Rajendra Singh vs State Of U.P. And Another
2018 Latest Caselaw 1662 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 1                                                                                         AFR
 
Case :- APPLICATION U/S 482 No. - 24521 of 2018
 
Applicant :- Rajendra Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Akhilesh Kumar,Ajai Kumar Srivastava
 
Counsel for Opposite Party :- G.A.,A.S.G.I.	
 
Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

(1) This Criminal Misc. Application u/s 482 Cr.P.C. has been moved with a prayer to quash the Impugned Summoning Order dated 02.04.2018 passed by the Learned Sessions Judge, Allahabad in Complaint Case No. 4 of 2018, Assistant Director Vs. Rajendra Singh & others along with all consequential proceedings of the said complaint case pending in the above Court and simultaneously prayer is also made to stay the proceedings of the case.

(2) The facts of the case as narrated in the affidavit filed in support of the application are that complaint had been filed by opposite party no. 2 on 27.03.2018 against the applicant & others under Section 45 (1) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "PMLA, 2002"), in the court of learned Sessions Judge, Allahabad with a prayer that cognizance of offence of money laundering for violation of Section 3 of the said Act, may be taken against the accused persons and they may be punished under Section 4 of the said Act and also for issuing order for confiscation of the property attached under Section 5 of the Act (PMLA) and confirmed under Section 8 of the Act in terms of Section 8(5) of the Act. The said complaint was registered as Complaint Case No. 4 of 2018 ( Assistant Director Vs. Rajendra Singh & others). It is further mentioned that Special Investigation Team (S.I.T.), U. P. had registered a Case Crime No. 7 of 2010 on 27.08.2010 in pursuance of the order dated 03.12.2010 passed by Lucknow Bench of this Court in Writ Petition No. 10503 of 2009 (Vishwanath Chaturvedi Vs. Union of India & others) against the 36 accused persons. The allegation made by S.I.T. was that during the period 2004-05 and 2005-06, the food grains for Public Distribution System (in short PDS) were diverted to black market, which caused a huge loss to the Government exchequer to the tune of Rs. 80.64 lakhs and corresponding wrongful gains to the accused persons. Subsequently the case was taken up by Central Bureau of Investigation by registering FIR No. RC0062010A0025 on 14.12.2010, and investigation was conducted, thereafter charge sheet was submitted on 01.05.2012 against the present accused/applicant along with two others namely, Ram Murat Yadav, the then godown incharge and Shiv Bux Singh (now deceased) under Sections 120B, 406, 409, 420, 467, 468, 471 I.P.C. and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act (in short P.C. Act) for the offence said to have been committed during the period from December 2004 to June 2006. The role assigned to the applicant is that initially late Shiv Bux Singh had issued 16 bearer cheques amounting to Rs. 71.84 lakhs from his own account No. SF-160 in Punjab National Bank, Nawabganj Branch, Gonda in favour of the applicant Rajendra Singh. Thereafter, the applicant collected the 16 bearer cheques by late Shiv Bux Singh and the same were received in cash as per the details given in the table mentioned in the affidavit. Thereafter the applicant started making banker's cheques/demand drafts in favour of different kotedars of Block Godown, Nawabganj, Gonda and submitted the same to Food Corporation of India, Gonda and lifted the PDS foodgrains and in connivance with Late Shiv Bux Singh and others, he sold the same into black market during the year 2004-06. He also used different bank accounts of Subhash Singh, Dinesh Kumar Yadav, Bhim Singh and Kamlawati for preparing the banker's cheques/demand drafts in bulk in the name of the different kotedars for lifting PDS foodgrains and subsequently by selling the same in black market in connivance with other co-accused for wrongful gains to themselves and causing wrongful loss to the Government exchequer. The offence is committed by the applicant under Sections 120B, 420, 467, 471 being scheduled offence as mentioned in Part - A of the schedule of PMLA, 2002. On the basis of C.B.I. Case No. RC0062010A0025, a case has also been registered under ECIR. No. ECIR/05/PMLA/VSZO/2011 on 28.02.2011 and the relevant documents which were called for from C.B.I. revealed the role of the accused in offence of Money Laundering. As regards the role of Rajendra Singh (present applicant), it is further mentioned that he was a kotedar attached with Blcok Godown, Nawabganj, Godna who in connivance with the late Shiv Bux Singh, Ram Murat Ydav and Uday Pratap Singh got prepared banker's cheques/demand drafts in favour of various kotedars and lifted the food grains from Food Corporation of India, Gonda and diverted the same into black market illegally for wrongful