Vinod Malewar vs The Enforcement Directorate ...
2022 Latest Caselaw 3839 Chatt

                                        1

                                                                          AFR

               HIGH COURT OF CHHATTISGARH, BILASPUR
                       Order reserved on : 06/05/2022
                        Order passed on : 17/06/2022
                             CRR No. 816 of 2018
        Vinod Malewar S/o Late T. V. Malewar Aged About 55 Years R/o
          Opposite Old High Court, Police Station City Kotwali, Bilaspur
          District Bilaspur Chhattisgarh
                                                                ---- Petitioner
                                      Versus
        The Enforcement Directorate Raipur Sub Zonal Office, Room No.
          302, 303, A-Block Central Excise Building, Raipur, District Raipur
          Chhattisgarh
                                                            ---- Respondent

CRR No. 898 of 2018

1. Sh. Abrar Baig S/o Late Sh. Abdul Rehman Baig Aged About 60 Years The Then Sub Engineer, Water Resource Division, Rajiv Gandhi Chowk Kumhar Para Road Near Prakash Provision Stores, Bilaspur District Bilaspur Chhattisgarh

2. Sh. Vijay Kumar Singh Thakur S/o Late Sh. T. N. Singh Aged About 61 Years The Then Sub Engineer, Water Resource Division Kharang, Ayodhya Nagar, Ameri Road, Ring Road No. 2, Bilaspur District Bilaspur Chhattisgarh.

3. Sh Govind Ram Dewangan S/o Late Sh. S. R. Dewangan Aged About 62 Years The Then Sub Engineer, Water Resource Division Kharang, Near Satbahaniya Mandir Bandhawa Para Beside Indira Colony Bilaspur District Bilaspur Chhattisgarh.

4. Sh B. D. S. Narwariya S/o Late Sh. Parshuram Singh Narwariya Aged About 54 Years The Then Sub Engineer, 104, Parijat Heights, Nehru Nagar Bilaspur District Bilaspur Chhattisgarh.

---- Petitioners Versus

1. Enforcement Directorate Government Of India, Through, Shreekant Purohit, Assistant Director, Enforcement Directorate, Raipur Sub Zonal Officer, A-1 Block, Pujari Complex New Dhamtari Road Pachpedi Naka, Raipur Chhattisgarh.

2. Chhattisgarh State Economic Offence Wing/Anti Corruption Bureau Through Superintendent Of Police, Near Jaijawan Petrol Pump, Raipur District Raipur Chhattisgarh.

---- Respondents

For Petitioners : Shri Rajeev Shrivastava, Sr. Advocate with Shri Sourabh Sahu and Shri Gautam Khetrapal, Advocates.

For Respondents: Dr. Saurabh Kumar Pandey and Shri Anil S. Pandey, Advocates.

Hon'ble Shri Gautam Chourdiya, J

C A V Order

01. Both these criminal revision have been filed under Section

397/401 of CrPC against the order dated 16.7.2018 (wrongly

mentioned as order dated 17.7.2018 in CRR No.816/2018) passed by

4th Additional Sessions Judge, Raipur in PMLA Case No.01/2018

whereby criminal proceedings against the applicants have been

initiated and summons have been issued to them for the offence under

Sections 3 & 4 of Prevention of Money Laundering Act, 2002.

02. In this case, there are total nine accused persons against whom

cognizance has been taken by the Special Judge/4th Additional

Sessions Judge, Raipur but the present revision petitions have been

filed only by five accused Vinod Malewar, Abrar Baig, Vijay Kumar,

Govind Dewangan and B.D.S. Narwariya. The other co-accused

against whom cognizance has been taken by the 4th Additional

Sessions Judge are Alok Kumar Agrawal, Alka Agrawal, Pawan

Agrawal and Abhish Swami.

03. As per the prosecution case, accused Alok Kumar Agrawal who

was Assistant Engineer, Water Resources Department, Raipur, CG,

while working as Incharge Executive Engineer of the said department

(Kharang Project), committed financial irregularities and corruption in

the tender process and thereby caused wrongful gain to his near

relatives and himself which amounts to offence under Sections 3 & 4 of

the Prevention of Money. Co-accused Alka Agrawal, wife of the Alok

Kumar Agrawal, in order to show the tainted money acquired by her

husband as untainted money, used the same for her

photocopy/printing shop in the name of M/s Quality Copiers and

projected the said tainted money as her income from the said shop

whereas during investigation no document relating to income from the

said shop was produced by her.

