Madras High Court
A.Sudha vs The Assistant Director on 17 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
2024:MHC:3576
Crl.O.P.No.28587 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.09.2024
PRONOUNCED ON : 17.10.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MRS.JUSTICE N.MALA
Crl.O.P.No.28587 of 2023
A.Sudha ... Petitioner
Vs.
The Assistant Director,
Directorate of Enforcement,
Government of India,
Ministry of Finance, Department of Revenue,
3rd Floor, 3rd Block, 'B' Wing,
No.26, Haddows Road,
Chennai – 600 006. ... Respondent
PRAYER: Criminal Revision is filed under Section 482 of the Code of
Criminal Procedure, to call for the records relating to the complaint in
C.C.No.60 of 2016 on the file of the VIII Additional District Judge for CBI
Cases, Chennai and quash the same as far as the petitioner is concerned.
Page No.1/26
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Crl.O.P.No.28587 of 2023
For Petitioner : Mr.I.Abrar Mohamed Abdullah
For Respondent : Mr.AR.L.Sundaresan
Additional Solicitor General of India
asst. by Cibivishnu,
Special Public Prosecutor for ED
ORDER
S.M.SUBRAMANIAM, J.
FACTS OF THE CASE:
The lis on hand has been instituted to quash the
Additional/Supplementary complaint filed under Section 45 r/w Sections 3, 4,
8(5) and 70(1)(2) of the Prevention of Money Laundering Act, 2002
(hereinafter referred as PMLA).
2. A Tri-Party Agreement dated 12.11.2007 was executed between
A1/Mr.G.Srinivasan, petitioner and petitioner's family and VMT Spinning
Mills India Private Limited, whereby, inter-alia, possession of VMT Spinning
Mills India Private Limited was handed over to Al/ Mr.G.Srinivasan.
3. Subsequently, a second Tri-Party Agreement was executed on
08.07.2008 between A1/Mr.G. Srinivasan, petitioner and petitioner's family,
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and VMT Spinning Mills India Private Limited, whereby, inter-alia, it is
confirmed that petitioner and petitioner's family have transferred their
shareholding in VMT Spinning Mills India Pvt to Al/Mr. G.Srinivasan for a
consideration of Rs. 97.33 lakhs.
4. The petitioner's father Late Mr.Doraisamy lodged a complaint
against Al/Mr.G. Srinivasan on 08.04.2009 (FIR No. 383 of 2009), and took
back possession of the assets of VMT Spinning Mills India Private Limited,
from Al/Mr.G.Srinivasan in May, 2009. Mr.Doraisamy passed away on
10.09.2009. The petitioner in her statements under Section 50 of PMLA
dated 23.03.2016 and 24.03.2016 admits knowledge of her father taking
back possession of the company in May, 2009 and that she was aware of the
criminal activities of Al/ Mr. G. Srinivasan since the end of 2008.
5. CBI received a complaint from SBI Global Factors Limited on
10.12.2010 and subsequently filed a charge sheet on 28.11.2011 which is the
Schedule/Predicate Offence.
6. On 09.01.2012 yet another Tri-Party Agreement was executed
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between the petitioner & her family members, VMT Spinning Mills India
Private Limited, and a person named Mr.Durai. Whereby, inter-alia, land,
building, and machinery of VMT Spinning Mills India Private Limited were
sold to Mr.Durai for Rs.5.14 crores of which Rs.2.50 crores was received as
advance by the petitioner and her mother.
7. The Petitioner has sold the assets of VMT Spinning Mills India
Private Limited. Though she is a party to the first Tri- Party agreement dated
12.11.2007, and second Tri-Party agreement dated 08.07.2008, whereby the
petitioner and her family members sold their entire shareholding in VMT
Spinning Mills India Private Limited to Al. The said fact has been admitted
by the petitioner.
8. Subsequently, on 23.07.2014, Memorandum of Compromise
was executed between VMT Spinning Mills India Private Limited, Al and
petitioner and petitioner's family. Whereby the first and second Tri-Party
agreements dated 12.11.2007 and 08.07.2008 are cancelled, and petitioner
and petitioner's family pay A1/Mr. G. Srinivasan a sum of Rs.2.65 crores.