gain to himself and causing wrongful loss to the Government exchequer. He made expenditures towards purchase of five trucks and two plots situated at Parao, New Cold Storage Chauraha, Nawabganj, District Gonda and also constructed a Godown on the plots situated at Parao, which are not in conformity with his legal known sources of income and hence could be directly attributed to the wrongful gains acquired by him by diversion and selling the PDS foodgrains in black market. He projected the proceedings of crime as untainted in his statement recorded under Section 50 of PMLA and admitted that out of Rs. 3.63 crores (aproax.) received from late Shiv Bux Singh, he prepared banker's cheques/drafts in favour of different kotedars for an amount of Rs. 2.53 crores and 92 lakhs was returned by him to Late Shiv Bux Singh and rest of the amount, i.e., Rs. 18 lakhs was retained by him as commission and out of this money he used 4 lakhs to purchase a plot at Parao, during 2005 and the rest amount had been used by him for purchasing 5 trucks and paying the installments of those trucks. He also admitted that he had constructed a godown on the purchased plot during the year 2005-06 by taking loan amounting to Rs. 17 lakhs from one Atma Prakash Singh in piece-meal and the said godown was mortgaged as collateral security with the Bank of Baroda, Faizabad in lieu of the said loan. The said plot and the godown have been provisionally attached under Section 5 (1) of PMLA, 2002 by mentioning that these properties were procured from the proceeds of the crime which he committed in the form  of illegal diversion and sale of PDS foodgrains in the black market. The Adjudicating Authority in its confirmation order dated 01.09.2017 has recorded that the accused has committed the Scheduled Offences and upheld the attachment of the properties of the accused. It is also mentioned that the C.B.I. has shown recovery of articles in the charge sheet that is 4 ATY cards, 5 Quota Cards, 3 Bank Cheques, 10 Counter Foils of demand draft, 8 Photocopy of the demand draft/banker's cheques, 74 Carbon copies of the TD slips, Pass-Book of Account No. 2982, 190 Sheets of daily demand draft and 119 Sheets of demand draft and on the basis of aforesaid material he has been made accused in the aforesaid scam, although this material does not indicate any commission of crime. It is further mentioned that the applicant/accused was not shopkeeper/kotedar at the relevant time i.e. the year 2004-05 to 2005-06, the period when he is alleged to have diverted foodgrains from the godown for black marketing. The only charge that is appearing against him is that he prepared number of banker's cheques from his account in the name of several kotedars for the purpose of lifting foodgrains and the said money was given by the co-accused Late Shiv Bux Singh by cheques. This allegation is wholly unreliable because no shopkeeper/kotedar is alleged to have raised any objection for a period of two years, moreover no card holder came forward with any compliant before any authority in this regard. The applicant being a private person could not be charge sheeted for the offence punishable under the provisions of P.C. Act. It is further mentioned that initially applicant's name did not appear in the FIR but he has been made accused during further investigation by C.B.I. He is alleged to have received illegal benefit of Rs. 30-35 lakhs (approx.) which is being alleged to be proceeds of crime (P.O.C.) which is alleged to have been revealed in his admission made in statement under Section 50 of PMLA, 2002 on 15.09.2016 and the statement of Late Shiv Bux Singh made on 20.09.2016. It is further mentioned that the applicant has preferred an appeal under Section 26 of PMLA of 2002 challenging the order of the Adjudicating Authority dated 01.09.2017 whereby his properties were attached along with an application for condonation of delay. Further it is mentioned that in the case filed by C.B.I. against him, he has got himself bailed out, however, his discharge application was rejected by C.B.I. Court vide order dated 25.01.2016, against which he has preferred a Criminal Revision No. 208 of 2016 before Lucknow Bench, which is still pending and stay order has been passed therein. Further it is mentioned that the learned trial Court has failed to appreciate the fact that applicant had borrowed Rs. 17 lakhs from one Mr. Atma Prakash Singh and thereafter he took loan from the Bank and the loan taken from Atma Prakash Singh was returned. Further it was also ignored by the Trial Court that whatever money was deposited in the account of the applicant, the same was given as demand draft to the said authority and that the applicant had never mis-utilized the said fund for personal use. It is also ignored that the attachment order passed by the Adjudicating Authority has been appealed against which is pending before the Appellate Court at New Delhi and, therefore, the complainant ought to have waited.

