TaxTMI 
TaxTMI 
2022 (11) TMI 1221
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....ion with the riots in North East Delhi during the 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 ch....
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.... the assistance of other Police Force and divers checked 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....
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....d 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 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.....
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....ounts of fictitious/bogus entities created by entry operators. The entry operators operating such entities made payments of equivalent amount in cash to him. He was the ultimate 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/Crim....
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.... & Ors. Vs. Enforcement Directorate, WP (C) No. 2780/2019. 4. ARGUMENTS OF THE ACCUSED 4.1 Ld. Counsel for accused had argued that accused has been framed in the present matter due to his political 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....
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....asantrao Deshmukh vs. State of Maharashtra, BA No. 1021/2022 dated 04.10.2022 by Hon'ble Bombay High Court Thus, based on the submissions, it was prayed that accused be discharged of all the offences. 5.Arguments on the point of charge were heard at length on behalf of both the 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-....
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....e are two accused persons namely Tahir Hussain and Amit Gupta. Amit Gupta was granted pardon vide order dated 19.02.2022 on his application under Section 306 Cr.P.C. The contention of the Ld. Counsel for accused that if one accused person is granted pardon, then there can be no criminal conspiracy since 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 a....
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....hrough whom the fraud was set out in the complaint. A. RTGS/NEFT transactions amounting to Rs. 60 lakh were made by ECPL to one 'Meenu Fabrications' as reflected in the banking narration for the RTGS/NEFT transfers. However, investigation revealed that the said amount was in fact credited in the account of one '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 Trad....
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....f the PMLA. Statements under Section 50 of PMLA are admissible in law. 9.2 Statements under Section 50 of PMLA as per complaint. 9.2.1 Nitesh Kumar Gupta was the the Director of ECPL and EGSPL. The 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 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 genera....
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.... the packed. So, he never knew the amount of cash carried by him. v. He knew Nitesh Kumar Gupta and went to the Kalindi Kunj metro station once in January 2020 on his motor cycle to get the cheques and RTGS forms signed from Sh. Nitesh Kumar Gupta on the instruction of Sh. Roshan Pathak. The same were handed over back to Sh. Roshan Pathak once they were signed. vi. On being asked, he stated that in the month of January, 2020, on being told by Tahir Hussain he drove 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 ....
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.... stone-pelting in the area on the evening of 23rd February, 2020. At around 11.00 AM on 24.02.2020, people started gathering around in the area. So, they asked the ladies in the staff namely Suman, Nidhi and Kavita to leave early fearing any untoward incident might happen. Gradually, all th office staff left the for their home. He and Rahul Kasana were the last ones to leave the office premises on Rahul Kasana's bike between 1-1.30 PM. He had not gone to the office of SEAPL since then. 9.2.8 Amit Gupta, 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.....
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....sh funds generated through entry operator firms/companies. 9.2.16 Rajnish Kumar Jain, was the Proprietor and account holder of Paras Enterprises. The account was actually used and controlled by Shri Lokesh Singhal. Did not have any knowledge about the transactions carried out from this account. 9.2.17 Yogesh Bansal, was an entry operator who controlled the bank account of Sanjay traders and Sainyam Traders (Rs. 32 & 6.5 Lakhs respectively transferred in it from ECPL & SEAPL) 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. 9.2.18 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 arra....
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.... be proceeds of crime for the purpose of PMLA. To this extent, the assertion of the counsel for the accused is correct. In fact, in the reply to the bail application, the prosecution has also conceded and referred to the transaction of Rs. 5.71 Lakhs to Yudhvee Impex @ Vikram Traders from M/s. Show Effect Advertisement Pvt. Ltd., as relevant not for this case but for showing the past conduct of the accused. 10. Proceeds of Crime under the PMLA is defined as under :- Section 2(u).-- "proceeds of crime", means any property derived or obtained, 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 whic....
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....nted property, is guilty of offence of money laundering and proceeds of crime would include not only property derived or obtained from the scheduled offence but also directly or indirectly derived or obtained as a result of any criminal activity relatable (associated with/has to do with) to the scheduled offence. Recently, Hon'ble Supreme Court of India in a case titled as Directorate of Enforcement versus Padmanabhan Kishore, SLP (Crl.) No. 2668/2022 decided on 31.10.2022 on the question of proceeds of crime and money-laundering under PMLA inter alia stated as under :- "......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 Ac....
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.... Section 3of the PML Act? 15. Said Section 3 states, inter alia, that whoever knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use shall be guilty of offence of money-laundering (emphasis added by us). 16. It is true that so long as the amount is in the hands of a bribe giver, and till it does not get impressed with the requisite intent and is actually handed over as a bribe, it would definitely be untainted money. If the money is handed over without such intent, it would be a mere entrustment. 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 invo....