TMI Blog2023 (1) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... of conviction under predicate offence is also affirmed in Criminal Appeal no.326/,327/ and 328/ pending before this Court and pronounced by a separate Judgment today. Sentence - HELD THAT:- It is a settled principle that criminal law generally adheres to the principles of proportionality in sentencing. Imposition of sentence without considering its effect on the social order in many cases can render the criminal adjudication as an exercise in futility. Appellant in the present case was none other than an elected representative of the people, who was reposed with faith to discharge his constitutional obligations with the highest degree of probity. Unfortunately, power blinded his wisdom and he indulged in rampant corruption by acquiring movable and immovable property much beyond his known sources of income. The proceeds of crime under a grand design and various contrivances, were projected as untainted by the process of money laundering. The nature of crime, post held by the appellant, does not justify any leniency in sentencing. On the point of sentence, considering the gravity of offence and the position of responsibility as held by the appellant/accused, the sentence of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 406,409,420,423,424,465/120 B of IPC and section 11/13(2) r/w 13(1)(e) of the PC Act, 1988 for possession of disproportionate assets by the accused MLA s/Ex-Minister Anosh Ekka and Hari Narayan Rai . During the pendency of the case, further investigation was taken up by the CBI under the direction of this Court passed in W.P.(PIL) No.4700 of 2008 and WP (PIL) No.2252 of 2009, CBI vide order dated 04.08.2010 wherein direction was given to the CBI to take up investigation of Vigilance P.S. Case No.26/2008. The CBI after re-registering the case as R.C. No.04(A)/2010-AHD-R(B) submitted Charge-sheet no.02/12 dated 27.01.2012 was submitted under Section 109 IPC and 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 against all the accused persons. 5. As per the prosecution case, during check period from 10.3.2005 to 31.3.2009 Anosh Ekka had acquired assets worth Rs 57.01 Crore, disproportionate to his known sources of income against the pre-check assets of Rs 10,48,827/-. The property so acquired were invested in land as well as deposits in NSC s KVP etc and by floating a construction company in the name of M/s Ekka Construction Pvt. Ltd and got it registered in the Rural Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jharkhand from the year 2005 to 2008. It is alleged that during this period by misusing his official position as a public servant, he acquired huge movable and immovable properties either in his name or in the name of his family members, relatives and associates. 10. In nutshell, accused Anosh Ekka had acquired assets Rs.57.01 Crore disproportionate to his known sources of income against the pre-check asset of Rs.10,48,827/- during the check period 10.03.2005 to 31.03.2009. 11. Assets were acquired during the check period by Sri Anosh Ekka in his own name and in the names of his wife Smt. Menon Ekka, M/s Ekka Construction Pvt. Ltd., Sri Jaykant Bara (cousin of Smt. Menon Ekka and Director of M/s Ekka Construction Pvt. Ltd.), Deepak Lakra (Co-villager and Director of M/s Ekka Construction Pvt. Ltd.), Ibrahim Ekka (brother), Gidiyon Ekka (brother), Roshan Minz, nephew, M/s Motorist Inn Pvt. Ltd. (purchased in the names of Smt. Menon Ekka and Sri Jaykant Bara as directors), etc. After Sri Anosh Ekka became a minister, a company was floated in the name and style of M/s Ekka Construction Pvt. Ltd. Under directorship of Smt. Menon Ekka and Jaykant Bara. Later, Smt. Menon Ekka dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome tax returns. Sri Gidiyon Ekka s returns did not reflect sufficient income justifying purchase of the flat. 14. A Scorpio vehicle was purchased in the name of Sri Ibrahim Ekka and huge sum was paid for obtaining choice registration number for this vehicle. This apart, substantial land worth Rs. 13 lakh had been purchased in his name, in Simdega. The income tax returns of Sri Ibrahim Ekka did not justify these acquisitions and he could not show from which account he withdrew the amount equivalent to the cost price of the car. 15. Five NSCs, each for Rs. 1 lakh, were purchased by Sri Anosh Ekka in the name of Jaykant Bara, Subhashi Ekka, Menon Ekka, Gidiyon Ekka and Ibrahim Ekka on a single date i.e. 30.3.2007. Similarly, five KVPs, each for Rs. One lakh, were purchased by him in the name of Sandesh Ekka, Irin Ekka, Menon Ekka, Nisha Minz and Nishant Minz on a single date i.e. 19.7.2008. Smt. Menon Ekka happens to be the nominee in respect of NSCs purchased in the name of Jaykant Bara and her sister Raien Minz happens to be the nominee in respect of the KVP purchased in the names of Sandesh Ekka, Irin Ekka and Menon Ekka. 16. Huge investments were made by Sri Anosh Ekka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk of India, High Court, Doranda, Ranchi. 