TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 1050
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....ted 26.11.2008 registered under Sections 406, 409, 420, 423, 424, 465/120B IPC and Sections 11/13(2) read with Section 13(1)(e) of the P.C. Act, 1988 for accumulation of disproportionate assets accumulated by the accused/ MLA/ Minister, Anos Ekka and Harinarayan Rai. 3. Complainant made allegation of criminal conspiracy, misappropriation, criminal breach of trust, cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount and to have acquired assets disproportionate to his known lawful source of income and also to have acquired lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka. 4. After investigation Vigilance Bureau submitted, interim chargesheet no 21/2009 dated 5.10.2009 u/s 406,409,420,423,424,465/120 B of IPC and section 11/13(2) r/w 13(1)(e) of the PC Act, 1988 for possession of disproportionate assets by the accused MLA's/Ex-Minister Anosh Ekka and Hari Narayan Rai . During the pendency of the case, further investigation was taken up by the CBI under the direction of this Court passed in W.P.(PIL) No.4700 of 2008 and WP (PIL) No.2252 of 2009, CBI vide order dated 04.08.2010 wherein direction was....
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....h Ekka was involved in corruption/ misappropriation of public money and thereby acquired assets in crores which included movable and immovable properties in the name of his wife and other relatives. 9. Anosh Ekka had filed his nomination for election in Jharkhand State Assembly in the year 2005 and at the time of filing nomination on 20.1.2005, a declaration of assets including the assets of his wife and dependent was made on affidavit which valued at Rs. 10,48,827/-. At that time he was not even an income tax payee and had no PAN card in his name. He was elected in the year 2005 in Jharkhand State Assembly Election and became Minister of Rural Development, NREP, Transport, Panchayati Raj and Building Construction Department of the Government of Jharkhand from the year 2005 to 2008. It is alleged that during this period by misusing his official position as a public servant, he acquired huge movable and immovable properties either in his name or in the name of his family members, relatives and associates. 10. In nutshell, accused Anosh Ekka had acquired assets Rs.57.01 Crore disproportionate to his known sources of income against the pre-check asset of Rs.10,48,827/- during the ch....
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.... was transferred from the account of M/s Ekka Construction Pvt. Ltd. To the account of Deepak Lakra and there-from it went to the seller of the house at Gurgaon. In view of these facts and circumstances, both assets and income of M/s Ekka Construction Pvt. Ltd. have been taken into account for computing the disproportionate assets of Sri Anosh Ekka. 13. Flats worth Rs.9,07,784/- and Rs. 13,56,353/- were purchased by Sri Anosh Ekka in the name of Gidiyon Ekka and Roshan Minz, respectively. Also, investment for Rs. 1 lakh was made in post-office in the name of Gidiyon Ekka. Gidiyon Ekka and Roshan Minz have not been able to reveal from where they earned the money equivalent to the cost of the flats. Sri Roshan Minz did not claim to have filed income tax returns. Sri Gidiyon Ekka's returns did not reflect sufficient income justifying purchase of the flat. 14. A Scorpio vehicle was purchased in the name of Sri Ibrahim Ekka and huge sum was paid for obtaining choice registration number for this vehicle. This apart, substantial land worth Rs. 13 lakh had been purchased in his name, in Simdega. The income tax returns of Sri Ibrahim Ekka did not justify these acquisitions and he could no....
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.... from Bihar Gun House, Ranchi with 50 pcs of cartridge. 2.12.05 8,700/- Balance in A/c No. 22221 (new No. 491410100022221 in Bank of India, Simdega. 1,87,777/- Balance in SB A/c No. 495810100102320 of Bank of India, High Court, Doranda, Ranchi. 2,01,583/- FD Certificate No. 9445168 dt. 19.1.09 (FD A/c No. 495845110001035), Bank of India, High Court, Ranchi. 19.1.09 10,00,000/- Endeavour Ford Car No. JH01M0001 purchased from M/s Akash Travels Agency, Ranchi Club Complex, Ranchi. 20.6.06 5,00,000/- Endeavour BS III Car Reg. No. JH 01Z 0001 purchased from M/s Jayshree Ford, Ranchi. 24.1.09 17,49,000/- Motorcycle No. JH20A3007 purchased from M/s AUTO BIKES, 56, Main Road, Ranchi. 15.2.08 57,569/- In the name of Smt. Menon Ekka, wife Valuation report No. 229 dt. 8.8.2011 of Valuation Officer, Income Tax, Ranchi, regarding valuation of house in Hinoo, Doranda, Ranchi. 2006-09 1,80,20,000/- Time Deposit Passbook of A/c No. 150101502 in Doranda PO. 12.3.07 3,60,000/- Time Deposit Passbook of A/c No. 150101504 in Doranda PO. 12.3.07 6,00,000/- Time Deposit Passbook of A/c No. 150101505 in Doranda PO. 12.3.07 6,00,000/- Tim....
