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2023 (1) TMI 1050
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.... the basis of Vigilance P.S. Case No.26/2008 dated 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, CB....
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....ntainted property. During his tenure as Minister, Shri Anosh 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 inc....
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.... house was acquired in the name of Deepak Lakra for which the money 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....
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.... Ranchi with 50 pcs of cartridge. 24.11.05 18,560/- One DBBL Gun 12 bore pistol bearing No. 42815/1530 purchased 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....
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....dega Post Office 30.3.07 1,00,000/- Application for purchase of KVP Reg. No. 10577 from Simdega Post Office 19.7.08 1,00,000/- Certified copy of 1 registered sale deed regarding purchase of land at Simdega received vide letter No. 116 dt. 14.6.2011 of Distt. Sub Registrar, Simdega. 21.9.07 3,69,648/- Certified 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 Thaku....
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....at Irba, Ormanjhi (near Appolo Hospital) 2006-09 1,21,88,200/- In the name of Deepak Lakra, Present Director M/s Ekka Construction Pvt. Ltd. Certified copy of sale deed (in the name of Deepak Lakra) of house No. 963/C, Sushant Lok, Phase I, Gurgaon, Furnished vide letter No. 714 dt. 19.10.10 of sub Registrar, Gurgaon (includes stamp and registration charges) 29.5.06 58,30,890/- In the name of Gidyon Ekka 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.....
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.... Sale Deeds 11.6.2008 to 17.10.2008 65,64,593/- 17 numbers of certified copies of registered Sale Deeds executed in 2008 (collected by Vigilance Bureau vide which plots were purchased in Jalpaiguri) (Deeds No. 2946, 2947, 2586, 2550, 2400, 2399, 2398, 2397, 2374, 2092, 2228, 2091, 2145, 2146, 2148, 2051, 2090) 13.6.2008 to 6.9.2008 55,44,434/- Balance in A/c No. 30404683609 in SBI, Town Branch, Jalpaigudi 28,20,258/- Balance in A/c No. CA 372899 in Allahabad Bank, Silliguri 1,19,546/- Total 15,93,59,416/- 18. The accused claimed income from many other sources apart 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/-....
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....ealed by the income tax return filed by him were not sufficient for the claimed investment made by him, which were in reality crime proceeds. 26. Roshan Minz, (sister's son of Anosh Ekka), Mrs Menon Ekka w/o of Anosh Ekka, Nishant Minz and Ms. Nisha Minz, (son and daughter of Smt Menon Ekka) had no valid income of their own. Property acquired in their name and attached u/s 5 (1) of the PMLA were nothing but the illegal income of Anosh Ekka. Thereby he had committed offence under Section 3 and 4 of the PMLA 2002. 27. Money earned by Anosh Ekka was derived from his activity committing offence under the provisions of Sections 406,409,420,423,424, 465, 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 an....
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.... be governed by the provisions of 2002 Act of the Prevention of Money Laundering Act, 2002 (PMLA) which came into force w.e.f. 01.07.2005. The subsequent amendments brought in the PMLA in the year 2009, 2013 will have no applicability for the adjudication of the present appeal. 35. Since the provisions of PMLA 2002 have punitive implications, therefore, it will have no retrospective application in view of the subsequent amendments made in the Act, and schedule, in the year 2009 which came into effect from 15.02.2013. 36. The main thrust of the appellant's case is that Section 13(2) read with Sections 13(1)(e) of the Prevention of Corruption Act, 1988 (PC Act) were made scheduled offence w.e.f. 01.06.2009 which has no retrospective effect. Therefore, 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 ....
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....iod was shown 01.05.1997 to 30.06.2005 and the offences involved were Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 against first petitioner and Section 109 of IPC read with Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988. In this case, the Madras High Court referred to the judgment of the Division Bench of Karnataka High Court in the case of M/s Obulapuram Mining Company Pvt. Ltd. Versus Directorate of Enforcement wherein it was held that the accused persons could not be prosecuted for the offences alleged, as they were not scheduled offences under PMLA Act. The offence under Prevention of Corruption Act with other offences were included in the PMLA only w.e.f. June 1, 2009. Hence, the Enforcement Directorate could not have invoked the provisions 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....
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....46. The Hon'ble Supreme Court in this case upheld the view taken by this Court in the case of Hari Naryan Rai Vs State of Jharkhand 2010 SCC On Line Jhar 515 and Narendra Mohan Singh Vs Directorate of Enfocement 2014 SCC On Line Jhar 2861 as well as the view of Andhra Pradesh High Court in B. Ramaraju Vs UOI 2011 SCC On Line AP 152. Therefore, the fact as to whether at the time of commission of predicate offence, the same was included in the schedule or not, is immaterial and the material date is the date when the accused is found in possession or is found in any manner dealing with the proceeds of crime. 47. With respect to the second point raised on behalf of the appellant that in absence of submission of any charge sheet with respect to the scheduled offences, the instant investigation and subsequent 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 inv....
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....limit of Rs.5.00 Lakh on the fine was omitted and thereafter there remains no such ceiling limit. This apart, the final complaint i.e. the 3rd supplementary complaint was filed only on 31.03.2015 as has been stated hereinabove i.e. Exhibit 76 and therefore, the prosecution on the basis of the said complaint entitles the learned Court below to impose a fine as was imposable as on date of filing of such complaint and, therefore, the 4th argument of the appellant is also not having any leg to stand. ANALYSIS 50. Here documentary evidence in the nature of unimpeachable character has been led on behalf of the prosecution regarding acquisition of assets disproportionate to the known source of income. The appellant has not assailed the Judgment on appreciation of evidence or on factual matrix. The challenge basically 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....
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.... the crimes. b. Layering: which is disguising the trail to foil pursuit. c. Integration: which is making the money available to the criminal for what seem to be legitimate sources. These processes are by their very nature continuing and after the predicate offence is committed, steps are taken to disguise the trail and legitimise the source. Legal dilemma, if any, has been cleared by Hon'ble Supreme Court in Vijay Madan Lal Choudhary (supra) wherein it has been held that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity. It would be an offence of money laundering to indulge in or to assist to be party in process or activity connected with the proceeds of crime, and as such process or activity in a given facts or situation may be a continuing offence 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, ....
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....b of argument pressed into service on behalf of appellant, is the absence of any charge sheet with respect to the scheduled offences, the instant investigation and subsequent complaint, could not have been filed. This issue has been answered by Hon'ble Supreme Court in Vijay Madan Lal Choudhary (supra) at para 269 wherein it has been held that the offence of money laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to the scheduled offence. The triggering factor to prosecute any person for offence of money laundering, is existence of 'proceeds of crime' within the meaning of Section 2(1)(u) of the 2002 Act and involvement in any process or activity. Even if in a given case, there is discovery of huge 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, ....
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....er Section 3 read with Section 4 of PMLA are: I. A criminal activity which is a scheduled offence, should have been committed. II. Some money should have been generated by the criminal activity; III. The money so generated (proceed of the crime) should have been projected as untainted one. In the present case the prosecution has proved all the three basic ingredients of the offence. I do not find any infirmity in the impugned Judgment of conviction by the trial Court. Judgment of conviction under predicate offence is also affirmed in Criminal Appeal no.326/,327/ and 328/ pending before this Court and pronounced by a separate Judgment today. The Judgment of conviction under Section 4 of the PMLA is affirmed. SENTENCE 60. The learned Trial Court has imposed a sentence of R.I for 7 years and a fine of Rs 2 crore for the offence under Section 4 of 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....