TaxTMI 
TaxTMI 
2022 (11) TMI 1221
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....month of February 2020 against the accused persons viz., Tahir Hussain and others under Sections 147,148,149,120B,34,201,302,307 and 385 of the Indian Penal Code, 1860. Based upon the said scheduled offence, inquiries were initiated under the PMLA Act after recording the brief facts of the scheduled offence in ECIR No. ECIR/05STF2020 dated 09.03.2020 by the Directorate of Enforcement. 3.1.1 In short, the FIR No. 0059/2020 registered by Crime Branch, Delhi Police pertained to a criminal conspiracy hatched for committing large scale rioting that took place in Delhi on 23rd, 24th and 25th February 2020. The conspiracy to commit riots was hatched by Umar Khalid, a JNU student and his associates who are members of different organizations. Umar Khalid made inflammatory speeches at different places and appealed for corning out on roads and blocking the roads on 24-25 February, 2020 during the proposed visit of U.S. President Donald Trump so that a propaganda may be spread at international level that the minorities are being oppressed in India. In furtherance of the conspiracy, Umar Khalid and his associates mobilized women and children on roads at different places in Delhi with in....
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.... the drain. Upon checking, the dead body of Ankit was recovered. The body bore injuries from a sharp edged weapon on head, face, chest, back and hip and the face & other body parts had been disfigured with acid to hide his identity. The body was brought to GTB Hospital where it was declared dead on arrival. The office of the Municipal Councillor/accused Tahir Hussain is nearby Chand Bagh Pulia and he had mobilized criminals in his office who were indulging in lobbing of stones, petrol bombs and firing from the roof of his office premises that had led to tension and fear among the members of the public. The murder of Ankit Sharma and dumping of his body from the mosque into the drain was committed by Tahir Hussain and the people who were present in his office. 3.2 It was argued that it was found that 23.02.2020, being a Sunday, was a holiday in the office-cum-residence of Tahir Hussain located at E-7, Main Karawal Nagar, Khajoori Khas, New Delhi. Rahul Kasana and Girish Pal, employees of Tahir Hussain and eyewitnesses have given an account of the incidents leading to the riots on 23.02.2020 and 24.02.2020. In the month of January, 2020, Tahir Hussain went to an office in Shaheen B....
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....ount transferred from company Name of bogus company to whom amount was shown to be transferred to in RTGS/NEFT narration Entry operator in whose account amount was actually credited 1 Rs. 60 lakh from ECPL Meenu Fabrication Shri Sai Traders 2 Rs. 32 lakh from ECPL S P Financial Services Sanjay Traders 3 Rs. 20 lakh from EGSPL Meenu Fabrication Shri Sai Traders 4 Rs. 25.65 lakh from SEAPL Yudhvee Impex Vikram Traders 5 Rs. 15.28 lakh from SEAPL Kanhaiya Enterprises Shri Ram Wood Products 6 Rs. 6.5 lakh from SEAPL Vasundhara Sainyam Traders C. As per complaint, Meenu Fabrications alias Shri Sai Traders was owned by Sh. Jitender Kumar and controlled by Sh. Roshan Thakur; SP Financial Services Pvt. Ltd. Alias Sanjay Traders which owned by Sh. Pankaj Goswami and controlled by Sh. Yogesh Bansal; Yudhvee Impex alias Vikram Traders was owned by Sh. Ranjit Rabin Mandal and controlled by Sh. Nand Kumar Shukla; Kanhiya Enterprises alias Shree Ram Wood Products was owned by Sh. Vijender and controlled by Sh. S.K. Agarwal @ Shanki; Vasundhra alias Sainyam Traders was owned by Sh. Anita and controlled by Sh. Yogesh Bansal. D. In their st....