(3) Further it is mentioned that it was evident that the offences alleged to have committed by the applicant, belong to the period prior to 01.07.2005, when admittedly PMLA, 2002 was not in force. Even after the enforcement of the said Act on 01.07.2005, the offences under I.P.C. alleged to have been committed by him were included in the scheduled offence with effect from 01.06.2009 in as much as Scheduled Offences mentioned in Paragraph-1, (offences under the Indian Penal Code) given in Part A, have come into force with effect from 01.06.2009, as such when the offences alleged to have been committed by him fall during the period of year 2004 to 2006, the Scheduled Offences covered under I.P.C. which came into effect, w.e.f., 01.06.2009, could not have been treated to have committed by him. The PMLA is a penal statute, therefore, it can have no retrospective or retroactive operation, as the same would be in teeth of the provision made in Article 20 (1) of Constitution of India. No person can be inflicted penalty greater than what could have been inflicted under the law at the time when the offence was committed, is settled position of law. Thus, in above conspectus the impugned order is absolutely against the provisions of law which needs to be quashed.

(4) Learned counsel for the applicant has vehemently argued on the point that in view of the proceedings of the C.B.I. Court having been stayed by this Court and the order dated 1.9.2017 attaching the property, passed by the Adjudicating Authority having been challenged in appeal which is pending before the Appellate Authority, and also in the face of fact that on the date when the offence is alleged to have been committed by the applicant, the said offences were not part of the schedule appended to the PMLA, 2002 hence could not have been treated punishable under PMLA, 2002, the applicant could not have been prosecuted under the PMLA of 2002 and, therefore, the impugned order deserves to be quashed.

(5) Learned counsel for the applicant has relied upon the judgment and order dated 13/07/2017 passed by the High Court of Judicature at Madras in Cri. O.P. Nos.10497 and 10500 of 2017, Shri Ajay Kumar Gupta and 3 Others vs Adjudicating Authority (PMLA) and 2 Others, in which in the first petition prayer was made to call for the records in Provisional Attachment Order No. 09/2017 dated 07/04/2017 in ECIR/CEZO/08/2015, Chennai Zone passed by the second respondent and quash the same, while in the other petition prayer was made to call for records in Original Complaint O.C. No. 855 of 2017 filed by the second respondent before the Hon'ble Chairperson Adjudicating Authority, the first respondent under the Prevention of Money Laundering Act, 2002, and quash the same.

(A) The facts of the above case were that the first petitioner was working as Asstt. Commissioner of Customs and Central Excise, Chennai, who resigned from service w.e.f. 14/4/2014. While he was working as an appraiser in Customs House, Chennai, Deputy Superintendent of Police, CBI had filed an F.I.R. No. RCMA 1/2005 A/0031 on 29/06/2005 for alleged possession of assets and pecuniary resources in the name of first petitioner and his family members for alleged commission of offences under sections 13 (2) read with 13 (1) (e) of Prevention of Corruption Act, 1988. The final report was submitted under sections 173 (2) Cr. P.C. on 13/01/2009 by third respondent before the Principal Special Judge for CBI cases, Chennai, in C.C. No. 18 of 2009 for offences punishable under sections 13 (2) read with sections 13 (1) (e) of the Prevention of Corruption Act, 1988 against first petitioner and under sections 109 of IPC read with 13 (2) read with 13 (1) (e) of Prevention of Corruption Act, 1988 against 2nd petitioner. Check period was shown as from 01/05/1997 to 30/06/2005. The 3rd and 4th petitioners were not arrayed as accused in the above C.C. No. 18 of 2009. The trial was under progress in the court of 14th Additional Special Judge, CBI cases and presently investigating officer, PW 74 was being cross-examined by the defence. In the meantime, after 6 years of the aforesaid alleged offence of Prevention of Corruption Act, which is a scheduled office under the Prevention of Money Laundering Act, the 2nd respondent registered an Enforcement Case Information Report and also sent summons to petitioners 1 and 2.

