TaxTMI 
TaxTMI 
2019 (12) TMI 428
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....at petitioner had earlier moved before this Court for grant of anticipatory bail in A.B.A. No. 299/2019 which was dismissed by Hon'ble Coordinate Bench vide order dated 03.04.2019. Thereafter, petitioner had moved Special Leave Petition (Criminal) No. 3533/2019 before the Hon'ble Supreme Court of India challenging the order dated 03.04.2019 passed in ABA No. 299/2019, which was dismissed on 23.04.2019 with the following observation: "the eight weeks time is granted to the petitioner to surrender and move an application for Regular Bail before the learned Trial Court. Such prayer as and when made shall be considered and decided expeditiously by the Trial court. The petitioner shall remain protected against the arrest till the bail application is decided by the Trial Court." 3. Thereafter, this Cr.M.P. has been filed on 05.09.2019 and it was listed before the Court on 02.07.2019. Thereafter prayer has been made to list this case on 30.07.2019. On 30.07.2019, the matter was directed to be listed on 02.08.2019 and further proceeding in connection with ECIR No. 12/PAT/2012 & 13/PAT/2012 in Complaint Case No. 02 of 2018, pending in the court of learned Additiona....
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....has been concluded that the said loan was not taken for the purpose of purchase of flat as payment against the purchase had already completed in the year 2007 and said fact is being established that Rs. 4 lakhs received from the account of Hindustan Credit Corporation were utilized for creation of fixed deposit on the very same date. It has also been alleged that the amount for purchase of property was arranged by Naresh Kumar Kejriwal (petitioner), the Chartered Accountant of Dr. Pradeep Kumar. It has also been alleged that Rajendra Kumar has stated that he did not know Pathak Telecom, Company (P) Ltd and Hindustan Credit Corporation and money was arranged by his brother Dr. Pradeep Kumar's Chartered Accountant Sri Naresh Kumar Kejriwal and it has also been alleged that the said loan has not been reflected in the ITR of Nandlal HUF. It has further been alleged that Sita Ram Pathak has stated that he did not know Dr. Pradeep Kumar and Rajendra Kumar and he has given the loan on the advice of Sri Naresh Kumar Kejriwal who is the Chartered Accountant. Accordingly, in the complaint, it has been concluded that Naresh Kumar Kejriwal was involved in acquisition, concealment, tra....
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....n Act, 1988 has been taken against the petitioner. In the course of hearing the said case, the Hon'ble High Court posed specific query as to whether the amount of Rs. 25,95,000/- (loan amount given by Pathak Telecom Pvt. Ltd. and Hindustan Credit Corporation) had ever been accounted for, as income of Dr. Pradeep Kumar against whom the case has been lodged for disproportionate income. 11. On the said query, the CBI specifically submitted that the amount of Rs. 25,95,000/- has never been included in any of the amount taken to be disproportionate to known source of income of Dr. Pradeep Kumar. On the said submission, the Hon'ble High Court has held that the question of abating in terms of section 109 of the IPC does not arise and accordingly held that there has been no evidence that the petitioner had associated himself with Dr. Pradeep Kumar in abating him to acquire the assets disproportionate to his income and accordingly quashed the order taking cognizance dated 10.9.2013 vide order dated 12.3.2014 passed in Cr.M.P. No. 2651/2013. 12. That the aforesaid judgment of the Hon'ble High Court of Jharkhand was not challenged by the CBI and therefore, has attained finality. Consequ....
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....rt A of the Schedule to the PML Act provides for offences under the Prevention of Corruption Act, 1988 including that under sec. 13 thereof. However, Paragraph 1 of Part A of the Schedule, which enumerates specific offences under the Indian Penal Code, 1860 as schedule offences for the purposes of the PML Act, does not list offence of abatement under sec. 109, IPC. e. It is well-settled that Sec. 109, IPC constitutes a distinct offence [Wakil Yadav v State of Bihar, (2000) 10 SCC 500]. Furthermore, the provisions of the Prevention of Corruption Act, 1988 do not ipso facto apply to private persons. One has to take the aid of sec. 109, IPC (abatement) in order to charge a private person under the Prevention of Corruption Act. f. The Petitioner has not been (and cannot be) charged for an offence only under the Prevention of Corruption Act since he is not a public servant. It is primarily an offence under sec. 109, IPC with which he has been charged with. Since the same is not a scheduled offence, the Petitioner cannot be charged for an offence under sec. 3 of the PML Act. In view of the aforesaid, no case is made out against the petitioner under sec. 3 of the PML ....