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....ltimate beneficiary of the money received in cash which was used for fulfilment of his ulterior motives. Fake and bogus invoices were created to cover the money trail. It was also argued that Tahir Hussain actively funded anti-CAA protests and riots and was in touch with protesters and rioters. In Chand Bagh area, where anti-CAA protest was going on, Tahir Hussain met one Suleiman Siddiqui and gave him money for use in anti-CAA protests/gathering people/any kind of nuisance or uproar and asked him to make complete arrangements. He also met a woman named Gul at Jafrabad, where another CAA protest was going on, handed over money to her and told her to do similar things as Suleiman Siddiqui. His active role in North East Delhi riots is highlighted by the fact that there was a sudden surge of persons in his office a few days before the riots and he conducted several meetings with them. Some such people were identified as Arshad Pradhan, Irshad Ahmed, Aabid Khan etc who were arrested by the Delhi Police/Crime Branch for instigating riots. The conspiracy hatched by Tahir Hussain with his associates to fund and organize anti-CAA protests and the North East Delhi riots was t....
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....ical affiliations. He has been arraigned as an accused in a few riots cases. He is in custody for the last two years. 4.2 It was also argued that there must exist a predicate offence / scheduled offence which is scheduled for the complainant/Directorate of Enforcement to start its investigation. The scheduled offences stated are Section 385, 302, 201, 34, 307, 120-B IPC . Section 120-B IPC has to be read in relation to this charge-sheet and not the charge-sheet in other IPCs offences. Moreover, also there is no FIR for cheating under Section 420 IPC. There is no commonality of accused in this case and predicate offence. Accused Tahir Hussain, also, cannot conspire with himself in view of the pardon granted to Amit Gupta. 4.3 It was further argued that the complainant has relied upon the FIR and not the charge-sheet in those FIRs. Investigation in predicate offences has not been relied upon by the Directorate of Enforcement. Moreover, no provisional attachment order of any property of accused has been issued so far nor matter forwarded to the authority as there exist no proceeds of crime. For the purpose of proceeds of crime, it has to relate to a scheduled offence. 4.4 Accused h....
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....prosecution and Ld. Counsel for accused. Written submissions and judgments were filed on behalf of prosecution. Judgments were also filed on behalf of accused. The entire record has been meticulously perused. 6. Ld. Counsel for accused had argued that accused had political affiliation for which he was targeted and he is in custody for the last two years. These arguments are not relevant on the question of charge. 7. 7.1 As per the case of the complainant/Directorate of Enforcement, FIR No. 59/2020, FIR No. 65/2020 & FIR No. 88/2020 were registered by Delhi Police in connection with riots in February 2020 in North-East Delhi against Tahir Hussain and Others under various sections including Section 120-B IPC, 302 IPC, 307 IPC & 385 IPC. Based upon the said scheduled offence, inquiries were initiated under the PMLA Act after recording the brief facts of the scheduled offence in ECIR No. ECIR/05-STF-2020 dated 09.03.2020 by the Directorate of Enforcement. 7.2 As per the prosecution, there was a conspiracy for riots and FIR No. 59/2020 was registered at Crime Branch and investigated by Special Cell, Delhi Police. The said file was also summoned for the perusal. Charge-sheet in the sa....
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....nce accused cannot conspire with himself, is an incorrect proposition. What the law requires for a conspiracy is an involvement of two or more persons. The granting of pardon to one, on his statement and the stand of the prosecution, does not detract from the fact that they were accused in this matter for the offence of money laundering. 7.4 Moreover, the fact that other co- accused was not an accused in other FIRs i.e. FIR No. 59/20, FIR No. 65/20 & FIR No. 88/20, does not mean that he cannot be an accused in the present matter since both IPC and PMLA are different statutes to deal with different kinds of offences and both operate in their own spheres. The predicate offence and the predicate case is required for initiation of complaint by the Directorate of Enforcement, which then has to investigate into the aspect of money laundering which is in its domain. 7.5 Ld. Counsel for accused had argued that the commission of the offence of applicant/ accused can, at best, be taken as violation of GST Act and not PMLA; however, this argument is not tenable as even assuming this case, it cannot be said that accused cannot be prosecuted for the offence of money laundering under PMLA if t....
