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2022 (2) TMI 620
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.... (Directorate of Enforcement, Lucknow vs. Giri Raj Sharma) under Sections 3 & 4 of Prevention of Money Laudering Act, 2002 arising out of ECIR/09/PMLA/LZO/2013 and pending before the learned Special Court (PMLA), Lucknow including the Supplementary Prosecution Complaint dated 29.06.2020 and the cognizance order dated 11.08.2021 so as to secure the ends of justice." Learned counsel for the petitioner has contended that the present case is a glaring example of misuse of the process of law inasmuch as the learned Special Judge by taking cognizance against the petitioner on the supplementary prosecution complaint dated 29.06.2020 (E.D.) for allegedly committing an offence under Section 3 punishable under Section 4 of Prevention of Money Laudering Act, 2002 (here-in-after referred to as the "Act, 2002") without taking into account the fact that that petitioner is being falsely prosecuted in this case. Therefore, he is humbly praying for the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. Sri Pranjal Krishan, learned counsel for the petitioner has drawn attention of this Court toward running page 58 of the petition, which is portion of the charge-shee....
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....of this Court towards Section 47 of the Prevention of Money Laundering Act, 2002 (here-in-after referred to as the "Act, 2002"), which reads as under:- "47. Appeal and revision. -The High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX or Chapter XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court." 4. Sri Pranjal Krishna has contended that under Section 47 of the Act, 2002, the High Court has got the discretionary power of appeal and revision. The term 'may' has been used to mean they are in addition and in supplement to Section65 of the Act, 2002 which talks about the applicability of the Provisions of Cr.P.C. to cases brought under the Act, 2002 which very well include the provisions of Section 482 Cr.P.C. Besides, by means of this petition, the petitioner has not only assailed the cognizance order dated 11.08.2021 but has prayed for quashing the Supplementary Prosecution Complaint dated 29.06.2020. Under the revisio....
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.... a Division Bench in the case of Raj Kapoor and Ors v. State and Ors. Relying upon judgment of a Bench of three Judges in the case of Mathu Limaye v. The State of Maharashtra and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in paragraph 10 which runs as follows: "10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397 , can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482 . Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. The State of Maharashtra this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is tru....
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.... category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10) '10.... The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.' I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me ....
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....e remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months." 7. In view of the aforesaid decisions of Hon'ble Apex Court, Sri Pranjal Krishna has submitted that the present petition filed under Section 482 Cr.P.C. is maintainable. 8. Per contra, Sri Shiv P. Shukla, learned counsel for the opposite parties has cited the decision of Orissa High Court dated 16.12.2013 in re: Smt. Janata Jha and another vs. Assistant Director, Directorate of Enforcement, Government of India and another (CRLMC No.114 of 2011 (Application U/S 482 Cr.P.C.)) by submitting that one petition was filed before the High Court under Section 482 Cr.P.C. under the same Act i.e. Act, 2002 stand dismissed by the Orissa High Court observing that "it may be made clear that the question as to whether the inherent power available under Section 482 Cr.P.C. can be exercised for quashing a proceeding initiated under PMLA or not, is left open." ....
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....2, pursuant to which, the Supplementary Prosecution Complaint has been filed against the petitioner. It would be apt to indicate the names of those persons and dates when the statements have been recorded. (a) Statement of Mr. Prabhat Chand Gopalan dated 25.10.2016 (b) Statement of the present petitioner (Giri Raj Sharma) dated 08.11.2016 (c) Statement of Mr. Dilip Kumar dated 13.01.2015 and 18.10.2016 (d) Statement of Mr. Jonas Lal Marandi dated 09.01.2015 and 25.10.2016 (e) Statement of Mr. Dhirendra Kumar Singh dated 16.09.2016, 09.11.2016 & 10.11.2016 (f) Statement of Mr. Bhupendra Singh dated 21.09.2016 (g) Statement of Mr. Rakesh Kumar Gupta dated 27.10.2016 (h) Statement of Mr. B.R. Arora dated 23.01.2015, 19.10.2016 & 21.11.2017 (i) Statement of Mr. A.C. Srivastava dated 29.06.2018 (j) Statement of Mr. H.C. Pant dated 29.06.2018 The careful perusal thereof would clearly reveal that all the aforesaid statements of the aforesaid persons were recorded under Section 50 of the Act, 2002 before 30.06.2018 i.e. the date of filing the Prosecution Complaint before the learned trial court. ....
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....st the petitioner in the Supplementary Prosecution Complaint so as to attract the provisions of Section 3 of the Act, 2002, Sri Shiv P. Shukla has submitted that since the petitioner was responsible for correctness of the bills submitted by the Contractor and the maintenance of necessary records in this regard and he was also responsible for implementation of contract provisions which he failed to do so, therefore, he abused his official position and fraudulently prepared the entries of forged bills of Cement, Bitumen and Recron in the relevant Registers, therefore, he is also responsible. 21. Therefore, in view of the above, I am of the considered opinion that the question as to whether the allegation of abuse of official position by not taking proper care and precaution in verifying the entries and bills would be treated as an offence under the Act, 2002, may be considered after exchange of affidavits. 22. I have noted one more thing from Annexure No.2, which is a charge-sheet filed by the C.B.I. before the learned trial court of C.B.I. on 30.10.2013 indicating the culpability of the present petitioner. The relevant portion thereof is at running page 58 of the petition wher....
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....n re: Pepsi Foods Ltd. & another vs. Special Judicial Magistrate & others reported in (1998) 5 SCC 749 vide para-28 has mandated that the order of learned trial court summoning the accused must reflect that he has applied his mind to the facts of the case as well as law applicable thereto. If the learned trial court summons an accused person without carefully adverting to the facts and law of the case, the said summoning order would be bad in law. For convenience, para-28 reads as under:- "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silen....