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....ied copies of sale deeds of land purchased at Hinoo, Neori, Ormanjhi, Ranchi, furnished vide letter No. 868 dt. 30.12.08 of Distt. Sub Registrar, Ranchi (includes stamp and registration charges) Between 27.3.06 and 16.1.08 1,20,35,705/- Letter No. 274 dt. 8.4.11 of Distt. Sub-Registrar, Ranchi enclosing certified copy of registered sale deed No. 7718 dt. 10.5.08 pertaining to purchase of land at Serumtoli, Chutia, Ranchi. 10.5.08 7,98,433/- Letter No. 462 dt. 20.6.11 of Distt. Sub-Registrar, Ranchi enclosing certified copy of registered sale deed No. 94 dt. 6.5.08 pertaining to purchase of land at Serumtoli, Chutia, Ranchi. 6.5.08 6,42,823/- In the Joint names of Anosh Ekka and Menon Ekka Valuation report No. 228 dt. 8.8.2011 of Valuation Officer, Income Tax, Ranchi, regarding valuation of house at Thakurtoli, Simdega. 2005-06 20,28,400/- Balance in Joint SB A/c No. 380302010156036 in Union Bank of India, Doranda, Ranchi. 7,023/- In the name of M/s Ekka Construction Pvt. Ltd., Directors- Smt. Menon Ekka, Jayakant Bara (now Deepak Lakra in place of Smt. Menon Ekka) Tata Safari Car No. JH06H0001 for purchased from M/s.....
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....nbsp; Application for purchase of NSC (Reg. No. 4990) from Simdega Post Office 30.3.07 1,00,000/- Flat No. C-1/5, Hari Om Tower Residential Complex, Circular Road, Ranchi (includes stamp and registration charges) 29.7.06 9,07,784/- In the name of Roshan Minz, nephew (sister's son) Flat No. 104, Sri Ram Regency Apartment, off. Circular Road, Ranchi (includes stamp and registration charges) 2.9.06 13,56,353/- In the name of Jaykant Bara (Director M/s Ekka Construction Pvt. Ltd.) Application for purchase of NSC Reg. No. 4987 from Simdega Post Office. 30.3.07 1,00,000/- TD Passbook of A/c No. 5413189 in Sub Post Office, HSG1, Simdega 8.1.07 2,79,000/- TD Passbook of A/c No. 5413190 in Sub Post Office, HSG1, Simdega 8.1.07 2,24,000/- TD Passbook of A/c No. 333053004 in Sub Post Office, HSG1, Simdega 29.8.08 2,00,000/- TD Passbook of A/c No. 130102402 in Doranda Post Office. 5.10.06 1,50,000/- TD Passbook of A/c No. 333053005 in Sub Post Office, HSG1, Simdega 29.8.08 2,26,000/- TD Passbook of A/c No. 333053006 in Sub Post Office, HSG1, Simdega 29.8.08 2,00,000/- TD Passbook of A/c No. 130102493 in D....
