TaxTMI 
TaxTMI 
2023 (10) TMI 1170
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.... For the Respondent in all Crl.Ops and For Respondent No.1 in Crl.MP.9244 of 2023 : Mr.P.Sidharthan Special Public Prosecutor (ED Cases) along with Mr.Cibi Vishnu Special Public Prosecutor (ED Cases) For the Respondent No.2 in Crl.MP.9244 of 2023 : Mr.N.R.Elango Senior counsel assisted by Mr.E.V.Chandru @ E.Chandrasekaran and instructed by Mr.R.Vivekananthan, Mr.S.Senthil Murugan, Ms.M.Kruthika, Mr.J.Mahesh COMMON ORDER M.SUNDAR, J., This common order will now dispose of captioned 6 'main criminal original petitions' ('Crl.OPs' in plural and 'Crl.OP' in singular for the sake of brevity) and captioned 7 'criminal miscellaneous petitions' ('Crl.MPs' in plural and 'Crl.MP' in singular for the sake of brevity). 2. This common final order has to be read in conjunction with and in continuation of earlier proceedings made in earlier listings in captioned Crl.OPs and captioned Crl.MPs. We deem it appropriate to set out the proceedings / orders made in first of the captioned main Crl.OP, i.e., Crl.O.P.No.13132 of 2023 and Crl.MP thereat being proceedings / orders made in the listings on 12.06.2023 and 03.07.2023 {to be noted, there are t....
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....et out the crux and gravamen qua captioned Crl.OP, perused records and noticed that the aforementioned closure report dated 02.06.2023 captures arbitration proceedings before SIAC in paragraph No.7 and the same reads as follows: '7) It is submitted that it is ascertained that the complainant's company initiated Arbitration Proceeding before the Singapore International Arbitration Centre (SIAC) vide SIAC ARB No.113/22 BRP consolidated with ARB No.114/22 BRP and the same is still pending before the Singapore International Arbitration Centre.' 5. It also comes to light that summons was originally issued before closure order but it is being proceeded with and pursued by respondent notwithstanding closure of predicate offence. 6. Learned Senior counsel, in support of the proposition that in the light of Section 3 of PMLA, there cannot be standalone ECIR proceedings when closure has been given to predicate offence (to be noted, this proposition is the sheet anchor submission of learned Senior counsel) relied on oft-quoted Vijay Madanlal Choudhary case [Vijay Madanlal Choudhary and Others Vs. Union of India and Others reported in 2022 SCC OnLine SC 929] rendered by Hon&#....
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.... for respondent and seeks three weeks time for filing objections. 12. As prima facie case has been made out and as it is clear that there is possibility of an irreversible situation if ECIR proceedings continue pending main Crl. OP, the balance of convenience is in favour of grant of interim order that has been sought for. Therefore, there shall be an interim order as prayed for in the captioned criminal miscellaneous petition [Crl.M.P.No.7975 of 2023 in Crl.O.P.No.13132 of 2023] insofar as the petitioner is concerned till next listing. 13. Request for three weeks time made by learned Prosecutor is acceded to. 14. List on 03.07.2023.' Proceedings dated 03.07.2023 made in Crl.M.P.No.9244 of 2023: 'Crl.M.P.No.9244 of 2023 in Crl.O.P.No.13132 of 2022 M.SUNDAR, J., and R.SAKTHIVEL, J., [Order of the Court was made by M.SUNDAR. J.,] Captioned 'Criminal Miscellaneous Petition' [hereinafter 'Crl.MP' for the sake of convenience and clarity] has been taken out by an individual, who has averred that he is a Journalist. 2. Captioned Crl.MP has been taken out with a prayer to implead the petitioner as respondent No.2 in the captioned main Crl.OP and....
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....#39; for brevity]; that predicate offence was on the file of Metropolitan Magistrate for Exclusive Trial of CCB Cases [relating to cheating cases in Chennai] and CBCID Metro Cases, Chennai, wherein a closure was given vide an order dated 05.06.2023 pursuant to closure report dated 02.06.2023; that the closure report is based on de facto complainant and petitioner resorting to arbitration proceedings before Singapore International Arbitration Centre [SIAC] vide SIAC ARB No.113/22 BRP consolidated with Arb No.114/22 BRP; that proceedings before SIAC is underway; that when predicate offence has been given closure, there cannot be ECIR under PMLA as standalone proceedings and therefore, summons deserves to be interfered with is learned Senior counsel's say. 4. This Court having set out the crux and gravamen qua captioned Crl.OP, perused records and noticed that the aforementioned closure report dated 02.06.2023 captures arbitration proceedings before SIAC in paragraph No.7 and the same reads as follows: '7) It is submitted that it is ascertained that the complainant's company initiated Arbitration Proceeding before the Singapore International Arbitration Centre (SIAC) v....
