TaxTMI 
TaxTMI 
2024 (7) TMI 115
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....formation Report ('ECIR') No. ECIR/320/DZ-1/2009, and CT No. 18/2018 filed by the Directorate of Enforcement under Section 44 and 45 of Prevention of Money Laundering Act, 2002 ('PMLA'), till the above-captioned petitions are adjudicated by this Court. 2. Factual background of the case is that the Central Bureau of Investigation ('CBI') had registered an FIR No. RC-AC2-2007-A0003 on 08.10.2007, for offences under Section 13 (1) (e) read with Section 13 (2) of the Prevention of Corruption Act, 1988('PC Act') and Section 109 of the Indian Penal Code, 1860 ('IPC'). It was alleged that Major General Anand Kumar Kapur, the petitioner herein, while serving in various capacities in the Indian Army from 14.11.1971 to 31.05.2006, had amassed substantial assets through corrupt and illegal means, either in his name or in the names of his family members, which were disproportionate to his known sources of income. Smt. Mridula Kapur was accused of abetting her husband in acquiring these assets. Based on this FIR, an ECIR No. ECIR/320/DZ-1/2009 was also recorded on 22.12.2009. 3. After completing the investigation, the CBI had filed a charge sheet on 26.10.2009 in the Court of the learned ....
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....he above-captioned criminal miscellaneous petition seeking quashing of the ECIR and the orders dated 21.01.2020 and 01.02.2020, along with all related proceedings. 7. Learned counsel appearing on behalf of the petitioner argues that the petitioner's appeal i.e. CRL.A. 1099/2016 against the judgment of conviction dated 27.09.2016 and order on sentence dated 29.09.2016, has been pending adjudication before this Court for the past six years. It is stated that during this period, the trial in the impugned complaint filed by the Directorate of Enforcement has progressed significantly, with the prosecution evidence closing on 29.08.2023. It is stated that the matter is now scheduled for the recording of statement of accused under Section 313 Cr.P.C. It is argued on behalf of the petitioner that allowing the trial to conclude in the PMLA case, without adjudicating the pending appeal could cause irreparable damage to the accused, as the establishment of the predicate offence is a mandatory prerequisite for proceedings under Section 3 of the PMLA. 8. It is argued by the learned counsel that there are no identified 'proceeds of crime' as defined under Section 2 (1) (u) of the PMLA,....
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....2. It is argued on behalf of the petitioner that the entire case of the respondent relies on the conviction order dated 27.09.2016, with no additional evidence presented beyond the possession of properties. Thus, it is submitted that the continuation of the trial in the impugned complaint during the pendency of the legal issues before the Hon'ble Supreme Court and the Hon'ble Division Bench of this Court and during pendency of appeal filed by the petitioner herein against his conviction in respect of predicate offence, will cause irreparable injury to the petitioner, and thus, the proceedings should be stayed in the interest of justice. 13. Learned special counsel appearing on behalf of the respondent, on the other hand, argues that the offence of money laundering is independent of the date on which the scheduled offence was committed. The key date is when the individual engages in activities connected with the proceeds of crime. It is submitted that this position aligns with the Hon'ble Supreme Court's decision in case of Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, which clarified that money laundering can be a continuing offence, irrespective of the ....
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....e of recording of statement of accused under Section 313 of Cr.P.C. Thus, it is prayed that the present applications seeking stay on trial court proceedings be dismissed. 16. This Court has heard arguments addressed by learned counsels appearing on behalf of both the parties, and the material placed on record by the either side has also been perused. 17. In short, the relief which is being sought by the petitioner at this stage is the stay of proceedings in the complaint case filed by the respondent under PMLA, which is pending before the learned Special Judge-05, CBI (PC Act), Rouse Avenue Court, and where the trial has reached the stage of recording of statement of accused under Section 313 of Cr.P.C. 18. As taken note of in the preceding discussion, the petitioner herein was convicted for offence under Section 13 (1) (e) read with Section 13 (2) of PC Act vide judgment dated 27.09.2016 since he was unable to satisfactorily account of the pecuniary resources of the property disproportionate to the tune of Rs 2,22,04,290/-. he had preferred the appeal against his conviction, which is pending before this Court. In the year 2018, the respondent i.e. Directorate of Enforceme....
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....9 and 2020 by way of above-captioned petitions, no stay of was granted in the present case by this Court. With respect to another argument of the petitioner that the 'property' under Section 2 (1) (v) of PMLA must emanate as a result of a criminal activity relating to a scheduled offence and there is no finding in the judgment of conviction dated 27.09.2016 that any of the properties have been derived or obtained as criminal activity relation to the scheduled offence, this Court, at this stage, is of the view that the learned Special Court while taking cognizance of the offence and while framing charges, has categorically noted that the independent investigation under PMLA had revealed that the petitioner had purchased properties and assets worth Rs. 3,37,02,592/- in his and his wife's names, projecting them as bought with untainted money, and these were the proceeds of crime under Section 2 (1) (u) of PMLA, and further that the properties belonging to the petitioner were provisionally attached under Section 5(1) via a Provisional Attachment Order dated 4.11.2006. Therefore, this Court is not inclined to stay the trial court proceedings in the present case on these grou....
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....nce under PMLA, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, such person may be liable to be prosecuted for offence of money laundering under PMLA. The relevant observations of the Hon'ble Apex Court are as under: "270. Needless to mention that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity (a scheduled offence). It would be an offence of money-laundering to indulge in or to assist or being party to the process or activity connected with the proceeds of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even aft....
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....anlal Choudhary (supra) wherein it was held that 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 and it has otherwise nothing to do with the criminal activity relating to a scheduled offence. The relevant observations of the Hon'ble Apex Court are extracted hereunder: "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 activ....