TMI Blog2019 (4) TMI 1986X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority (A.A.) Be it a judicial proceeding or proceeding before adjudicating authority the sole motto happens to be to confiscate the property by way of identifying the same to be proceed of the ill-gotten money not of scheduled offence in order to snatch out the proceed from the possession of the offenders, and acquisition through aforesaid means has been found punishable, being in contravention of law, under Section 4 of the Act. The proper forum to proceed and adjudicate coupled with requirement thereof, has to be seen. As per Section 43 of the Act, there is constitution of special court properly identifiable to be the court of Sessions having entrusted with the power of cognizance under Section 44(b) of the Act and as per sub-section (d) of section 44 the procedure so prescribed for the court of Sessions under the Cr.P.C. is to be followed. Sub-section 2 Section 43 not only empowers the special Court to proceed with the prosecution under P.M.L.A. rather indicates the trial of scheduled offence, conjointly. The situation is found furthermore clarified after going through Section 44 whereunder (1)(a), (1)(c), (1)(d), whereunder, the lower court, where the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Trial (PMLA) 2 of 2016 arising out of Complaint Case no.2/2016. 3. U.K. Gautam (PW.7), Assistant Director, Directorate of Enforcement, Government of India so authorized under Section 45(1) of the PMLA Act followed with Notification No.S.O.1274(E) dated 13.09.2005, Notification No.f.N6/14/2008- ES dated 11.11.2014 acknowledging his status filed complaint petition on 30.06.2016 disclosing therein that appellant being an accused of so many criminal cases duly identified as scheduled offences in terms of PMLA Act as well as being habitual offender, acquired so many properties out of the ill-gotten money the proceed of the crime including scheduled offence (detailed). Furthermore, it has also been disclosed that on query made from the Income Tax Department, it has been reported that the accused is not at all an assessee. Accordingly, cognizance was taken, trial commenced and concluded in a manner as indicated above, hence this appeal. 4. Defence case as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has further been submitted that appellant /accused has been victimized at the end of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.S. (Munger) Case No.153/09. Ext.18A - C.C. of Nayaram Nagar P.S. (Munger) Case No.153/09. Ext.19 - C.C. of Final Form of Mufassil P.S. Case No.153/15. Ext.20 - C.C. of Final Report of Crime Branch, New Delhi (F.I.R. No.116/15). Ext.21 - C.C. of FIR of Mufassil P.S. (Munger) Case No.295/09. 6. In likewise manner seven DWs have been examined on behalf of appellant who are DW.1-Md. Jubair, DW.2-Murshid Khatoon, DW.3-Md. Jabir, DW.4-Md. Naushad, DW.5-Sahnaz, DW.6-Bibi Sahista Praveen, DW.7-Md. Mahtab Alam. Side by side also exhibited following documents:- Ext.A - Adhar Card of Sahnaj. Ext.B - Sale Deed No.529 Dated 20.02.2007 (with signature of Bibi Shaista). Ext.C - Sale Deed No.134 of 1973. Ext.D -Sale Deed No.134 of 1974. Ext.E - Sale Deed No.3846 of 1986. 7. Three fold arguments have been raised on behalf of learned counsel for the appellant in order to assail the judgment impugned. The first and foremost ground happens to be, mere institution of case irrespective of being scheduled offence as categorized under the PMLA will not give terrine to the prosecution unless and until culminated in conviction. That being so, neither an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e definition clause and in the present context, the following are relevant one:- (a) Section 2 (p) money- laundering has the meaning assigned to it in section 3; 2(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; [or where such property is taken or held outside the country, then the property equivalent in value held within the country]; 2(v) property means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located; Explanation.-For the removal of doubts, it is hereby clarified that the term property includes property of any kind used in the commission of an offence under this Act or any of the scheduled offences; 2(y) scheduled offence means-(i)the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record or make or cause to be made extracts or copies therefrom; (e) make a note or an inventory of such record or property; (f) examine on oath any person, who is found to be in possession or control of any record or property, in respect of all matters relevant for the purposes of any investigation under this Act: Provided that no search shall be conducted unless, in relation to the scheduled 5offence, a report has been forwarded to a Magistrate under section 157 of the Code of Criminal Procedure, 1973, (2 of 1974) or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records or property belong or belongs to such person; (ii) the contents of such records are true; and (iii) the signature and every other part of such records which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person s handwriting, and in the case of a record, stamped, executed or attested, that it was executed or attested by the person by whom it purports to have been so stamped, executed or attested. (2) Where any records have been received from any place outside India, duly authenticated by such authority or person and in such manner as may be prescribed, in the course of proceedings under this Act, the Special Court, the Appellate Tribunal or the Adjudicating Authority, as the case may be, shall- (a) presume, that the signature and every other part of such record, which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person s handwriting; and in the case of a record executed or attested, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as it applies to a trial before a Court of Session.] (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section includes also a reference to a Special Court designated under Section 43. 46. Application of Code of Criminal Procedure, 1973 to proceedings before Special Court. -(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of proceeds derived from such offences. 8. The SOR further noted that the Basel Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist law enforcement agencies in tackling the problem of money- laundering. It also considered the recommendations of the Financial Action Task Force established at the 1989 G7 summit held in Paris from 14th to 16th July 1989 which inter alia recommended that a comprehensive legislation be enacted to combat money-laundering. 9. The SOR also noted that initially a Bill was introduced in the Lok Sabha on 4th August 1988 as the Prevention of Money-laundering Bill (PMLB) which came to be referred to the Standing Committee on Finance, which in turn gave its report on 4th March 1989 to the Lok Sabha. Those recommendations were accepted by the Central Government and thereafter the PMLB, with its changes, was passed by both the Houses of Parliament. It received the assent of the President on 17th January 2003. 10. Since its coming into force on 1st July 2005, the PMLA has undergone amendments in 2005, 2009 and 2012. The Finance Act (FA) 2015, the FA 2016 and the Black Money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d furthermore clarified after going through Section 44 whereunder (1)(a), (1)(c), (1)(d), whereunder, the lower court, where the matter relating to scheduled offence remains still pending, has to commit the case, so that trial be taken up by the Special Court and, the procedure to be followed during course thereof has also been properly laid down. 17. After going through the judgment along with L.C. record, it is evident that the learned lower court had not considered those aspects, more particularly with regard to non following of the mandate of law, more particularly Section 43(2) of the Act. 18. After going through the relevant provisions as discussed herein above, it is manifest that the trial of scheduled offence, having against the accused has to be conducted by the same court. It has got a purpose. Unless and until, there happens to be proper finding relating thereto, that means to say, the conviction or acquittal has bearing over the fate of whole exercise relating to confiscation, the aim and object of the Act, whereupon, the Act did not allow to run in isonatran the trial. 19. Accordingly, the judgment impugned is set aside. Appeal is allowed. Matter is remitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
