TaxTMI 
TaxTMI 
2023 (10) TMI 1170
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....Vijendran assisted by Ms.K.Mani Kuyil 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....
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....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) 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 M....
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....020 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 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 Miscel....
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....ng Act, 2002' [hereinafter 'PMLA' for the sake of convenience and clarity] against an individual or entity when closure has been given to predicate offence; that in the case on hand, predicate offence is vide Crime No.187 of 2022 on the file of Chennai-CCB PS CCB-1 for alleged offences under Sections 406, 420, 465, 468, 471 and 120B of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' 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 Cour....
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....on 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 any one claiming such property being the property linked to stated scheduled 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.....
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....arity. 2. Mr.N.R.Elango, learned Senior Advocate assisted by Mr.E.V.Chandru @ Chandrasekar, learned counsel, instructed by Mr.R.Vivekananthan, Ms.M.Kruthika, Mr.M.Nagoor Moideen and Mr.R.Krishna Kumar, learned counsel on record for the petitioners in all six captioned Crl.OPs adverted to earlier proceedings made in the previous listings and made further submissions which shall be captured elsewhere infra in this order. 3. To be noted, this proceedings shall be read in conjunction with and in continuation of earlier proceedings made in the previous listings. In other words, proceedings made in the previous listings 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.....
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....wing submissions: (i) Reliance was placed on paragraph 269 of Vijay Madanlal's case [to be noted, para 269 as in SCC OnLine report i.e., 2022 SCC OnLine SC 929] to say that even a bare reading of language of Section 3 of the 'Prevention of Money Laundering Act, 2002' [hereinafter 'PMLA Act' for the sake of convenience and clarity], money laundering is an independent offence; (ii) Even according to the settlement agreement made in 'SIAC' [Singapore International Arbitration Centre], the settlement amount has actually not changed hands and according to learned Special Public Prosecutor this is proceeds of the crime. This according to learned Special Public Prosecutor is the distinguising 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 pet....
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....rosecutors - (1) ........................... (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.' 6. Adverting to clause (2) of Section 301 of Cr.PC, learned counsel for implead petitioner submitted that when any private person instructs a Pleader to prosecute any person in a Court, learned Public Prosecutor or Assistant Public Prosecutor as the case 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 argume....
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....ceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus, to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to 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 ....
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....nsel on record for petitioner in main Crl.OP (second respondent in the implead petition, i.e., Crl.M.P.No.9244 of 2023) submitted that clause (2) of Section 301 of Cr.P.C. operates in the arena of victimology which is part of evolved form of criminal jurisprudence (a recent phenomenon) but victimology has no application qua implead petitioner and therefore, this facet of criminal jurisprudence does not come to implead petitioner's aid is his further say. In support of his contention, learned Senior counsel drew our attention to proviso to Section 372, Section 2(wa) and proviso to Section 24(8) of Cr.PC. Learned Senior counsel submitted that all these provisions have been brought into Cr.PC by way of an amendment and the same kicked in on 31.12.2009 and argued that it is clear that a person who wants to come on board qua criminal 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 affi....
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....ce 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 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' 11. Therefore, we are of the considered view that aforementioned two case laws, i.e., Soshit Karamchari and Fertilizer Corporation are clearly completely different as regards factual matrix operating in different realm do not come to the aid of the implead petitioner in the case on hand. Be that as it 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....
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....uired to adjudicate between the accused and the State. The 'victim' - the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the recognition that the ethos of criminal justice dispensation to prevent and punish 'crime' had surreptitiously turned its back on the 'victim', the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve.' This Court has no hesitation in saying that victimology has no application to implead petitioner. 12. In Srinath Prasad case, pressed into service by learned Prosecutor (alluded to supra) a petition was filed for suspension of sentence pending appeal, an earlier petition filed by the petitioner for a similar relief was dismissed. In the earlier round, P.W.1 (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 ....
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....eful perusal of support affidavit qua implead petition makes it clear that burden of the song qua implead petitioner is grievance about the closure of complaint qua predicate offence. Therefore, we are of the view that implead prayer does not appeal to us owing to facts and circumstances of the case. We have already noticed, scanned and reproduced the counter affidavit filed by ED. ED does not oppose implead prayer. This means that the implead petition namely, Crl.M.P.No.9244 of 2023 is dismissed. 15. We now move on to the main matters. This court notices from the submissions that the argument of ED in the case on hand is distinguishable qua Anil Jain case primarily on the ground that the settlement money has not changed hands. As regards settlement money, it hardly matters, as closure of predicate offence is qua a settlement in what is purely a private transaction between private persons / entities 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....
