Dinesh Kumar Singh, 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.;