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....t from the income from salary. So, for calculating his income and that of his family members the income tax return and salary statement and Bank records were taken into account. 19. M/s Ekka Construction Pvt. Ltd. mentioned, in its income tax returns, to have received huge amounts as share holders' money, However, such claim has not been found acceptable in absence of documentation and maintenance of books of accounts by this company. 20. Smt. Menon Ujjana Ekka W/o of the appellant, was found to have declared an income of Rs. 1,31,90,261/- in her Income Tax return for financial year 2007-08 which was an abnormal and abrupt hike compared to the previous years. Rs. 1,05,83,761/- out of the above amount had been declared as income from other sources. But there was no documentation or maintenance of books of accounts by her which could support her claim. Smt. Ekka tried to explain that she celebrated the birthday of her wards, in which huge gifts from innumerable persons were received. However, there was no list of such donors to support her claim of having received such a huge amount. Obviously, a receipt of this nature cannot be accepted. 21. Huge expenditure had been incurr....
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...., 120 B of IPC and the provisions of Section 11 and 13 of the PC Act which was invested by him in immovable/movable properties which were purchased by him in his wife's and relatives name and in company's business concerns. The payments made by Sri Anosh Ekka either directly or through his relatives/their business concerns to the concerned persons/sellers in respect of purchase of properties are part of proceeds of crime. 28. Provisional attachment orders were passed by the Enforcement Directorate under Section 5(1) of the PMLA and the same were confirmed by the adjudicating authority under u/s 8 (3) of the PMLA. 29. The learned Court below examined altogether 57 prosecution witnesses and Exhibits 1-86 have adduced into evidence on behalf of the prosecution. 30. After examination, statement of the accused has been recorded under Section 313 of the Cr.P.C. Altogether 57 questions were put to the accused setting out the evidence appearing against him. The answers are evasive denial and no explanation has been put forward in plea of defence except that he had been falsely implicated in the case due to political rivalry. The defence witnesses have stated different amount given to hi....
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....refore, it is argued that the very initiation of proceeding (registration of ECIR) under the PMLA, 2002 was illegal and contrary to the scheme of the Act. The offence for which the F.I.R. was registered by the Vigilance Bureau were not the scheduled offence under the PMLA Act 2002. 37. The fine of two crores imposed by the Trial Court apart from the sentence of seven years was contrary to the mandate of Section 4 of the PMLA Act, 2002 as the Act provided a fine of Rs. Five Lakhs only. 38. The confiscation/forfeiture of properties under Section 8(5) and order under Section 9 that all property shall vest absolutely in the Central Government was contrary to the provisions of the PMLA, 2002 and rule framed thereunder i.e. the Prevention of Money Laundering (Taking possession of attached or frozen properties confirmed by the adjudicating authority) Rules, 2013 and Prevention of Money Laundering (Restoration of Property) Rules, 2016. 39. No case under PMLA, 2002 can be registered unless there is a case registered by the police, CBI or other investigating agency and the said case must be showing the commission of scheduled offence and the prosecution complaint is filed before the compe....
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....rovisions of PMLA Act with retrospective effect. Even after 01.07.2005, the offences were not included in scheduled offences till 01.06.2009. ARGUMENT ON BEHALF OF ED 44. With regard to the argument that subsequent amendments in PMLA 2002, brought in the year 2009 and 2013 to the list of scheduled offences will have no application in the present case and consequently the offences under PMLA, shall not be made out. In Directorate of Enforcement Versus M/s Obulapuram Mining Company Pvt. Ltd. SC in Special Leave to Appeal (Cr.) No.4466/2017 arising out of impugned judgment and order dated 22.03.2017, the Supreme Court vide order dated 24.07.2017 allowed the leave to appeal and held that in the meantime, the impugned judgment and order will not operate as precedent. 45. It is argued that Hon'ble the Supreme Court in Vijay Madan Lal Choudhary Vs Union of India 2022 SCC OnLine SC 929 has made decisive pronouncement on the issue of retrospectivity at para 270, 279 and 280. It has been held in para 270 "Needless to mention that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity (a scheduled offence). It would be an....
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....t complaint, could not have been filed. The answer is para 269 of Vijay Madan Lal Choudhary (supra). Even the provision of PMLA Section 16 gives power to survey and Section 17 gives power to search and seizure, does not require submission of charge sheet in the scheduled offence as contended on behalf of the appellant. 48. The third line of argument of the appellant was that investigation by way of ECIR was instituted by the Directorate of Enforcement without making any attachment, such prosecution could not have been maintained in absence of an order of attachment. It is argued that this argument is contrary to scheme of the Act. The power of survey search, seizure and arrest in Chapter V of the Act, is not dependent on the pre-condition of attachment. The provision of preliminary attachment, is contained under Section 5 of the Act which can subsequently be confirmed by the adjudicating authority within a period of 180 days as provided under Section 8 of the PMLA. The Trial Court has power at the conclusion of the trial to either confiscate the property or release it under Section 8(5&6) of the Act. 49. With respect to the argument that ECIR was instituted in the year 2009 and a....
