TaxTMI 
TaxTMI 
2022 (9) TMI 1497
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....P. No. 1420 of 2020 in S.C.No. 2 of 2018. 3. It is stated that petitioner has been accused of committing offences under Sections 120B read with Section 420 of the Indian Penal Code, 1860 (IPC) and Section 9 of the Prevention of Corruption Act, 1988 as per charge sheet filed by the Central Bureau of Investigation (CBI) in C.C.No. 27 of 2013 pending on the file of Principal Special Judge for CBI Cases, Hyderabad. The matter is at the stage of framing of charge. 4. While at that stage, categorizing Sections 420 and 120B IPC and Section 9 of the Prevention of Corruption Act, 1988 as "scheduled offences" under PMLA and in furtherance of the allegation that petitioner had committed the consequential offence of "money laundering", respondent has filed complaint before the Special Court for CBI Cases, Hyderabad (briefly, "Special Court" hereinafter) in S.C.No. 2 of 2018. 5. Both C.C.No.27 of 2013 and S.C.No.2 of 2018 filed by the respondent are being heard on the discharge applications filed by the petitioner. 6. According to the petitioner, after arguments in the discharge petitions commenced in C.C.No.27 of 2013, S.C.No.2 of 2018 was posted before the Special Court to hear th....
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....073 of 2021 and batch. 10. On the other hand, Mr. T.Surya Karan Reddy, learned Additional Solicitor General of India submits that impugned order dated 10.01.2021 is a correct order and calls for no interference. In so far decision of the learned Single Bench of this court in Madhu Koneru (supra) is concerned, he submits that respondent has filed Special Leave Petition before the Supreme Court bearing Diary No. 29438 of 2021 which is pending. In so far the decision of this Court dated 10.08.2021 in Crl.P.No. 1073 of 2021 and batch is concerned, learned Additional Solicitor General of India submits that the aforesaid judgment is based on sound principles. The same having not been challenged and interfered with, it has attained finality. Therefore, the present case is squarely covered by the aforesaid decision dated 10.08.2021. In the circumstances, learned Additional Solicitor General of India seeks dismissal of the criminal petition. 11. After the case was reserved for judgment, on being mentioned and on memo dated 02.08.2022 being filed, the case was once again listed before the Court. 12. Mr. S.Niranjan Reddy, learned Senior Counsel for the petitioner submits that after t....
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.... an accused in C.C.No.27 of 2013 facing prosecution for alleged commission of "scheduled offence". It is also not in dispute that petitioner is also an accused in the complaint filed by the respondent alleging commission of the offence of money laundering under Section 3 of PMLA by the petitioner. 17. It may be mentioned that petitioner along with other accused had earlier filed miscellaneous petition before the Special Court requesting it to defer all further proceedings in S.C.No.2 of 2018 till the conclusion of adjudication in C.C.No.27 of 2013. By the order dated 17.01.2020, Special Court held that C.C.No.27 of 2013 and S.C.No.2 of 2018 were being posted on every working Friday simultaneously. Following the decision of the Jharkhand High Court in Anosh Ekka v. Enforcement Directorate W.P. (Crl) No.257 of 2012 and batch, dated 19.02.2013, trial of scheduled offence and trial of offence punishable under PMLA were directed to be proceeded simultaneously. 18. Later on petitioner moved the Special Court in Crl.M.P.No.1420 of 2020 to take up hearing on charges in the scheduled offence first. Respondent opposed the same by contending as follows: (a) Through Finance (No.....
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....ualify for simultaneous hearing. In predicate offence if the accused is acquitted, offence of money laundering cannot continue. (f) None of the allegations in the complaint touch money laundering and they do not in any manner come under PMLA. Adjudicating authority is an officer of ED. (g) PMLA starts from assumption, like Section 212 of IPC. Except Section 3 of PMLA, there is no other IPC offence. (h) Person not arrayed in the scheduled offence can be prosecuted under PMLA. Offences are distinct, but the scheduled offence hinges upon the ED complaint. Money laundering offence cannot be tried ahead of the predicate/scheduled offence. (i) Scheduled offence events and money laundering events are one and the same and there are no additional facts in the ED complaint. There is no evidence about the proceeds of crime. Money laundering offence starts at the end of predicate offence, harbouring of offence is a stand-alone offence. (j) Facts in the scheduled offence (C.C.No.26/2013) and facts in money laundering offence (S.C.No.1/2018) are one and the same; offences may be distinct but can be tried simultaneously. Money laundering offence necess....