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....de by Hon'ble Supreme Court as there was closure in the interregnum, the same has been captured in the previous proceedings which has been set out supra which is now being read as an integral part and parcel of this final order. In addition to this, it was also pointed out that Hon'ble Bombay High Court in Akbar Travels case [Directorate of Enforcement Vs. State of Maharashtra and others in Crl.WP(ST) No.3122 of 2020] in and by order dated 21.12.2020 addressed itself to the question as to the locus of ED qua a closure report filed by State i.e., State of Maharashtra in Akbar Travels case and concluded that ED is an independent investigating agency empowered to investigate offences under PMLA and cannot be termed as victim aggrieved / injured or interested person having regard to judicial pronouncements. This order of Bombay High Court was carried to Hon'ble Supreme Court by ED vide SLP (Crl.) 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 ....
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....UNDAR, J.] This order will now dispose of the captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity, convenience and clarity). 2. This order has to be read in conjunction with and in continuation of earlier proceedings made in the captioned WP when it was listed on 26.06.2023. To be noted, the proceedings/orders made by this Court on 26.06.2023 reads as follows: 'W.P.No.3167 of 2023 M.SUNDAR, J., and R.SAKTHIVEL, J., [Order of the Court was made by M.SUNDAR. J.,] Captioned writ petition has been filed with a mandamus prayer seeking a direction to the respondent to close / drop the proceedings against the petitioner in connection with ECIR in F.No.ECIR/CEZO- 1/19/2021. 2. Mr.C.Manishankar, learned Senior counsel appearing on behalf of counsel on record for writ petitioner submits that pursuant to the aforementioned ECIR [to be noted ECIR stands for 'Enforcement Case Information Report'], a summon dated 27.06.2022 calling upon the petitioner 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....
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....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 through him.' 3. In the light of the narrative thus far, prima facie case made out. 4. Admit. Issue Rule nisi. 5. Mr.N.Ramesh, learned Special Public Prosecutor accepts notice for lone respondent and requests for time to get instructions and revert to this Court. 6. List four weeks hence. List on 24.07.2023.' 3. The aforementioned 26.06.2023 proceedings/orders shall now be read as an integral part and parcel of this order. The aforementioned 26.06.2023 proceedings captures essentials that are imperative for appreciating this final order and therefore we are not setting out the same again and burdening this final order with further facts. To be noted, the short forms, abbreviations and short references used in the 26.06.2023 proceedings shall continu....
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....ai was enclosed.' (underlining made by this Court for ease of reference and for emphasis) 8. It was submitted by learned senior counsel that in the light of the certain stated position of the respondent, prayer in the captioned WP has to be answered in the affirmative. 9. In response to the aforementioned argument, Mr.N.Ramesh, learned Special Public Prosecutor for respondent adverting to the counter affidavit submitted that money laundering is independent qua scheduled offence in the light of Section 44 of PMLA. However, as regards paragraph XI of counter affidavit, the same is the obtaining fact scenario and stated position of respondent as regards closure of predicate offence. 10. In the light of the narrative thus far, it is clear that in the case on hand, there is closure of predicate offence and there is no disputation or contestation that this closure of predicate offence has attained finality and has been given legal quietus. 11. Reverting to two case laws relied on by the learned senior counsel, facts and questions are similar i.e., whether PMLA proceedings will survive on the teeth of closure of predicate offence when such closure h....
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.... there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause "proceeds of crime", as it obtains as of now." (emphasis supplied)' 'Conclusion 26. In light of the above analysis and discussion this Court concludes as under: a) The relief sought regarding constitutionality or vires of various provisions of the Prevention of Money Laundering Act, 2002 is infructuous having been decided by the Hon'ble Supreme Court in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929. b) The ECIR no. ECIR/07/HIU/2021 registered by the Directorate of Enforcement, Department of Revenue, Ministry of Finance, Government of India, under FIR No. 129/2021 dated 13 April, 2021 registered by P.S. Wada, Dist. Palghar, Maharashtra stands quashed. c) All proceedings arising from ....
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....lusion that the assets are not proceeds of crime, the attachment orders can continue and the ED can in fact file an independent complaint in such a case. On a query from the Court as to whether there is even a single case where a separate complaint has been registered under the PMLA by the ED without a predicate offence having existed, the ld. Counsel submits that this could be the first case.' 15. We find from our research that Emta Coal case has been carried to Hon'ble Supreme Court vide Special Leave Petition (Civil) Diary No.15235/2023 and the same has been disposed of by Hon'ble Bench of Hon'ble Supreme Court in and by an order dated 06.07.2023 which reads as follows: 'Delay condoned. Learned Additional Solicitor General submitted that since there is a closure report in the predicate offence, therefore, no further proceedings under the PMLA Act could be continued as per the observations of the High Court in the impugned order(s). He, however, submitted that in the event any further action is taken in respect of the predicate offence, then liberty may be reserved to the petitioner herein to take further steps under the sai....