2,01,583/- FD Certificate No. 9445168 dt. 19.1.09 (FD A/c No. 495845110001035), Bank of India, High Court, Ranchi. 19.1.09 10,00,000/- Endeavour Ford Car No. JH01M0001 purchased from M/s Akash Travels Agency, Ranchi Club Complex, Ranchi. 20.6.06 5,00,000/- Endeavour BS III Car Reg. No. JH 01Z 0001 purchased from M/s Jayshree Ford, Ranchi. 24.1.09 17,49,000/- Motorcycle No. JH20A3007 purchased from M/s AUTO BIKES, 56, Main Road, Ranchi. 15.2.08 57,569/- In the name of Smt. Menon Ekka, wife Valuation report No. 229 dt. 8.8.2011 of Valuation Officer, Income Tax, Ranchi, regarding valuation of house in Hinoo, Doranda, Ranchi. 2006-09 1,80,20,000/- Time Deposit Passbook of A/c No. 150101502 in Doranda PO. 12.3.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from M/s Auto Plannate Indostry Pvt. Ltd., Dhanbad. 28.5.08 4,54,282/- Bolero Jeep No. JH01W8077 purchased from M/s Auto Plannate Indostry Pvt. Ltd., Dhanbad. 26.5.08 4,70,000/- 4 RIP certificates (A/c No. 4632/72, 4639/72, 4633/72, 4641/72) each of Rs. 50,000/- of United Bank of India, Kolebira Branch, Simdega. Dec 06 2,00,000/- Balance in Account No. 9190 in Bank of India, Khuntitoli, Simdega. 62,832/- Balance in Account No. 3089 in Jharkhand Gramin Bank, Balalong. 6,49,440/- Balance in PPF Account No. 11443968454 in SBI, Simdega. 55,094/- Balance in SB A/c No. 491010110000061 in Bank of India, Shyamali, Ranchi. 1,085/- Balance in SB A/c No. 495810110000896 of Bank of India, High Court, Doranda, Ranchi. 14,791/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., Adityapur, Jamshedpur 11.4.07 21,25,000/- Four Tipper vehicles purchased from M/s JMA Stores Pvt. Ltd. (Reg. No. JH 09H 6277, JH 05S 6277, JH 10N 6277, JH 11D 6277) Feb 07 35,95,044/- Hero Honda M. Cycle No. JH01Y3988 purchased from M/s Shyama Automobiles Pvt. Ltd., Ranchi 21.5.08 33,824/- Tractor No. JH01R9377 purchased from M/s Fogla Auto Pvt. Ltd., Ranchi 2.3.07 3,49,911/- Verna CRDi (Sx) Car Regd. No. JH 02L 0001 purchased from M/s Republic Hyundai, Line Tank Road, Ranchi. 10.3.08 8,07,867/- Balance in CD account No. 11443844053 at SBI, Simdega. 2,34,94,021/- Balance in current account No. 51991010000160 at Oriental Bank of Commerce, Doranda College, Ranchi. 7,51,149/- Certified copies of sale deeds of land purchased at Ormanjhi, Chutia, And Neori Vikas, Ranch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the name of Jaykant Bara (Director M/s Ekka Construction Pvt. Ltd.) Application for purchase of NSC Reg. No. 4987 from Simdega Post Office. 30.3.07 1,00,000/- TD Passbook of A/c No. 5413189 in Sub Post Office, HSG1, Simdega 8.1.07 2,79,000/- TD Passbook of A/c No. 5413190 in Sub Post Office, HSG1, Simdega 8.1.07 2,24,000/- TD Passbook of A/c No. 333053004 in Sub Post Office, HSG1, Simdega 29.8.08 2,00,000/- TD Passbook of A/c No. 130102402 in Doranda Post Office. 5.10.06 1,50,000/- TD Passbook of A/c No. 333053005 in Sub Post Office, HSG1, Simdega 29.8.08 2,26,000/- TD Passbook of A/c No. 333053006 in Sub Post Office, HSG1, Simdega 29.8.08 2,00,000/- TD Passbook of A/c No. 130102493 in D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional District Sub-Registrar, Rajganj, Jalpaiguri enclosing 23 numbers of certified copies of registered Sale Deeds 9.7.2008 to 2.12.2008 55,23,042/- Letter No. 237 dated 30.05.2011 of District Sub-Registrar, Jalpaiguri enclosing 11 numbers of certified copies of registered Sale Deeds 11.6.2008 to 17.10.2008 65,64,593/- 17 numbers of certified copies of registered Sale Deeds executed in 2008 (collected by Vigilance Bureau vide which plots were purchased in Jalpaiguri) (Deeds No. 2946, 2947, 2586, 2550, 2400, 2399, 2398, 2397, 2374, 2092, 2228, 2091, 2145, 2146, 2148, 2051, 2090) 13.6.2008 to 6.9.2008 55,44,434/- Balance in A/c No. 30404683609 in SBI, Town Branch, Jalpaigudi 28,20,258/- Balance in A/c No. CA 372899 in Allahabad Bank, Silliguri 1,19,546/- Total 15,93,59,416/- 18. The accused claimed income from many other sources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Order dated 28.7.2014 were nothing but the illegal income of Anosh Ekka. 25. Ibrahim Ekka and Giddiyon Ekka, brothers of Anosh Ekka had no taxable income before financial year 2005-06. However, income tax return filed for the financial year 2005-2006 of Ibrahim Ekka revealed total income to the extent of Rs 3,27,500/- and for 2006-2007 filed on 31.3.2009 showed gross total income of Rs 3,36,000/- were not sufficient to make investments as claimed by him, which were proceeds of crime earned by Anosh Ekka. Similarly, income of Ibrahim Ekka as revealed by the income tax return filed by him were not sufficient for the claimed investment made by him, which were in reality crime proceeds. 