Prayer
Criminal Original Petition filed under Section 482 of Code of Criminal Procedure, 1973, to call for the records and set aside the order of issuance of summon dated 11.04.2022 issued as against the petitioner in Spl.S.C.No.2 of 2022 on the file of the learned Principal Sessions Judge-cum-Special Judge (Under PMLA) at Puducherry.
Crux of the case
5. (i) The allegation in the complaint against the petitioner, as extracted in the order passed by the learned trial Judge, is that the petitioner was working as a Superintending Engineer in PWD (Pondicherry); that he was charged for the offence under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act (hereinafter referred to as ‘PC Act’), for possessing disproportionate assets to the tune of Rs.3,75,30,221.11p during the check period from 01.01.1997 to 07.01.2006; that he was for the said offence and found guilty of possessing disproportionate assets to the tune of Rs.1,74,36,839/-; that since the petitioner by committing the said crime had amassed wealth to the tune of Rs.1,74,36,839/- and projected and claimed the same as untainted property, he is liable to be prosecuted for the offence under Section 3 of PMLA.
(ii) The petitioner filed the discharge petition before the trial Court stating that the offence under Section 13(1)(e) of PC Act, became a scheduled offence only in the year 2009 and therefore, even if he had accumulated wealth by the commission of the said offence before 2009, it cannot be treated as proceeds of crime, to invoke Section 3 of the PMLA.
Trial court’s order
(iii) The trial Court dismissed the discharge petition by observing that the Hon’ble Supreme Court in Vijay Madan Lal Choudary and others vs. Union of India held that the offence under the PMLA is a distinct offence and it concerns only with the proceeds of crime which had been derived as a result of the criminal activity in relation to a scheduled offence. Therefore, the possession of proceeds of a crime is still an offence and therefore, is not hit by Article 20(1) of the Constitution of India.
Petitioner’s Side Submission
6. (i) Mr.Anirudh Krishnan, the learned counsel for the petitioner fairly submitted that in view of the decision of the Hon’ble Supreme Court in Vijay Madan Lal Choudhary’s case (cited supra), he may not be able to persuade this Court to accept the point that since the offence committed by him became a scheduled offence later, he cannot be prosecuted under PMLA. However, he would submit that since a review petition is pending before the Hon’ble Supreme Court, to review the judgment in Vijay Madan Lal Choudhary’s case (cited supra), and in view of the judgment of the Hon’ble Supreme Court in Union of India vs. Ganpati Dealcom Pvt. Ltd., which according to him had taken a contrary view, this Court may grant a certificate for appeal to the Hon’ble Supreme Court under Article 134 (A)(b) of the Constitution of India.
(ii) The learned counsel submit that the possession of disproportionate assets and the involvement in activity relating to the proceeds of crime by its very nature, are the same and prosecuting the petitioner twice for the very same offence would amount to double jeopardy. The learned counsel further submitted that the offence under Section 3 of the PMLA makes a possession of proceeds of crime, as an offence. The essential ingredient of Section 13 (1)(e) of the PC Act is possession of disproportionate assets and inability to account for the same. Therefore, according to the learned counsel, the offence under PMLA is subsumed within the PC Act.
(iii) the learned counsel for the petitioner submitted that the summons issued against him under Section 204 Cr.P.C., is liable to be quashed on two main grounds.
(a) the respondent had not filed any complaint before the learned trial Judge, as could be seen from the endorsement in the copy application made by him before the trial Court in which, the Registry of the trial Court has stated that the complainant has not filed any complaint. However, the learned counsel submitted that the petitioner came to know subsequently that a complaint has been filed and therefore, he is not pressing this point.
b) the learned counsel further strenuously argued that the Special Court had not conducted the mandatory inquiry under Section 202 (2) Cr.P.C
Respondent’s Side Submission
Criminal Revision Case
8. As stated earlier, the point raised by the petitioner has been answered by the Hon’ble Supreme Court in Vijay Madan Lal Choudhary’s case (cited supra) case Therefore, the question:-whether the petitioner has indulged in dealing with the proceeds of the crime (scheduled offence) is factual and is a matter for trial.
9. (i) The second submission of the learned counsel for the petitioner was that prosecuting the petitioner for an offence under Section 3 of the PMLA would amount to double jeopardy. As regards the said point, we are unable to agree with the submissions made by the learned counsel. The offence under Section 13(1)(e) PC Act, which is possession of disproportionate assets, can arise even if a public servant spends the entire money derived illegally while holding office as a public servant. However, the ingredients of the offence under Section 3 of the PMLA are different.
