2023 (1) TMI 1050 - HC - Money Laundering

Conviction upheld under PMLA for money laundering, appellant sentenced to 7 years imprisonment, Rs. 2 Crores fine, properties confiscated.

Anosh Ekka Versus The Directorate of Enforcement

Anosh Ekka Versus The Directorate of Enforcement - TMI Issues Involved:1. Conviction and sentence under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA).2. Applicability of amendments in PMLA.3. Requirement of charge-sheet for scheduled offences.4. Necessity of attachment order for prosecution under PMLA.5. Imposition of fine exceeding statutory limit.6. Concurrent sentencing under Section 427 of Cr.P.C.Issue-wise Detailed Analysis:1. Conviction and Sentence under Section 4 of PMLA:The appellant was convicted under Section 4 of PMLA and sentenced to seven years of rigorous imprisonment and a fine of Rs. 2 Crores. The trial court also ordered the confiscation of tainted properties worth Rs. 22,38,40,247.92. The prosecution established that the appellant acquired assets worth Rs. 57.01 Crores, disproportionate to his known sources of income, during his tenure as a minister from 2005 to 2008. These assets were invested in various properties, deposits, and a construction company to project the proceeds of crime as untainted income.2. Applicability of Amendments in PMLA:The appellant argued that the amendments to PMLA in 2009 and 2013 should not apply retrospectively. The court held that the offence of money laundering is a continuing offence, irrespective of when the predicate offence was committed. The relevant date is when the accused indulges in activities connected with the proceeds of crime. The Supreme Court in Vijay Madan Lal Choudhary v. Union of India affirmed that the inclusion of a predicate offence in the schedule after its commission does not preclude prosecution under PMLA.3. Requirement of Charge-sheet for Scheduled Offences:The appellant contended that the absence of a charge-sheet for the scheduled offences invalidated the PMLA proceedings. The court rejected this argument, stating that PMLA does not require a charge-sheet for initiating prosecution. The existence of 'proceeds of crime' and involvement in related activities are sufficient for prosecution under PMLA.4. Necessity of Attachment Order for Prosecution under PMLA:The appellant argued that prosecution under PMLA was invalid without an attachment order. The court clarified that attachment is not a precondition for investigation or prosecution under PMLA. Provisional attachment can be made if there is a reason to believe that the person in possession of proceeds of crime may conceal or transfer the property.5. Imposition of Fine Exceeding Statutory Limit:The appellant challenged the fine of Rs. 2 Crores, arguing that the maximum fine under Section 4 of PMLA was Rs. 5 Lakhs at the time of the offence. The court held that the offence of money laundering is continuing, and the fine applicable at the time of prosecution (post-amendment) is relevant. The appellant continued to hold proceeds of crime until December 2014, justifying the higher fine.6. Concurrent Sentencing under Section 427 of Cr.P.C.:The appellant sought concurrent sentencing for offences under PMLA and the Prevention of Corruption Act. The court rejected this plea, stating that the offences are distinct and do not warrant concurrent sentencing. The court emphasized the gravity of the offence and the appellant's position of responsibility, justifying the separate sentences.Conclusion:The court upheld the conviction and sentence under Section 4 of PMLA, including the fine and confiscation of properties. The appeal was dismissed, affirming the trial court's judgment. The court emphasized the continuing nature of the offence and the appellant's misuse of his official position to acquire disproportionate assets.