TaxTMI 
TaxTMI 
2020 (1) TMI 1076
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.....D.Rastogi, ASG with Mr. Akshay Bhardwaj, Adv., Mr. Aneesh Khandelwal, Adv. & Mr. Devesh Yadav, Adv., Mr. Anand Sharma, Adv., Mr. Ashish Kumar, Adv. ORDER The present order will decide two sets of cases i.e. Revision Petitions filed under Section 397 read with Section 401 Cr.P.C. challenging the order dated 21.01.2019 passed by the Special Sessions Court, Jaipur (Prevention of Money Laundering Act, 2002) - Special Court (Communal Riots Cases), Jaipur Metropolitan, Jaipur, whereby cognizance has been taken for offence punishable under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (hereinafter shall be referred as 'PMLA, 2002') & arrest warrants have been issued to secure the presence of the accused persons. 2. The other set of cases are Criminal Miscellaneous Petitions filed under Section 482 Cr.P.C. challenging order of the Trial Court wherein it has refused to convert arrest warrants of the petitioners into bailable warrants by not exercising power under Section 70(2) Cr.P.C. (Revision Petitions) 3. This Court has taken note of the facts from the file of S.B. Criminal Revision Petition No. 273/2019 (Shyam Sundar Singhvi Vs. Union of India), which is....
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....he mines reopened, Mohd. Sher Khan contacted Sanjay Sethi and Pankaj Gehlot, through their Charted Accountant Shyam Sundar Singhvi for the purpose of reopening of mines. It was found by the ACB that the bribe amount was fixed to the tune of Rs. 2.50 Crores and it was alleged that Sanjay Sethi had informed Dr. Ashok Singhvi that deal was finalized at Rs. 1.25 Crores and out of which Rs. 1 Crore was for Dr. Ashok Singhvi and Rs. 25 Lakhs was for others and Dr. Ashok Singhvi had given his consent for the said deal. It was further found by the ACB that Rs. 2.60 crores was withdrawn from different bank accounts and Mohd. Rashid Sheikh was to handover the amount of Rs. 2.55 crores and in pursuance thereof Rs. 2.55 crores were handed over by Shyam Sunder Singhvi to Sanjay Sethi and his associate Dheerendra Singh @ Chintu on 16.09.2015. The ACB team visited the office of Shyam Sunder Singhvi and seized the amount of Rs. 2.50 crores from Sanjay Sethi and Dheerendra Singh and Rs. 5 lakhs was kept with Shyam Sunder Singhvi, as commission, paid to Shyam Sunder in the deal. 8. The Directorate of Enforcement, after the charge-sheet being filed by the ACB, registered an Enforcement Case Inform....
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....02 are not spelt out in the present case, on the bare perusal of the criminal complaint filed by the Enforcement Directorate. 13.2 The offence of money laundering, as defined under Section 3 & penalized under Section 4 of PMLA, 2002, requires that proceeds of crime are concealed or possessed or acquired or used for the purpose of projecting or claiming it to be untainted property. The proceeds of crime is a property which is derived directly or indirectly by a person as a result of criminal activity relating to a scheduled offence. Counsel argued that the entire case of the Enforcement Directorate is founded on the version given out by the ACB in their charge-sheet for the scheduled offence and the chargesheet submitted by the ACB does not make out a case under Section 3 of the PMLA, 2002. The facts of the case did not reflect that even the illegal gratification was accepted or obtained by any of the public servants, much less after obtaining the same, they had projected or claimed the same to be untainted property. 13.3 The basic requirement of committing offence under Section 3 of PMLA, 2002 was not fulfilled as there has to be placement, layering and integration of proc....