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....Shri Sai Traders'; fake and bogus invoices were created in the name of Meenu Fabrications to M/s ECPL for 'supply of manpower services'. Investigation further revealed that money was transferred to the bank account of Shri Sai Traders in the garb of 'supply of manpower services' to a bogus entity 'Meenu Fabrications' and that cash amounting to Rs. 60 lakh reached to Tahir Hussain through the entry operators after deduction of their commission amounts. B. Similar modus operandi was adopted in respect of other bogus companies as tabulated below Sl. No. Amount transferred from company Name of bogus company to whom amount was shown to be transferred to in RTGS/NEFT narration Entry operator in whose account amount was actually credited 1 Rs. 60 lakh from ECPL Meenu Fabrication Shri Sai Traders 2 Rs. 32 lakh from ECPL S P Financial Services Sanjay Traders 3 Rs. 20 lakh from EGSPL Meenu Fabrication Shri Sai Traders 4 Rs. 25.65 lakh from SEAPL Yudhvee Impex Vikram Traders 5 Rs. 15.28 lakh from SEAPL Kanhaiya Enterprises Shri Ram Wood Product 6 Rs. 6.5 lakh from SEAPL Vasundhara Sainyam Traders 8.4 As per complaint, i) Meenu Fa....
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....n. Also, he did not have any knowledge of the ultimate utilisation of the funds transferred out of his companies. 9.2.2 Mohammed Akram was the Director of ECPL and EGSPL. Funds amounting to Rs. 1.12 Crores transferred to firms operated by entry operators from these two companies at the instruction of Tahir Hussain. He did not know about the ultimate beneficiary or the mechanism of cash generation. Also, he did not have any knowledge of the ultimate utilization of the funds transferred out of his companies. 9.2.3 Roshan Pathak was the accountant of Tahir Hussain. Handled the cash and also the compliance part related to the bills. Worked at the instruction of Tahir Hussain. He did not have any knowledge of the ultimate utilisation of the cash funds generated through entry operator firms/companies. 9.2.4 Usman Ahmed used to supervise all the logistics support required for the production works carried out at the Kasna, Greater Noida Office; did not have knowledge about the entry operator firms/companies. Did not handle the cash generated through entry operator firms/companies. 9.2.5 Shama Anjum was the Director of SEAPL. She was a house wife and did not involve actively in any busi....
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....rove him to Shaheen Bagh. On reaching in front of an office, Tahir Hussain asked him to park the vehicle. Tahir Hussain got down from the vehicle and went inside. After sometime, he also saw the entry of Sh. Umar Khalid and Sh. Khalid Saifi in the same office. He further stated that he knew Khalid Saifi for a long time as he used to frequently visit the office of Tahir Hussain and he had seen Umar Khalid in the news and media. vii. He revealed that he saw Tahir Hussain giving money to two persons who were related to the anti-CAA protests/Delhi riots because he drove Tahir Hussain in Chand Bagh area where the protest was going on. Tahir Hussain shouted to somebody to call one Suleiman Siddiqui, that after sometime, a person came and Tahir Hussain handed him over a bundle of money. From their conversation it was revealed that he was Suleiman Siddiqui. Suleiman Siddiqui had covered his face with a cloth. viii. Tahir Hussain asked Suleiman Siddiqui to keep the money with him as it could be used in anti-CAA protests/gathering people/any kind of nuisance or uproar. Tahir Hussain asked him to make complete arrangements. ix. After this, he drove Tahir Hussain towards Jafrabad where a....
