TaxTMI 
TaxTMI 
2025 (11) TMI 1710
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....my companies to siphon loan funds via fictitious transactions, which were then layered and ultimately invested in movable and immovable properties as the alleged proceeds of crime. 3. The Enforcement Directorate filed a Main Prosecution Complaint under Section 44(1)(b) of the PMLA before the Special Court, Chennai on 09.09.2022 against 8 accused persons for offences punishable under Sections 3 and 4 of the PMLA, 2002. The Special Court took cognizance of the said Main Complaint on 25.11.2022 and registered the matter as Spl. C.C.No.9 of 2022. Subsequently, a First Supplementary Prosecution Complaint was filed on 11.6.2024 against 19 additional accused persons. The said complaint was taken on file on 06.08.2024.The present petitioner, Shri Rahul Surana, was not arrayed as an accused either in the Main Complaint or in the First Supplementary Complaint. A Second Supplementary Prosecution Complaint was filed on 06.11.2024 against 15 additional accused persons, including the present petitioner (shown as Accused No. 42). The said complaint was taken on file and process was issued on 17.02.2025.The petitioner has now challenged the order dated 17.02.2025 primarily on the ground that he....
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....ANCE OF OFFENCE OR C OGNIZANCE OF ACCUSED: 9. It is a well settled principle of criminal law that cognizance is taken of an offence and not of the offender. This principle has been further elaborated in Prasad Shrikant Purohit vs State of Maharastra [(2015) 7 SCC 440]. The relevant portion is extracted below: "74. ...While cognizance is already taken of the main offence against the accused already arrayed, the supplementary charge-sheet may provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cognizance of and the only scope would be for the added offender to seek for discharge after the filing of the supplementary charge-sheet against the said offender. 75. In CREF Finance Ltd Vs. Shree Shanthi Homes (P) Limted [(2005) 7 SCC 467], this Court has held: 'Cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance o....
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....gainst the accused. It shall be read as the Second Supplementary Complaint was taken on file on 17.02.2025, it was being added to the existing proceedings in Spl. C.C. No.9 of 2022 where cognizance had already been taken. 15. This cannot be construed as a material or substantive error. It is mere curable error of expression. This curable error can neither go to the extent of vitiating the entire proceeding nor can it result in miscarriage of justice. 16. The impugned order of the learned Trial Judge sufficiently demonstrates application of mind on the part of the learned Trial Judge. The order adequately showcases that materials placed before was perused and that prima facie opinion to the Trial Judge's satisfaction was formed to proceed further. Hence, this shows that the learned Trial Judge has applied his judicial mind and issued summons as a consequence of taking cognizance. When the intent of the order is issuance of process based on the complaint, there does not arise a need for an elaborate or reasoned order. Brief Orders which convey the intent and satisfaction of the Learned Trial Judge on perusal of the materials before him is sufficient to pass the litmus test as l....
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....and the discretion has to be judicially exercised by him. It was further held that: (SCC p. 741, para 5) "5. ... Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused." 17. In Chief Controller of Imports & Exports v. Roshanlal Agarwal [(2003) 4 SCC 139: 2003 SCC (Cri) 788] this Court, in para 9, held as under: (SCC pp. 145-46) "9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. [(2000) 3 SCC 745....
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....made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not." 5. The order passed by the trial court taking cognizance against R-2 and R-4 to R-9 is in conformity with the law laid down in the above judgment. It is settled law that the power under Section 482 CrPC is exercised by the High Court only in exceptional circumstances only when a prima facie case is not made out against the accused. The test applied by this Court for interference at the initial stage of a prosecution is whether the uncontroverted allegations prima facie establish a case.' (emphasis supplied)" 18. Hence, the language of the impugned order does not show any irregularity and so the objection raised by the Petitioner at this stage cannot be entertained. IV.PRE-COGNIZANCE HEARING: 19. The averments of the Petitioner that the benefit of pre-cognizance hearing as prescrib....
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....er investigation" to bring "further evidence, oral or documentary, against any accused person". 24. It was also submitted by the Petitioner that the language used in respect of investigation and supplementary complaints in Explanation (ii) to Section 44, PMLA is identical to the language used in Section 173(8), CrPC (corresponding to Section 193(9), BNSS) i.e., "further investigation" and obtaining "further evidence, oral or documentary". 25. In respect of "further investigation" under section 173(8), CrPC, the petitioner counsel placed reliance on Hon'ble Supreme Court Judgement in Mariam Fasihuddin Vs State of Karnataka [(2024) 11 SCC 733], where it was reiterated that the terms "further investigation" must concern "further evidence, oral or documentary" that has been collected by the investigating agency. Thus, the provision for submitting a supplementary report (or a supplementary complaint) "infers that fresh, oral or documentary evidence should be obtained rather than re-evaluating or reassessing the material already collected and considered by the investigating agency while submitting the initial police report". 26. Hence the Petitioner contended that in the present....
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....ed on 09.09.2022, which was after the searches conducted in February 2021; (b) The ECIR in the present case was initially registered on 27.12.2019 based on the CBI FIR; (c) The ECIR was subsequently amended by way of Addendum dated 10.06.2024, specifically incorporating the SFIO Complaint as a scheduled offence; (d) The SFIO complaint brought forth new allegations regarding corporate fraud, falsification of accounts, and violations under the Companies Act, 2013, which constitute a separate scheduled offence under the PMLA; (e) The forensic audit report conducted by M/s.Haribhakti & Co., which forms part of the SFIO proceedings, constitutes fresh documentary evidence. 30. The Enforcement Directorate further submitted that the Petitioner has failed to appreciate the distinction between "pre-existing evidence" and "new material/fresh evidence." The SFIO complaint, though based on transactions that occurred in the past, constitutes a new scheduled offence that came into existence only on 09.09.2022. This is fresh material for the purposes of the PMLA investigation. 31. It was also submitted that money laundering is a continuing offence and the ....