TaxTMI 
TaxTMI 
2024 (2) TMI 731
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was solicited in this regard whether the Bank Branch can clear the cheque amounting to Rs. 12,28,750/- in favour of one Rantu Sharmah through his account in SBI, Dispur Branch. On checking it was found that no such cheque had been issued by the Accounts Section. On further checking it was found that a fraud had been committed and the Railway Authority immediately advised Reserve Bank of India to stop payment of all cheques bearing numbers from 100001 to 100050. 3. A complaint No Z/vig/Estt/2009 dated 13.01.2009 was lodged by the Chief Vigilance officer, N.F Railways, Maligaon and on that basis the Central Bureau of Investigation, ACO, Guwahati registered a case vide FIR No. 0172009A001 dated 20.01.2009 against 6 (Six) accused persons including the opposite party under Sections 120B, 409, 467, 471 of IPC and Section 13(2) read with 13(1)(c) & (d) of Prevention of Corruption Act 1988 for fraudulent encashment of Railway cheques against the accused persons. 4. The C.B.I., ACB, Guwahati submitted Charge sheet No. RC 0172009 A0001 (RC-1 (A) 2009- GWH) dt 25.09.2010 before the Ld. Court of 3rd Spl Judge (CBI), Bankshall, Kolkata on 25.09.2010 and forwarded a copy of the charge she....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Roy, Sri Deepak Marda, Sri Raj Gopal kankani, Sri Putul Gogoi, Sri Biswajit Saha, Md Tazimuddin Ahmed and Md Baharuddin Ahmed highlighting the role of each and all of them in committing the offence under the Prevention of Money Laundering Act. The Ld. Spl Court took cognizance of the offences alleged in the said complaint. 9. While the prosecution was in progress, the opposite party filed an application before the Ld. Spl Court under Section 239 of the Code of Criminal Procedure praying for discharge of the accused. 10. The Enforcement Directorate filed written objection against the discharge application stating the reasons therein. 11. The Ld Special (C.B.I.) Court No. 3 being the Spl Court PMLA, Calcutta while passing the impugned Order dated 03.10.2019 has observed that:- ".......... in so far allegation against Raj Gopal Kankani is concerned, I find that it is the admission of the prosecution that he has been made approver in the CBI case. No doubt that CBI case is the base point of the present case when in the original case from which the present case has been initiated and where the accused Raj Gopal Kankani has been made approver in the earlier case, rather....
X X X X Extracts X X X X
X X X X Extracts X X X X
....came to light that the proceeds of crime had been handled and converted to their use by the accused by encashment of the cheques fraudulently as referred above. 19. The Ld. Spl Court also failed to notice, that Sri Raj Gopal Kankani received and deposited a cheque baring no. 100002 dated 27.10.2008 of Rs. 9, 82, 675 in IDBI Brabourne Road Branch in the name of Sri Salasar Engineering Enterprise without any Railway purchase order and without supply of any materials against the said cheque and the amount of the Cheque was withdrawn by him through cheque no. 612795 (Rs.5,00,000) and Cheque No. 612796 (Rs. 4,80,000) on 30.10.2008. 20. The Spl Court also failed to consider that the accused was being investigated pursuant to filling of ECIR/05/kol/PMLA/2011 dated 23.05.2011 by the E.D. against all 7 (Seven) accused including Sri Raj Gopal Kankani and the Ld Court has taken cognizance against each and all accused persons and as such, all accused persons ought to be tried under the PMLA. Mere declaration of becoming an approver in CBI cases does not indicate that of he should make such true disclosure of facts which would be helpful for prosecution in E.D. case. 21. That Sri Kanka....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the judgment, the accused should not be implicated in this case since he is assisting the CBI, the case from which the present case has been developed. So the accused prayed for discharge from the present case on the said ground. ii) The petitioner's (herein) case in their objection against the said prayer for discharge was that both the accused persons were highly involved in the offence of laundering money and that they were actively involved in the process of fraudulent encashment of cheque which was lost from the custody of accused K.L.Roy. iii) The Trial Judge held:- "........... In so far the allegation against Raj Gopal Kankani is concerned I find that it is the admission of the prosecution that he has been made approver in the CBI case. No doubt the CBI case is the base point of the proceeding of the present case. When in the original case from which the present case has been initiated and where the accused Raj Gopal Kankani has been made approver of the earlier case rather when the prosecuting agency took help the present accused to prove the CBI case, the E.D should not implicate him as an accused of the present case. Going through the repor....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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. 467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms:- (v) (a) .............. (b) ................. (c) ................... (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal acti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....equent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, - (a) commit it for trial - (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself." 29. The case herein is pending before the learned Special Judge. 30. Section 132 of the Evidence Act, lays down:- "132. Witness not excused from answering on ground that answer will criminate.