TaxTMI 
TaxTMI 
TaxTMI 
2023 (11) TMI 1033
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....tion 44 (1)(c) of PMLA, 2002 filed by the Complainant/ED is as follows: "5. That the applicant submits that CBI, BS&FC, Kolkata initially registered 5 FIRs (viz RCBSK 2011E003 dated 31.05.2011, RCBSK 2011E0004 dated 31.05.2011, RCBSK2010 E0005 dated 30.09.2011, RCBSK2010E006 dated 30.09.2011 and RC06/E/2011 dated 30.11.2011) and subsequently filed 5 charge sheets and one supplementary charge sheet viz Charge Sheet No. 8/2012 dated 28.06.2012 and Supplementary Charge Sheet dated 05.02.2013, Charge sheet No. 07/12 dated 20.06.2012, Charge sheet No. 09/12 dated 27.07.2012, Charge Sheet No. 10/12 dated 27.07.2012 and Charge sheet No. 11/12 dated 24.09.2012 on the basis of complaint made by Shri Milap Kapoor, the then General Manager, Indian Overseas Bank, Regional Office, 119, Park Street, Kolkata, Shri Durga Prasad Gupta, the then Dy. General Manager & Regional Head, Oriental Bank of Commerce (OBC), Salt Lake, Sector-I, and Smt. Jayati Chakraborty, Dy. General Manager & Branch Head, Mid Corporate Group, IDBI Bank Ltd., Shakespeare Sarani Branch, Kolkata against the M/s Prime Pulses Ltd. M/s Prime Impex Ltd and others u/s 120B, r/w 420,467,468,471 of IPC. The matter of all the above ....
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....vestigation for entering into a deep rooted criminal conspiracy, cheating and forgery, the said Shakespeare Sarani Police Staion, Kolkata, submitted Charge Sheet vide No. 27/17 for the offences 120B read with 420, 468 and 471 of the Indian Penal Code, 1860 and substantive offences thereof against the accused persons above named before the Ld. C.M.M, Calcutta were in cognizance was taken and the said case was re-numbered as GR/175/12 and transferred to your honours court Ld. 4th Metropolitan Magistrate, at Calcutta for trial and disposal and is pending before your honours court for trial and disposal. 7. That the applicant submits that the offences under Section 120-B read with Section 420, 467, 468 & 471 of IPC, 1860 are schedule offences under Prevention of Money Laundering Act, 2002(PMLA, 2002). Enforcement Directorate, Kolkata Zonal Office, Kolkata on the basis of above said FIRs and charge sheets, Enforcement Directorate, Kolkata Zonal Office recorded an Enforcement Case Information Report vide ECIR No. KLZ0/08/2016 dated 19.08.2016 for the purpose of investigation under the provisions of Prevention of Money Laundering Act, 2002(PMLA, 2002) and commenced investigation. 8. T....
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....h has taken cognizance of the Scheduled offence is not the Special court under PMLA, such Court, on an application by the prosecution is empowered to commit the case of Scheduled offence to the Special Court. (ii) As the legislature has consciously omitted the word 'only', discretion has been vested in the regular Court trying Scheduled offence and there is no compulsion in the amended provisions for trying the scheduled offence and the offence under PMLA by one and the same Special Court. According to the petitioner the word 'shall' used in Section 44(1)(c) in situational interest has to be read as 'may'. By relying upon Quebec Railway, Light, Heat and Power Company Limited -Vs. - Vandry & Ors. reported in AIR 1920 PC 181 it was emphasized that the settled principle of law is that the legislature do not waste its word. (iii) By relying upon the judgment of the Hon'ble Supreme Court in Vijay Madanlal Choudhary & Ors. -Vs. - Union of India & Ors., reported in 2022 SCC OnLine SC 929 that the provisions under Section 44 of PMLA are enabling and discretionary, thus while considering an application it must be kept in mind that the same do not become oppressive particularly with rega....
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....ing as well as the predicate Scheduled offence. Attention of the Court was drawn to paragraph 269 of Vijay Madanlal Choudhary (supra), wherein the Hon'ble Apex Court held as follows: "269. From the bare language of Section 3 of the 2002 Act, it is amply clear 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 a scheduled offence. The process or activity can be in any form - be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in any one of such process or activity connected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence - except the proceeds of crime derived or obtained as a result of that crime." It was insisted by the ED that it has been absolutely made clear that there is no question of joint trial of scheduled offence and the offence of money laundering under PM....
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.... general but fundamental rule, the Act then proceeds to deal with a more complicated situation in Section 44(1)(c). The question as to what happens if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the offence of money-laundering, is what is sought to be answered by clause (c) of sub-section (1) of Section 44. If the court which has taken cognizance of the scheduled offence is different from the Special Court which has taken cognizance of the offence of money-laundering, then the authority authorised to file a complaint under PMLA should make an application to the court which has taken cognizance of the scheduled offence. On the application so filed, the court which has taken cognizance of the scheduled offence, should commit the case relating to the scheduled offence to the Special Court which has taken cognizance of the complaint of money-laundering. 28. Therefore, it is clear that the trial of the scheduled offence should take place in the Special Court which has taken cognizance of the offence of money-laundering. In other words, the trial of the scheduled offence, insofar as the question of territor....
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....ng to Section 209 and Section 259 of Cr.P.C. By referring to the different paragraphs of Vijay Madanlal Choudhury (supra), the Enforcement Directorate contended that the paragraphs relied upon were interpreted in a different context and has no manner of application with reference to the present case where the legislature has in clear and distinct language empowered the prosecuting authorities to prefer such an application and by using the word 'shall' has left no room for alternate interpretations. The issue which have been canvassed by the learned Advocate for either parties revolves around Section 44 (1)(c) and the certainty of the Special Designated Court to try the scheduled offence. One of the foundation of the argument advanced by the learned Advocate appearing for the petitioner is that the word 'only' which was earlier in the statute and has been deleted subsequently by the legislature do not impose a compulsion or mandate that both the cases should be tried by one and the same Court. It was further contended by the petitioner that if an alternate interpretation is made the same would be oppressive, particularly with regard to persons who are not charged for money launder....