies and the process was purely transparent and complete, as such it can not be said that the said amount was generated by schedule offence. 33. Learned senior counsel for the petitioner submitted that the complete false allegation has been leveled by the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the petitioner submitted that the amount of loan which were advanced to Nandlal HUF as alleged on the advice of the petitioner comes to ₹ 25,95,000/-, no case of money laundering can be instituted against the petitioner in terms of section 2 (1) (g) of the PMLA as no person can be prosecuted if the value comes to less than ₹ 30 lakhs. 38. That the petitioner in his professional capacity had advised in the manner in which the loan can be raised and it has no relation with any proceed of crime which is sine qua non for alleging an offence under section 3 of the PMLA Act, 2002. It is not the case of the respondent/opposite party that the petitioner had knowingly involved in a process or activity connected with proceeds of crime . The Hon ble Apex Court has delivered a judgment in case of Nikesh Tarachand Shah Vrs. Union of India, (2018) 11 SCC 1 has held at para-11 as under: 11 . Section 3, therefore, contains all the aforesaid ingredients and before somebody can be adjudged as guilty under the said provision, the said person must not only involved in any process or activity connected with proceeds of crime, but must also project or claim it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions involved in money laundering, Dr. Pradeep Kumar has played the central role. This shows that Rajendra Kumar has knowingly acted as a front for assisting Dr. Pradeep Kumar in laundering the proceeds of crime; iv) Both Dr. Pradeep Kumar and Rajendra Kumar could not submit any evidence regarding source for creation of IVPS and KVPS which formed the basis for formation of Nand Lal HUF. This shows that proceeds of crime generated by Dr. Pradeep Kumar were invested in Nand Lal HUF which was formed on the advice of Naresh Kumar Kejriwal, Chartered Accountant of Dr. Pradeep Kumar for the only purpose of concealment of proceeds of crime so that tainted property could be projected as untainted; v) Rajendra Kumar stated that he took loan from M/s (Pathak Telecom Co. (P) Ltd. (Proprietor Sitaram Pathak) and Hindustan Credit Corporation (a firm managed by Naresh Kumar Kejriwal) for acquisition of immovable property but he could not produce any loan agreement and he does not know these persons individually. Moreover, all the payment for acquisition of this immovable property had already been done much prior to receipt of the loans. These loans haw not been reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA. Dharmendra Kumar Dhiraj has knowingly assisted Dr. Pradeep Kumar in making false claim of rental income and thus, has knowingly assisted in concealment of proceeds of crime; viii) Huge cash was deposited in the account of AHC Pvt. Ltd. and Jascon Enterbuild, Joint Venture, a firm owned by Dharmendra Kumar Dhiraj and the same was used for acquisition of immovable property at Bangalore. Rajendra Kumar could not produce any loan agreement/ other documents to justify receipt of huge amount from this firm. Neither Rajendra Kumar nor Dharmendra Kumar Dhiraj offered any explanation for this transaction. This makes it evident that proceeds of crime were layered through the bank account of this firm by Dharmendra Kumar Dhiraj for acquisition of immovable property to project the tainted property as untainted; ix) Shyamal Chakravarty was partner of Rajendra Kumar in M/s Essar Enterprises, he was granted General Power of Attorney by Dr. Pradeep Kumar for purchase of property at Udaipur. Shyamal Chakravarty arranged the deal in respect of this transaction. Moreover, for repayment of transferred amount to the firms owned by Sitaram Pathak and Inderlal Kejriwal, money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration to Rajendra Kumar in the garb of fake loan so as to disguise the actual purchase of property through proceeds of crime. Sitaram Pathak, the proprietor of Pathak Telecom Co. (P) Ltd. during the statement under section 50 of the PMLA, has clearly stated that he does not know Rajendra Kumar and has transferred the amount only on the advice of his Chartered Accountant, Naresh Kumar Kejriwal. Inderlal Kejriwal, the proprietor of Hindustan Credit Corporation, during his statement under section 50 of the PMLA, has stated that he does not know Rajendra Kumar and the transfer of money was done by his brother Naresh Kumar Kejriwal who is actually managing_Hindustan Credit Corporation. This shows that Naresh Kumar Kejriwal is knowingly providing accommodation entry to disguise the actual purchase of property through proceeds of crime so that tainted properties can be projected as untainted. Hence, it is established that Naresh Kumar Kejriwal is knowingly assisting Dr. Pradeep Kumar in concealment and transfer of proceeds of crime so as to project the tainted properties as untainted. 43. That, from the above para, it is evident that Dr. Pradeep Kumar, Rajendra Kumar, Nandlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not know Rajendra Kumar and has transferred the amount only on the advice of his Chartered Accountant, Naresh Kumar Kejriwal. 48. This makes it amply evident that Naresh Kumar Kejriwal is knowingly involved in concealment and transfer of proceeds of crime generated by Dr. Pradeep Kumar in order to project the tainted property as untainted. 49. Shri Inderlal Kejriwal, inter alia, in course of his statements dated 07.08.15, 17.09.2015 12.02.2018 under section 50 of PMLA stated that Shri Naresh Kumar Kejriwal, who is his brother and C.A. of the firm, manages the Hindustan Credit Corporation. Thus, it is established that Naresh Kumar Kejriwal is knowingly involved in process or activity connected with proceeds of crime and projection of the same as untainted. 50. Therefore, Naresh Kumar Kejriwal has committed the offence of money laundering, as defined under section 3 of the PMLA, and punishable under section 4 of the PMLA. This is evident from the following: I. During investigation under PMLA, it has been established that Nand Lal HUF was created only for the purpose of laundering of proceeds of crime on the advice of Naresh Kumar Kejriwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction, plainly indicate that the person to be prosecuted for this offence need not necessarily be charged of having committed a scheduled offence. For, the expression used is whosoever . The offence of money-laundering under section 3 of the Act of 2002 is an independent offence. It is committed if any person directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property... 52. During investigations under PMLA, the petitioner has been found to be knowingly involved in concealment and transfer of Proceeds of Crime acquired by Dr Pradeep Kumar so as to project the tainted properties as untainted. 53. Learned ASGI appearing on behalf of the opposite party Directorate of Enforcement submitted that cognizance has been taken against the petitioner and trial is in progress, so no interference is required in the instant case and the instant Cr.M.P. is fit to be dismissed. 54. Learned ASGI further referred to para-23 of the judgment of the Hon'ble Supreme Court passed in the case of Rohit Tandon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the fate of the investigation in the said scheduled offence cannot have bearing to the proceedings under the Prevention of Money Laundering Act, 2002. Section 2(u) of the Act merely speaks of a criminal activity relating to a scheduled offence. Therefore, we are concerned with the criminal activity qua a scheduled offence. 57. After hearing the learned counsel for the parties, going through the averments made in the complaint petition and submissions advanced on their behalves and also the judgments relied upon by them and considering the fact that cognizance has already been taken against the petitioner in this case, at this stage, the document which have been relied by the petitioner and the order dated 12.03.2014 passed in Cr.M.P. No. 2651 of 2013 filed by the petitioner for quashing of order dated 10.09.2013 passed in R.C. Case No. 01(A) of 2011- R, whereby cognizance of the offence punishable under Section 109 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 taken against the petitioner, whereby the Cr.M.P. was allowed and cognizance order dated 10.09.2013 was quashed, cannot be relied upon. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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