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....ch can become an offence either under the PMLA, 2002 or the Prevention of Corruption Act. Counsel placed reliance on the judgment passed by the Karnataka High Court dated 13.03.2017 in the case of Obulapuram Mining Co.Pvt.Ltd. & Ors. Vs. Jt.Director, Directorate of Enforcement & Ors. [Writ Petition Nos.5962, 11442 & 11440-11441 of 2016]; judgment passed by the Jharkhand High Court dated 19.02.2013 in the case of Binod Kumar Sinha @ Binod Kumar Vs. State of Jharkhand [Writ Petition (Crl.) No.257/2012 with Crl.Rev.No.920/2012 & Crl.Rev.No.699/2011]; judgment passed by the coordinate Bench of this Court dated 23.04.2019 passed in the case of Kanhaiyalal & Anr. Vs. State of Rajasthan & Anr. [S.B.Crl.Misc.Petition No.2381/2019]. 17. Mr.Peush Nag & Mr.Suresh Kumar Sahni, learned counsel appearing for the other accused petitioners have also reiterated the same submissions. 18. Per contra, Mr.R.D. Rastogi, learned Additional Solicitor General, has submitted that this case has a chequered history and the petitioners have indulged themselves in several rounds of luxurious litigation because of their affluent economic condition. Learned counsel submitted that Dr.Ashok Singhvi had ear....
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.... Cr.P.C. can be exercised only in exceptional cases and the court is primarily to see the contents of the complaint alone and no other material is to be considered. 22.2 The remedy available under Section 482 Cr.P.C. is not like an appeal and the High Court should not act as an investigating agency in order to exercise powers like an appellate court. 22.3 The conduct of the accused persons is highly objectionable and they do not deserve any relief from this Court. 22.4 The economic offences stand on a different footing and such offences constitute a separate class and they need to be visited with a different approach. 22.5 A person can be prosecuted for an offence of money laundering even if he is not guilty of the scheduled offences and the prosecution can be launched only for the offence of money laundering. 22.6 The Special Court has powers under Section 204 Cr.P.C. to call the accused persons through arrest warrants and in the present matter, the Trial Court has not exceeded or acted beyond its jurisdiction. 23. I have heard learned counsel for the parties and with their assistance perused the material available on record. 24. This Court is required to cons....
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....if based on the material placed before it, discloses that cognizance of an offence is required to be taken, the said order will not be termed as a perverse order. 29. This court finds that initially ACB had registered FIR and later on filed charge-sheet against the accused persons for the offences of Prevention of Corruption Act. The Directorate of Enforcement thereafter registered an Enforcement Case Information Report (ECIR) against the accused persons on the allegations of money laundering under Sections 3 and 4 of the PMLA, 2002 involving proceeds of crime and on the basis of this said allegations, the Assistant Director, Directorate of Enforcement later on filed prosecution complaint under Section 45(1) of the PMLA, 2002. This court finds that the trial court, after analyzing the material placed before it, found that the allegations levelled against the accused persons require that cognizance should be taken of the offences and further the case needs to be tried by holding a regular trial. 30. The submission of the learned senior counsel on behalf of petitioners that the basic ingredients of offences under Section 3 of the PMLA, 2002 are not made out in the present ca....
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....l) 265. The said judgment passed by the Delhi High Court and observation made therein has been stayed by the Division Bench in LPA No.144/2016 [Directorate of Enforcement Vs. M/s. Mahanivesh Oils & Foods Pvt. Ltd.] vide order dated 30.11.2016 while observing as follows:- "We have observed that while allowing the writ petition by the order under appeal, certain findings were recorded by the learned Single Judge with regard to the enforcement of the Prevention of Money Laundering Act, 2002 on interpretation of the provisions of the said Act. We make it clear that the findings so recorded by the learned Single Judge shall not be construed as conclusive and binding precedent until further orders." 34. This court even while going through the complaint under Section 45(1) of the PMLA, 2002 finds that the Investigating Agency has also mentioned that the seized amount was tried to be layered and integrated being proceeds of crime in main economy and further efforts were made to integrate the proceeds of crime with the mainstream economy by showing the sale proceeds of some mines of Umar village and claimed the same to be untainted property. This court without making an....
