TMI Blog2023 (4) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... registered under PMLA is independent, distinct and stand alone. Even if the predicate/scheduled offences are compromised, compounded, quashed or even in case the accused is acquitted, it does not affect proceedings under PMLA. The offence under the 2002, Act deals only with laundering of money acquired by committing a scheduled offence. Except that it starts with an offence of possessing, concealing, using, converting or projecting proceeds of a scheduled crime as untainted money, it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof and once a case is registered under PMLA, it is an independent offence. In the present case, the husband of petitioner no. 2 has been prosecuted for amassing disproportionate assets. He had been prosecuted for that offence under Section 13(2) r/w 13(1)(e) of the PC Act. It is alleged that she knowingly assisted in activities connected with the proceeds of scheduled crime committed by her husband. She assisted her husband by concealment, possession, use etc. of tainted money and also by claiming it as untainted property and thus, abetted the offence punishable under section 13(1)(e) r/w 13(2) of the PC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 registered by Lokayukt Police, Bhopal nor was she charged, prosecuted, convicted or sentenced for any other Scheduled Offence , which is sine qua non to constitute the offence defined under Section 3 of the Prevention of Money Laundering Act, 2002 (for short PMLA ), therefore, the offence as defined under Section 3 of PMLA is not made out against her and her prosecution is an abuse of the process of law and deserves to be quashed. 4 . The brief facts of the case sought to be asserted by the Directorate of Enforcement against the petitioner are to the effect that: (i) Petitioner No.2 Smt. Seema Gurjar is the wife of petitioner No.1 Harishankar Gurjar. During the check period from 01.01.1988 to 14.07.2009, the petitioner no.1 had remained posted as Range Officer in the Department of Forest, Govt. of Madhya Pradesh. (ii) While working as a public servant in the aforesaid official capacity, during the check period, Petitioner No.1 Harishankar amassed pecuniary resources and property highly disproportionate to his known sources of income. On 14.07.2009, upon the corresponding information, the then Lok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India 2022 SCC OnLine SC 929 , which reads as under: 187.(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or anyone claiming such property being the property linked to stated scheduled offence through him. 8 . On the other hand, the learned counsel appearing on behalf of respondent No.1, while taking this Court through several factual aspects involved in the matter, vehemently contended that though commission of scheduled offence is a fundamental pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsels for the respective parties with regard to the factual matrix of the matter. The core contention raised on behalf of petitioner No. 2 is that since the offence under Section 109 of IPC is not included in the list of scheduled offences under the PMLA, prosecution of petitioner No.2 under the provisions of PMLA is not sustainable, and therefore, registration of the subject ECIR (Enforcement Case Information Report), which is based on the scheduled offences, is unsustainable and continuation of proceedings based on such ECIR against her amounts to abuse of process of law. For this reason, the subject ECIR registered against petitioner No. 2 as well as her prosecution into the same are liable to be quashed. 14 . Section 3 of PMLA states inter alia that whoever knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use shall be guilty of offence of money-laundering. For the sake of convenience, Section 2 (u), which defines proceeds of crime , Section 2 (y) which defines scheduled offence and Section 3 of the PMLA, which defines money launde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y person to do that thing; or (Secondly) Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration : A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. Section 109 The Indian Penal Code: 109. Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heduled crime and not the person is relevant to find out as to whether any offence of laundering money has been committed or not. Therefore, the accessories to the main accused, even if they are not named in the FIR of the scheduled offence, can also be held liable equally for the offence of money laundering, as stated in Section 3 of PMLA if they are involved in any of the process mentioned in the Act with regard to the proceeds of crime . In the case on hand, along with her husband, who has been held guilty of committing a scheduled offence i.e. criminal misconduct by a public servant of amassing disproportionate property to his known sources of income and has been awarded 4 years RI with fine of Rs. one crore under Section 13(2) r/w S. 13 (1) (e) of the Prevention of Corruption Act, 1988, Petitioner No.2 has also been convicted under Section 109 of IPC for abetting that offence by knowingly possessing, concealing, using, assisting, facilitating and projecting or claiming the proceeds of crime as untainted property and has been awarded punishment for three years R.I. with fine of Rs. 25,000/- vide judgment dated 05.03.2023 passed by Special Judge, Khandwa in Special Case No.