2023 (4) TMI 411

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....efined under Section 3 of the Prevention of Money-Laundering Act, 2002 which is punishable under Section 4 thereof. 3. The entire thrust of ld. Senior Counsel for the petitioner is that since neither petitioner No.2 Smt. Seema Gurjar has been named in the FIR bearing Crime No.41/2009 for the offence punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 registered by Lokayukt Police, Bhopal nor was she charged, prosecuted, convicted or sentenced for any other 'Scheduled Offence', which is sine qua non to constitute the offence defined under Section 3 of the Prevention of Money Laundering Act, 2002 (for short 'PMLA'), therefore, the offence as defined under Section 3 of PMLA is not made out against her and her prosecution is an abuse of the process of law and deserves to be quashed. 4. The brief facts of the case sought to be asserted by the Directorate of Enforcement against the petitioner are to the effect that: (i) Petitioner No.2 Smt. Seema Gurjar is the wife of petitioner No.1 Harishankar Gurjar. During the check period from 01.01.1988 to 14.07.2009, the petitioner no.1 had remained posted as Range Officer in the Department of Fore....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....is sine qua non to commit a scheduled offence, therefore, the impugned order framing charge as well as the charges framed against petitioner No. 2 are liable to be quashed. 7. Shri Mishra referred to conclusion (d) recorded in para 187 of the judgement pronounced by the Hon'ble Apex Court in Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, which reads as under: 187.(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or anyone cla....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....e trial Court has rightly placed reliance on Yogesh @ Sachin Jagdish Joshi v the State of Maharashtra (2008) 10 SCC 394, Sanghi Brothers v Sanjay chaudhary (2008) 10 SCC 681, Lalu Prasad Yadav v State of Bihar (2007) 1 SCC 49 and Bharat Parikh v CBI (2008) 10 SCC 109. 13. Various contentions have been raised by both the learned counsels for the respective parties with regard to the factual matrix of the matter. The core contention raised on behalf of petitioner No. 2 is that since the offence under Section 109 of IPC is not included in the list of scheduled offences under the PMLA, prosecution of petitioner No.2 under the provisions of PMLA is not sustainable, and therefore, registration of the subject ECIR (Enforcement Case Information Report), which is based on the scheduled offences, is unsustainable and continuation of proceedings based on such ECIR against her amounts to abuse of process of law. For this reason, the subject ECIR registered against petitioner No. 2 as well as her prosecution into the same are liable to be quashed. 14. Section 3 of PMLA states inter alia that whoever knowingly assists or knowingly is a party or is actually involved in any process or activi....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

.... (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more; or (iii) the offences specified under Part C of the Schedule;] Section 107 The Indian Penal Code: 107. Abetment of a thing.-A person abets the doing of a thing, who- (First) - Instigates any person to do that thing; or (Secondly) -Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration: A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fac....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....igation under PMLA and once ECIR is recorded, case registered under PMLA is independent, distinct and stand alone. Even if the predicate/scheduled offences are compromised, compounded, quashed or even in case the accused is acquitted, it does not affect proceedings under PMLA (Samsuddin v UoI 2016 SCC OnLine Ker 41249 & Prakash Industries v UoI 2023 SCC OnLine Del 336). It is only the property which is derived or obtained, directly or indirectly, as a result of criminal activity to a scheduled crime and not the person is relevant to find out as to whether any offence of laundering money has been committed or not. Therefore, the accessories to the main accused, even if they are not named in the FIR of the scheduled offence, can also be held liable equally for the offence of money laundering, as stated in Section 3 of PMLA if they are involved in any of the process mentioned in the Act with regard to the 'proceeds of crime'. In the case on hand, along with her husband, who has been held guilty of committing a scheduled offence i.e. 'criminal misconduct by a public servant' of amassing disproportionate property to his known sources of income and has been awarded 4 years RI with fine o....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....LA. It has further been argued that petitioner No. 2 was not even named in the FIR registered against her husband and there was no charge against her in the said FIR, even then the prosecution under the PMLA has been launched against her, which cannot be said to be in conformity with the settled legal principles in any manner. 18. As has been said above that the offence under the 2002, Act deals only with laundering of money acquired by committing a scheduled offence. Except that it starts with an offence of possessing, concealing, using, converting or projecting proceeds of a scheduled crime as untainted money, it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof and once a case is registered under PMLA, it is an independent offence. Conviction for a scheduled offence is not a prerequisite for prosecution under the PMLA. Since there is plenty of evidence to prima facie show involvement of petitioner No. 2 in assisting her husband to conceal, convert or to project proceeds of a scheduled crime as assets earned or acquired through valid and legal means. In this case, there is even more evidence to show her indulgence in the crime. Her....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....109 IPC cannot be read or punished in isolation or independently, merely on the basis of omission to mention S.13(1)(e) in her conviction or sentence order, it cannot be said that she has not committed any offence scheduled in paragraph 8 of part 'A' of the 'Schedule' appended to the PMLA. 21. Further, the serious allegations have been made in the charge sheet filed by the CBI that petitioner No.2 helped petitioner No.1 to convert tainted property into untainted one. Several documents showing the modus operandi, the money trail, as well as possession, use, concealment and involvement of the petitioner in projecting the tainted money into untainted are available on record which is prima facie sufficient to provide material to frame the charge. 22. It would also be apposite to mention here that charge framed by the Trial Court reflects that in ST No. 04/2010, the charge under Section 109 r/w Section 13(2) r/w 13(1)(e) PC Act was framed. This has not been disputed by the petitioner before this Court. If that be so, non-mention of the charge in the same form in the final judgement appears only to be a bonafide mistake. Even if it is assumed that no charge was framed in such form,....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

.... sentence or punishment, nor to the service of a sentence for one offence, but is a protection against double jeopardy for the same offence that is, against a second trial for the same offence. 26. Shri Mishra, the learned Sr. Counsel for the petitioner has taken a plea that when the main offence itself was said to be committed for a check period (01.01.1988 to 14.07.2009) prior to the time the offences under the PC Act have been made a scheduled offence vide Prevention of Money-Laundering (Amendment) Act, 2012 (2 of 2013) and being a penal statute, it can have no retrospective or retroactive operation, the prosecution of the petitioner is not valid in law. He further submitted that any penal action for alleged offences committed prior to the enactment and operation of law violates Article 20(1) of the Constitution of India. In support of his submissions, he has placed reliance upon several decisions of Supreme Court viz. Kalpnath Rai v. State, (1997) 8 SCC 732 [para 33 and 34], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 [para 8] and Chirag Harendrakumar Parikh v. State of Gujarat 2016 SCC OnLine Guj 1635. 27. So far as this plea of the pe....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

....ts concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 29. Since the judgements referred to by the ld. Sr. Counsel for the petitioner do not deal with the law governing field in the present case, they are of no avail to the petitioner. 30. In the present case, so far the petitioner No.2 is concerned, there is sufficient prima facie evidence to show that she had full knowledge that her husband i.e. petitioner No.1 by misutilizing his official position as Ranger in the Forest Department earned income disproportionate to his known source of income which he could not satisfactorily account for, the disproportionate assets so earned have been utilized by him for acquiring properties in his own name and also in the name of petitioner No.2, she claimed that money to be earned by her business of beauty parlor and handicraft and attempted in this way to prove the ill-gotten money of her husband as a legal income and thus, knowingly assisted her husband in the activity connected with the proceeds of crime by projecting the properties so earned as untainted property. Recently, by interpreti....

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X

X X X X Extracts X X X X

Full Text of the Document

X X X X Extracts X X X X