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....s held as under: 32. Prevention of Corruption Act, 1988 and the Prevention of Money Laundering Act, 2002, are two different enactments, they decide the controversies that arise under respective Acts, one authority cannot interfere with the function of other authority under different Acts. PML Act has overriding effect under Section 71. 33. In view of my discussions above, offence under Money Laundering Act (S.C.No.1/2018) is a stand-alone offence, hence point No.1 is answered in favour of complainant/ED. Scheduled offence (C.C.No.26/2013) cannot precede the offence under money laundering (S.C.No.1/2018) nor can be tried simultaneously, hence point No.3 is answered against the accused. Point No.2: 34. In view of my discussions above, as point No.1 is answered in favour of complainant/ED and the offence under money laundering (S.C.No.1/2018) shall precede the trial of the predicate/scheduled offence (C.C.No.26/2013). Hence, this point is answered accordingly. Point No.4: 35. In the result, the offence under money laundering (S.C.No.1/2018) is a stand-alone offence and shall precede the trial of predicate/scheduled offence (C.C.No.....
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....e and projecting or claiming it as untainted property shall be guilty of committing the offence of money laundering. The Explanation clarifies that a person shall be guilty of the offence of money laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in concealment or possession or acquisition or use or projecting as untainted property or claiming as untainted property, in any manner whatsoever. It is further clarified that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 19.2. While on Section 3, we may mention that Section 4 provides for punishment for committing the offence of money laundering. 20. Reverting back to Section 2(1)(u), it defines proceeds of crime as under: Section 2(1)(u) 'Proceeds of crime' means any property derived or obtained, directly or indirectly, by any p....
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....ified in the notification. Explanation.-In this sub-section, "High Court" means the High Court of the State in which a Sessions Court designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in subsection (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. 23.1. Thus, as per sub-section (2), while trying an offence under PMLA, a Special Court designated as such under subsection (1) shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may be charged at the same trial under the provisions of CrPC. 24. Section 44 deals with offences triable by Special Courts. Section 44 is extracted as under: 44. Offences triable by Special Courts. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) an offence punishable under Section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constitut....
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....e power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under section 43. 24.1. Sub-section (1) of Section 44 starts with a non-obstante clause. It says that notwithstanding anything contained in CrPC, an offence punishable under Section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed. If the Court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money laundering, it shall on an application by the authority authorized to file a complaint under PMLA commit the case relating to the scheduled offence to the Special Court and the Special Court shall on receipt of such case proceed to deal with it from the stage at which it is committed. While trying the scheduled offence or the offence of money laundering, the Special Court shall hold trial in accordance with the provisions of CrPC as it applies to a trial before a Court of Session. 24.2. The Expla....
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....n 44(1)(d) of PMLA and thereafter held that trial of money laundering offence is an independent trial and need not get interfered with the trial of scheduled offence. Offence of money laundering contemplated under Section 3 of PMLA is an independent offence i.e., a standalone offence. Learned Single Judge concluded that a bare reading of Sections 2(1)(u), 3 and 44(1)(d) of PMLA along with Explanations thereto makes it clear that the offence of money laundering is a standalone offence and the trial proceedings are completely different from that of the scheduled offence. Trial of money laundering offence is an independent trial; it will not meddle with the trial of scheduled offence. On the above basis, learned Single Judge negatived the contention raised that without proving the guilt of the accused in the predicate/scheduled offence, trial of offences under PMLA cannot be proceeded with; and that money laundering offence starts at the end of predicate offence. 26. Keeping the principles of judicial discipline and the doctrine of precedent, this Court would have followed the aforesaid decision of the learned Single Judge dated 10.08.2021 rendered in Crl.P.No.1073 of 2021 an....
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....being regarded as proceeds of crime, the property associated with the scheduled offence must have been derived or obtained by a person "as a result of" criminal activity relating to the concerned scheduled offence. This distinction must be borne in mind while reckoning any property referred to in the scheduled offence as proceeds of crime for the purpose of the 2002 Act. Dealing with proceeds of crime by way of any process or activity constitutes offence of money-laundering under Section 3 of the Act. ... ... ... ... ... 253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression "derived or obtained" is indicative of criminal activity relating to a scheduled....
