TMI Blog2024 (4) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the complainant had proceeded on a presumption that the crime investigated by CBI had generated proceeds of crime and further leading to acquisition of property. Without placing material evidence, either about the crime or about the proceeds from that crime, the complainant cannot succeed. That is the reason why, the trial Court has specifically pointed out that without proving the fundamental fact, which is necessary to invoke the provisions of the PMLA, the complainant cannot succeed. This Court totally agrees with this view. It is also found that the appellant / complainant had not made any attempt to invoke Section 44(1) of the PMLA as explained under the Statute. Since the predicate offence has also been pending in the same Court, the appellant / complainant ought to have asked for simultaneous trial in both the cases to avoid conflicting verdict and to avoid omission in marshalling evidence. For the reasons best known, they had allowed the PMLA case to proceed first and while doing so, also failed to place all the material documents though available to substantiate the fundamental requirement to proceed under the PMLA. This Court is of the view that the criminal appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties derived or obtained from the above said offence being the proceeds of crime as per Section 2 (u) of the PMLA. The Enforcement Directorate having information that using the proceeds in the above crime, the third accused through the fourth accused had attempted to be converted the tainted property into untainted property, the Enforcement Directorate registered ECIR.No.23 of 2011 and proceeded with investigation. After recording the statement of witnesses, the appellant laid complaint against the respondents 1 to 4 for offences under Sections 3, 4 and 8(5) of the PMLA. 2.4 . Simultaneously, the Enforcement Directorate also initiated adjudicating proceedings against third and fourth respondents for attachment of the property purchased from the proceeds of the crime, which is the subject matter of the predicated offence pending in C.C.No.6 of 2010. The adjudicating authority, vide order dated 26.02.2013, confirmed the provisional attachment of the property made by the complainant, vide provisional Attachment Order No.11 of 2012, dated 05.10.2012, on condition that the same shall continue during the pendency of the proceedings relating to any offence under this Act before the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feiture of property acquired through wrongful gain, the premature prosecution under the PMLA is not sustainable. Further, it has also held that the prosecution case has been disproved through the defence evidence. 3 . The grounds of appeal :- (i) The appellant had extensively listed reasons why the order of the trial Court is not sustainable in the eye of law. Citing decisions of the High Courts and the Hon'ble Supreme Court, besides the provisions of the law, the learned counsel appearing for the appellant submitted that the proceedings under the PMLA is independent of the proceedings under the schedule offence. The statements recorded under Section 50(2) and (3) of the PMLA is not recorded by Police, but by the Revenue Officials. Hence, it is admissible in evidence. Those statements are not hit by Article 20(3) of the Indian Constitution as per the decision of the Hon'ble Supreme Court in State of Bombay vs. Kathi Kalu Oghad and others reported in AIR 1961 SC 1808 . The Hon'ble Supreme Court in Rohit Tandon vs. Enforcement Directorate reported in ( 2018) 11 SCC 46 in respect of the PMLA, had held that statement recorded under Section 50 of the PMLA is admissible in ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re gainfully employed as Headmaster and Headmistress respectively. On superannuation, they got the retirement benefits and from out of the retirement benefits, they purchased the attached property. 6 . The PMLA, which is primarily after the proceeds of crime, the said Statute will not apply to the facts of the present case, when the respondents were able to demonstrate that the property, which is alleged to have been purchased by proceeds of crime was not so, but was purchased from the retirement benefits and savings of the respondents. Considering the evidence relied by the respondents which positively shows that they had enough source to purchase the property, the finding that the properties were purchased from their own legal proceeds has to be accepted. 7 . Heard the learned counsel on either side and perused the records. 8. This Court is conscious of the fact that an appeal against acquittal cannot be interfered unless and until the reasoning given by the trial Court suffers serious legal infirmity or factual error. If the views expressed are reasonably possible, even if another view is possible, the appellate Court need not interfere. It is well settled principle of law that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2020 SCC OnLine SC 882] , the Hon'ble Supreme Court has held that the statements recorded by authorities under the PMLA, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by the vice of Article 20(3) of the Constitution or for that matter, Article 21 being procedure established by law. In a given case, whether the protection given to the accused who is being prosecuted for the offence of money-laundering, or Section 25 of the Evidence Act is available or not, may have to be considered on case-to-case basis being rule of evidence . [Emphasis supplied] 11 . In spite of these two errors, on facts as well as on law mentioned supra, this Court does not find any perversity or illegality to interfere with the finding of the Court below for the following reasons:- (i) PMLA is an independent sui generis Act. Except registration of case for an offence, which is enumerated in the schedule to PMLA, there need not be any further reference or dependency on the schedule offence case for the PMLA case to proceed. This legal position has also been clarified by the Hon'ble Supreme Court in Vijay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata containing statement of account [Ex.P30] without proper affidavit under Section 65-B of the Indian Evidence Act also makes the case of the appellant/complainant become weak. 15 . We find from the judgment of the trial Court, in the predicate offence that the prosecution agency namely, the CBI in C.C.No.6 of 2010, had taken all pains to establish the fact of manipulating the computer data by the accused persons in furtherance of the conspiracy hatched between them. This element of evidence is conspicuously absent in the case launched by the Directorate of Enforcement under the PMLA. 16 . We also find that the appellant / complainant had not made any attempt to invoke Section 44(1) of the PMLA as explained under the Statute. Since the predicate offence has also been pending in the same Court, the appellant / complainant ought to have asked for simultaneous trial in both the cases to avoid conflicting verdict and to avoid omission in marshalling evidence. For the reasons best known, they had allowed the PMLA case to proceed first and while doing so, also failed to place all the material documents though available to substantiate the fundamental requirement to proceed under the PML ..... X X X X Extracts X X X X X X X X Extracts X X X X
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