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9. Clause 7 of the Memorandum of Compromise states that Al is
unable to hand over to the petitioner the Original share certificates relating to
VMT Spinning Mills India Private Limited since the same is under custody
and possession of CBI and that the Petitioner is to seek issuance of duplicate
share certificates from the company, on the basis of the Memorandum of
Compromise and the orders to be passed by the Company Law Board.
10. Pertinently, the petitioner in her statement under Section 50 of
PMLA, dated 24.03.2016 states that she does not remember handing over the
share certificates to A1.
11. On 25.10.2017, the Registrar of Companies issues Form No.
STK-7 whereby VMT Spinning Mills India Private Limited had been strike
off from the register of companies, and the company stood dissolved for non
filing of statutory returns.
12. However, the Petitioner continues to represent VMT Spinning
Mills India Private Limited even after 25.10.2017, including before the High
Court of Madras in Crl.OP.No.3890 of 2017 in which Judgment was
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pronounced on 27.01.2022.
13. A part of the Proceeds of Crime generated by various accuseds,
including Al, was deposited in the bank accounts of VMT Spinning Mills
India Private Limited to an extent of Rs.5,69,13,194/- and a further sum of
Rs.2,32,20,148/- was generated as trade receipts by VMT Spinning Mills
India Private Limited using the proceeds of crime.
14. The petitioner has admitted in her statement under section 50 of
PMLA that she was aware of the criminal activities of Al since the end of
2008. Though the petitioner sold her shareholding in VMT Spinning Mills
India Private Limited to Al in 2008, VMT Spinning Mills India Private
Limited had received proceeds of crime to an extent of Rs. 8,01,33,342/-.
However, on 09.01.2012 the petitioner has sold all the assets of VMT
Spinning Mills India Private Limited to a person named Mr.Durai for a
consideration of Rs.5.14 crores of which Rs.2.50 crores was received as
advance by the petitioner and her mother, and the balance Rs.2.65 Crores
was paid by Mr.Durai to Al under the Memorandum of Compromise dated
23.07.2014.
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15. Thereafter, the Petitioner causes VMT Spinning Mills India
Private Limited not comply with statutory obligations of filling annual
returns, and this causes the Registrar of Companies to issue Form No. STK-7
dated 25.10.2017, whereby VMT Spinning Mills India Private Limited had
been strike off the register of companies. Thus, from and after 25.10.2017
VMT Spinning Mills India Private Limited ceased to exist. However, the
Petitioner files Crl.OP.No.3890 of 2017 in February 2022, before the
Registrar of Companies strike off the VMT Spinning Mills India Private
Limited and after stuck of on 25.10.2017, the Judgment was pronounced by
this High Court on 27.01.2022 and there is no mentioning in the said
judgment about the actions of the Registrar of Companies strike off VMT
Spinning Mills India Private Limited.
16. It is not made clear before this Court, whether the fact regarding
strike off the company namely VMT Spinning Mills India Private Limited
was brought to the notice of this Court in Crl.O.P.No.3890 of 2017 or not.
However, the fact remains that there is no reference or mentioning about the
actions taken by the Registrar of Companies strike off VMT Spinning Mills
India Private Limited.
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17. The petitioner had sold all the assets of VMT Spinning Mills
India Private Limited and received consideration of Rs.5.14 crores and
thereafter, ensured that VMT Spinning Mills India Private Limited was
dissolved, but continues to prosecute Crl.OP.No.3890 of 2017 even in the
year 2022 and the judgment was pronounced on 27.01.2022. Admittedly,
VMT Spinning Mills India Private Limited is in receipt of proceeds of crime
to the extent of atleast Rs.8,01,33,342/-. However, now there is no VMT
Spinning Mills India Private Limited, and all the assets of VMT Spinning
Mills India Private Limited has been sold by the petitioner for a consideration
of Rs.5.14 crores to Mr.Durai.
