TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 1210
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....n Sabha Branch, Dehradun allowing deposits and withdrawal from five fictitious accounts maintained in the name of non-existent persons at PNB, Arya Vanprastha Ashram Branch, Jwalapur, Haridwar. By doing so, said persons misappropriated the funds of PNB and also caused a pecuniary gain to themselves, other persons and correspondingly a pecuniary loss to the PNB. In the said information it was stated that the said persons had obtained an illegal pecuniary gain of Rs. 10,88,987/- (Rupees Ten lakhs eighty eight thousand nine eighty seven) which was the interest accrued on the principal amount of Rs. 3,30,82,105/- (Rupees Three crore thirty lakhs eighty two thousand one hundred and five) deposited in these accounts and subsequently withdrawn. 3. On the basis of the said information RC No. 0072011A0003 was registered on 21.01.2011, by CBI against five persons namely: M.M. Sharma Manager (Retd.), PNB Vidhan Sabha Branch Dehradun, Harish Kamboj Deputy Manager, PNB, Vidhan Sabha Branch, Dehradun, A.K. Bansal Manager, PNB, Arya Vanprastha Ashram Branch, Jwalapur, Haridwar, Sanjeev Kumar Clerk, PNB, Arya Vanprastha Ashram Branch, Jwalapur, Haridwar, A.K. Chaddha Clerk (Retd.), PNB Vidhan Sab....
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....1.03.2013 and 26.02.2014 respectively. The properties of the petitioner were attributed to Arun Kumar Mishra based upon the charge sheet filed by CBI against him and other accused persons. A supplementary charge sheet was filed by CBI on 28.09.2011. 8. Finally, CBI completed its investigation regarding 66 other accounts mentioned in the said FIR and submitted its closure report dated 08.08.2014 with regards to the said accounts. In the said closure report it was concluded that the investigation did not reveal any wrongful loss to the bank or Government of India due to the said 66 accounts and hence no offence was said to be made out. In the said closure report, it was also mentioned that the issue of Arun Kumar Mishra‟s alleged disproportionate assets and the said false accounts are a subject matter of investigation by the SIT UP Police, Lucknow in FIR No. 4/2011 dated 03.05.2011. The closure report filed by CBI was accepted by learned Special Judge, CBI, Dehradun vide order dated 21.08.2014. 9. Thereafter, pursuant to RC No. 0072011A0003 registered at CBI SPE, Dehradhun, Arun Kumar Mishra moved a petition before the High Court of Uttrakhand seeking quashing of the CBI proc....
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....as ceased to exist. Without the predicate offence, there can be no question of the Enforcement Directorate proceeding with the investigation against the petitioner, which must be quashed forthwith. 13. Learned counsel for the petitioner further contended that attachment of properties of the petitioner amounts to illegal harassment which is baseless and disproportionate and ought to be quashed so that the injustice is not continued. The attachment has deprived the petitioner of its basic right to property and usage protected by Articles 19 and 21 of the Constitution. There is no commission of scheduled offence by the petitioner as envisaged within the meaning of Section 3 r/w Section 2(u) of PMLA. PMLA is a penal law and the provisions of the Act cannot be given retrospective effect as Article 20(1) of the Constitution of India prohibits the conviction of a person or his being subjected to a penalty under ex-post facto laws. The offences punishable under Section 120-B IPC and Section 13 PC Act were inserted in the Schedule of PMLA with effect from 01.06.2009. As a result, when these offences were allegedly committed, they were not money laundering offences and cannot be the subject....
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....ency under this act has independent power to investigate the allegations, irrespective of the fact whether the FIR on the basis of which the ECIR was registered is in existence or not. Sufficient evidence both documentary as well as circumstantial is available to draw a reasonable inference that the properties have been purchased by Arun Kumar Mishra in the name of his relatives or associates and in the name of company which have already been provisionally attached. In 2006-2007 after the withdrawal of funds lying in the above mentioned fictitious accounts, a number of shell companies of Kolkata, were purchased, taken over or started. In these so acquired companies, investments of ill gotten money were made, in the form of share money etc. and the relatives/close associates/nominees of Arun Kumar Mishra, were inducted as Directors or authorized signatories, the details of which have been annexed to the reply. 16. Learned Senior Counsel for the respondent further contends that during the investigation of the present ECIR, it has been revealed that there are other FIRs pending against the petitioner. The allegations in those FIRs are similar to the FIRs referred to in the present pe....
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....nal liability for the incident occurred prior to introduction of such liability in the statute book. 71. Admittedly, prior to Amendment Act, 2009, none of the provisions which are now invoked by the Enforcement Directorate were on the statute book except Section 467 IPC. Thus, the petitioner cannot be prosecuted by invoking those provisions." 22. It is a settled principle of law that the provisions of law cannot be retrospectively applied as Article 20(1) of the Constitution bars the ex-post facto penal laws and no person can be prosecuted on the allegations which occur earlier by applying the provisions of law, which has come into force after the alleged incident. 23. The primary contention of the learned counsel for the petitioner is that the entire basis of the ECIR has been the contents of the FIR filed by the CBI. It has been further contended that since CBI‟s closure report dated 08.08.2014 and the order dated 13.10.2014 passed by the High Court of Uttrakhand the proceedings arising out of the FIR against Arun Kumar Mishra have been quashed hence the ECIR should also be quashed. A bare perusal of record shows that on completion of investigation into the first set of....