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....rty linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "proceeds of crime" under Section 2(1)(u) will necessarily be crime properties. Indeed, in the event of acquittal of the person concerned or being absolved from allegation of criminal activity relating to scheduled offence, and if it is established in the court of law that the crime property in the concerned case has been rightfully owned and possessed by him, such a property by no stretch of imagination can be termed as crime property and ex-consequenti proceeds of crime within the meaning of Section 2(1)(u) as it stands today. On the other hand, in the trial in connection with the scheduled offence, the Court would be obliged to direct return of such property as belonging to him. It would be then paradoxical to still regard such property as proceeds of crime despite such adjudication by a Court of competent jurisdiction. It is well within the jurisdiction of the concerned Court trying the scheduled offence to pronounce on that matter. 282. Be it noted that the authority of the Authorised Officer under the 2002 Act to prosecute any person for offence ....
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....n 3 is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence. The property must qualify the definition of "proceeds of crime" under Section 2(1)(u) of PMLA. All or whole of the crime property linked to the scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "proceeds of crime" under Section 2(1)(u) will necessarily be crime properties. What is significant, however, to note is the clear enunciation by the Supreme Court that in the event of acquittal of the person concerned or being absolved from allegation of criminal activity relating to the scheduled offence, and if it is established in the Court of law that the crime property in the concerned case has been rightfully owned and possessed by him, such a property by no stretch of imagination can be termed as crime property and ex-consequenti proceeds of crime within the meaning of Section 2(1)(u). Supreme Court noted that in the trial in connection with the scheduled offence, the Court would be obliged to direct return of such property as belonging to the person concerned. It would then be paradoxical to still r....
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....s passed by the Special Court, it would be a case of serious miscarriage of justice, if not abuse of process to take physical possession of the property held by such person. Further, it would serve no purpose by hastening the process of taking possession of the property and then returning the same back to the same person at a later date pursuant to the order passed by the Court of competent jurisdiction. Moreover, for the view taken by us while interpretating Section 3 of the 2002 Act regarding the offence of money-laundering, it can proceed only if it is established that the person has directly or indirectly derived or obtained proceeds of crime as a result of criminal activity relating to or relatable to a scheduled offence or was involved in any process or activity connected with proceeds of crime. 307. It is unfathomable as to how the action of confiscation can be resorted to in respect of property in the event of his acquittal or discharge in connection with the scheduled offence. Resultantly, we would sum up by observing that the provision in the form of Section 8(4) can be resorted to only by way of an exception and not as a rule. The analogy drawn by the Union of I....
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....ence 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 any one claiming such property being the property linked to stated scheduled offence claiming him. 31.1. Thus, Supreme Court has rendered a clear and categorical finding that offence under Section 3 of PMLA is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. If the person is finally discharged/acquitted of the scheduled offence or criminal case against him is quashed by a Court of competent jurisdiction, there can be no offence of money laundering against him or anyone claiming such property being the property linked to stated scheduled offence through him. 32. This decision of the Supreme Court is binding on all Courts and Tribunals in India. As a matter of fact, after rendering of this decision by the Supreme Court, the position has b....
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....led offence. An "order" as is understood in CrPC is not a conclusive pronouncement at the end of the trial. Section 235 of CrPC says that after hearing arguments and point of law, the judge shall give a judgment in the case, which may either be of acquittal or of conviction. It is on this basis, Supreme Court has observed that conviction under Section 4 of PMLA for committing offence under Section 3 is dependent upon conviction for a scheduled offence; if there is no crime there cannot be any proceeds of crime. And if there are no proceeds of crime, the offence of money laundering cannot be sustained. It is on this logic, Supreme Court has held as above in Vijay Madanlal Choudhary (supra). 35. From the above, the position which emerges is that existence of scheduled offence and proceeds of crime being the property derived or obtained as a result of criminal activity relating to the scheduled offence are sine qua non for not only initiating prosecution under PMLA, but also for continuation thereof. In the absence of these two conditions, the Special Court dealing with the offence under PMLA would not be competent to pronounce on the guilt or otherwise of the person concerned accu....