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.... was an aide of Tahir Hussain who arranged cash in lieu of the RTGS/NEFT from the companies owned/ controlled by Tahir Hussain. He did not have any knowledge of the ultimate utilisation of the cash funds generated through entry operator firms/companies. 9.2.9 Manoj Thakur, was a GST Consultant who helped Amit Gupta in arranging cash for Tahir Hussain in lieu of the RTGS/NEFT from the companies owned/controlled by Tahir Hussain. He did not know Tahir Hussain or had any knowledge of the ultimate utilisation of the cash funds generated through entry operator firms/companies. 9.2.10 Roshan Thakur, was an entry operator who controlled the bank account of Shri Sai Traders (Rs. 80 lakhs transferred in it) and helped Manoj Thakur & Amit Gupta in arranging cash for Tahir Hussain in lieu of the RTGS/NEFT from the companies owned/controlled by Tahir Hussain. He did not know Tahir Hussain or had any knowledge of the ultimate utilisation of the cash funds generated through entry operator firms/companies. 9.2.11 Jitender Kumar, was Proprietor and account holder of Shri Sai Traders. The account was actually used and controlled by Shri Roshan Thakur. Did not have any knowledge about the transac....
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....g cash for Tahir Hussain in lieu of the RTGS/NEFT from the companies owned/controlled by Tahir Hussain. He did not know Tahir Hussain or had any knowledge of the ultimate utilisation of the cash funds generated through entry operator firms/companies. 9.2.18 Pankaj Goswami, was the Proprietor and account holder of Sanjay Traders. The account was actually used and controlled by Shri Yogesh Bansal. Did not have any knowledge about the transactions carried out from this account. 9.2.19 Pankaj Bansal, was an entry operator who arranged cash of Rs. 15.28 Lakhs the bank account of Vikram Traders (Rs. 15.28 Lakhs transferred from SEAPL) and helped Amit Gupta in arranging cash for Tahir Hussain in lieu of the RTGS/NEFT from the companies owned/controlled by Tahir Hussain. He did not know Tahir Hussain or had any knowledge of the ultimate utilisation of the cash funds generated through entry operator firms/companies. 9.2.20 Rajender Kumar Bansal @ Monti, was an entry operator who controlled the bank account of Vikram Traders (Rs. 25.65 Lakhs transferred from SEAPL) and helped Pankaj Bansal & Amit Gupta in arranging cash for Tahir Hussain in lieu of the RTGS/NEFT from the companies owned/co....
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....tained, directly or indirectly, by any person as a result of criminal activity relating to the scheduled offence or the value of any such property, [or where such property is taken or held outside the country, then the property equivalent in value held within the country]" [or abroad]. [Explanation. For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence] Sections 3 and 4 of the PML Act which are the principal sections for the present purposes, are as under: - "3. Offence of money-laundering.- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. Explanation.-For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of ....
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........5. As is evident from the quoted portion, the respondent had allegedly handed over a sum of Rs.50,00,000/- (Rupees fifty lakhs only) to a public servant, which transaction and the surrounding circumstances were projected in FIR dated 29.8.2011, leading to registration of crime under Section 120B, Indian Penal Code, 1860 ("IPC", for short) and Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ("PC Act", for short). Later, a case was registered by the Enforcement Directorate against the accused including the respondent under Sections 3 and 4 of the PML Act. 6. The basic submission advanced on behalf of the respondent was that the amount in question, as long as it was in the hands of respondent, could not be said to be tainted money; that it assumed such character only after it was received by the public servant; and as such the respondent could not be said to be connected with proceeds of crime and could not be proceeded against under the provisions of the PML Act. The submission was accepted by the High Court with the following observations: - "7. For attracting the penal provisions of the PML Act, the accused should have projected ....
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....ent. If it is thereafter appropriated by the public servant, the offence would be of misappropriation or species thereof but certainly not of bribe. The crucial part therefore is the requisite intent to hand over the amount as bribe and normally such intent must necessarily be antecedent or prior to the moment the amount is handed over. Thus, the requisite intent would always be at the core before the amount is handed over. Such intent having been entertained well before the amount is actually handed over, the person concerned would certainly be involved in the process or activity connected with "proceeds of crime" including inter alia, the aspects of possession or acquisition thereof. By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person. 17. On a bare perusal of the complaint made by the Enforcement Directorate, it is qui....