(B) The contention made before the court by the petitioners was that as per charge sheet the offences were committed between 01/05/1997 to 30/06/2005 and during this period Prevention of Money Laundering Act, 2002 did not come in force as the same was made enforceable w.e.f. 01/04/2005.

(C) It was observed by the High Court of Madras that at the time of the alleged commission of offences by the 1st and 2nd petitioners i.e. prior to 01/07/2005, the Prevention of Money Laundering Act was not in force. Even after 01/07/2005, the offences were not included in the scheduled offences till 01/06/2009. The charge sheet is dated 13/01/2009, even on that date, Prevention of Corruption Act was not included in the scheduled list of offences. Therefore, it was held that if retrospective effect is given to any statute of penal nature, that will directly be in conflict with fundamental rights of the citizen enshrined in Article 20 (1) of the Constitution of India. It was further held that admittedly, the 2nd respondent filed the case only based on the charge- sheet of the CBI, which had not conducted an enquiry on its own. In fact, when all original documents were in custody of CBI court, there could not be any reason to believe that the properties would be dealt with in any other manner; therefore the attachment officer had passed an order without any reason to believe that proceeds of crime were likely to be transferred or disposed. In the absence of any sufficient reason, arriving on such a conclusion by merely reproducing words "reason to believe", it could not be stated that order has been passed after considering the entire gamut of material and therefore the attachment was held to be not maintainable.

(D) It was further held that the charge sheet was filed under Section 13 of the Prevention of Corruption Act on 13/01/2009, while the said Section was included in the list of scheduled offences under the Prevention of Money Laundering Act on 01/06/2009, therefore subsequent amendment could not be given retrospective effect. It was also mentioned in this judgment that it was settled principle of law that the provisions of law cannot be retrospectively applied, as Article 20 (1) of the Constitution bars the ex post facto penal laws and no person can be prosecuted for any alleged offence which occurred earlier, by applying the provisions of law which have come in force after the alleged offence.

A close scrutiny of the above case would reveal that in this case the matter involved commission of an offence under Section 13 of the Prevention of Corruption Act which came to be added in the scheduled offences of Prevention of Money Laundering Act only on 01/06/2009, while the offence related to the period between 01/05/1997 to 30/06/2005, therefore the facts of this case are distinguishable from the facts in case on hand because in the present case apart from the offences under Prevention of Corruption Act, offences under sections 120 B, 406, 409, 420, 467, 468, 471 of IPC are also there, under which the proceedings have been drawn. As far as the offence under sections 467 IPC is concerned, the said offence was already included in Part B of the schedule appended to PMLA which had come in force w.e.f. 01/07/2005, and the period during which offence is being alleged to have been committed relates to from 2004 to 2006. Therefore, it is apparent that some period of commission of offence falls when the scheduled office under Section 467 IPC was already in existence. Therefore, it would be in the domain of the trial court to see as to which scheduled offences might have been committed by the accused - applicant for which he may be finally punished, if found proved.

(6) Per contra learned counsel for the C.B.I. has vehemently opposed the argument stating that the provisions of I.P.C. which have been violated by the applicant/accused were earlier in Part-B of the schedule appended to the PMLA, 2002 which have subsequently been, by amendment, made part of Part-A of the schedule appended to the said Act. Therefore, the argument of the learned counsel for the applicant that he could not be tried for committing offence under PMLA, 2002 would not sustain.