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....led offence through him.' 7. As regards Harish Fabiani case, a Hon'ble Division Bench of Delhi High Court in a case of similar factual matrix i.e., while dealing with a case of continuation of proceedings vide ECIR, despite predicate offence having been quashed by judgment of High Court of Bombay, quashed the ECIR proceedings inter alia by placing reliance on aforementioned Vijay Madanlal Choudhary principle. 8. To be noted, another Hon'ble Division Bench of this Court also vide order dated 01.11.2022 in W.P.No.10854 of 2020 and W.M.P.No.13179 of 2020 has taken a similar view. 9. In the light of the narrative thus far, prima facie case made out. 10. Issue notice. 11. Mr.S.Sasikumar, learned Special Public Prosecutor for Enforcement Directorate accepts notice for respondent and seeks three weeks time for filing objections. 12. As prima facie case has been made out and as it is clear that there is possibility of an irreversible situation if ECIR proceedings continue pending main Crl. OP, the balance of convenience is in favour of grant of interim order that has been sought for. Therefore, there shall be an interim order as prayed for in the captioned criminal ....
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....ngs shall be read as an integral part and parcel of this proceedings. 4. Learned Senior Counsel for petitioners adverting to the earlier proceedings made the following further submissions: (i) In a case with similar factual matrix, another Hon'ble Coordinate Division Bench of this Court made a similar interim order dated 13.04.2023 in a W.M.P. in W.P.No.10901 of 2023. This 13.04.2023 interim order was assailed in Hon'ble Supreme Court by the 'Enforcement Directorate' ['ED' for the sake of brevity] vide Special Leave Petition in S.L.P.(Criminal) Diary No.28128 of 2023 and Hon'ble Supreme Court in and by order dated 18.09.2023 noticed that F.I.R. qua predicate offence had been quashed on 10.05.2023 after the 13.04.2023 interim order. The SLP was dismissed as withdrawn having become infructuous saying that ED will be entitled to take such steps as may be permissible in law, if the quash order is overturned and the proceedings are revived. Therefore the principle laid down by Hon'ble Supreme Court is, when predicate offence perish ECIR vide PMLA proceedings also will go as the two are coterminous is his further say; (ii) Learned Senior Counsel submitted that prior to ....
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....feature qua Anil Jain's case; (iii) The argument that the closure was on 05.06.2023 close on the heels of summons to the petitioner was made but this was put to rest as it was pointed out that the settlement arrived at i.e., Memorandum of Understanding (MOU) even as seized by ED is dated 18.01.2023. 7. Mr.R.Vivekananthan, learned counsel for petitioner in Crl.OP (Crl.O.P.No.13132 of 2023) submitted that he will file the details of two criminal cases qua implead petitioner in the Registry and bring it on board. To be noted, Mr.P.Vijendran, learned counsel for implead petitioner has been favoured with a copy of the same. Let it be brought on board. 8. List day after tomorrow. List on 29.09.2023.' 3. Aforementioned proceedings capture short facts and bring out the trajectory the captioned matter has taken thus far which serve as essentials for appreciating this final order and therefore, we are not setting out the same again in this final order. Suffice to say that all proceedings / orders made in the previous listings of the captioned matters (including proceedings / orders made in lead case i.e., Crl.O.P.No.13132 of 2023 and Crl.MP thereat which has also been extracted an....
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....ase may, shall conduct the prosecution and Pleader shall be instructed i.e., instructed by a private person may with permission of the Court file written arguments after evidence is closed in the case. Learned counsel submitted that the implead petitioner is a journalist by avocation, he is a public-spirited person, he has espoused public causes and in this backdrop he has instructed a Pleader to prosecute. In support of his argument, learned counsel pressed into service Soshit Karamchari case [Akhil Bharatiya Soshit Karamchari Sangh (Railway), represented by its Assistant General Secretary Vs. Union of India and others reported in (1981) 1 SCC 246] and Fertilizer Corporation case [Fertilizer Corporation Kamgar Union (Regd.) Sindri and others Vs. Union of India and others reported in (1981) 1 SCC 568]. Learned counsel Mr.P.Vijendran drew the attention of this Court to paragraph No.62 of Soshit Karamchari case and paragraph No.23 of Fertilizer Corporation case which read as follows: Paragraph No.62 of Soshit Karamchari case : '62. A technical point is taken in the counter-affidavit that petitioner 1 is an unrecognised association and that, therefore, the petitioner to that e....