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arts with an offence of possessing, concealing, using, converting or projecting proceeds of a scheduled crime as untainted money, it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof and once a case is registered under PMLA, it is an independent offence. Conviction for a scheduled offence is not a prerequisite for prosecution under the PMLA. Since there is plenty of evidence to prima facie show involvement of petitioner No. 2 in assisting her husband to conceal, convert or to project proceeds of a scheduled crime as assets earned or acquired through valid and legal means. In this case, there is even more evidence to show her indulgence in the crime. Her husband has been convicted for a scheduled offence in the same trial and she herself has been convicted for abetment of such offence. When there is a conviction for a scheduled offence, no doubt remains that there exist prima facie case to prosecute her under Section 3 of the PMLA which is punishable under Section 4 thereof. 19 . It is true that there is no mention of any scheduled offence in the conviction order of petitioner No. 2 and she has been awarded punishment only under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments showing the modus operandi, the money trail, as well as possession, use, concealment and involvement of the petitioner in projecting the tainted money into untainted are available on record which is prima facie sufficient to provide material to frame the charge. 22 . It would also be apposite to mention here that charge framed by the Trial Court reflects that in ST No. 04/2010, the charge under Section 109 r/w Section 13(2) r/w 13(1)(e) PC Act was framed. This has not been disputed by the petitioner before this Court. If that be so, non-mention of the charge in the same form in the final judgement appears only to be a bonafide mistake. Even if it is assumed that no charge was framed in such form, it does not make any difference as it is not the contention of the petitioner that she ever raised any objection in this regard during about 10 years long period of trial. Keeping in view the provision of Section 215, 464 465 Cr.P.C. we do not find any substance in the submission that petitioner No.2 was not prosecuted for the offence punishable under the PC Act. 23 . The ld. Sr. counsel for the petitioner referred to para 31 33 of Vijay Madanlal Choudhary (supra) , an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of Money-Laundering (Amendment) Act, 2012 (2 of 2013) and being a penal statute, it can have no retrospective or retroactive operation, the prosecution of the petitioner is not valid in law. He further submitted that any penal action for alleged offences committed prior to the enactment and operation of law violates Article 20(1) of the Constitution of India. In support of his submissions, he has placed reliance upon several decisions of Supreme Court viz. Kalpnath Rai v. State, (1997) 8 SCC 732 [para 33 and 34], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 [para 8] and Chirag Harendrakumar Parikh v. State of Gujarat 2016 SCC OnLine Guj 1635 . 27 . So far as this plea of the petitioner is concerned, suffice it to refer paragraph 43 of the verdict of the Hon ble Supreme Court rendered in Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929 (supra) , wherein the issue of retrospectivity is settled observing to the effect: 43. Needless to mention that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity (a scheduled offence). It would be an offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full knowledge that her husband i.e. petitioner No.1 by misutilizing his official position as Ranger in the Forest Department earned income disproportionate to his known source of income which he could not satisfactorily account for, the disproportionate assets so earned have been utilized by him for acquiring properties in his own name and also in the name of petitioner No.2, she claimed that money to be earned by her business of beauty parlor and handicraft and attempted in this way to prove the ill-gotten money of her husband as a legal income and thus, knowingly assisted her husband in the activity connected with the proceeds of crime by projecting the properties so earned as untainted property. Recently, by interpreting and in Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) as or , it has been held by the Supreme Court that mere possession or concealment of the proceeds of the crime is sufficient for the offence of money laundering and that it need not be projected as an untainted property. There is ample evidence to prima facie show that petitioner No.2 was in possession of proceeds of crime committed by her husband and she also tried to conceal such mone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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