CONTENTIONS OF THE PETITIONER:
18. In the context of the above factual matrix, Mr.I.Abrar Mohamed
Addullah, the learned counsel for the petitioner would submit that the
Division Bench of this Court allowed the Crl.OP.No.3890 of 2017 filed by
VMT Spinning Mills India Private Limited and quashed complaint filed in
C.C.No.56 of 2016. In the concluding paragraph, the Division Bench made
an observation that, it is open to the Enforcement Directorate to even include
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the name of anyone involved in the affairs of VMT Spinning Mills India
Private Limited, as a witness for the prosecution by filing an application
under Section 311 Cr.P.C before the Trial Court. As far as the company is
concerned, the Criminal Original Petition was allowed and C.C.No.56 of
2016 was quashed. Therefore, filing Additional/Supplementary Complaint
thereby implicating the petitioner and other persons are untenable and
beyond the scope of Section 44 Explanation Clause of PMLA. In the original
complaint, the petitioner was not an accused. Even in case, the Enforcement
Directorate decided to proceed against the petitioner, she must be called as
witness to depose about the affairs of VMT Spinning Mills India Private
Limited. Thus, implicating the petitioner as an accused by filing
Supplementary complaint is in violation of Section 44 Explanation (2) of
PMLA.
19. It is further contended that, in the Supplementary Complaint in
C.C.No.60 of 2016, VMT Spinning Mills India Private Limited has not been
made as an accused and there is no specific allegation against the
petitioner/Mrs.Sudha. In the absence of any specific allegation, implicating
the petitioner into the affairs of VMT Spinning Mills India Private Limited,
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the actions initiated by the respondents arraying the petitioner as an accused
is untenable. In this context, the petitioner relied on the judgments of the
Hon'ble Supreme Court of India in the case of Aneeta Hada v. Godfather
Travels and Tours and Private Limited1 and Himanshu v. B.Shivamurthy
and Another2.
20. Thirdly, the learned counsel for the petitioner argued about the
maintainability of Additional/Supplementary complaint. The impugned
Supplementary complaint in C.C.No.60 of 2016 was filed on 17.11.2021.
The last statement of the persons recorded was done on 24.03.2016. Section
44 Explanation (2) of PMLA would denote that “the complaint shall be
deemed to include any subsequent complaint in respect of further
investigation that may be conducted to bring any further evidence, oral or
documentary, against any accused person involved in respect of the
offence, for which complaint has already been filed, whether named in the
original complaint or not.”
20(i). Relying on the above explanation to Section 44 of PMLA,
it is contended that in the absence of any further investigation to bring further
1 2012 5 SCC 661
2 2019 3 SCC 797
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evidence, oral or documentary, against any accused persons, there is no scope
for filing Supplementary affidavit, merely based on the statement already
obtained from the petitioner.
21. The petitioner contended the effect of judgement dated
27.01.2022 in Crl.O.P.No.3890 of 2017 dated 27.01.2022 is also to be
considered. The said Criminal Original Petition was filed to quash C.C.No.56
of 2016 by VMT Spinning Mills India Private Limited. The High Court
quashed the complaint, as far as the VMT Spinning Mills India Private
Limited is concerned. However, liberty is granted to the Enforcement
Directorate to examine the persons involved in the company as witness.
Therefore, implicating the petitioner as accused by filing Supplementary
complaint is running counter to the spirit of the order passed by the High
Court in Crl.O.P.No.3890 of 2017 dated 27.01.2022.
22. The six properties listed out as provisionally attached cannot be
termed as proceeds of crime, since the acts constituting the scheduled offence
took place after the acquisition. It is evident that those six properties were
possessed prior to the period of scheduled offence and thus, the said
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properties cannot be construed as proceeds of crime. In this regard, the
petitioner relied on the judgment of the Hon'ble Apex Court in the case of
Pavana Dibbur v. Directorate of Enforcement3.
23. Finally, the learned counsel for the petitioner would submit that
the impugned Supplementary complaint is nothing but gross abuse of process
of law. Though the High Court quashed the complaint in C.C.No.56 of 2016
and granted liberty to include the persons, who are all connected with VMT
Spinning Mills India Private Limited as witnesses, there is no reason
whatsoever to implicate the petitioner as an accused in the impugned
Supplementary complaint.
REPLY BY THE RESPONDENTS:
24. Mr.AR.L.Sundaresan, the learned Additional Solicitor General
of India appearing on behalf of the respondents would strenuously oppose by
stating that, it is a clear case where the proceeds of crime are established. The
learned Additional Solicitor General of India drew the attention of this Court
with reference to the details set out in paragraph Nos.16.3, 17.4 of the
3 2023 SCC Online SC 1586
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supplementary complaint and also paragraph Nos.24.7 and 24.8 of the
supplementary complaint impugned in the present petition. Perusal of the
above details would be sufficient to form an opinion that the proceeds of
crime is present and therefore, all other contentions raised by the petitioner
have to be adjudicated during the course of trial.
