TMI Blog2023 (12) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India - the question whether the petitioner has indulged in dealing with the proceeds of the crime (scheduled offence) is factual and is a matter for trial. Whether the prosecuting the petitioner for an offence under Section 3 of the PMLA would amount to double jeopardy? - HELD THAT:- The offence under Section 13(1)(e) PC Act, which is possession of disproportionate assets, can arise even if a public servant spends the entire money derived illegally while holding office as a public servant. However, the ingredients of the offence under Section 3 of the PMLA are different - The ingredients of Section 3 of PMLA would indicate that the offence under Section 3 of PMLA has nothing to do with the criminal activity / commission of a scheduled offence. If a person indulges or continues to indulge in dealing with proceeds of crime, he is liable to be prosecuted under the PMLA. Even in the case of holding disproportionate assets punishable under Section 13(1)(e) of the PC Act, if the offender continues to possess or conceal the proceeds of crime, after the check period, the offence of money laundering is made out. Therefore, the two offences are distinct and different and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aundering Act (hereinafter referred to as 'PMLA'). 5. (i) The allegation in the complaint against the petitioner, as extracted in the order passed by the learned trial Judge, is that the petitioner was working as a Superintending Engineer in PWD (Pondicherry); that he was charged for the offence under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act (hereinafter referred to as 'PC Act'), for possessing disproportionate assets to the tune of Rs. 3,75,30,221.11p during the check period from 01.01.1997 to 07.01.2006; that he was tried in Spl.C.C.No.1 of 2008 for the said offence and found guilty of possessing disproportionate assets to the tune of Rs. 1,74,36,839/-; that since the petitioner by committing the said crime had amassed wealth to the tune of Rs. 1,74,36,839/- and projected and claimed the same as untainted property, he is liable to be prosecuted for the offence under Section 3 of PMLA. (ii) The petitioner filed the discharge petition before the trial Court in Crl.M.P.No.3172 of 2022 stating that the offence under Section 13(1)(e) of PC Act, became a scheduled offence only in the year 2009 and therefore, even if he had accumulated wealth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 Cr.P.C., is liable to be quashed on two main grounds. (a) the respondent had not filed any complaint before the learned trial Judge, as could be seen from the endorsement in the copy application made by him before the trial Court in which, the Registry of the trial Court has stated that the complainant has not filed any complaint. However, the learned counsel submitted that the petitioner came to know subsequently that a complaint has been filed and therefore, he is not pressing this point. (b) the learned counsel further strenuously argued that the Special Court had not conducted the mandatory inquiry under Section 202 (2) Cr.P.C., before issuing the summons and relied upon the judgment of the Hon'ble Supreme Court in Anil Kumar and others Vs. M.K.Aiyappa and another, reported in 2013 (10) SCC 705 , besides the judgment in Rosy and another vs. State of Kerala, reported in 2000 (2) SCC 230 . 7. Heard Mr.N.Ramesh, learned Special Public Prosecutor, who took notice on behalf of the respondent-Enforcement Directorate Criminal Revision Case: 8. As stated earlier, the point raised by the petitioner has been answered by the Hon'ble Supreme Court in Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 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. Therefore, the question whether the petitioner has indulged in dealing with the proceeds of the crime (scheduled offence) is factual and is a matter for trial. 9. (i) The second submission of the learned counsel for the petitioner was that prosecuting the petitioner for an offence under Section 3 of the PMLA would amount to double jeopardy. As regards the said point, we are unable to agree with the submissions made by the learned counsel. The offence under Section 13(1)(e) PC Act, which is possession of disproportionate assets, can arise even if a public servant spends the entire money derived illegally while holding office as a public servant. However, the ingredients of the offence under Section 3 of the PMLA are different. Section 3 of the PMLA reads as follows: 3. Offence of money-laundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansactions Act, 1988. The Hon'ble Supreme Court observed as follows: 17.3. Having arrived at the aforesaid conclusions that Sections 3 and 5 were unconstitutional under the 1988 Act, it would mean that the 2016 amendments were, in effect, creating new provisions and new offences. Therefore, there was no question of retroactive application of the 2016 Act. As for the offence under Section 3(1) for those transactions that were entered into between 05.09.1988 to 25.10.2016, the law cannot retroactively invigorate a stillborn criminal offence, as established above. .. 18.1.(a)... .. (e). Concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 25.10.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed. The facts in that case cannot be compared with the facts in the instant case. Therefore, it cannot be said that there are conflicting views of the Hon'ble Supreme Court on this point. 12. Hence, both the reasons cited by the learned counsel for the petitioner for iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Court of Session. Explanation. For the removal of doubts, it is clarified that, (i) the jurisdiction of the Special Court while dealing with the offence under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial; (ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not. (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section includes also a reference to a Special Court designated under section 43. 14. The Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usually supported by the statement of witnesses and the documents relied upon by them. Their complaint cannot be equated with any other private complaint, which is only information about a crime. 16. Be that as it may, the proviso to Section 202 (2) Cr.P.C., provides for the examination of the complainant and the witnesses by the Magistrate, if the offence complained of is exclusively triable by Sessions Court. Section 202 (2) Cr.P.C., reads as follows: In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 17. The above provision would be applicable only if the Court taking cognizance and the Court trying the offence, are different, i.e., if the cognizance is taken by the Magistrate and the offence is triable by the Sessions Court. However, Section 44 of PMLA is an exception to Section 190 of Cr.P.C., which provides for cognizance only by the Magistrate. Section 193 of Cr.P.C., provides that the Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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