TMI Blog2022 (12) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3 of the PMLA would be punishable when the proceeds of crime is Rs. 1 Crore or more. The offence of money laundering is made punishable for activities related to money laundering but not the quantum of money. The attachment proceedings are associated with civil proceedings mentioned in the PMLA. Even for the civil action i.e. attachment of proceeds of crime and property under the PMLA, it is not a condition precedent that against such a person, there should existing proceedings under scheduled offences. The definition of proceeds of crime and property under the PMLA would allow for confiscation of property derived or obtained directly or indirectly from proceeds of crime relating to a scheduled (predicate) offence, including income, profit and other benefits from the proceeds of crime. Offence of money laundering is a contining offence and relevance of the date of commission of the scheduled offence is irrelevant for the reason that as long as one is in possession of the proceeds of crime, he would be liable to be prosecuted for the offence under Section 3/4 of the PMLA - application dismissed. - Application U/S 482 No. - 5185 of 2022, 7352 of 2022 - - - Dated:- 19-12-2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t gross irregularities financial and administrative appear to have been committed in the execution and implementation of NRHM including the matter of award of contracts, procurement of goods, article and etc. at various levels. .................The facts and circumstances, aforesaid make out a case for reference to CBI for making a preliminary enquiry in the affairs of NRHM in the entire State of U.P. right from the very inception of the NRHM. We, therefore, direct the Director, CBI to conduct a preliminary enquiry in the matter of execution and implementation of the NRHM and utilization of funds at various levels during such implementation in the entire State of U.P. and register regular case in respect of persons against whom prima facie cognizable offence is made out and proceed in accordance with law. The preliminary enquiry shall be conducted from the period commencing year 2005-06 till date..... 6. In compliance of the directions issued by this Court, the CBI, after making preliminary inquiries, registered several FIRs, including FIR No. RC/DST/2012/A/0001 dated 23.02.2012, under Sections 120-B read with Sections 420, 467 and 471 of the Indian Penal Code, 1860 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tore. It is alleged that accused-applicant, Satish Kumar Kashyap abused his official position as public servant and entered into criminal conspiracy with suppliers in furtherance of which he forged quotations which were used as genuine for cheating the government exchequer by making/showing supplies in the district at exorbitant price. 14. The ED registered ECIR/10/PMLA/LKZO/2012 against 14 accused, including accused-applicant, Satish Kumar Kashyap, who was posted as Pharmacist in the office of Chief Medical Officer, Gorakhpur, accused, Sanjay Agarwal, Proprietor, M/s Charisma Healthcare, Lucknow, Raees Alam Siddiqui, Proprietor, M/s Seva Enterprises, Lucknow, Jugal Kishore, Director, M/s Jackson Laboratories Private Limited, 13, Joshi Colony, Mall Road, Amritsar and ten others officials of Health Department, who were responsible for implementing the NRHM in their respective places. 15. In respect of accused-applicants, Savita Srivastava and Pooja Srivastava, ED registered ECIR/12/LKZO/2012 and after completing the investigation, separate complaints had been filed under Section 45 PMLA. 16. Application No.7352 of 2022 has been filed for quashing of the proceedings of Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds of crime and in this case though attached proceeds of crime is Rs. 56,37,860/-, but the total proceeds of crime involved is Rs. 01,02,41,900/-, as mentioned above. The learned counsel has, therefore, submitted that these applications have no merit and substance and the same are liable to be dismissed. 20. Offence of money laundering is clearly a distinct and distinguishable from predicate offence. The FIR could be triggering point for initiation of proceedings under the PMLA. If it is found that the accused have also committed an offence which is punishable under the PMLA, the prosecution under the PMLA will be initiated by filing complaint under Section 45 of the PMLA. The scheduled offence and offence of money laundering are mutually exclusive and independent of each other. The Supreme Court in recent judgment reported in 2022 SCC OnLine SC 929 (Vijay Madanlal Choudhary and others Vs. Union of India and others in paragraph-269 has held as under:- 269. From the bare language of Section 3 of the 2002 Act, it is amply clear that the offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the PMLA. It is submitted that the prohibition against retrospective operation of substantial criminal statutes is a constitutional imperative which needs to be given its fullest interpretation in a purposive manner. He highlights the three situations where interpretation is warranted. One, where transactions were concluded prior to the enforcement of PMLA; two, prior to the offences being added to the Schedule of the PMLA; and three, whether amendment is applied with retrospective effect couched in the guise of an Explanation introduced by the 2019 amendment. 22. Offence of money laundering is a contining offence and relevance of the date of commission of the scheduled offence is irrelevant for the reason that as long as one is in possession of the proceeds of crime, he would be liable to be prosecuted for the offence under Section 3/4 of the PMLA. In paragraph-43 of V ijay Madanlal Choudhary and others Vs. Union of India and other's case (supra) it has been held as under:- 43. It is then urged by the learned counsel that Section 45(1) of the PMLA, reverses the presumption of innocence at the stage of bail as an accused. According to him, the accused at this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P.) in paragraph-12, in respect of amendment brought in the PMLA in 2009, has held as under:- 12. Thereafter an amendment was brought in PMLA, 2002 by the Prevention of Money Laundering (Amendment Act; 2009) (in short no. 21 of 2009, 6th March, 2009) whereby, in Part B Section 120B (criminal conspiracy) was added and the same was made punishable under the PMLA, 2002 under Section 3/4 of PMLA. Apart from that Section 471 - using as genuine or forged record, was also placed in Paragraph 1 under Part B of the said Act hence this offence also became punishable under the PMLA, 2002 with effect from 06.03.2009. Further in Paragraph 5 under Part B the Section 13 of P.C. Act - criminal misconduct by public servant was added, and was made punishable under the PMLA, 2002. Thereafter, by Prevention of Money Laundering Act, 2012 (in short 2 of 2013) which came into effect from 3rd July, 2013 the above offences of I.P.C. included in Part - B, were made part of Part - A in Paragraph 1. 25. The Supreme Court in V ijay Madanlal Choudhary and others Vs. Union of India and other's case (supra) has elaborated the meaning and scope of amendment brought by amending Act 2 of 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