(7) As regards law the argument of the C.B.I. that section 120B of I.P.C. relating to criminal conspiracy was earlier in Part B of the schedule to the PMLA , 2002 and was subsequently made part of Part A of the said schedule, hence it could not be said that the cognizance could not have been taken by the Trial Court in the present matter under the aforesaid section, we scrutinized the position of law and we find that the said section came into effect w.e.f. 01.06.2009 and was included in Part B of the schedule but subsequently the said section was taken out from there and was placed in Part A of the said schedule appended to the PMLA of 2002 by amendment Act 2 of 2013. This argument does not make it clear as to how the provision of Section 120B would be treated to be applicable for an offence committed during the period 2004-2006, as this provision was made punishable under PMLA of 2002 after 01.06.2009 by its inclusion in the said Part B of the schedule appended to the PMLA, 2002.

(8) First of all, we would like to take up the objection raised by the learned counsel for the applicant that the offences which were alleged to have been committed by the applicant/accused were not made punishable under the PMLA, 2002 because the offences under the I.P.C. allegedly committed by the applicant were not part of either schedule A or schedule B of the aforesaid Act. According to him these sections were made punishable under the PMLA of 2002 in the year 2009, w.e.f. 01.06.2009.

(9) We have gone through the entire provisions. The PMLA, 2002 was promulgated/came into force on 01.07.2005, vide G.S.R. 436(E), dated 1st July, 2005, published in the Gazette of India, Extra,, Pt. II, Sec. 3(i), dated 1st July, 2005. Therefore, the following was position, as on 1st July, 2005 as regards inclusion of offences in Part A or Part B of the schedule appended to the PMLA, 2002. (Only such sections are being taken into consideration of I.P.C. and P.C. Act, which are alleged to have been committed by applicant/accused).

(10) In Part B of the schedule, one of sections of I.P.C. in question only i.e.Section 467 I.P.C. which pertained to forgery of a valuable security will or authority to make or transfer any valuable security, or to receive any money etc. was made punishable under PMLA, 2002.

(11) In view of the above, it is apparent that the offence under Section 467 was punishable under PMLA of 2002 with effect since 1st July, 2005 while the allegations against the present accused relate to the period 2004-05 and 2005-06, hence the argument of the learned counsel for the applicant that the cognizance taken against the accused applicant could not have been taken for his having committed offence under Section 467 I.P.C. does not hold water as the same was already made punishable under the PMLA of 2002 way back in 2005. It is settled law that if even one of the offences under which the charge is found to have been made out, then it cannot be denied that cognizance could have been taken by the Court concerned for having committed an offence under PMLA of 2002. If offence under certain other sections of I.P.C. or P.C. Act are found not made out in respect of the present accused during the period in question due to penal provision not being available then the said fact may be taken into consideration by the Trial Court at the time of trial and take appropriate decision in that regard.

(12) Thereafter an amendment was brought in PMLA, 2002 by the Prevention of Money Laundering (Amendment Act; 2009) (in short no. 21 of 2009, 6th March, 2009) whereby, in Part B Section 120B (criminal conspiracy) was added and the same was made punishable under the PMLA, 2002 under Section 3/4 of PMLA. Apart from that Section 471 - using as genuine or forged record, was also placed in Paragraph 1 under Part B of the said Act hence this offence also became punishable under the PMLA, 2002 with effect from 06.03.2009. Further in Paragraph 5 under Part B the Section 13 of P.C. Act - criminal misconduct by public servant was added, and was made punishable under the PMLA, 2002. Thereafter, by Prevention of Money Laundering Act, 2012 (in short 2 of 2013) which came into effect from 3rd July, 2013 the above offences of I.P.C. included in Part - B, were made part of Part - A in Paragraph 1.

(13) As regards other objections that the appeal against the attachment of the properties of the applicant/accused was pending before a Appellate Authority and that the order passed by the learned Judge of C.B.I. Court had been stayed by the High Court, Lucknow Bench hence the cognizance under PMLA ought to have postponed by the learned Trial Court till final decision in that case, does not hold good as there is no legal bar to initiating proceedings under PMLA under such a situation.

(14) In view of the above, we are of the view that impugned order does not suffer from any infirmity and the application is liable to be dismissed and it is, accordingly, dismissed.

              Dinesh Kumar Singh-I, J.)    (Ramesh Sinha, J.)
 
Dated:-23.07.2018
 
Ashok Gupta.