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.... Further, the principle of issue of estoppel would apply in such a situation and the Petitioner cannot be proceeded with under the PML Act. Continuation of the impugned proceedings is also likely to lead to conflicting situations. 22. That Rs. 4 lakh was transferred from the account of Hindustan Credit Corporation to the Account of Nandlal HUF on 26.12.2008, Rs. 20 lakhs from Cash Credit Account of Pathak Telecom Pvt. Ltd. to the account of Nandlal HUF on 18.7.2009 and Rs. 1,95,000/- from the account of Hindustan Credit Corporation to the account of Nandlal HUF on 31.7.2009. 23. All these transactions were made through bank to bank that too without any cash deposit and the same can be ascertained from the bank statement of Nandlal HUF maintained in Allahabad Bank. 24. That Hindustan Credit Corporation is a company which provides loan to its customer and said Hindustan Credit Corporation on 26.12.2008 transferred Rs. 4 lakhs in the account of Nandlal HUF and said transfer was duly reflected in the bank statement as well as balance-sheet of Hindustan Credit Corporation under the heading of loan and advance. The said bank statement and balance-sheet were filed before the Inco....
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....eflected in the balance-sheet of Pathak Telecom Pvt. Ltd. and said balancesheet was filed with the Income Tax Return of Pathak Telecom Pvt. Ltd of which the petitioner is the Chartered Accountant in the Assessment year 2010-11. 29. That Nandlal HUF has returned the loan amount to Pathak Telecom Pvt. Ltd. by transferring of Rs. 10,78,000/- on 08.10.2011 and Rs. 15,00,000/- on 10.10.2011 i.e. total amount of Rs. 25,78,000/- after adding the amount of interest. The said amount is also the part of the balance-sheet which was filed by Pathak Telecom Pvt. Ltd. in its Income Tax Return for Assessment year 2012-13. 30. That the Pathak Telecom Pvt. Ltd. has provided loan to Nandlal HUF from its Cash Credit Account meaning thereby the bank has provided facility to the said company to withdraw the amount on which 16.75% interest will be charged by the bank, as such it is not a case that any cash deposit were made in the account of Pathak Telecom Pvt. Ltd. and same was transferred in the account of Nandlal HUF. 31. That it has wrongly been mentioned in the complaint that Nandlal HUF in its income tax return had not shown the said transaction but the said allegation is completely false....
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....sing Pvt. Ltd. on 24.9.2018. 36. Learned senior counsel for the petitioner submitted that all the amount advanced by the Pathak Telecom Pvt. Ltd and Hindustan Credit Corporation Ltd. where the accounted money properly reflected in the Income Tax Return of the said company and same has no bearing with the schedule offence committed by Dr. Pradeep Kumar and as such even if the allegation leveled against the petitioner that on his advice loan were advanced by these two companies to Nandlal HUF can not make out a case against the petitioner. 37. Learned senior counsel for the petitioner submitted that the amount of loan which were advanced to Nandlal HUF as alleged on the advice of the petitioner comes to Rs. 25,95,000/-, no case of money laundering can be instituted against the petitioner in terms of section 2 (1) (g) of the PMLA as no person can be prosecuted if the value comes to less than Rs. 30 lakhs. 38. That the petitioner in his professional capacity had advised in the manner in which the loan can be raised and it has no relation with any proceed of crime which is sine qua non for alleging an offence under section 3 of the PMLA Act, 2002. It is not the case of the resp....
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....l HUF, with the help of his brother, Rajendra Kumar on the advice of Naresh Kumar Kejriwal to launder the proceeds of crime. Rajendra Kumar, despite being Karta of the Nand Lal HUF is unaware about the beneficiaries. Rajendra Kumar has entered into the transactions of immovable properties without being aware of the details like location, owner of the property, mode of payment etc. Further, all his transactions have happened with individuals who are in some way connected with Dr. Pradeep Kumar. In fact, in all the transactions involved in money laundering, Dr. Pradeep Kumar has played the central role. This shows that Rajendra Kumar has knowingly acted as a front for assisting Dr. Pradeep Kumar in laundering the proceeds of crime; iv) Both Dr. Pradeep Kumar and Rajendra Kumar could not submit any evidence regarding source for creation of IVPS and KVPS which formed the basis for formation of Nand Lal HUF. This shows that proceeds of crime generated by Dr. Pradeep Kumar were invested in Nand Lal HUF which was formed on the advice of Naresh Kumar Kejriwal, Chartered Accountant of Dr. Pradeep Kumar for the only purpose of concealment of proceeds of crime so that tainted propert....