25. Regarding the order passed by the Division Bench in
Crl.O.P.No.3890 of 2017 dated 27.01.2022, the learned Additional Solicitor
General of India would contend that on 25.10.2017, the Registrar of
companies had issued Form No.STK-7, whereby VMT Spinning Mills India
Private Limited had been strike off the register of companies, and the
company stood dissolved for non-filing of statutory returns, However, the
case proceeded against non existent company in Crl.O.P.No.3890 of 2017
and order was passed on 27.01.2022, whereby the proceeding against the
non-existent company was quashed. Therefore, the reliance placed by the
petitioner on the judgment would not of any avail to them.
26. The two judgments relied by the petitioner i.e., Aneeta Hada v.
Godfather Travels and Tours and Private Limited 1 and Himanshu v.
1 2012 5 SCC 661
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B.Shivamurthy and Another2 are concerned, they are not applicable to the
facts of the present case in C.C.No.60 of 2016, since both the relied upon
judgments relate to prosecution under Section 138 of the Negotiable
Instruments Act, whereas C.C.No.60 of 2016 in the present case relates to
prosecution under PMLA. The petitioner in her individual capacity has
allegedly committed the offence of Money Laundering as defined under
Section 3 of PMLA. Thus, those two judgments are factually incomparible
and distinguishable.
27. The instant quash petition stems from C.C.No.60 of 2016,
whereas the reliance placed on the petitioner relates to C.C.No.56 of 2016.
Pertinently the petitioner and her late mother were not accused in C.C.No.56
of 2016. Importantly the offence of Money Laundering is a continuous
offence and therefore, there is no impediment for the Enforcement Directorate
to file supplementary complaint in the event of identifying materials relating
to proceeds of crime and offence of money laundering.
28. The petitioner having been a Director of VMT Spinning Mills
India Private Limited had caused the said company not to file its statutory
2 2019 3 SCC 797
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returns, which resulted in the Registrar of Companies to strike off the said
company from the register of companies and thereby, the company stood
dissolved. As on the date of the order of the High Court 27.01.2022 in
Crl.O.P.No.3890 of 2017 filed by VMT Spinning Mills India Private Limited
represented by the petitioner was non existent and therefore, the reliance
placed by the petitioner deserves no merit consideration.
29. The properties that have been attached, are the subject matter of
challenge by the petitioner before the PMLA Appellate Tribunal, and during
the pendency of such proceedings the petitioner also approached this Court
by way of CMA No. 1001 of 2024 and the same is pending on the file of this
Court.
30. Explanation (2) to Section 3 of PMLA would make it
abundantly clear that the offence of money laundering is a continuous
offence. The petitioner admits that the Proceeds of Crime generated by Al
and received by the petitioner's father and VMT Spinning Mills India Private
Limited have been returned to Al by selling the assets of VMT Spinning Mills
India Private Limited (which has received about Rs. 8 crores of proceeds of
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crime), and this is precisely what has been complained of in the
Complaint/Supplementary Complaint by the complainant. Explanation (ii) to
section 44(1)(d) of PMLA specifically permits ) subsequent/supplementary
complaint.
DISCUSSIONS:
31. The present petition has been instituted to quash the
additional/supplementary complaint filed by the Enforcement Directorate in
C.C.No.60 of 2016. Thus, most of the grounds raised by the petitioner on
merits, deserves no elaborate adjudication for the purpose of deciding the
quash petition. It would be sufficient, if the Court finds that there are prima
facie materials available on record to establish an offence under Section 3 of
PMLA. The scope and spirit of the provisions under PMLA need not be
compared with the regular penal laws. PMLA being code in itself, the facts
are to be considered with reference to the provisions under PMLA. The wider
implications of money laundering and the object of special enactment are of
paramount importance, while considering the issues raised in quash petitions.