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....dition of explanation, all the ingredients, defining money laundering, were required to be alleged for charging a person for commission of offence under Section 3 of the PMLA, 2002 and only by virtue of explanation, specifying any of the activities, offence can be committed by a person. 38. Counsel has placed reliance on the judgment passed by the Apex Court in the case of Popular Muthiah Vs. State represented by Inspector of Police reported in JT 2006 (6) SC 332 and Nikesh Tarachand Shah Vs. UOI & Ors. reported in 2017 (13) Scale 6098 and a judgment of this court dated 09.05.2018 passed in the case of Pushya Mitra Singh Deo & Anr. Vs. UOI [S.B.Crl.Misc. Petition No.2097/2018]. 39. Mr.R.D.Rastogi, learned Additional Solicitor General, on the contrary, has argued that the amendment brought by the Finance Act, 2019 was merely clarificatory and being clarificatory in nature, the same has to be retrospective, as the principal Act was not amended but only the intent of the Legislature was clarified which was already there in the principal Act. Mr.Rastogi has placed reliance on the judgment rendered by the Apex Court in Commissioner of Income Tax (Central)-I, New Delhi Vs. Vatika T....
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....he PMLA, 2002. The clarification which has been added in fact was for removal of doubts, may be due to somewhat ambiguous definition inserted in the main provision of Section 3 of the PMLA, 2002. Thus, the Legislature if by way of amendment adds explanation for removal of doubts, it cannot be said that a punitive provision has been inserted in the definition and the same has to be given effect from a prospective date. This court further finds that explanation which is added by way of amendment may not be of any assistance to the accused petitioners and as far as allegations of committing offence against the accused petitioners under Section 3 of the PMLA, 2002 are concerned, the prosecution has leveled allegations of money laundering against the accused petitioners, as per the definition given under Section 3 of the PMLA, 2002. 42. The submission of the learned senior counsel Mr.A.K.Sharma that allegation against the accused petitioner-Ashok Singhvi nowhere connects him with commission of offence under Section 3 of the PMLA, 2002 or as per the explanation provided under Section 2(1)(u), this court finds that the prosecution has leveled allegations against all the accused petitio....
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....under Section 3 of the PMLA, 2002 is an independent offence and money laundering is a stand alone offence under the PMLA, 2002. 48. Accordingly, this court finds that the order passed by the court below of taking cognizance dated 21.01.2019 does not require any interference by this court and all the revision petitions are dismissed. Misc. Petition (Section 482 Cr.P.C.) 49. The petitioners, in this set of cases, have filed misc. petition under Section 482 Cr.P.C. feeling aggrieved due to issuance of arrest warrants against them, after order of taking cognizance was passed by the court below. The petitioners have sought prayer from this court that arrest warrants, issued against them, be converted into bailable warrants and power given under Section 70(2) Cr.P.C. may be exercised by this court. All the petitioners had approached the Sessions Court for converting non-bailable warrants into bailable warrants, however, such prayer was declined by the court below by passing the orders on following different dates:- a. Crl.Misc.Petition No.2872/2019 dated 30.03.2019 b. Crl.Misc.Petition No.4770/2019 dated 11.04.2019 c. Crl.Misc.Petition No.4771/2019 dat....
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.... Court in the case of Inder Mohan Goswami Vs. State of Uttranchal reported in (2007) 12 SCC 1 still holds the field and the accused petitioners ought not to have been summoned by way of arrest warrants. Counsel placed reliance on the judgment of this Court dated 11.10.2017 passed in Surendra Kumar Sharma & Anr. Vs. Ms.Annupama Saxena [S.B.Crl.Misc. Petition No.5068/2017] and judgment of this Court dated 17.12.2018 passed in Pushpendra Agrawal Vs. Mukesh Kumar Meena [S.B.Crl.Misc. Petition No.7892/2018]. 54. Counsel for the petitioners have argued that even in the complaint, which was filed by the Enforcement Directorate under section 45(1) of the PMLA,2002, it was nowhere prayed for issuing non-bailable warrants and on the contrary, specific prayer was made only to take cognizance and issue process of trial for punishment of the accused persons and further prayer was also made for confiscation of the properties, involved in the money laundering or which was used for the commission of offence of money laundering. 55. Per contra, Mr.Rastogi, learned Additional Solicitor General has submitted that the court below has rightly dismissed the applications filed by the petitioners un....
