TMI Blog2022 (6) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... vent and control money laundering, (ii) to confiscate and seize the property obtained from the laundered money; and (iii) to deal with any other issue connected with money laundering in India. It is not in dispute that the tainted money was not obtained by the applicants in discharge of any official duty, the said money has no nexus with the official duty of the applicants and therefore, as per Section 197 of CrPC, there was no requirement for obtaining sanction for criminal prosecution of the applicants. There is no provision under the PMLA Act requiring sanction for criminal prosecution. In this case, in the complaint filed by the ED all the facts as available in case registered by the ACB are mentioned and evidence has also been recorded under Section 50 of PMLA of the applicants by the competent authority. The defence taken by the applicants that they are innocent, under the pressure of Alok Kumar Agrawal they took the money which was seized from them, is a matter of evidence and also depends upon the defence to be taken by Alok Kumar Agrawal during the course of trial. Therefore, the defence taken by the applicants cannot be considered at this stage and it can be conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Judge are Alok Kumar Agrawal, Alka Agrawal, Pawan Agrawal and Abhish Swami. 03. As per the prosecution case, accused Alok Kumar Agrawal who was Assistant Engineer, Water Resources Department, Raipur, CG, while working as Incharge Executive Engineer of the said department (Kharang Project), committed financial irregularities and corruption in the tender process and thereby caused wrongful gain to his near relatives and himself which amounts to offence under Sections 3 4 of the Prevention of Money. Co-accused Alka Agrawal, wife of the Alok Kumar Agrawal, in order to show the tainted money acquired by her husband as untainted money, used the same for her photocopy/printing shop in the name of M/s Quality Copiers and projected the said tainted money as her income from the said shop whereas during investigation no document relating to income from the said shop was produced by her. 04. Applicants Abrar Baig, Vijay Kumar, Govind Dewangan and B.D.S. Narwariya were subordinate employees of accused Alok Kumar Agrawal and from their possession around Rs.7 crores were seized by Economic Offence Wing. During investigation, they disclosed that the said amount belongs to Alok Kumar Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awan Agrawal, friend Abhish Swami and their relatives were also seized. 07. As per FIR bearing Crime No.5/2015 lodged at State Economic Offence Bureau and Anti Corruption Bureau, Raipur, on 19.1.2015 offence under Sections 13(1)(e), 13(2) of the Prevention of Corruption Act, 1988 and Sections 109, 120B, 420, 467, 468, 471 of IPC against accused Alok Kumar Agrawal, Pawan Kumar Agrawal, Radheshyam Agrawal and Abhish Swami and others was registered. After investigation, final report under Section 173 of CrPC against accused Alok Agrawal, Pawan Kumar Agrawal, Abhish Swami, Radheshyam Agrawal, Smt. Pushpa Agrawal and Smt. Alka Agrawal was filed for the offence under the aforesaid sections. 08. From the scheduled offence arising from the abovementioned case, the Enforcement Directorate (ED) registered ECIR No.RPSZO/03/2015/349, Raipur on 30.3.2015 under Section 3 4 of Prevention of Money Laundering Act, 2002 and after taking evidence and collecting materials, a complaint was filed before the 4th Additional Sessions Judge, Raipur, which is the designated Court for money laundering cases. On the basis of material available, the concerned trial Court took cognizance of the offence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents before the 4th Additional Sessions Judge, who did not consider the entire documents produced by the respondent and also not considered the bonafide and innocence of the applicants that they were cited as witnesses in the case registered by ACB. The applicants have already given their statements before the ACB but now on the basis of that evidence, the applicants have been made accused in the present complaint filed by the ED which is not permissible under the law. 10. Learned counsel for the applicants further contended that a witness cannot be compelled to give evidence against himself. As per evidence recorded before the Special Court (Anti Corruption) by the EoW and further as per the statements recorded by ED during investigation, the same facts were narrated by the applicants and on the basis of statements of the applicants, Alok Kumar Agrawa, who is the main accused in EoW case was prosecuted for offence under Section 13(1)(e), 13(2) of the Prevention of Corruption Act, 1988 and Sections 109, 120B, 420, 467, 468, 471 of IPC. Before the trial Court and before the ED, the applicants in their statements under Section 50 of PMLA stated that the amount seized from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers, (2012) 9 SCC 460. 13. On the other hand, learned counsel appearing for the respondents does not dispute the statement of objects and reasons for enactment of PMLA, 2002. Under Section 24 of the said Act, burden to prove not guilty of the offence of money laundering as defined u/s 3 is upon the accused which can only be discharged during trial and not at this stage. A conjoint reading of Section 44(1)(a), (b) and (d) of PMLA, makes it clear that there is no pre-requirement of obtaining sanction in PMLA cases as prescribed under Section 197 of CrPC and the Special Court has been authorized to take cognizance upon the prosecution complaint. The applicants in their statements under Section 50 of PMLA have categorically admitted possession of cash belonging to accused Alok Kumar Agrawal. All the applicants were public servants, they ought to have reported the matter to the police or other competent authority if they were forced to keep the illegal money of accused Alok Kumar Agrawal but they kept the same with them for a considerable period. This prima facie shows their ill intention to benefit and facilitate the wrong doings of Alok Kumar Agrawal. They were cleverly maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney; and (iii) to deal with any other issue connected with money laundering in India. 16. First this Court considers the argument regarding requirement of sanction for criminal prosecution in money-laundering cases. It is not disputed that the applicants are public servants. Co-accused Alok Kumar Agrawal allegedly committed scheduled offence and it was well within the knowledge of the applicants that Alok Kumar Agrawal has obtained money by illegal means such as corruption. Section 197 of CrPC and Section 19 of Prevention of Corruption Act read as under: 197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 19. Previous sanction necessary for prosecution. - (1) No Court shall take cognizance of an offence punishable under [sections 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]- (a) in the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person [who is employed, or as the case may be, was at the time of commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.] (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.] 4. Punishment for money-laundering .-Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation 2- A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception. In the present case, in view of Section 94 of IPC, the defence of the applicants that they kept the tainted money of Alok Kumar Agrawal under threat or compulsion, whether there was any threat of instant death, is to be considered only after taking evidence of the parties during trial. 22. The other argument raised by counsel for the applicants is that one Hariram Patel, who was involved in the present crime, was not made accused in this case. The said Hariram Patel has now died and even otherwise, non-impleadment of Hariram Patel as an accused has nothing to do with the accusation against the applicants, they have to prove their innocence or false implication on the merits of the case during the course of trial and therefore, such a defence is not available to the applicants. 23. As regards the judgments relied upon by learned counsel for the applicants, I have gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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