32.In the case of Vijay Madanlal Choudhary and Others V. Union of
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India and Others4, the Hon'ble Supreme Court of India with reference to the
interpretation under Section 3 of PMLA, 2022 held as follows,
“269. From the bare language of Section 3
of the 2002 Act, it is amply clear that the offence
of money-laundering is an independent offence
regarding the process or activity connected with
the proceeds of crime which had been derived or
obtained as a result of criminal activity relating to
or in relation to a scheduled offence. The process
or activity can be in any form — be it one of
concealment, possession, acquisition, use of
proceeds of crime as much as projecting it as
untainted property or claiming it to be so. Thus,
involvement in any one of such process or activity
connected with the proceeds of crime would
constitute offence of money-laundering. This
offence otherwise has nothing to do with the
criminal activity relating to a scheduled offence —
except the proceeds of crime derived or obtained
as a result of that crime.
270. Needless to mention that such process
or activity can be indulged in only after the
property is derived or obtained as a result of
criminal activity (a scheduled offence). It would
4 2022 SCC Online SC 929
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be an offence of money -laundering to indulge in
or to assist or being party to the process or
activity connected with the proceeds of crime; and
such process or activity in a given fact situation
may be a continuing offence, irrespective of the
date and time of commission of the scheduled
offence. In other words, the criminal activity may
have been committed before the same had been
notified as scheduled offence for the purpose of
the 2002 Act, but if a person has indulged in or
continues to indulge directly or indirectly in
dealing with proceeds of crime, derived or
obtained from such criminal activity even after it
has been notified as scheduled offence, may be
liable to be prosecuted for offence of
moneylaundering under the 2002 Act — for
continuing to possess or conceal the proceeds of
crime (fully or in part) or retaining possession
thereof or uses it in trenches until fully exhausted.
The offence of moneylaundering is not dependent
on or linked to the date on which the scheduled
offence or if we may say so the predicate offence
has been committed. The relevant date is the date
on which the person indulges in the process or
activity connected with such proceeds of crime.
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These ingredients are intrinsic in the original
provision (Section 3, as amended until 2013 and
were in force till 31.7.2019); and the same has
been merely explained and clarified by way of
Explanation vide Finance (No. 2) Act, 2019. Thus
understood, inclusion of Clause (ii) in
Explanation inserted in 2019 is of no consequence
as it does not alter or enlarge the scope of Section
3 at all.”
33. In order to understand whether proceeds of crime is traced out in
the present case, it is relevant to extract paragraphs Nos. 16.3, 17.4, 24.7 and
24.8 of the impugned supplementary complaint.
“16.3.Inasmuch as the funds obtained
through trade finance/ factoring facility from
GTFL were diverted in the aforesaid manner
solely for the purpose of embezzlement of such
funds, the money trail identified and compiled
hereunder are reckoned as the investment made
towards acquiring/ taking over of VMT. This apart
certain receipts in the accounts operated by Shri
G.Srinivasan and the erstwhile management of
VMT, identified as trade proceeds/receipts of VMT
during the period after its acquisition/takeover by
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Shri G.Srinivasan as per worksheet (Annexure-
XVIII) and after its retrieval by Shri K.Duraisamy
as reflected in the extract of the account with IOB,
Kollupalayam Branch (Annexure-LVIII) were
recognized as the proceeds derived out of the
investment in VMT and included in the said
compilation. Thus, it is revealed that part funds
fraudulently derived out of the aforesaid criminal
activities by Shri G.Srinivasan from GTFL
aggregating to Rs.5.69 crores, reckoned as the
proceeds of crime has been invested for
acquiring/taking over of VMT. It is also pertinent
to note that S/Shri G.Srinivasan and
R.Selvakumar had admitted to the reinvestment of
profits/receipts yielded out of the aforesaid
investment in furtherance of the business of VMT
thereby resulting in accrual of about Rs.8.01
crores with VMT as proceeds of crime.
17.4. From the business or earnings of
VMT, funds were generated/transferred into the
personal accounts of the Directors of erstwhile
management of VMT including Shri K.Duraisamy
without any proper rationale. Also, cash
withdrawals were effected from the bank accounts
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comprising the business accruals of VMT without
any perceptible underlying trade or liability.
