TMI Blog2023 (7) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... an fairly be termed as proceeds of crime. Section 3 of the PMLA Act, 2002 practically brings within the ambit of money laundering any activity or process connected to an act of money laundering. A person can be hauled up for money laundering if he either directly or indirectly attempts to indulge in or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime. So far as the present petitioner is concerned, she could come within its swipe, if not for directly or indirectly attempting to indulge, at least for knowingly assisting or knowingly being a party or for actually getting involved in a process or activity connected to the proceeds of crime - The explanation to Section 3 of the said Act sets out the process or activities connected with the proceeds of crime that could attract the offence of money laundering, their concealment or possession or acquisition or use or projecting as untainted property or claiming as untainted property. In the present context, the petitioner could be held responsible for any of the above referred processes or activities. Thus, it cannot be said that no prima facie case is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Oriental Bank of Commerce dated 23.05.2006 and 09.06.2006, respectively. It was alleged in the said letters of complaint that one Mr. Gopinath Das, the proprietor of M/s Hindustan International had allegedly entered into a criminal conspiracy with some persons and in furtherance to the said conspiracy had prepared forged and fabricated documents were then submitted to the banks as a result of which a sum of Rs. 12,28,22,463/- was allegedly misappropriated from the State Bank of India and a sum of Rs. 6.76 crore was allegedly misappropriated from the Oriental Bank of Commerce. Subsequently, on the basis of the letters of complaint as above referred, a case was registered by the CBI, an investigation was carried out and ultimately a charge-sheet was filed before the learned Judge, 3rd Special (CBI) Court, Calcutta against certain persons named therein. It would be pertinent to note that the present petitioner was not named in the letter of complaint, the formal FIR, nor in the charge-sheet. The Enforcement Directorate subsequently carried out a preliminary inquiry into the business affairs of the said M/s Hindustan International. It transpired that there was an agreement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of their arguments before this Hon ble Court also produced a document being an alleged money receipt which was issued in favour of the petitioner by her husband Mr. Subrata Ghosh. The said receipt indicated that the husband of the petitioner Mr. Subrata Ghosh had received a sum of Rs. 6,51,000/- in cash, from the petitioner. It was contended by the prosecution that such receipt would indicate that the petitioner was somehow connected with any tainted money. This was for the purpose of causing prejudice to the applicant and nothing else. The petitioner had been arraigned as an accused in this case on the basis of presumption only, which had no place in the eye of law. Three judgments were relied on by the prosecution. In the case of P. Chidambaram versus Directorate of Enforcement, 2019 (9) SCC 24, Section 26 of the Indian Penal Code was dealt with in absence of a specific definition of reason to believe in the PML Act. This judgment supported the case of the defence and not the case of the prosecution. This case was related to a bail application and is not applicable in connection with this case. So far as the other two decisions were concerned, i.e., The Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the above, reliance was placed upon the statement of the current account held by Subrata Ghosh which had various transaction and which in the absence of appropriate narration could not be collated and was treated as coming squarely within the purview of Section 3. The provisional attachment confirmation order dated 23rd September, 2009, clearly mentioned that with regard to the property in question, no evidence was produced by the petitioner herein to show that the source of the money used to buy the property was anything other than laundered money originating from Gopi Nath Das that flowed into the account of Subrata Ghosh, who was the husband of the petitioner. Also there was a finding in the aforesaid provisional attachment confirmation order that even though the petitioner had taken a loan purportedly to finance the flat in question, there was no evidence that the petitioner actually paid that amount to the seller or to her husband Subrata Ghosh for payment to the seller. It was an admitted fact on behalf of Subrata Ghosh vide the statement in page 283 of the RUD that he transferred shares in Dheklapara Tea Estate held by him and his family members to Gopi Nath Das for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld within the country] [or abroad]; [ Explanation . For the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;] Section 3. Offence of money-laundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. [ Explanation . For the removal of doubts, it is hereby clarified that, - (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely: - (a) concealment; or (b) possession; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the bare facts prima facie constituting an offence may have to be culled out from the entire factual matrix. First, the present petitioner although claiming to be a home maker and an unsuspecting wife of the accused who had allegedly received the tainted money from the prime offender in the scheduled offence, was nevertheless a prime shareholder in the sham company along with her husband and other relatives. It was the fraudulent transfer of shares in this company that started the process by which money was illegally laundered. Thereafter, the present petitioner was absent from the picture for the immediately succeeding sequence of events. She comes in again when a part of the tainted money parked in her husband s account was used as consideration for purchasing a property in their joint names. 11. In view of the above facts, it cannot be said that no prima facie case is made out against the petitioner, more particularly in the peculiar circumstance that not only was the tainted money used for purchasing a property in the joint names of the petitioner and the husband, but the petitioner had also been a shareholder in the company the transfer of whose shares was itself a subje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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