04. Applicants Abrar Baig, Vijay Kumar, Govind Dewangan and

B.D.S. Narwariya were subordinate employees of accused Alok Kumar

Agrawal and from their possession around Rs.7 crores were seized by

Economic Offence Wing. During investigation, they disclosed that the

said amount belongs to Alok Kumar Agrawal and on his pressure, they

kept that money at their home. Likewise, applicant Vinod Malewar, who

has been working as SDO under accused Alok Kumar Agrawal, also

knowingly assisted Alok Agrawal in acquisition of illegal income and for

the purpose of concealment of the said income, kept it at his home.

From his home, Rs. 7 crores have been seized by EOW. During

investigation, applicant Vinod Malewar disclosed that the said money

belongs to Alok Kumar Agrawal.

05. Co-accused Pawan Agrawal, real brother of main accused Alok

Agrawal, in connivance with Alok Agrawal, obtained tenders from

Water Resources Department in the name of his company M/s

Mahamaya Developer and Builders and also invested the illegal

proceeds of the crime acquired by Alok Agrawal in the said company.

Co-accused Abhish Swami, friend of Alok Kumar Agrawal, used the

tainted money of Alok Kumar Agrawal for opening his company namely

Sargeshwar Construction Company and within a short span of time, its

turnover increased manifold. However, during investigation, no

satisfactory reply was given by Abhish Swami regarding arrangement

of fund for opening the said company. For the sake of convenience, the

amounts seized from the accused persons are described in the table

given below:

No.            Accused                          Amount

01.   Vinod Malewar             Rs.53,80,000/-

02.   B.D.S. Narwariya          Rs.56,80,000/-

03.   Pawan Agrawal             Rs.8,12,890/-

04.   Madhu Agrawal             34,07,500/-

05.   Vijay Kumar Singh         Rs.85,59,000/-

06.   Abrar Baig                Rs.4,17,97,940/-

07.   Abhish Swami              Rs.2,44,00,000/-

08.   Alok Kumar Agrawal        Rs.2,81,000/-

09.   Govind Ram Dewangan       Rs.63,65,000/-

10.   Alka Agrawal              Rs.2,81,200/-

06. Apart from the above cash amount, documents relating to

immovable properties allegedly purchased by Alok Kumar Agrawal in

the name of his wife Alka Agrawal, brother Pawan Agrawal, friend

Abhish Swami and their relatives were also seized.

07. As per FIR bearing Crime No.5/2015 lodged at State Economic

Offence Bureau and Anti Corruption Bureau, Raipur, on 19.1.2015

offence under Sections 13(1)(e), 13(2) of the Prevention of Corruption

Act, 1988 and Sections 109, 120B, 420, 467, 468, 471 of IPC against

accused Alok Kumar Agrawal, Pawan Kumar Agrawal, Radheshyam

Agrawal and Abhish Swami and others was registered. After

investigation, final report under Section 173 of CrPC against accused

Alok Agrawal, Pawan Kumar Agrawal, Abhish Swami, Radheshyam

Agrawal, Smt. Pushpa Agrawal and Smt. Alka Agrawal was filed for the

offence under the aforesaid sections.

08. From the scheduled offence arising from the abovementioned

case, the Enforcement Directorate (ED) registered ECIR

No.RPSZO/03/2015/349, Raipur on 30.3.2015 under Section 3 & 4 of

Prevention of Money Laundering Act, 2002 and after taking evidence

and collecting materials, a complaint was filed before the 4 th Additional

Sessions Judge, Raipur, which is the designated Court for money

laundering cases. On the basis of material available, the concerned

trial Court took cognizance of the offence against the present

applicants and other co-accused persons and issued summons to

them and therefore, the applicants have filed the instant revision

petitions.