(ii) The ingredients of Section 3 of PMLA would indicate that the offence under Section 3 of PMLA has nothing to do with the criminal activity / commission of a scheduled offence. If a person indulges or continues to indulge in dealing with proceeds of crime, he is liable to be prosecuted under the PMLA. Even in the case of holding disproportionate assets punishable under Section 13(1)(e) of the PC Act, if the offender continues to possess or conceal the proceeds of crime, after the check period, the offence of money laundering is made out. Therefore, the two offences are distinct and different and it cannot be said that the offence under PMLA is subsumed within the PC Act. Hence, the submission of the learned counsel for the petitioner that prosecuting the person accused of an offence under Section 13(1)(e) of the PC Act and for an offence under Section 3 of PMLA would amount to double jeopardy, is untenable.
10. As regards the request made by the learned counsel for the petitioner for issuance of a certificate for an appeal to the Hon’ble Supreme Court, we are of the considered opinion that such a request cannot be issued in the instant case. The point raised by the petitioner is covered by a decision of the Hon’ble Supreme Court in Vijay Madan Lal Choudhary’s case (cited supra), which is extracted above. Merely because a review application is pending before the Hon’ble Supreme Court, we cannot issue a certificate for appeal to the Hon’ble Supreme Court.
11. (i) The other reason cited by the learned counsel while praying for the issuance of a certificate is that there is a contrary judgment of the Hon’ble Supreme Court in Ganpati Dealcom’s case [cited supra]. (ii) the Hon’ble Supreme Court was dealing with the question as to whether a confiscation order can be passed for a property which was purchased before the passing of the Prohibition of Benami Property Transactions Act, 1988. The facts in that case cannot be compared with the facts in the instant case. Therefore, it cannot be said that there are conflicting views of the Hon’ble Supreme Court on this point.
12. Hence, both the reasons cited by the learned counsel for the petitioner for issuance of a certificate for appeal to the Hon’ble Supreme Court, are not sustainable. The instant case does not involve any unanswered substantial question of law and hence, we are not inclined to grant the certificate for appeal, as prayed for by the learned counsel for the petitioner.
Criminal Original Petition
13. As regards the Criminal Original Petition, the primary contention of the learned counsel for the petitioner is that Section 202 (2) Cr.P.C was not followed because the Special Court is deemed to be a sessions Court. We are unable to countenance this argument. Section 44 of the PMLA provides for a separate procedure for any Special Court to deal with the offences under the PMLA Act.
14. The Special Court can take cognizance of the offence without the case being committed to it. Section 202 Cr.P.C deals with the procedure where the Magistrate takes cognizance and the procedure to be followed before it commits the case to the Sessions Court. The said procedure has no application for a complaint under the PMLA.
15.the Hon’ble Supreme Court had held that since the Special Court is competent to take cognizance, it has power to refer the complaint for police investigation under Section 156(3) Cr.P.C and had also held that at that stage, there is no necessity to obtain sanction since, the Special Court had not taken cognizance. The Hon’ble Supreme Court had further observed that the Special Court had to follow the procedure under Sections 200 and 202 Cr.P.C., only if it decides to take cognizance of the offence on the complaint. (iii) The observations made in the said judgment are in a different context and have nothing to do with the conduct of Section 202 (2) inquiry .
Observation of this Court
16. Be that as it may, the proviso to Section 202 (2) Cr.P.C., provides for the examination of the complainant and the witnesses by the Magistrate, if the offence complained of is exclusively triable by Sessions Court
Section 44 PMLA is exception to section 190 Cr.P.C
17. The above provision would be applicable only if the Court taking cognizance and the Court trying the offence, are different, i.e., if the cognizance is taken by the Magistrate and the offence is triable by the Sessions Court. However, Section 44 of PMLA is an exception to Section 190 of Cr.P.C., which provides for cognizance only by the Magistrate. Section 193 of Cr.P.C., provides that the Sessions Court can take cognizance of any case only if the Code or any other law permits it to do so.
Since there is no committal proceedings and hence section 202 (2) Cr.P.C does not arise
18. As we have seen earlier, Section 44 (1) (b) of the PMLA permits the Special Court, which has to be a Sessions Court, to take cognizance of the complaint filed by the authority authorised under the Act. Therefore, there is no question of any committal proceedings and hence, an inquiry under Section 202 (2) of Cr.P.C., does not arise.
20. Therefore, for the aforesaid reasons, we are of the view that both the Criminal Revision Case and the Criminal Original Petition are liable to be dismissed and accordingly, dismissed. Consequently, the connected Criminal Miscellaneous Petitions are closed.
Party
C.Anandane .. Petitioner / A1 v. Directorate of Enforcement, Government of India rep. by Assistant Director, PMLA .. Respondent/complainant , dated on 27th November,2023 – Crl.R.C.No.1956 of 2023 and Crl.O.P.No.26258 of 2023 and Crl.M.P.No.18246 in Crl.R.C.No.1956 of 2023 and Crl.M.P.No.18249 of 2023 in Crl.O.P.No.26258 of 2023 Crl.R.C.No.1956 of 2023 – In The High Court Of Judicature At Madras – The Hon’ble Mr. Justice S.S.Sundar And The Hon’ble Mr.Justice Sunder Mohan
https://mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1086226
