TMI Blog2018 (7) TMI 2296X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA, 2002. It is apparent that the offence under Section467 was punishable under PMLA of 2002 with effect since 1st July, 2005while the allegations against the present accused relate to the period2004-05 and 2005-06, hence the argument of the learned counsel for the applicant that the cognizance taken against the accused applicant could not have been taken for his having committed offence under Section 467 I.P.C. does not hold water as the same was already made punishable under the PMLA of 2002 way back in 2005. It is settled law that if eve none of the offences under which the charge is found to have been made out, then it cannot be denied that cognizance could have been taken by the Court concerned for having committed an offence under PMLA of 2002. If offence under certain other sections of I.P.C. or P.C. Act are found not made out in respect of the present accused during the period in question due to penal provision not being available then the said fact maybe taken into consideration by the Trial Court at the time of trial and take appropriate decision in that regard. As regards other objections that the appeal against the attachment of the properties of the applicant/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the food grains for Public Distribution System (in short PDS) were diverted to black market, which caused a huge loss to the Government exchequer to the tune of Rs. 80.64lakhs and corresponding wrongful gains to the accused persons. Subsequently the case was taken up by Central Bureau of Investigation by registering FIR No. RC0062010A0025 on 14.12.2010, and investigation was conducted, thereafter charge sheet was submitted on 01.05.2012against the present accused/applicant along with two others namely, Ram Murat Yadav, the then go down in charge and Shiv Bux Singh (now deceased) under Sections 120B, 406, 409, 420, 467, 468, 471 I.P.C. and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act (in short P.C. Act) for the offence said to have been committed during the period from December 2004 to June 2006. The role assigned to the applicant is that initially late Shiv Bux Singh had issued 16 bearer cheques amounting to Rs. 71.84 lakhs from his own account No. SF 160 in Punjab National Bank, Nawabganj Branch, Gonda in favour of the applicant Rajendra Singh. Thereafter, the applicant collected the 16 bearer cheques by late Shiv Bux Singh and the same were rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different kotedars for an amount of Rs. 2.53 crores and 92 lakhs was returned by him to Late Shiv Bux Singh and rest of the amount, i.e., Rs. 18 lakhs was retained by him as commission and out of this money he used 4 lakhs to purchase aplot at Parao, during 2005 and the rest amount had been used by him for purchasing 5 trucks and paying the installments of those trucks. He also admitted that he had constructed a godown on the purchased plot during the year 2005-06 by taking loan amounting to Rs. 17 lakhs from one Atma Prakash Singh in piece-meal and the said godown was mortgaged as collateral security with the Bank of Baroda, Faizabad in lieu of the said loan. The said plot and the godown have been provisionally attached under Section 5 (1) of PMLA, 2002 by mentioning that these properties were procured from the proceeds of the crime which he committed in the form of illegal diversion and sale of PDS foodgrains in the black market. The Adjudicating Authority in its confirmation order dated 01.09.2017 has recorded that the accused has committed the Scheduled Offences and upheld the attachment of the properties of the accused. It is also mentioned that the C.B.I. has shown recovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has failed to appreciate the fact that applicant had borrowed Rs. 17 lakhs from one Mr. Atma Prakash Singh and thereafter he took loan from the Bank and the loan taken from Atma Prakash Singh was returned. Further it was also ignored by the Trial Court that whatever money was deposited in the account of the applicant, the same was given as demand draft to the said authority and that the applicant had never mis-utilized the said fund for personal use. It is also ignored that the attachment order passed by the Adjudicating Authority has been appealed against which is pending before the Appellate Court at New Delhi and, therefore, the complainant ought to have waited. (3) Further it is mentioned that it was evident that the offences alleged to have committed by the applicant, belong to the period prior to01.07.2005, when admittedly PMLA, 2002 was not in force. Even after the enforcement of the said Act on 01.07.2005, the offences under I.P.C. alleged to have been committed by him were included in the scheduled offence with effect from 01.06.2009 in as much as Scheduled Offences mentioned in Paragraph-1, (offences under the Indian Penal Code) given in Part A, have come into fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice w.e.f. 14/4/2014. While he was working as an appraiser in Customs House, Chennai, Deputy Superintendent of Police, CBI had filed an F.I.R. No. RCMA 1/2005A/0031 on 29/06/2005 for alleged possession of assets and pecuniary resources in the name of first petitioner and his family members for alleged commission of offences under sections 13 (2)read with 13 (1) (e) of Prevention of Corruption Act, 1988. The final report was submitted under sections 173 (2) Cr. P.C. on 13/01/2009by third respondent before the Principal Special Judge for CBI cases, Chennai, in C.C. No. 18 of 2009 for offences punishable under sections 13 (2) read with sections 13 (1) (e) of the Prevention of Corruption Act, 1988 against first petitioner and under sections109 of IPC read with 13 (2) read with 13 (1) (e) of Prevention of Corruption Act, 1988 against 2nd petitioner. Check period was shown as from 01/05/1997 to 30/06/2005. The 3rd and 4th petitioners were not arrayed as accused in the above C.C. No. 18 of 2009. The trial was under progress in the court of 14th Additional Special Judge, CBI cases and presently investigating officer, PW 74 was being cross-examined by the defence. In the meantime, after 6y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of law cannot be retrospectively applied, as Article 20 (1) of the Constitution bars the ex post facto penal laws and no person can be prosecuted for any alleged offence which occurred earlier, by applying the provisions of law which have come in force after the alleged offence. A close scrutiny of the above case would reveal that in this case the matter involved commission of an offence under Section 13 of the Prevention of Corruption Act which came to be added in the scheduled offences of Prevention of Money Laundering Act only on 01/06/2009, while the offence related to the period between 01/05/1997 to 30/06/2005,therefore the facts of this case are distinguishable from the facts in case on hand because in the present case apart from the offences under Prevention of Corruption Act, offences under sections 120 B, 406, 409,420, 467, 468, 471 of IPC are also there, under which the proceedings have been drawn. As far as the offence under sections 467 IPC is concerned, the said offence was already included in Part B of the schedule appended to PMLA which had come in force w.e.f. 01/07/2005, and the period during which offence is being alleged to have been committed relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire provisions. The PMLA, 2002 was promulgated/came into force on 01.07.2005, vide G.S.R. 436(E), dated 1stJuly, 2005, published in the Gazette of India, Extra, Pt. II, Sec. 3(i), dated1st July, 2005. Therefore, the following was position, as on 1st July, 2005as regards inclusion of offences in Part A or Part B of the schedule appended to the PMLA, 2002. (Only such sections are being taken into consideration of I.P.C. and P.C. Act, which are alleged to have been committed by applicant/accused). (10) In Part B of the schedule, one of sections of I.P.C. in question only i.e. Section 467 I.P.C. which pertained to forgery of a valuable security will or authority to make or transfer any valuable security, or to receive any money etc. was made punishable under PMLA, 2002. (11) In view of the above, it is apparent that the offence under Section467 was punishable under PMLA of 2002 with effect since 1st July, 2005while the allegations against the present accused relate to the period2004-05 and 2005-06, hence the argument of the learned counsel for the applicant that the cognizance taken against the accused applicant could not have been taken for his having committed offence under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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