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....Parliament is ineffective because the parliamentary control of public enterprises is "diffuse and haphazard". We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.' 7. Mr.P.Sidharthan, learned Special Public Prosecutor for the Enforcement Directorate (ED) has filed a terse counter and we deem it appropriate to extract and reproduce the same : 'COUNTER AFFIDAVIT FILED BY THE ABOVENAMED RESPONDENT I, Deepak Rajput, S/o Shri Vijay Kumar Thakur, aged about 35 years, employed as Assistant Director, Chennai Zonal Office, Directorate of Enforcement, Ministry of Finance, Department of Revenue, having office at No.2, 5th and 6th Floor, BSNL Administrative Building, Kushkumar Road, Nungambakkam, Chennai 600034, do hereby solemnly affirms and sincerely state as follows: RESPECTFULLY SHOWETH:- 1. I humbly submit that I am the Respondent in the instant Criminal Miscellaneous Petition and as well as the investigation officer of the case; I have read the affidavit filed in this petition filed by the Petitioner/Accused herein. I am well conversant with the facts of the case and I have been authorised to fi....
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....nal proceedings vide clause (2) of Section 301 of Cr.PC should be in the realm of a victim and in the case on hand, the implead petitioner (as already alluded to and as already delineated) does not fall in this umbra nay not even penumbra as his case is, he is a journalist espousing public cause. Be that as it may, a perusal of implead petition support affidavit brings to light that implead petitioner's case is, he claims to be aggrieved by the closure of predicate offence. It is always open to implead petitioner to work out his remedies, if any, if available in law but that will not bolster the petitioner's argument to implead himself in the case on hand is learned Senior counsel's say. Learned Senior counsel, in this regard, submitted that the burden of the song in implead affidavit is qua closure of predicate offence and not PMLA proceedings and this seen in the light of the aforementioned three provisions which were brought into Cr.PC on and from 31.12.2009 nullifies the implead prayer. In this regard, a judgement of Hon'ble Supreme Court in Rekha Murarka case [Rekha Murarka Vs. State of West Bengal and another reported in (2020) 2 SCC 474] rendered on 20.11.201....
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.... may, Mr.P.Vijendran, learned counsel for implead petitioner in his effort and endeavour to persuade us to accede to implead prayer placed before us two more case laws, i.e., judgments of Hon'ble Supreme Court. One is Jagjeet Singh case [Jagjeet Singh and Others Vs. Ashish Mishra @ Monu and another reported in (2022) 9 SCC 321] and another is R.Rathinam case [R.Rathinam Vs. State and another reported in (2000) 2 SCC 391]. R.Rathinam was a case in which factual matrix has been described by Hon'ble Supreme Court as a 'carnage' in a District in Tamil Nadu and which has also been described as a 'gory episode' where 6 persons belonging to a particular community were done to death. In such a social cause scenario, 75 public-spirited advocates of this Court presented two petitions before the then Hon'ble Chief Justice for cancellation of bail granted to the persons concerned. Therefore, R.Rathinam case is entirely in a different context and scenario, i.e., fact setting which does not come to the aid of the petitioner and likewise Jagjeet Singh case pertains to a case where farmers returning home after protest was epicentre of the matter, several farmers had gat....
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.... (father-in-law of the petitioner) filed an intervening petition and an order was passed after hearing both petitioner and intervenor. In the second petition, it was contended by petitioner that intervenor has no right to intervene and it is a matter between the court and the petitioner and if at all, only the prosecution can object and not P.W.1. Learned counsel for intervenor submitted that grievance of the individual cannot be overlooked and he has right to intervene at the stage of suspension of sentence. This Court held that a private person has no right of audience except to assist the prosecution and to file a written argument during trial. Therefore, at the stage of suspension of execution of sentence, the private party has no right of audience and at the highest, he can assist the prosecution and submit written arguments at the stage of final hearing of the appeal. In any event, Srinath Prasad is completely distinguishable on facts as it was intervenor petition by a father-in-law in sections 498-A and 308 IPC case {Husband or relative of husband of a woman subjecting her to cruelty and Attempt to commit culpable homicide}. 13. As regards the facts in Rekha Murarka case, t....
