AI Drafter 
TaxTMI 
TaxTMI 
2012 (7) TMI 1031
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...., have been registered on the file of E3-Minjur Police Station, Chennai against the petitioners alleging that they have committed the offences under Sections 406, 419, 420, 447, 294(b), 465, 468, 471 and 506(ii) I.P.C., 4. The above said first information reports have been forwarded to the concerned Magistrate under Section 157 Cr.P.C., by the Station House Officer attached to E3-Minjur Police Station, Chennai to the effect that the petitioners viz., Mrs.M.Saraswathi and Mr.R.Devadoss have contravened the provisions of Section 419, 420 and 471 I.P.C., for having committed the offence of impersonation, cheating and fabrication/forgery of documents pertaining to the lands of the complainant in the above mentioned criminal cases. 5. It is also manifested that the offences committed by the petitioners are the scheduled offences as defined under Section 2(y) of the Prevention of Money-Laundering Act, 2002 (herein after it may be referred to as 'P.M.L.A.,'). 6. The petitioners were making arrangements to transfer 51 numbers of immovable properties specified in the Annexure-I of the Provisional Attachment Order in favour of third parties, which were purchased by the secon....
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.... to the first petitioner Mrs.M.Saraswathi, Director of M/s.D.R.Logistics Pvt., Ltd., and to settle the bank dues. 13. He has also added that a prospective purchaser was found and necessary sale deeds were prepared for the sale of certain properties at Vallur and Edaiyanchavady Village. When the sale deeds were presented before the Sub-Registrar Office at Thiruvotriur, for registration, the Sub-registrar had refused to register the sale deeds stating that the properties, which were the subject matter of the sale, had been attached by the Enforcement Directorate exercising powers under P.M.L.A., 2002. 14. In this regard, Mr.K.S.Viswanathan, learned counsel, has submitted that no notice of such attachment was received by the petitioners or their family members. He has also added that after getting information from the second respondent, through the Right to Information Act, 2002, the petitioners were put to understand that the Enforcement Directorate had initiated investigation against the petitioners under P.M.L.A., 2002 and that the Sub-Registrar of Thiruvotriur was requested not to entertain the registration of the properties 51 in numbers purchased by the petitioners and the....
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....raph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words 'which may extend to seven years', the words 'which may extend to ten years' had been substituted." 20. Mr.K.S.Viswanathan, learned counsel has mainly based his arguments on the following three grounds: i. The petitioners were not even served with notices prior to the making of Provisional Attachment Order in respect of 51 numbers of immovable properties specified in the Annexure. ii. P.M.L.A., 2002 is having only prospective effect and not having retrospective effect and therefore P.M.L.A., 2002 cannot be made applicable to the offences relating to the year 1999-2000. iii. No such order of attachment shall be made unless, in relation to the scheduled offences, a report has been forwarded to a Magistrate under Section 173 Cr.P.C., as the report under Section 173 Cr.P.C., to a Magistrate is one of prerequisite conditions for effecting the provisional attachment in respect of the immovable property as contemplated under the first proviso to Section 5(1) of P.M.L.A., 2002. Ground No. I: 21. Mr.K.S.Viswanathan, learned counsel, has c....
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....erequisite for attaching the proceeds of crime provisionally without issuing notice prior to the attachment. They are: i. The Director, or any other officer, who provisionally attaches any property, shall have reasons to believe on the basis of materials in his possession; ii. The person, against whom proceedings under P.M.L.A., 2002 has been initiated, must be in possession of any proceeds of crime; iii. Such person must be charged of having committed any scheduled offence; iv. Such proceeds of crime are likely to be concealed, transferred or dealt with in any manner; and v. If the provisional attachment is not ordered immediately such concealment or transfer of such proceeds of crime may result in frustrating the proceedings relating to confiscation of such proceeds of crime. 25. Clause (c) to Sub-Section 1 to Section 5 of P.M.L.A., is very clear that, if the proceeds of crime are likely to be concealed, transferred or dealt with in any manner, which may end in frustrating any proceedings relating to confiscation of such proceedings of crime, the Director, or any other officer not below the rank of Deputy Director authorised by him,....
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....nge or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which an accused is prosecuted. 33. He has also added that unless P.M.L.A., clearly specifies that the legislation is retrospective or retro active in operation, it cannot cover cases that occurred long before the Act came into force. 34. Mr.K.S.Viswanathan, learned counsel, has also added that prior to the enactment of P.M.L.A., 2002, the offences were governed by the Indian Penal Code and only for the purpose of preventing money-laundering a scheme was carved out by the law makers and therefore P.M.L.A., 2002 came to be enacted under the Act 15 of 2003, which can operate only prospectively and not retrospectively. 35. Mr.K.S.Viswanathan, learned counsel, while advancing his arguments, has drawn the attention of this Court to Article 20(1) of the Constitution of India, which prescribes as follows: "No person shall be convicted of any offence except for a violation of a law in force at the time of the commission of the....
