TMI Blog2022 (8) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... e notification dated 29.03.2018 is silent about its retrospective applicability - Therefore, the legislature has not withdrawn the twin conditions from Section 45 of the PML Act, though in the case of Nikesh Tavachand Shah Vs. Union of Idia anr., the Hon'ble Supreme Court of India has struck down the same as being unconstitutional. Therefore, the twin conditions under Section 45 of the PML Act still remain in the Statute book. The Hon'ble Supreme Court of India has directed the concerned Court to hear the matters on merits, without application of the twin conclusion contained in Section 45 of the Act, as declared as unconstitutional. But the twin conditions still continue. The amendment Act of 2018 which introduces the expression under this Act to Section 45 of the PML Act, in no uncertain terms can obliterate or dilute the direction issued by the Hon'ble Supreme Court of India - the twin conditions as contemplated under Section 45(1) of the amendment Act have to satisfy not withstanding of the judgment of the Hon'ble Supreme Court of India in the case of Nikesh Tavachand Shah Vs. Union of Idia anr. That apart, during investigation it was found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing fabricated documents relating to the business of M/s.Electro Tool Products owned by the said Kannan who is arrayed as second accused. He was arrested and remanded to judicial custody in pursuant to the crime No.63 of 2017. He was examined under Section 50 of PMLA and revealed that the person whose photograph is appearing in the account opening form identified the person S.R.Kavin Sidhaarth @ R.Senthil Kumar. He categorically admitted that he had entered inside the premises of Indian Bank, Thousand Lights Branch for the purpose of opening current account in the name and style of M/s.BK Electro Tool Products. Thereafter, he obtained cheque book. Therefore, the said Kannan affixed photo of one, S.R.Kavin Sidhaarth @ R.Senthil Kumar and opened a current account. 2.1 Further, the third accused who layered a sum of Rs.4,78,39,852/- through his business entity i.e. M/s.Levensun Global Solutions Private Limited into the account of M/s.BK Electro Tool Products. He categorically stated that the funds which are layered by the petitioner herein who is arrayed as A8, using his business entity in the name of M/s.Levensun Global Solutions Private Limited. Likewise, the fourth accused impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they made payment through Indian Bank, Thousand Lights Branch, Chennai. According to the case of the prosecution, an excess payment were made for non existence import with fake bill of entry. Therefore, the petitioner has nothing to do with the allegations made by the respondent. Since he never operated any account maintained with the HSBC account, there is no evidence to show that the petitioner is an account holder of M/s.Decent Mount Limited or M/s.Flourish Noble Limited which is situated in Hongkong. In fact, the petitioner never had visited Hong Kong and dealt with those companies. He also produced details of endorsement made in the passport. Therefore there is absolutely no prima facie evidence to show that the petitioner also involved in the offence as alleged by the prosecution. Mere identifying through photograph shows that the person is known to the petitioner. That does not mean that the petitioner is hand in glove with the other accused person. Statement of co accused is not an evidence as it cannot be testified and inadmissible as against the petitioner. 3.1 He further submitted that the powers and Act itself Prevention of Money Laundering and it is not like Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A3 were identified that they acted at the instance of the petitioner. He operated the accounts and received the proceeds of crime at Hong Kong. Therefore, the petitioner committed very serious white collar crime and he is the main conspirator of the money laundering. Therefore, he prayed for dismissal of the bail petition. 5. Insofar as the twin conditions as contemplated under Section 45 of PML Act, the Hon'ble Supreme Court of India repeatedly held in many cases that the duty of the Court is to examine the jurisdictional facts including the mandate of Section 45 of the PML Act, which must be kept in mind. Even post Nikesh Tavachand Shah Vs. Union of Idia anr. case, the Section 45 of the PML Act saw amendment vide from 19.04.2018. After effecting amendment to Section 45(1) of the PML Act, the words under this Act are read to sub Section (1) of Section 45 of the PML Act. On a comparative reading of Section 45(1) of the PML Act, pre-amendment and post-amendment, as could be observed, original sub-Section 45(1)(ii) is neither revived or resurrected by the amending Act. The notification dated 29.03.2018 is silent about its retrospective applicability. Therefore, the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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