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....ties where no public money is involved. To be noted, closure happened on 05.06.2023. On the facts of the case, we find that it is a transaction between two private entities on one side and private individual on the other. Therefore, it is a matter where we are unable to convince ourselves regarding proceeds of crime theory as it is nobody's case that public money is involved. In this private transaction, the matter ran into rough weather and the parties chose to go for 'ADR' ['Alternate Dispute Resolution'] mechanism by way of Arbitration before 'Singapore International Arbitration Centre' ['SIAC'] as already alluded to supra. 16. To put it differently, we find that this is a case where there is nothing to demonstrate that there is 'proceeds of crime'. This is a private transaction between private individuals / entities and the two individuals /entities have chosen to resort to ADR [Alternative Disputes Resolution] i.e., arbitration by SIAC [Singapore International Arbitration Centre]. In the course of arbitration by SIAC, the private entities / individuals have chosen to give a closure to the dispute by entering into a Memorandum of Und....
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.... No.5524 of 2021 and Hon'ble Supreme Court in and by order dated 26.09.2022 refused to interfere with the order of Bombay High Court and dismissed the SLP making a clear observation that rights and remedies can be availed in accordance with law. We also respectfully notice that the question of law if any has been kept open. Therefore, it may not be necessary to delve much into those aspects of the matter and it would suffice if we deal with Anil Jain case. Anil Jain case made by this Court in W.P.No.3167 of 2023 has been reported in 2023 : MHC : 4314 (Neutral Citation of Madras High Court) and a scanned reproduction of the same is as follows: IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.09.2023 Coram THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL W.P.No.3167 of 2023 Anil Jain &nb....
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....to appear before the respondent on 08.07.2022 at 10.00 a.m. along with certain documents set out in the schedule to summons was issued. Learned Senior counsel submits that ECIR in summon is predicated on FIR No.278 of 2020 dated 17.09.2020 on the file of CCB-I (Chennai-CCB) for alleged offences under Sections 406, 419, 420, 465, 468 and 471 of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for the sake of brevity]. To be noted, summon does not refer to this FIR but this is averment of the petitioner that ECIR in summon is predicated on aforementioned FIR. Learned Senior counsel submits that the aforementioned FIR has since ended in a closure on 01.07.2021 vide proceedings before jurisdictional Metropolitan Magistrate Court i.e., 'Court of the Special Court of CCB & CBCID Metropolitan Magistrate, Egmore, Chennai-8' [hereinafter 'predicate offence Court' for the sake of brevity]. Adverting to principle laid down by Hon'ble Supreme Court in Vijay Madanlal Choudhary case [Vijay Madanlal Choudhary and others Vs. Union of Indian and Others reported in 2022 SCC OnLine SC 929], more particularly, paragraph No.467(v)(d) thereat, learned Senior counsel ....
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....proceedings shall continue to be used in the instant final order also for the sake of convenience and clarity. To be noted, in the aforementioned 26.06.2023 proceedings an inadvertent typographical / secretarial error has crept in, the same is 'ECIR in summon is predicated'. This expression should read as 'ECIR and summon are predicated'. This shall now be read as an Errata / Corrigendum and aforementioned 26.06.2023 which is now an integral part and parcel of this final order shall be read accordingly. 4. Today, Mr.Mani Shankar, learned senior counsel instructed by Mr.R.Palaniandavan, learned counsel on record for the writ petitioner and Mr.N.Ramesh, learned Special Public Prosecutor (ED) for the lone respondent are before us. 5. Adverting to the aforementioned earlier proceedings, learned senior counsel for petitioner reiterated the same and pressed into two case laws and they are as follows: Sl. No. Date Name and number of the Case Court 1 01.11.2022 S.Jagathrakshakan Vs. Deputy Director, Directorate of Enforcement, Chennai (W.P.No.10854 of 2020) another Hon'ble Coordinate Division Bench of this Court (P.N.Prakash, J. and RMT.Teekaaraman, J.) 2 ....
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....se, relevant paragraphs are paragraphs 3 and 4 and the same read as follows: '3. While so, when the matter was taken up for hearing, both sides represented that this court has allowed Crl.O.P.Nos.12985 and 12986 of 2020 on 23.09.2022 quashing the two First Information Reports in CBCID Crime Nos.2 and 3 of 2016. 4. In the light of the law laid down by the Supreme Court in Vijay Madanlal Choudhary and Others Vs. Union of India and Others (2022 SCC OnLine SC 929), the learned counsel for the petitioner prayed for quashment of the proceedings before the Enforcement Directorate.' 12. In Harish Fabiani's case, relevant paragraphs (as in 2022 SCC Online Del 3121) are paragraphs 4, 21 and 26 which read as follows: '4. The crux of this conclusion in Vijay Madanlal Choudhary (supra) by the Hon'ble Supreme Court, in context of these petitioners, is that if the person accused of any scheduled offence is finally discharged/acquitted or the criminal case against him is quashed by a court of competent jurisdiction, there can be no case of money laundering against him or anyone claiming such property (which is linked to the stated scheduled offence) through him.' ....