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....be preserved for the Enforcement Directorate for reviving the proceedings. To be noted, this is captured in the third paragraph of the 06.07.2023 order of Hon'ble Supreme Court. We respectfully say that this caveat will apply to the case on hand also and therefore when we accede to the prayer in the captioned WP it will clearly be with a similar caveat. 19. Captioned WP disposed of in the aforesaid manner i.e., answering the prayer of the writ petitioner in the affirmative albeit with the caveat i.e., caveat that in the event of any further action in respect of predicate offence then the rights/liberties of Enforcement Directorate are preserved to take further steps under PMLA including reviving of the instant proceedings which has been put in by respectfully following the order of Hon'ble Supreme Court in Emta Coal's case. There shall be no order as to costs. 19. A careful perusal of Anil Jain case will make it clear that Vijay Madanlal principle [Vijay Madanlal Choudhary and others vs. Union of India and others reported in 2022 SCC OnLine SC 929], Parvathi Kollur case [Parvathi Kollur and another vs. State of Directorate of Enforcement reported in 2022 SCC....
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....t of that crime.' 20. Vijay Madanlal case is a cluster of matters where Hon'ble Supreme Court addressed itself to multiple questions made by multiple parties and crystallized the conclusions under the caption 'CONCLUSION' in paragraph No.467 which reads as follows: 'CONCLUSION 467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms:- (i) The question as to whether some of the amendments to the Prevention of Money-laundering Act, 2002 could not have been enacted by the Parliament by way of a Finance Act has not been examined in this judgment. The same is left open for being examined along with or after the decision of the Larger Bench (seven Judges) of this Court in the case of Rojer Mathew. (ii) The expression "proceedings" occurring in Clause (na) of Section 2(1) of the 2002 Act is contextual and is required to be given expansive meaning to include inquiry procedure followed by the Authorities of ED, the Adjudicating Authority, and the Special Court. (iii) The expression "investigation" in Clause (na) of Section 2(1) of the 2002 Act does not limit it....
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....ainst 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 through him. (vi) Section 5 of the 2002 Act is constitutionally valid. It provides for a balancing arrangement to secure the interests of the person as also ensures that the proceeds of crime remain available to be dealt with in the manner provided by the 2002 Act. The procedural safeguards as delineated by us hereinabove are effective measures to protect the interests of person concerned. (vii) The challenge to the validity of sub-section (4) of Section 8 of the 2002 Act is also rejected subject to Section 8 being invoked and operated in accordance with the meaning assigned to it hereinabove. (viii) The challenge to deletion of proviso to sub-section (1) of Section 17 of the 2002 Act stands rejected. There are stringent safeguards provided in Section 17 and Rules framed thereunder. Moreover, the pre-condition in the proviso to Rule 3(2) of the 2005 Rules cannot be read into Section 17 after its amendment. The Central Government may take necessary correc....
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.... grant of bail, irrespective of the nature of proceedings, including those under Section 438 of the 1973 Code or even upon invoking the jurisdiction of Constitutional Courts, the underlying principles and rigours of Section 45 may apply. (xiv) The beneficial provision of Section 436A of the 1973 Code could be invoked by the accused arrested for offence punishable under the 2002 Act. (xv)(a) The process envisaged by Section 50 of the 2002 Act is in the nature of an inquiry against the proceeds of crime and is not "investigation" in strict sense of the term for initiating prosecution; and the Authorities under the 2002 Act (referred to in Section 48), are not police officers as such. (b) The statements recorded by the Authorities under the 2002 Act are not hit by Article 20(3) or Article 21 of the Constitution of India. (xvi) Section 63 of the 2002 Act providing for punishment regarding false information or failure to give information does not suffer from any vice of arbitrariness. (xvii) The inclusion or exclusion of any particular offence in the Schedule to the 2002 Act is a matter of legislative policy; and the nature or class of any pr....
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....this paragraph No.467(v)(d) of Vijay Madanlal case is now subject to the caveat in Emta Coal case, i.e., caveat that if predicate offence is resuscitated or opened, the entire matter will get revived. The rights are preserved as done in Emta Coal case by Hon'ble Supreme Court. Therefore, we make it clear that we respectfully follow the ratio in Vijay Madanlal case {paragraph No.467(v)(d)} and Emta coal case {paragraph No.16} which we have followed in Anil Jain case. 22. In Anil Jain case, it was a writ petition where the prayer was to direct ED to close / drop all proceedings but in the case on hand, it is criminal original petitions under Section 482 of Cr.PC seeking quash the summons qua Summons No.PMLA/SUMMON/CEZO/2023/1152 in ECIR/CEZO-I/63/2022, No.PMLA/SUMMON/CEZO/2023/1181 in ECIR/CEZO-I/63/2022, No.PMLA/SUMMON/CEZO/2023/1180 in ECIR/CEZO-I/63/2022, No.PMLA/SUMMON/CEZO/2023/1184 in ECIR/CEZO-I/63/2022, No.PMLA/SUMMON/CEZO/2023/1182 in ECIR/CEZO-I/63/2022 and No.PMLA/SUMMON/CEZO/2023/1183 in ECIR/CEZO-I/63/2022. Law is well settled that in a Section 482 of Cr.PC quash legal drill, what the Section 482 Court would look into is, uncontraverted averments in the complaint ....