- A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lt 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." 33. It is further submitted that on plain reading it appears that the view of the Court is that an offence under Section 3 of the Act is only in respect of the proceeds of crime derived or obtained as a result of that crime and has nothing to do with the criminal activity relating to a scheduled offence. 34. Paragraph 467(v)(d) in Vijay Madanlal Choudhary & Ors. vs Union of India & Ors. (Supra) relied upon by the petitioner is very relevant:- "467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms:- (v) (a) .....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovided under the law to an approver, not only in the case registered in respect of a scheduled offence but also in respect of all cases which are dependent on the materials and evidence in the case registered in respect of a scheduled offence, in which the accused has turned approver. 38. The opposite party also gets the benefit of Section 132 Evidence Act on turning an approver. 39. In R. Dineshkumar @ Deena vs State Rep. by Inspector of Police & Ors. (Supra), the Court further held:- "31. The High Court on an elaborate consideration of the various authorities and the legal position came to the conclusion; "63. In view of all the above discussions, I hold that the evidence of the 2nd respondent, as a prosecution witness before the trial court, and the incriminating answers given by him amount to compelled testimony falling within the sweep of Section 132 of the Evidence Act and thus, he is protected by the proviso to Section 132 of the Evidence Act." (emphasis supplied) 32. The learned counsel for the appellant argued that PW64 is not entitled to the benefit of the immunity provided under the proviso to Section 132 of the Evidence Act as such e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here or in the High Court". 41. Dealing with the question whether Ethyl Wong should have been prosecuted along with other accused, this Court opined: "The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a smugglers' ring. Ethyl Wong was protected by s. 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness...." 42. Dealing with the immunity conferred under Section 132, this Court held thus: "Now there can be no doubt that Ethyl Wong was a competent witness. Under Section 118 of the Indian Evidence Act all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them for reasons indicated in that section. Under Section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on expressed by Ayyar, J. in Gopal Doss's case. This Court opined that the proviso to Section 132 of the Evidence Act is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself." Though such a fundamental right is available only to a person who is an accused of an offence, the proviso to Section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself. Without such an immunity, a witness who is giving evidence before a Court to enable the Court to reach a just conclusion (and thus assisting the process of law) would be in a worse position than an accused in a criminal case. 44. The sweep of Article 20 fell for consideration of this Court in Nandini Satpathy v. P.L. Dani & Another, (1978) 2 SCC 424. Justice V.R. Krishna Iyer spoke for the bench. (i) It was a case where a crime under the Prevention of Corruption Act and certain other offences under th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....P.C., 1898. Sub-section (1) authorised a police officer investigating a case to examine any person "supposed to be acquainted with the facts and circumstances of the case". Sub-section (2) exempted such person from answering the questions "which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture". Section 161 of the Cr.P.C., 1973 corresponds to Section 161 of the Cr.P.C., 1898. Sub-sections (2) of both the old and new Code are substantially identical[7]. (ii) Another facet of the rule against self-incrimination finds expression in Sections 25[8] and 26[9] of the Evidence Act which make a confession made to a police officer or a confession made while in the custody of the police inadmissible in evidence. (iii) The proviso to Section 132 of the Evidence Act, in our opinion, embodies another facet of the rule against self-incrimination. 46. Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss (supra), the policy under Section 132 appears to be to secure the evidence from....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court" it was contended by Antulay that the examination of some of his alleged co-conspirators as witnesses and proposal to examine some more of them is legally not tenable and they must be arrayed as accused. Such a contention was negated by the trial Judge. Aggrieved by the same, Antulay carried the matter in appeal to this Court. Unfortunately, the majority judgment did not consider this aspect. It is only Justice Venkatachaliah, as His Lordship then was, who in his dissenting judgment considered this aspect and held as follows: "133. ......... An accused person cannot assert any right to a joint trial with his co-accused. Normally it is the right of the prosecution to decide whom it prosecutes. It can decline to array a person as a co-accused and, instead, examine him as a witness for the prosecution. What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner, in crime, is a different matter. Prosecution can enter Nolle proseque against any accused-person. It can seek to withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration. Suffice it to say that the matter is ....