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....ations under the sale agreement and informing that if he failed to do so, the agreement to sell would stand cancelled and the amount paid as earnest money would be forfeited. In reply to the said notice, respondent no.3 vide his reply dated 5.5.1999 stated that he had not defaulted in payment of the remaining amount. He stated in the reply that as per the agreement the land had to be measured and that he was ready to pay the balance amount once that was done. 7. Pt. Mohan Lal Sharma, the President of the Sabha, expired on 30.8.1999. On 5.1.2000, both the parties i.e. the representative of the Sabha and the representatives of M/s Ahuja Builders met at the site of the disputed land in the presence of Patwari (Revenue Official). The land of old Khasra No.140 and new Khasra Nos.61, 62, 63, 64, 65, 66, 67, 68 and part of 89, 90 was measured by the Patwari. The balance land, after adjusting the land given in lieu of construction of the Ghat, came out to be 11.19 Bighas. The total sale consideration for this land worked out to be Rs. 15,10,650/-. Respondent no.3 had already paid Rs. 4,00,000/- as earnest money out of this amount. He had paid a further sum of Rs. 1,00,000/- on 21.....
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....under sections 420, 467 and 120-B IPC. 14. It may be pertinent to mention that on 27.5.2003, respondent no.3 filed a civil suit in the court of Civil Judge (Senior Division) against the Sabha bearing Original Suit No.302 of 2003 titled Himmat Rai Ahuja v. Sanatan Dharam Pratinidhi Sabha. In this suit, respondent no.3 prayed for cancellation of sale deed executed by the Sabha in favour of Sunil Kumar and for permanent injunction against the appellants herein restraining them from interfering in his alleged property. Thus, the issues relating to ascertaining the right, title of the land in dispute and also the issue of correct demarcation of land in Khasra No.140 are pending adjudication in a competent civil court. 16. Aggrieved by the filing of the false and incorrect chargesheet in the court of Special Judicial Magistrate, Rishikesh in Criminal Case No.1728 of 2003 titled State v. Inder Mohan Goswami & Others, the appellants filed a Criminal Miscellaneous Application No.248 of 2003 in the High Court of Uttaranchal at Nainital under Section 482 Cr.P.C. for quashing the proceedings against them. The High Court was pleased to pass the interim order on 22.10.2003 stay....
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....sy involved and without exhausting the available remedies issued non-bailable warrants. Personal liberty and the interest of the State 50. Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. 52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes ....
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....n-bailable warrants should be avoided. 57. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant." 58. In the humble opinion of this court, the Apex Court on analysing the facts of the case of Inder Mohan Goswami (supra) came to the conclusion that the averments made in the FIR do not make out a case for prosecution under Section 420 and 467 IPC. The Apex Court held that criminal prosecution should not be used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. The Apex Court further held that it was neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction under Section 482 Cr.P.C. The Apex Court further held that though powers are very wide under Section 482 Cr.P.C. but they are to be exercised sparingly, carefully and with caution. The Apex Court, while considering the issue of personal liberty and the interest of the State and in what manner non-bailable warrants should be issued to bring a person to the court when summons or bailable warran....
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.... in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the CrPC. We are of the opinion that the application should have been granted in the facts and circumstances of the case with the end in view to do full and true justice. The application made by the learned Assistant Public Prosecutor is therefore granted. The High Court will issue appropriate directions for the recording of the evidence to prove the report of the Mint Master under Section 391 Cr.P.C. when the matter goes back to High Cour....