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....a period of 10 years, was impermissible and violative of Article 19(1)(g) of the Constitution." 41. This Court has gone through the above quoted decision and after giving it's consideration, is of view that the above quoted decision is not made applicable to the instant case on hand as the facts and circumstances narrated therein are entirely different. 42. In the second case viz., Ganesh Gogoi vs. State of Assam, reported in (2009) 7 SCC 404, the Division Bench of the Apex Court has observed in paragraph No.21 as follows: "21. It appears that in the instant case the charge which was framed by the Court against the appellant was under Section 3(5) of the said Act. But such a charge could not have been framed against him by the Court in as much as on the alleged date of occurrence, i.e. in September 1991, Section 3(5) of the Act was not brought on the statute. The framing of the charge was thus inherently defective. However the appellant has been convicted only under Section 3(2)(i)......." 43. On coming to the given case on hand, as observed herein before, since the proceeds of crime viz., the properties 51 in numbers, which were said to have been purchased by....
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....th effect from 01.06.2009. 49. The second proviso to Section 5(1) of P.M.L.A., 2002 reads as under: "Provided further that, notwithstanding anything contained in clause (b), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act." 50. In support of his contention, Mr.M.Dhandapani, learned Central Government Standing Counsel for Enforcement Directorate, has quoted a decision in B.Rama Raju vs. Union of India and others, reported in 2011 (3) ALT 442, wherein a similar issue was arisen as to: "Whether provisions of the second proviso to Section 5(1) [incorporated by the second amendment Act with effect from 06.03.2009] are applicable to property acquired prior to enforcement of this provision and if so, whether the provision i....
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....of Andhra Pradesh High Court, while penning down the Judgment, has also made reference to the observations in the majority opinions of the Constitution Bench in M/s.Khemka & Co., (Agencies) Pvt., Ltd., vs. State of Maharashtra and held in paragraph Nos.49, 50 and 51 as follows: "49. The majority opinion in Khemka & Co., is only a reiteration and application of the well-accepted 'void for vagueness' principle which applies to invalidate irredeemably ambiguous statutory provisions. The observations in the majority opinions are not to be considered as encompassing legislative sanctions which does not affect personal liberties within the constitutional prohibition of ex post-facto laws enjoined by Art.20(2) of the Constitution. The Khemka majority opinion, in our carefully considered view, only means that no regulation of conduct; imposition of person's civil, economic rights or of personal liberty or regulation of freedoms, natural or guaranteed by constitutionally entrenched rights, may be brought about by overly vague and unspecific legislative prescriptions; and nothing more. 50. In Amratlal Prajivandas's case the validity of SAFEMA was challenged ....
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.... a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be:" 57. The first proviso to Section 5(1) of P.M.L.A., 2002 encompasses two portions. The first portion envisages that: Unless a report has been forwarded to a Magistrate under Section 173 Cr.P.C., in relation to the commission of a scheduled offence, no such Order of attachment shall be made. The second portion envisages that: Unless a complaint has been filed before a Magistrate or Court, for taking cognizance of the scheduled offence by a person authorised to investigate the offence, mentioned in the schedule, no such Order of attachment shall be made. 58. In this connection, Mr.K.S.Viswanathan, learned counsel, has adverted to that none of these conditions have been complied with by the second respondent in the instant case on hand. 59. He has also argued that the four complaints registered in F.I.R.Nos.277 of 2010, 391 of 2010, 349 of 2010 and 350 of 2010, on the file of E3 Minjur Police Station, Chennai, under Sections 406, 419, 420, 447, 294(b), 465....
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....e forwarding of a report under Section 173 Cr.P.C., to the Magistrate, has been elaborately discussed. The learned single Judge of this Court, in paragraph No.11, has observed as follows: "11.....Apart from this, as rightly contended by the learned counsel for the respondent Department, as far as first proviso is concerned, it deals with the report to be forwarded to the Magistrate under Section 173 of the Code of Criminal Procedure, 1973 is concerned, it is a final report to be submitted after the investigation and as such this cannot be now insisted and as far as these things are concerned, in my opinion, it relates to the final attachment and not the provisional attachment." 66. It is obvious to note here that the petitioners herein have not challenged the Order of this Court made by the learned single Judge, dated 18.11.2010 and made in W.P.Nos.24444 and 24445 of 2010 and they have allowed the same to become final. 67. It is pertinent to note here that on perusal of the records it is apparent that all the four cases in Crime Nos.277, 349, 350 and 391 of 2010 have been forwarded to the Magistrate for taking cognizance of the scheduled offences viz., the offences p....
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....he Constitution of India, is discretionary to be exercised in the facts of each case. 74. Strictly speaking the High Court under Article 226 is required to enforce rule of law and not pass an order or direction which is contrary to what has been injuncted by law. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority, as decided by the Apex Court in Dwarka Prasad Agarwal vs. B.D.Agarwal, reported in (2003) 6 SCC 230 : AIR 2003 SC 2686. 75. On the other hand, the inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent power in the prevailing ....