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....ly proceeds on technical grounds, whether the provisions of the PC Act was a scheduled offence at the relevant time or not, whether FIR and chargesheet under the predicate offence is essential for institution of ECIR, can a case be registered under PMLA without any attachment of the proceeds of crime and so on. 51. After having considered the rival submissions, the main plea of appellant that emerges is that offence under the Prevention of Corruption Act was included as the scheduled offence under PMLA in the year 2009 which came into force wef 1.6.2009, whereas the alleged offence for the predicate offence under PC Act was committed during the check period March 2005 to March 2009. PMLA being a penal statute cannot be given a retrospective operation. 52. The above plea is not sustainable for the reason that for the offence under PMLA, the principle of retrospectivity is to be understood in its proper perspective. Hon'ble Supreme Court approved in AIR 1953 SC 394 the exposition of law on retrospectivity in The Queen Vs St Mary Whitechapel, in the words of Lord Denman CJ, "A statue which in its direct operation is prospective cannot properly be called retrospective statute because....
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....ffence irrespective of the date and time of the commission of the scheduled offences. In other words, the criminal activity may have been committed before the same has been notified as scheduled offence for the purpose of 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived of obtained from such criminal activity even after it has been notified as scheduled offences he may be liable to be prosecuted for offence of money laundering under the 2002 Act- for continuing to possess or conceal the proceeds of crime or retaining its possession thereof. The Hon'ble Supreme Court upheld the view taken by this Court in Hari Narayan Rai (supra) Narendra Mohan Singh (supra) as well as the view of Hon'ble Andhra Pradesh High Court in B. Ramaraju (supra) and the issue regarding it, has now been set at rest therefore, irrespective of the fact whether at the time of commission of predicate offence (scheduled offence), the same was included in the schedule or not, the date when the accused is found in possession or in any manner dealing with the proceeds of the crime is material for criminality under PMLA. It is therefore....
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.... volume of undisclosed property, the authorized officer may send information to the jurisdictional police under Section 66(2) of 2002 Act for registration of a case under scheduled offence contemporaneously including for a further investigation in a particular case, a case under PMLA will not be registered unless the offence so reported, is a scheduled offence. Even the provisions of Money Laundering Act, 2002 more particularly, Section 16 which gives power to survey, Sections 17 and 18 to gives power to search and seizure and Section 19 which gives power to arrest, do not prescribe any pre-requisite condition regarding submission of charge sheet. The Act, 2002 does not lay down such prerequisites for initiating prosecution under PMLA. This argument is, therefore, misconceived and fit to be rejected. 57. The third argument on behalf of the appellant can be summarized as under:- "Whether an attachment order is a sine qua non for warranting initiation of investigation under PML Act?" PMLA does not mandate that requirement of attachment for the purpose of such investigation, rather to the contrary the provision of provisional attachment, Section 5 of the Act, specifically provides....
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....the Money Laundering Act, 2002. 61. It is argued on behalf of the appellant that since both the cases i.e. the present case under PMLA and that under PC Act arise out of the same transaction, therefore, the benefit of Section 427 of the Cr.P.C should have been extended to the appellant. The plea to invoke Section 427 of Cr.P.C. in the present case is misconceived, for the reason that offence under PC Act and that under PMLA are distinct offences and so the provision of this section will not apply. It has been held in Satnam Singh Puransing Gill Vs The State of Maharastra 2009 SCC On Line Bom 52 that the discretion to award concurrent sentence is when the cases which fall in the category at one trial of two or more offences. On a bare reading of this Section, it has no application to the cases where a person is tried and convicted under two or more different trials for different offences. It has been held in Benson v. State of Kerala, (2016) 10 SCC 307 5. In terms of sub-section (1) of Section 427, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the e....