09. Learned counsel for the applicants in both the revision petitions

submits that there is no sanction obtained from the concerned authority

by the respondent for criminal prosecution of the applicants and

therefore, the cognizance taken by the trial Court is illegal. Looking to

the amount seized from the applicants, they were cited as witnesses in

Crime No.5/2015 and examined before the trial Court. Therefore, in the

present money laundering case, cognizance was taken by the trial

Court against the applicants and co-accused Alok Kumar Agrawal,

Alka Agrawal, Pawan Agrawal and Abhish Swami. It is submitted that

as per Section 2(u) of the PMLA, 2002, "proceeds of crime" means any

property derived or obtained directly or indirectly by any person as a

result of criminal activity relating to a scheduled offence but the

applicants have never been directly or indirectly involved in the criminal

activities alleged against the main accused Alok Kumar Agrawal.

Section 2(1)(u) reads as under:

"2. Definitions. - (1) In this Act, unless the context otherwise requires, -

(u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country] [or abroad];

[Explanation. - For the removal of doubts, it is hereby clarified that "proceeds of crime" including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;]"

It is argued that the offence of money laundering is described

under Section 3 of the PMLA and the main ingredients of this section

are not found in the complaint submitted by the respondent. It is

submitted that first offence was registered under Crime No.5/2015 on

19.1.2015 and money laundering complaint was filed by the ED on

29.9.2017. Thereafter, written complaint was filed by the Economic

Offence Wing against nine accused persons including the applicants,

supported with number of documents before the 4th Additional Sessions

Judge, who did not consider the entire documents produced by the

respondent and also not considered the bonafide and innocence of the

applicants that they were cited as witnesses in the case registered by

ACB. The applicants have already given their statements before the

ACB but now on the basis of that evidence, the applicants have been

made accused in the present complaint filed by the ED which is not

permissible under the law.

10. Learned counsel for the applicants further contended that a

witness cannot be compelled to give evidence against himself. As per

evidence recorded before the Special Court (Anti Corruption) by the

EoW and further as per the statements recorded by ED during

investigation, the same facts were narrated by the applicants and on

the basis of statements of the applicants, Alok Kumar Agrawa, who is

the main accused in EoW case was prosecuted for offence under

Section 13(1)(e), 13(2) of the Prevention of Corruption Act, 1988 and

Sections 109, 120B, 420, 467, 468, 471 of IPC. Before the trial Court

and before the ED, the applicants in their statements under Section 50

of PMLA stated that the amount seized from them was taken by them

from main accused Alok Kumar Agrawal as they were under

compulsion, influence and threat by Alok Kumar Agrawal.

11. Learned counsel appearing for applicant Vinod Malewar also

submits that in this case, one person namely Hariram Patel also

accepted one suitcase and thereafter returned to Vinod Malewar but as

per evidence recorded under Section 50 of PMLA, said Hariram Patel

was not mentioned as an accused.

12. It is submitted that the statement of objects and reasons to

Prevention of Money Laundering Act, 2002 (15 of 2003) recognizes

that money-laundering poses a serious threat not only to the financial

systems of the countries but also to their integrity and sovereignty.

PMLA is a special enactment containing the provisions with adequate

safeguards with a view to prevent money-laundering. The preamble to

the said Act states that it is an Act to prevent money-laundering and to

provide for confiscation of property derived from or involved in, money-

laundering and for matters connected therewith or incidental thereto.

Learned counsel argued that for initiation of investigation under

the PMLA, registration of scheduled offence is necessary. In the

present case, the scheduled offence was registered against Alok

Kumar Agrawal and offence against others accused persons was

registered under Sections 13(1)(e), 13(2) of the Prevention of

Corruption Act and Sections 109, 120B, 420, 467, 468, 471 of IPC.

There is nothing to show that the applicants were involved in the illegal

activities of main accused Alok Kumar Agrawal, they merely kept the

money handed over to them by Alok Kumar Agrawal under compulsion

and threat. They did not hatch any criminal conspiracy with Alok Kumar

Agrawal nor there was any criminal or malafide intention on their part.

Therefore, the impugned orders of the trial Court taking cognizance of

the offence and issuance of summons against the applicants are liable

to be set aside.

Reliance has been placed on the judgments in the matters of

Nikesh Tarachand Shah Vs. Union of India, (2018) 11 SCC 1;

Canon India Private Ltd. Vs. Commissioner of Customs, 2021 SCC

Online SC 200; Bibhu Prasad Acharya Vs. Directorate of

Enforcement, 2019 SCC OnLine TS 287; Sanjay Singh Ramrao

Chavan Vs. Dattatray Gulabrao Phalki, (2015) 3 SCC 123; R.S.

