TaxTMI 
TaxTMI 
2020 (1) TMI 1076
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....waj, 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 treated as the lead case. The facts, in nutshe....
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....nd 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 It was further found by the ACB that Rs. 2.60 crores was withdrawn from different bank accounts and Mohd.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 Information Report (ECIR) on 30.10.2015 against eight accused perso....
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....inal 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 proceeds of crime. 13.4 The amendments in Section 3 of PMLA, 2002 are punitive in ....
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....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 earlier filed S.B.Criminal Misc. Petition No.2805/2015 before the Principal Seat of this Court at Jodhpur for quas....
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.... 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 consider the scope of Sections 397 & 401 Cr.P.C. in respect of the order of taking cognizance passed by the trial court. 25. This court wh....
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....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 case and as such, this Court is required to see even prima facie case is not made out against the accused persons, this court finds that analyzing the ev....
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....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 any comments on the findings recorded by the Investigating Agency, however, finds that the objection with regard to placement, layering and integration of proceeds of crime, hav....
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....d 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 Township Pvt.Ltd. reported in (2015) 1 SCC 1 and the judgment passed by Division Bench of the Madras High Court dated 04.10.2019 in the case of M/s.VGN developers Pvt.Ltd. Vs. The Deputy D....
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....l 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 petitioners that proceeds of crime, which were obtained from the scheduled offences, are involved and accused persons by way of their acts have committed offence under Section 3 of the PMLA, 2002 and receiving proceeds of crime itself may not be the relevant consideration for ....
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....his 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 dated 11.04.2019 d. Crl.Misc.Petition No.5426/2019 dated 17.08.2019 e. Crl.Misc.Petition No.5427/2019 dated 17.08.2019 f. Crl.Misc.Petition No.5430/2019 dated 04.04.2019 g. Crl.Misc.Petition No.5524/2019 dated 19.08.2019 50. Counsel for the petitioners have submitted that the court below has committe....
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....l.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 under Section 70(2) Cr.P.C. after applying its mind to the facts of the present case and has further assigned cogent reasons for not summoning the accused petitioners by way of bailable warrants. Counsel argued that a bare reading of the order passed by the court below nowhere reflects that relevant considerations were not kept in mind and further....
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....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 21.3.1997. On the request of respondent no.3, the Sabha reduced the amount owed of Rs. 1,50,000/- to him in view of the existence of a passage on the said land. Out of the balance of Rs. 8,60,650/-, a further concession of Rs. 60,650/- was given to Respondent no.3. He thus had to pay the balance amount of Rs. 8,00,000/-. The said measurement sheet was endorsed by re....
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....our 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 staying further proceedings. A reply was filed on behalf of the State by Shri Dinesh Kumar Sharma, SHO, Raiwala Police Station, in which two points were raised: 1. That, appellant no.1 has wrongly cancelled the General Power of Attorney given to respondent no.4; and 2. That, appellant no.1 has wrongly and illegally executed the sale deed of land comprising in Khasra No.140 (New Khasra Nos.61 to 68....
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....hts, 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 in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued 53. Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when: ● it is reasonable to believe that the person will not v....
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....arassment 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 warrants would be unlikely to have the desired result, held that the court has to properly balance both personal liberty and societal interest before issuing warrants and there cannot be any straitjacket formula for issuance of warrants. 59. This court finds that time and again the Apex Court has laid down the law that economic offences are required to be dealt with strict approach as these offences affect the economy of the whole Nation and economic offences are committed with a pre-meditated design. This court finds that the economic offences stand....
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....e 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 Court and is listed for directions. The appeal is therefore allowed. The order of acquittal is set aside. The matter is remitted to the High Court for proceeding further in accordance with law in the light of the abovesaid directions." 61. This court finds that the co-ordinate Bench of this court in S.B.Criminal Misc. Petition No.474/2010 (Pooran Singh and Anr. Vs. State of Rajasthan) decided on 25.05.2010 has considered the issue in respect of warrant of arrest issued against the accused persons. The coordinate Bench has also considered the principles laid down by the Ape....