26. Roshan Minz, (sister s son of Anosh Ekka), Mrs Menon Ekka w/o of Anosh Ekka, Nishant Minz and Ms. Nisha Minz, (son and daughter of Smt Menon Ekka) had no valid income of their own. Property acquired in their name and attached u/s 5 (1) of the PMLA were nothing but the illegal income of Anosh Ekka. Thereby he had committed offence under Section 3 and 4 of the PMLA 2002. 27. Money earned by Anosh Ekka was derived from his activity committing offence under the provisions of Sections 406,40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,827/- 33. The Court held that the accused had projected his ill gotten money i.e. the proceeds of crime as untainted properties to the tune of Rs.22,38,40,247.92 and held the accused guilty for offence of money laundering for the charge under Section 4 of PMLA, 2002 which was also confiscated. APPELLANT S ARGUMENT 34. The judgment of conviction and sentence has been assailed mainly on the ground that the alleged incident relates to the check period from March, 2005 to March 2009, hence the proceeding shall be governed by the provisions of 2002 Act of the Prevention of Money Laundering Act, 2002 (PMLA) which came into force w.e.f. 01.07.2005. The subsequent amendments brought in the PMLA in the year 2009, 2013 will have no applicability for the adjudication of the present appeal. 35. Since the provisions of PMLA 2002 have punitive implications, therefore, it will have no retrospective application in view of the subsequent amendments made in the Act, and schedule, in the year 2009 which came into effect from 15.02.2013. 36. The main thrust of the appellant s case is that Section 13(2) read with Sections 13(1)(e) of the Prevention of Corruption Act, 1988 (PC Act) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crl) No(s) 4466/2017 c. 2014 SCC Online Hyd 1575 the judgment has attained finality after the dismissal of the special leave petition by the Supreme Court in SLP (criminal) d. M /s Ajanta Merchants Private Limited Versus Directorate Of Enforcement High Court of Delhi; CRL MC No. 5581/2014 the judgement has attained finality after dismissal of a special leave petition by the Supreme Court in CRL MP numbers 18478/2015. e. Ajay Kumar Gupta Vs. E.D. Madras High Court, in this case the check period was shown 01.05.1997 to 30.06.2005 and the offences involved were Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 against first petitioner and Section 109 of IPC read with Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988. In this case, the Madras High Court referred to the judgment of the Division Bench of Karnataka High Court in the case of M/s Obulapuram Mining Company Pvt. Ltd. Versus Directorate of Enforcement wherein it was held that the accused persons could not be prosecuted for the offences alleged, as they were not scheduled offences under PMLA Act. The offence under Prevention of Corruption Act with other o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. These ingredients are intrinsic in the original provision (Section 3, as amended until 2013 and were in force till 31.7.2019); and the same has been merely explained and clarified by way of Explanation vide Finance (No. 2) Act, 2019. Thus understood, inclusion of Clause (ii) in Explanation inserted in 2019 is of no consequence as it does not alter or enlarge the scope of Section 3 at all. 46. The Hon ble Supreme Court in this case upheld the view taken by this Court in the case of Hari Naryan Rai Vs State of Jharkhand 2010 SCC On Line Jhar 515 and Narendra Mohan Singh Vs Directorate of Enfocement 2014 SCC On Line Jhar 2861 as well as the view of Andhra Pradesh High Court in B. Ramaraju Vs UOI 2011 SCC On Line AP 152. Therefore, the fact as to whether at the time of commission of predicate offence, the same was included in the schedule or not, is immaterial and the material date is the date when the accused is found in possession or is found in any manner dealing with the proceeds of crime. 