Nayak Vs. A.R. Antulay, (1984) 2 SCC 183; and Amit Kapoor Vs.

Ramesh Chandra and others, (2012) 9 SCC 460.

13. On the other hand, learned counsel appearing for the

respondents does not dispute the statement of objects and reasons for

enactment of PMLA, 2002. Under Section 24 of the said Act, burden to

prove not guilty of the offence of money laundering as defined u/s 3 is

upon the accused which can only be discharged during trial and not at

this stage. A conjoint reading of Section 44(1)(a), (b) and (d) of PMLA,

makes it clear that there is no pre-requirement of obtaining sanction in

PMLA cases as prescribed under Section 197 of CrPC and the Special

Court has been authorized to take cognizance upon the prosecution

complaint. The applicants in their statements under Section 50 of

PMLA have categorically admitted possession of cash belonging to

accused Alok Kumar Agrawal. All the applicants were public servants,

they ought to have reported the matter to the police or other competent

authority if they were forced to keep the illegal money of accused Alok

Kumar Agrawal but they kept the same with them for a considerable

period. This prima facie shows their ill intention to benefit and facilitate

the wrong doings of Alok Kumar Agrawal. They were cleverly

maintaining that amount of main accused Alok Kumar Agrawal

obtained from the criminal activity of the scheduled offence. He

submits that the money seized from the applicants have no nexus with

their official duty.

He submits that under Section 2(u) of the PMLA, an explanation

is also given for removal of doubts whereby it is clarified that "proceeds

of crime" including property not only derived or obtained from the

scheduled offence but also any property which may directly or

indirectly be derived or obtained as a result of any criminal activity

relatable to the scheduled offence. In the present case, all the

applicants had knowledge that Alok Kumar Agrawal obtained money

illegally by criminal activity and the applicants knowingly and directly

indulged in obtaining the property acquired by the scheduled offence

and concealed the same at their home and also used for their benefits.

In these circumstances, the trial Court was fully justified in taking

cognizance of the offence against the applicants and issuing summons

to them, and as such, these revision petitions are liable to be

dismissed.

Reliance has been placed on the decisions in the matters of

Union of India Vs. Hassan Ali Khan and another, (2011) 10 SCC

235; Devendra Prasad Singh Vs. State of Bihar, Criminal Appeal

No.579 of 2019 (Supreme Court); Prakash Singh Badal and

another Vs. State of Punjab and others, (2007) 1 SCC (Cri) 193;

State of Maharashtra Vs. Tapas D. Neogy, (1997) 7 SCC 685; and

Aslam Babalal Desai Vs. State of Maharashtra, AIR 1993 SC 1.

14. Heard learned counsel for the parties and perusal the material

available on record including the written submission as also the

citations submitted by the parties.

15. Money-laundering poses a serious threat not only to financial

systems of countries but also to their integrity and sovereignty. To

obviate such threats international community has taken some

initiatives. The Prevention of Money-Laundering Bill having been

passed by both the Houses of Parliament received the assent of the

President on 17th January, 2003. It came on the Statute Book as THE

PREVENTION OF MONEY-LAUNDERING ACT, 2002 (15 of 2003)

(Came into force on 1-7-2005). The PMLA seeks to combat money

laundering in India and has three main objectives: (I) to prevent and

control money laundering, (ii) to confiscate and seize the property

obtained from the laundered money; and (iii) to deal with any other

issue connected with money laundering in India.

16. First this Court considers the argument regarding requirement of

sanction for criminal prosecution in money-laundering cases. It is not

disputed that the applicants are public servants. Co-accused Alok

Kumar Agrawal allegedly committed scheduled offence and it was well

within the knowledge of the applicants that Alok Kumar Agrawal has

obtained money by illegal means such as corruption. Section 197 of

CrPC and Section 19 of Prevention of Corruption Act read as under:

"197. Prosecution of Judges and public servants.-

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression "Central Government" were substituted.]

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

[3(A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.]

[(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991

and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

"19. Previous sanction necessary for prosecution. - (1) No Court shall take cognizance of an offence punishable under [sections 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-

(a) in the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

[Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the

appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless-

(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and

(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:

Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:

Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.

Explanation. - For the purposes of sub-section (1), the expression "public servant" includes such person-

(a) who has ceased to hold the office during which the offence is alleged to have been committed; or

(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.]