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....g leased or rented, they continue to mention the same flat as residential as well as business address in different documents. Against income from other sources and business income mentioned in the ITRS of Nand Lal HUF, Rajendra Kumar (karta) could not produce any evidence to substantiate this claim. This shows that there is no income from genuine sources and ITRS have been fabricated by Dr. Pradeep Kumar and his brother Rajendra Kumar to conceal the proceeds of crime and to frustrate the proceedings under PMLA. Dharmendra Kumar Dhiraj has knowingly assisted Dr. Pradeep Kumar in making false claim of rental income and thus, has knowingly assisted in concealment of proceeds of crime; viii) Huge cash was deposited in the account of AHC Pvt. Ltd. and Jascon Enterbuild, Joint Venture, a firm owned by Dharmendra Kumar Dhiraj and the same was used for acquisition of immovable property at Bangalore. Rajendra Kumar could not produce any loan agreement/ other documents to justify receipt of huge amount from this firm. Neither Rajendra Kumar nor Dharmendra Kumar Dhiraj offered any explanation for this transaction. This makes it evident that proceeds of crime were layered through the ....
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....ed that the books of accounts of Nand Lal HUF were being managed by Naresh Kumar Kejriwal, the Chartered Accountant of Dr. Pradeep Kumar. The firmly establishes that Naresh Kumar Kejriwal has played a key role in the formation of Nand Lal HUF and is knowingly involved in concealment and transfer of proceeds of crime through this HUF; xiii) Naresh Kumar Kejriwal arranged the payment of Rs. 20 lacs from Pathak Telecom Co. (P) Ltd. and Rs. 5.95 lacs from Hindustan Credit Corporation to Rajendra Kumar in the garb of fake loan so as to disguise the actual purchase of property through proceeds of crime. Sitaram Pathak, the proprietor of Pathak Telecom Co. (P) Ltd. during the statement under section 50 of the PMLA, has clearly stated that he does not know Rajendra Kumar and has transferred the amount only on the advice of his Chartered Accountant, Naresh Kumar Kejriwal. Inderlal Kejriwal, the proprietor of Hindustan Credit Corporation, during his statement under section 50 of the PMLA, has stated that he does not know Rajendra Kumar and the transfer of money was done by his brother Naresh Kumar Kejriwal who is actually managing_Hindustan Credit Corporation. This shows that Naresh....
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....nder section 50 of the PMLA, Dr. Pradeep Kumar stated that Naresh Kumar Kejriwal is the C.A. of him as well as M/s Nand Lal HUF. 47. On the advice of his Chartered Accountant Naresh Kumar Kejriwal only, M/s Nand Lal HUF was formed and Rajendra Kumar (his brother) became the Karta of the HUF. Further, Sitaram Pathak, the proprietor of Pathak Telecom Co. (P) Ltd. during his statement under section 50 of the PMLA, has clearly stated that he does not know Rajendra Kumar and has transferred the amount only on the advice of his Chartered Accountant, Naresh Kumar Kejriwal. 48. This makes it amply evident that Naresh Kumar Kejriwal is knowingly involved in concealment and transfer of proceeds of crime generated by Dr. Pradeep Kumar in order to project the tainted property as untainted. 49. Shri Inderlal Kejriwal, inter alia, in course of his statements dated 07.08.15, 17.09.2015 & 12.02.2018 under section 50 of PMLA stated that Shri Naresh Kumar Kejriwal, who is his brother and C.A. of the firm, manages the Hindustan Credit Corporation. Thus, it is established that Naresh Kumar Kejriwal is knowingly involved in process or activity connected with proceeds of crime and projection of....
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....nted. 51. That, learned counsel for the opposite party would referred to the judgment dated 05/08/2010 in the case of Radha Mohan Lakhotia Vs The Deputy Director Directorate of Enforcement, the Hon'ble Bombay High Court has observed as under: [Para 13] ...the same deal with the offence of money-laundering and punishment for money-laundering, both the provisions, even on strict construction, plainly indicate that the person to be prosecuted for this offence need not necessarily be charged of having committed a scheduled offence. For, the expression used is "whosoever". The offence of money-laundering under section 3 of the Act of 2002 is an independent offence. It is committed if "any person" directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property... 52. During investigations under PMLA, the petitioner has been found to be knowingly involved in concealment and transfer of Proceeds of Crime acquired by Dr Pradeep Kumar so as to project the tainted properties as untainted. 53. Learned ASGI appearing on beh....