Further, an entity founded by the members of a
family as Shareholders & Directors with their own
investment was later incorporated as a private
limited company with its entire shareholding and
control over its management vesting with them. As
such the financial interests/revenues' of the
company and its founder Directors are not distinct
but have got amalgamated beyond separation.
Hence as a corollary, the proceeds of crime
embroiled in the assets and business of VMT
enfolded the personal financial interests/earnings
of the founder Directors and their assets.
Moreover, the company VMT having been struck
off and dissolved by the Registrar of Companies,
Tamilnadu, Coimbatore vide Notice No.STK-
7/ROCCBE/2017/4 dated 25.10.2017, the
financial interests/earnings as well as the
revenues of the company are presently vested only
with the descendants of Shri K.Duraisamy.
24.7. It is humbly submitted that in view of
the foregoing, Smt. D.Vasanthamani and Smt.
Sudha, the then Director of VMT who had the
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knowledge of the criminal activities of Shri
G.Srinivasan and his fraudulent diversion funds
derived as a consequence of the aforesaid
criminal activities, identifiable as “proceeds of
crime" defined under Section 2(1)(u) of PMLA
having knowingly been a party to cause the direct
investment in VMT of Rs.5.69 crores and
thereafter having indulged with trade
proceeds/earnings of VMT resulting out of the
said investment totally accured to the extent of
Rs.8.01 crores besides attempting to connive in
the projection of the same as untainted properties
has committed the offence of money laundering
defined under Section 2(p) read with Section 3 of
the PMLA, which is punishable under Section 4 of
the PMLA.
24.8.It is humbly submitted that Smt.
D.Vasanthamani and Smt. Sudha having
orchestrated the sale executed under the OTS
scheme for the release of the Chemi-104 Said
immovable properties of VMT offered as collateral
security for the loans availed By VMT, which were
embroiled with the proceeds of crime and thereby
having actually involved in the process connected
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with the proceeds of crime in his attempt to use the
same by claiming it as untainted property has
committed the offence of money laundering
defined under Section 2(p) read with Section 3 of
PMLA, which is punishable under Section 4 of
PMLA.”
34. Section 65 of PMLA provides Code of Criminal Procedure,
1973 to apply. Provisions of the Cr.P.C shall apply insofar as they are not
inconsistent with the provisions of this Act. Therefore, the special enactment
namely PMLA would prevail over and the grounds raised and the judgments
relied on, relating to other penal laws would have no application and thus,
the arguments of the petitioner in this regard deserves no merit consideration.
35. Section 71 of PMLA also enumerates that the provisions of
PMLA shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force. Therefore, the very
contention of the petitioner questioning the validity of the supplementary
complaint filed in impugned C.C.No.60 of 2016 is untenable.
36. Regarding Section 44 Explanation Clause, it is only an
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explanation provided to Section 44 is relied upon by the petitioner. The
explanation to a provision cannot be read as provision by itself. When the
power to file supplementary complaint has not been questioned, the reliance
placed on the explanation by the petitioner is unacceptable.
37. Once the proceeds of crime has been established under Section
21(u) of PMLA and an offence is made out under Section 3, the process
thereafter must be construed as standalone process. Therefore, this Court is
of the considered opinion that the reference made about the other penal
provisions would not have any implication in the cases relating to PMLA.
38. The present petition has been filed to quash supplementary
complaint registered in C.C.No.60 of 2016 dated 17.11.2021. Since the
respondents could able to establish prima facie case with reference to the
materials available on record, we could arrive at an irresistible conclusion
that the petitioner has to face trial and defend her case. However, the trial
Court shall proceed with the case, uninfluenced by the findings, if any made
on facts in the present order.
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39. Accordingly, the Criminal Original Petition stands dismissed.
Consequently, the connected Miscellaneous Petition if any, is closed.
(S.M.S.J.,) (N.M.J.,)
17.10.2024
Index : Yes
Internet: Yes
Speaking order
Neutral Citation : Yes
gd
To
The Assistant Director,
Directorate of Enforcement,
Government of India,
Ministry of Finance, Department of Revenue,
3rd Floor, 3rd Block, 'B' Wing,
No.26, Haddows Road,
Chennai – 600 006.
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S.M.SUBRAMANIAM, J.
and
N.MALA, J.
gd
Pre-Delivery Order in
17.10.2024
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