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central

Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation. For the purposes of this section,

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

17. It is not in dispute that the tainted money was not obtained by the

applicants in discharge of any official duty, the said money has no

nexus with the official duty of the applicants and therefore, as per

Section 197 of CrPC, there was no requirement for obtaining sanction

for criminal prosecution of the applicants. There is no provision under

the PMLA Act requiring sanction for criminal prosecution.

18. Having gone through the judgments cited by learned counsel for

the applicants and looking to the fact that the act of the applicants has

no nexus with their official duties and that there is no provision in the

PMLA requiring sanction for criminal prosecution, the cited judgments

have no application to the facts of the present case and as such, they

are of no help to the applicants.

19. So far as taking of cognizance of the offence against the

applicants by the trial Court is concerned, Sections 3 & 4 of PMLA read

as under:

3. Offence of money-laundering.--Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money- laundering.

[Explanation.--For the removal of doubts, it is hereby clarified that,--

(i) a person shall be guilty of offence of money- laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:--

(a) concealment; or

(b) possession; or

(c) acquisition; or

(d) use; or

(e) projecting as untainted property; or

(f) claiming as untainted property,

in any manner whatsoever;

(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.]

4. Punishment for money-laundering.--Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years"had been substituted."

20. Section 24 of PMLA deals with burden of proof in any

proceedings relating to proceeds of crime under this Act, which reads

as under:

"24. Burden of proof.--In any proceeding relating to proceeds of crime under this Act,--

(a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or

Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money- laundering; and

(b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering."

21. In this case, in the complaint filed by the ED all the facts as

available in case registered by the ACB are mentioned and evidence

has also been recorded under Section 50 of PMLA of the applicants by

the competent authority. The defence taken by the applicants that they

are innocent, under the pressure of Alok Kumar Agrawal they took the

money which was seized from them, is a matter of evidence and also

depends upon the defence to be taken by Alok Kumar Agrawal during

the course of trial. Therefore, the aforesaid defence taken by the

applicants cannot be considered at this stage and it can be considered

after recording entire evidence in the case. Section 94 of IPC being

relevant to this case is reproduced hereunder:

"94. Act to which a person is compelled by threats

Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.

Explanation 1- A person who, of his own accord, or by

reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law.

Explanation 2- A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception."

In the present case, in view of Section 94 of IPC, the defence of

the applicants that they kept the tainted money of Alok Kumar Agrawal

under threat or compulsion, whether there was any threat of instant

death, is to be considered only after taking evidence of the parties

during trial.

22. The other argument raised by counsel for the applicants is that

one Hariram Patel, who was involved in the present crime, was not

made accused in this case. The said Hariram Patel has now died and

even otherwise, non-impleadment of Hariram Patel as an accused has

nothing to do with the accusation against the applicants, they have to

prove their innocence or false implication on the merits of the case

during the course of trial and therefore, such a defence is not available

to the applicants.

23. As regards the judgments relied upon by learned counsel for the

applicants, I have gone through those decisions and am of the opinion

that they are of no help to the applicants at this stage and the same

can be considered on the merits of the case. Similarly, the citations

submitted by the respondents' counsel are also to be considered at the

time of trial after collection of entire evidence.

24. Thus, considering the overall facts and circumstances of the

case, this Court is of the opinion that the tainted money seized from the

applicants has no nexus with their official duties and as such, there is

requirement of obtaining sanction for criminal prosecution in the

money-laundering case and further, no such provision is there in the

PMLA. The evidence of the applicants has been recorded in the case

registered by the EoW and thereafter, their statements under Section

50 of PMLA was recorded wherein it was found that the tainted money

was received by the applicants. Therefore, if the applicants are made

accused in the money-laundering case, there is no illegality and also

there is no any bar under any law for their impleadment in money-

laundering case.

25. On the basis of aforesaid discussions, this Court finds no

illegality or perversity in the impugned orders of the trial Court taking

cognizance of the offence against the applicants. Accordingly, both the

revision petitions being without any substance are hereby dismissed.

It is made clear that nothing in this order shall be construed as

an expression of opinion on merits of the case and the trial Court to

decide the case strictly on the basis of merits of the case in

accordance with law.

Sd/ (Gautam Chourdiya) Judge Khan