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TMI Blog2023 (3) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ives notice on behalf of the respondent No.1 - ED and the learned A.P.P waives notice on behalf of the respondent No.2-State in both the petitions. 3. By these petitions, preferred under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, the petitioner in both the petitions seek identical substantive relief, which reads thus; "18. .... .... .... .... (a) issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, 1950, calling the records of the Respondent No.1 pertaining to the ECIR/MBZO-II/01/2020 dated 20.02.2020 ("Impugned ECIR") (Exhibit A) and quash and / or set aside the ECIR/MBZO-II/01/2020 dated 20.02.2020 ("Impugned ECIR") (Exhibit A), the investigation carried thereunder and all proceedings and actions emanating therefrom against the Petitioner, as being illegal and contrary to law." 4. Learned senior counsel for the petitioner in both the petitions submit that the ECIR registered by the respondent No.1 - The Directorate of Enforcement ("ED") does not survive, inasmuch as, there is no scheduled offence, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the aforesaid FIR, the respondent No.1 - ED registered ECIR/MBZO-II/01/2020 under Sections 3 and 4 of the Prevention of Money Laundering Act (PMLA), (as the aforesaid offences specified in the FIR were scheduled offences under paragraph 1 of Part A of the Schedule to PMLA), against Jet Airways and the petitioner in both the petitions. Admittedly on 9th March 2020, a closure report was filed by the police of the MRA Marg Police Station, Mumbai in the trial Court. It was recorded in the closure report that the dispute was civil in nature; that the matter concerned, dues payabe to Akbar Travels by Jet Airways, and, that the claim in respect thereof, had already been filed by Akbar Travels with the resolution professional of Jet Airways in the insolvency proceedings initiated under the provisions of Insolvency and Bankruptcy Code, 2016. On 15th June 2020, the respondent No.1 - ED filed an Intervention Application as well as a Protest Petition challenging the closure report filed by the police, in the trial Court. The original complainant i.e. Akbar Travels also filed a separate protest petition on 16th June 2020, challenging the said closure report. The trial Court rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inality. As noted earlier, the said order dated 22nd December 2020 was challenged before the Sessions Court, however, the Sessions Court vide order dated 6th August 2021 confirmed the order passed by the trial Court and as such dismissed the Criminal Revision Application filed by the original complainant. Again, as noted above, there is no challenge to the said order. Thus, the FIR registered as against the petitioner in both the petitions, stands closed, in view of the order passed by the trial Court accepting the closure report, filed by the police and dismissal of the protest petition filed by the original complainant, and with the Sessions Court confirming the said order. The fact, that the said order has attained finality is not in dispute. 8. Admittedly, the respondent No.1 - ED had registered the ECIR in question, pursuant to the registration of an FIR i.e. scheduled offence/predicate offence, which predicate offence now stands closed. 9. It is well settled by a catena of judgments including the latest judgment of the Apex Court in Vijay Madanlal Choudhary and Others v/s Union of India and Others 2022 SCC OnLine SC 929, that only if there is a predicate offence, that an EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior counsel for the petitioner in both the petitions showed a copy of the order passed by the Apex Court in the case of M/s. Obulapuram Mining Company Pvt. Ltd. (supra). In the said case, the learned Solicitor General appearing for the appellant - ED made a statement that since the proceedings before the Court (Apex Court) arose from an order of attachment and there is acquittal in respect of the predicate offence, the ED proceeding really would not survive. 12. The ratio in Vijay Madanlal Choudhary (Supra), has been relied upon by the another Bench of the Apex Court in Parvathi Kollur and Another v/s State by Directorate of Enforcement Cri. Appeal No.1254/2022 (Arising out of S.L.P. (Cri.) No.4258/2021) decided on 16.08.2022, In the said case, the Apex Court in paras 7 to 9 has observed as under:- "7. Learned counsel for the appellants has contended that the issue as involved in this matter is no more res integra, particularly for the view taken by a 3-Judge Bench of this Court in the case of Vijay Madanlal Choudhary & Ors. vs. Union Of India & Ors. decided on 27.07.2022 where, the consequence of failure of prosecution for the scheduled offence has been clearly provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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