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....CIR. d) The Look out Circulars issued by respondents pursuant to the ECIR No.ECIR/07/HIU/2021 are also set aside.' 13. This Bench also notices that Parvathi Kollur's case (Parvathi Kollur and Another Vs. State by Directorate of Enforcement) reported in 2022 SCC OnLine SC 1975 in a similar fact situation has restated paragraph 187 (d) of Vijay Madanlal Choudhary which reads as follows: '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 agains....
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....erved to the petitioner. Pending applications shall stand disposed of.' 16. Applying Padma Sundara Rao principle, the ratio in Jagathrakshakan's case, Harish Fabiani's case and Emta Coal's case, all of which in turn turn on Vijay Madanlal's case of Hon'ble Supreme Court would apply in all force to the case on hand. To be noted, Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC 533] is a celebrated case law rendered by a Constitution Bench and therefore it is declaration of law and the most relevant paragraph is paragraph 9, which reads as follows: '9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 ....
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....dverted to. Paragraph No.15 of our Anil Jain case is of significance. To be noted, in paragraph No.15, we had recorded that the Court made a research and found that Emta Coal case has been carried to Hon'ble Supreme Court vide a special leave petition (details given therein) and Hon'ble Supreme Court had put in a caveat that in the event of any further action being taken in respect of predicate offence then liberty is preserved for resorting / taking further steps under PMLA. In Anil Jain case, we had to necessarily mention in paragraph 15 thereat that this Court made a research and fretted out the obtaining position that Emta Coal had been carried to Hon'ble Supreme Court as neither the petitioner therein nor the prosecution brought to notice of this Court that Emta Coal case rendered by Hon'ble Delhi High Court was carried to Hon'ble Supreme Court. Be that as it may, we had respectfully put in a similar caveat in Anil Jain case. We deem it appropriate to respectfully adopt the approach of Hon'ble Supreme Court and put in a similar caveat in the case on hand also. Before we write the operative portion, it may be necessary to deal with the argument of learne....
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.... predicating tracking and reaching upto the property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence. (v)(a) Section 3 of the 2002 Act has a wider reach and captures every process and activity, direct or indirect, in dealing with the proceeds of crime and is not limited to the happening of the final act of integration of tainted property in the formal economy. The Explanation inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word "and" preceding the expression projecting or claiming as "or"; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise. (b) Independent of the above, we are clearly of the view that the expression "and" occurring in Section 3 has to be construed as "or", to give full play to the said provision so as to include "every" process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money -laundering on its own, being an independent process or activity. (c) The in....
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....ity of Section 19 of the 2002 Act is also rejected. There are stringent safeguards provided in Section 19. The provision does not suffer from the vice of arbitrariness. (xi) Section 24 of the 2002 Act has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act and cannot be regarded as manifestly arbitrary or unconstitutional. (xii)(a) The proviso in Clause (a) of sub-section (1) of Section 44 of the 2002 Act is to be regarded as directory in nature and this provision is also read down to mean that the Special Court may exercise judicial discretion on case-to-case basis. (b) We do not find merit in the challenge to Section 44 being arbitrary or unconstitutional. However, the eventualities referred to in this section shall be dealt with by the Court concerned and by the Authority concerned in accordance with the interpretation given in this judgment. (xiii)(a) The reasons which weighed with this Court in Nikesh Tarachand Shah for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure t....
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....ng "civil action" of "provisional attachment" of property being proceeds of crime. (b) Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if ED at the time of arrest, discloses the grounds of such arrest. (c) However, when the arrested person is produced before the Special Court, it is open to the Special Court to look into the relevant records presented by the authorised representative of ED for answering the issue of need for his/her continued detention in connection with the offence of money-laundering. (xix) Even when ED manual is not to be published being an internal departmental document issued for the guidance of the Authorities (ED officials), the department ought to explore the desirability of placing information on its website which may broadly outline the scope of the authority of the functionaries under the Act and measures to be adopted by them as also the options/remedies available to the person concerned before the Authority and before the Special Court. (xx) The petitioners are justified in expressing serious concern bordering on causing injustice owing to the vacancies in the Appellate Tribunal. We deem it necessar....