47. With respect to the second point raised on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er proceeds of crime in his possession which necessitated attachment of further properties worth Rs.3,97,71,361 and 3 rd confirmation order of attachment by the adjudicating authority was passed on 03.12.2014 (Exhibit 75/2). Thus, when the accused continued possessing proceeds of crime at least till 03.12.2014, he was liable to the punishment prescribed for the said offence as prevailing on 03.12.2014. As has been stated hereinabove, by way of amendment in the year 2013 to the Prevention of Money Laundering Act, 2002, the ceiling limit of Rs.5.00 Lakh on the fine was omitted and thereafter there remains no such ceiling limit. This apart, the final complaint i.e. the 3rd supplementary complaint was filed only on 31.03.2015 as has been stated hereinabove i.e. Exhibit 76 and therefore, the prosecution on the basis of the said complaint entitles the learned Court below to impose a fine as was imposable as on date of filing of such complaint and, therefore, the 4th argument of the appellant is also not having any leg to stand. ANALYSIS 50. Here documentary evidence in the nature of unimpeachable character has been led on behalf of the prosecution regarding acquisition of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded in the scheduled offence and steps were taken subsequently to project it as untainted, it cannot be said that it s retrospective in operation. What is being targeted by in Section 3 and other provisions of the Act, is the laundering of money acquired by committing of the scheduled crimes. It involves any process or activity by which the illicit money is being projected as untainted. 53. There are three general accepted stages of money-laundering, they are- a. Placement: which is to move the funds from direct association of the crimes. b. Layering: which is disguising the trail to foil pursuit. c. Integration: which is making the money available to the criminal for what seem to be legitimate sources. These processes are by their very nature continuing and after the predicate offence is committed, steps are taken to disguise the trail and legitimise the source. Legal dilemma, if any, has been cleared by Hon ble Supreme Court in Vijay Madan Lal Choudhary (supra) wherein it has been held that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity. It would be an offence of money laundering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rist Inn through Smt. Menon Ekka and Jai Kant Bara which was used to place the proceeds of crime in these companies. The appellant also purchased huge landed property, flats, vehicles, NSC, Fixed Deposits in his name and in the name of his relatives and associates to project the ill-gotten money as untainted property which were acquired and were found in possession of the appellant after 01.06.2009. Therefore, the argument on behalf of the appellant that the offence under PMLA was not made out is rejected. 56. The second limb of argument pressed into service on behalf of appellant, is the absence of any charge sheet with respect to the scheduled offences, the instant investigation and subsequent complaint, could not have been filed. This issue has been answered by Hon ble Supreme Court in Vijay Madan Lal Choudhary (supra) at para 269 wherein it has been held that the offence of money laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to the scheduled offence. The triggering factor to prosecute any person for offence of money laun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint was filed on 09.03.2011 (Exhibit 33/1) and on completion of investigation, the second supplementary complaint was filed on 31.03.2015 (Exhibit 76). During this period, the accused remained in possession and enjoyed the property till its attachment. Thus, the integration of proceed of crime which is one of the ingredients of the offence, continued and therefore, this Court is of the view that the sentence of fine of Trial Court was not hit by the principles of retrospectivity. 59. The three ingredients of the offence under Section 3 read with Section 4 of PMLA are: I. A criminal activity which is a scheduled offence, should have been committed. II. Some money should have been generated by the criminal activity; III. The money so generated (proceed of the crime) should have been projected as untainted one. In the present case the prosecution has proved all the three basic ingredients of the offence. I do not find any infirmity in the impugned Judgment of conviction by the trial Court. Judgment of conviction under predicate offence is also affirmed in Criminal Appeal no.326/,327/ and 328/ pending before this Court and pronounced by a separate Judgment toda ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
