TaxTMI 
TaxTMI 
2022 (4) TMI 8
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....complaint against the petitioner and others before the Special Court for the offences punishable under Sections 44 and 45 read with Sections 3, 70, 4, and 8(5) of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PML Act') for punishing the accused persons of the offences punishable under Sections 3 and 4 of the PML Act. It is alleged by the complainant in his complaint that an FIR in Crime No.73/2019 was registered by the Commercial Street Police, Bengaluru on 09.06.2019 against M/s. IMA Company Ltd., I Monetary Advisory Private Ltd. (hereinafter referred to as 'M/s. IMA') and also against Mohammed Mansoor Khan, the Managing Director of M/s. IMA for the offences punishable under Sections 406 and 420 of IPC. It is alleged that the Managing Director of M/s. IMA and other Directors of the company started Ponzy Scheme in the name and style of various entities and received huge amount of money from general public with a promise of high returns on their investments and diverted the fund and cheated more than 30,000 middle class people and lower middle class people. It is further alleged that the accused entities and directors are indulged in the offen....
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....t to the following issues: (a) Whether the Central Government in issuing a vacancy circular in exercise of the powers under Section 49(1) of Prevention of Money Laundering Act for appointing officers from other departments as Deputy Director of Enforcement have been authorized and communicated to the selected officers for appointment as Deputy Director and exercise those powers. (b) Whether the order of appointment issued by the Central Government represented by Department of Revenue, Ministry of Finance, Government of India has specifically authorized the selected officer viz Deputy Director on deputation basis, as "Authority" for purposes of Section 2(1)(j) of Prevention of Money Laundering Act 2002 (15 of 2003) (c) If the Central Government has not issued any appointment order specifying the Deputy Director as an "Authority" under Prevention of Money Laundering Act, the status and legality of the vacancy circular; the order of appointment issued by Central Government; and the posting order posting the Deputy Director on deputation basis in Enforcement Directorate issued by the Director of Enforcement, for purposes of Prevention of Money Laundering Act ....
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....#39;ble Supreme Court reported in the case of M/S. CANON INDIA PRIVATE LIMITED VS. COMMISSIONER OF CUSTOMS reported in 2021 SCC ONLINE SC 200. 8. The respondents have appeared through the learned Special Counsel and filed statement of objections. The sum and substance of the statement of objections is that the Deputy Director has been appointed in accordance with Sections 48, 49 and 51 of the PML Act and once he has been appointed as Deputy Director under the PML Act, he shall exercise the powers conferred under the provisions of Section 51 of the Act. Once the Central Government has authorized the authorities under the Act and has made any appointment by way of deputation, there is no requirement of any separate authorization for carrying out the functions. The Deputy Director Sri Parashivamurthy has been duly appointed and authorized as per Order No.101/2018 dated 22.06.2018. Therefore, the contention of the petitioner cannot be acceptable. The learned Special Counsel has also contended that the authorities under the Act appointing the respondent Assistant Director was in accordance with the Government Order. Once he has appointed and deputed to work in ED, the office....
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.... second proviso to Section 45 as under: "Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by - (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government." 12. The amendment to Section 45 came into force with effect from 1.7.2005 as per Section 45 (1-A) of PML Act as under: "(1-A) Notwithstanding anything contained in the Code of Criminal Prcedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed." 13. On bare reading of Sub-section (2) to the 2nd proviso to the section 45 (1) of PML Act empowers any officer of the Central Government or a State Government authorize in writing in this behalf by a Central Government by a general or special order made in this behalf by that....
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....7.2005 issued by the Government of India, Ministry of Finance, Department of Revenue in the Gazette which is as under:- "G.S.R.440(E) - In exercise of the powers conferred by sub-section (1) of section 49 of the Prevention of Money-laundering Act 2002 (15 of 2003), the Central Government hereby appoints, with effect from the 1st day of July, 2005, the Director of Enforcement holding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999), as the Director to exercise the exclusive powers conferred under Section 5, section 8, section 16, section 17, section 18, section 19, section 20, section 21, sub-section (1) of section 26, section 45, section 50, section 57, section 60, section 62 and section 63 of the said Act and the said Director shall also concurrently exercise powers conferred by sub-section (3), sub-section (4) and sub-section (5) of section 26, section 39, section 40, section 41, section 42, section 48, section 49, section 66 and section 69 of the afore-said Act." 17. The another general order dated 11.11.2014 which is read as under:- "In exercise of the powers conferred under sub-section on section 45 of th....
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....der Section 49(1) of the PML Act. 21. As I have already stated above, the order of appointment issued by the Central Government dated 01.07.2005 empowers the officers for appointment to be worked as authorities under the ED. By an appointment order dated 18.08.2017 Basavaraj Magdum was selected and appointed on deputation basis and posted to work as Assistant Director until further orders with effect from 29.09.2017. This administrative order (Admn. No.144/2017) clearly reveals that, on 29.09.2017, the said officer Basavaraj R. Magdum took charge as Assistant Director on deputation basis. Therefore, once the officer is posted as an Assistant Director, the Government by exercising power under Section 49(1) of the PML Act, he becomes the Assistant Director for the purpose of Section 48(1)(c) of the PML Act. 22. Sub-Section (2) of Section 49 of PML Act defines that without prejudice to the provisions of sub section (1), the Central Government may authorise the Director or an Additional Director or a Joint Director or a Deputy Director or an Assistant Director appointed under that sub-section to appoint other authorities below the rank of an Assistant Director. Sub-section (3) of....
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....he appointment of one Parashivamurthy M.K. as Deputy Director does not arise. The order under Section 5 of the PML Act is nothing but an administrative order which was challenged before the Appellate Tribunal and the order of the Tribunal is not before this Court and not challenged in this petition. Therefore, the question of considering the power of the respondent No.1 cannot be dealt with by this Court in this petition. Respondent No.2 has filed the complaint as Assistant Director which is in the nature of charge sheet and there are two different proceedings in view of the order passed under Section 5 and filing complaint under section 45 of the PML Act. Therefore, the contention of the petitioner's counsel at paragraphs 7 and 8 of the petition questioning the authority of respondent Nos.1 and 2 is not sustainable and the respondents are the authorities under the PML Act and who have been duly appointed by the Central Government and they exercised their power under the Act which is within the jurisdiction under the PML Act. The Hon'ble Supreme Court settled the issue in respect of the proceedings under Section 5(1) of the PML Act regarding provisional attachment ord....
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.... an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file." (emphasis supplied) 27. In view of the judgment of the Hon'ble Supreme Court in Pradeep S. Wodeyar's case (supra), the trial Court need not pass a lengthy order for taking cognizance in respect of the challan filed by the police after the investigation. The application of mind and the detailed or....