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2024 (3) TMI 926
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....gy Act, stating that, the accused therein were involved in money lending through mobile phone applications on exorbitant rate of interest, and when the borrowers failed to the repay the loan amount in time, and in some cases, even after the repayment of the loan, the accused therein have been harassing the borrowers to extort money from them, and had also stolen the data from the mobile phones of the victims, and misused the same. The accused therein had also created Whatsapp groups to harass the victims, and abused them etc. 4. As the offences under Sections 384, 385, 419, 420 IPC are scheduled offences under the PMLA Act, the case was referred to the respondent herein. The respondent conducted an investigation, and submitted the complaint arraigning the petitioner as accused No. 7. 5. In the complaint, it is stated that the accused No. 7 is a payment gateway, and they were negligent in allowing the transactions in the name of the accused No. 5 without due diligence, and the said allegation is substantiated by the statement of the employee of the accused No. 7. 6. The learned Sessions Judge, after perusing the materials on record, took cognizance of the aforesaid offences....
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....4 of the Act, 2002, as Section 44(1)(b)(d) of the Act, 2002 confers jurisdiction on the Special Court to take cognizance notwithstanding anything contained in the Criminal Procedure Code. Even otherwise, without conceding that, Section 202 is applicable, the complaint was filed by the public servant in discharge of his duties, and there is no requirement for the Special Court to examine the respondent or any witnesses before taking cognizance. In support, reliance is placed on the decision of the Hon'ble Supreme Court in the case of M/s. Cheminova India Pvt. Ltd. And another -vs- State of Punjab (Crl. A No. 749/2021). b) It is not a condition precedent that the investigation for a predicate offence should be completed, and a charge sheet to be filed for launching prosecution under the provisions of the Act, 2002. c) The petitioner, who claims to be an intermediary, can claim immunity for the offence under the IT Act as stated under Section 79 of the IT Act, and cannot claim immunity for the offences committed under the Act, 2002. d) Though, the petitioner is not accused of the predicate offences, the offence under Section 3 of the Act, 2002 is a standalon....
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....during a survey or search, it is presumed such records or properties belong to that person, and the contents therein are deemed value. 14. Section 24 of the PMLA Act discusses the burden of proof, indicating that if an individual is charged with the offence of money laundering under Section 3, it is presumed that the person is involved in money laundering unless proven otherwise. 15. Section 44 of the PMLA Act addresses offence triable by Special Courts, stating that notwithstanding anything contained in the Code of Criminal Procedure, a Special Court under sub-Section 1(b) can take cognizance of offence under Section 3 without the accused being committed to it for trial. 16. Section 70 of the 2002 Act deals with offence by company and Explanation 2 to the said provision clarifies that a company can be prosecuted irrespective of whether the prosecution or conviction of any juridical person if contingent upon the prosecution or conviction of any individual. 17. Section 202 of Cr.PC pertains to the postponement of issuance of process, mandating that the Magistrate shall postpone the issuance of process against an accused, who is residing beyond his jurisdiction, and shall....
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....perty acquired by legal means may be actionable for tax violation and yet, will not be regarded as proceeds of crime unless the concerned tax legislation prescribes such violation as an offence and such offence is included in the Schedule of the 2002 Act. For 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. 295. As aforesaid, in this backdrop the amendment Act 2 of 2013 came into being. Considering the purpose of the amended provisions and the experience of implementing/enforcement agencies, further changes became necessary to strengthen the mechanism regarding prevention of money-laundering. It is not right in assuming that the attachment of property (provisional) under the second proviso, as amended, has no link with the ....
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....D 23.2.2018) at para-26 has held as follows: "26. Therefore, in absence of prima facie and sufficient evidence as discussed by the Hon'ble Supreme Court in above para, it cannot be said that there is sufficient material before the Trial Court/Special Court to proceed further against anyone/everyone who is even remotely connected with prime accused for Scheduled offence under the Act. For the sake of argument, the assumption can be made that if section is read in the way in which the respondents have acted in filing complaint against numbers of persons, it seems that probably all the counsel who are appearing for prime accused who have committed Schedule offences or any other accused in such connected cases may also be terms as a co-accused because they would certainly receive legal fees from such accused who would have paid it from some money which is alleged to be the money transacted for illegal purpose by illegal means since that is the basic ingredient of PMLA. In that case, probably wherever such accused spent some money which may be for petrol, grocery, clothes, traveling and transportation etc., basically every money spent by such accused is to be termed as tain....
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....al police. Therefore, the petitioner can be subjected to prosecution under the PMLA, if it can be established that the petitioner has prima facie committed an offence under Section 3 of the PMLA. 29. Reg. Point No.(iii): As per complainant/respondent, the investigation under the PMLA revealed thus: i) The recovery agents of Barynax and Mad Elephant used the symbols/logo/seals of High Court of Delhi and police department to prepare fake legal notices, and sent them over on Whatsapp to intimidate, and threatened the complainant/customers. Therefore, there is a prima facie evidence against two companies on various counts hacking, violation of privacy, extortion, threatening, forging of documents etc. ii) The accused No. 5 - M/s. Jamnalal Morarji Finance Pvt. Ltd. is a non-banking financial company, and the money was laundered through the account of the accused No. 5, and the proceeds of the crime were found to be lying in the account of accused No. 5, which are the recovered loans and the subject matter of the investigation of the schedule offences by the jurisdictional police. iii) The petitioner - accused No. 7 which is a payment gateway created merc....
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....amnadas Morarjee. I am providing a detailed note on boarding process of Jamnada Morarjee Finance Private Limited under my signature." 30. The essential elements to constitute an offence under Section 3 of the Act are as follows: a) Proceeds of crime: Involvement with the property derived from criminal activity. b) Directly or indirectly engaging: Participation in concealing, transferring or removing the proceeds of the crime. c) Knowledge or reason to believe: The accused must have knowledge or reason to believe that the property involved is derived from a criminal activity related to a scheduled offence. d) Criminal activity: The offence under Section 3 of the PMLA is linked to the scheduled offences listed in the act. e) Intent: There should be intention on the part of the accused to project the proceeds of the crime as untainted money. 31. These elements form a basis to prosecute a person under Section 3 of the PMLA. 32. The allegations which is the basis for prosecuting the petitioner - accused No. 7 is as follows: i) The role of the accused No. 7 is to act as payment aggregator allowing merchants to accept payment ....
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....torate of Enforcement detailed in the complaint indicated that moveables/commission earned by other Banks/payment gateway i.e. ICICI Bank, RBL Bank, IDFC First Bank, Paytm, who admittedly facilitated transactions for the other accused entity i.e. accused Nos. 1 to 4 and 6 have not been arraigned as accused in the complaint and neither the commission earned by them for facilitating such transactions have been attached as proceeds of crime by the respondent, which suggests that the petitioner has been single doubt for selecting targeting. 36. There is no evidence to suggest that the petitioner, who is a payment gateway, had knowledge that the funds transferred to the merchant IDs of accused No. 5 were derived from criminal activity related to a scheduled offence, nor did they knowingly assist accused No. 5 in concealing or transferring illicit proceeds as clean money. Even if we accept the statements from the Director of accused No. 5 and the employee of accused No. 7, at most, it indicates that accused No. 7 was negligent in setting up the merchant IDs in the name of accused No. 5. Intent is essential to constitute an offense under Section 3 of the PMLA. Therefore, the commission....