TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 1406
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....11 titled as E.D. V Dr. Jeevan Kumar etc. (hereinafter referred to as "the complaint") by the court of Sh. P.S. Teji, District Judge and Additional Sessions Judge/Special Judge (PMLA), East, Karkardooma Courts, Delhi whereby the petitioner was charged for the offence punishable under section 4 of PMLA. 2. Briefly stated, the facts of the case are that FIR bearing no. 27/2008 was got registered under section 420 of The Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sections 18/19 of The Transplantation of Human Organs Act, 1994 (hereinafter referred to as "TOHO Act") at P.S. Palam Vihar, Gurgaon. The investigation of the abovementioned FIR was entrusted to CBI and consequently, RC/1(E)/08/CBI/EOU-VII/ND was registered ....
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....t dated 22.03.2013 and the same has not been challenged and has therefore, attained finality. 5. The counsel appearing on behalf of the petitioner submits that in view of the fact that the co-accused Dr. Jeevan Kumar has been acquitted by the trial court, the present complaint filed by the ED is not maintainable. In this regard, he places reliance on the judgment of the Supreme Court in Vijay Madanlal Choudhary V Union of India, 2022 SCC OnLine SC 929; judgment of Division Bench of this Court in Harish Fabiani and Others V Enforcement Directorate and Others, 2022 SCC OnLine Del 3121; judgments of Coordinate Benches of this Court in Nayati Healthcare and Research Pvt. Ltd. And Others V Union of India Ministry of Home Affairs and Another, W.....
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....ecution initiated by the respondent/ED can be allowed to be continued or is liable to be quashed. 8. The above issue was considered by the Supreme Court in case of Vijay Madanlal Choudhary (supra) and it was observed as under:- 467....(v)...(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/t....
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....rty linked to the stated scheduled offence. In other words no action under PMLA can be resorted to unless there is a substratum of a scheduled offence for the same, which substratum should legally exist in the form of a subsisting (not quashed) criminal complaint/inquiry or if it did exist the accused has since been discharged or acquitted by a Court of competent jurisdiction. 10. A Coordinate Bench of this Court in case of Nayati Healthcare (supra) has also considered the issue whether the prosecution initiated by the respondent/ED can be continued in a case where the accused has already been acquitted/discharged for the predicate offence. The relevant portion of the aforesaid judgment is reproduced as under:- 10. In Nik Nish Retail Ltd....
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....the said order is set aside and the case is revived, it will be always open for the petitioner to revive the proceedings under the Prevention of Money Laundering Act,2002. The Special Leave Petition is accordingly disposed of. 12. Similarly, another SLP being SLP (Crl.) Diary No.28128/2023 filed by the ED against the judgment of the Madras High Court on a similar issue was dismissed as withdrawn on the basis that the FIR on the predicate offence had been quashed. 13. The Telangana High Court in Manturi Shashi Kumar (supra) [Manturi Shashi Kumar V Director, Directorate of Enforcement, 2023 SCC OnLine TS 1098] has also quashed a complaint under Section 3 of the PMLA on the grounds of the accused being discharged/acquitted of the schedul....
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.... die till the decision of the Supreme Court on this issue, referred the judgment passed by the Supreme Court in Union Territory of Ladakh and Others V Jammu and Kashmir National Conference and Another, 2023 SCC OnLine SC 1140, the relevant portion of which is reproduced as under : - 35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make ....