Rakesh Ranjan Prasad, J. - (1.) A Complaint was lodged on 01/07/2009, against Madhu Koda and others which was registered as Case No. 1 of 2009, wherein on amongst the other it had been alleged that Kamlesh Kumar Singh, while had held the office of the Minister, Departments of Water Resource, Excise, Civil and Food Supplies, Government of Jharkhand, Ranchi, amassed wealth disproportionate to his know sources of income by corrupt or illegal means. That complaint was sent before the Vigilance Bureau, Ranchi for its institution and investigation. The Vigilance instituted the case as Vigilance P.S. Case No. 9 of 2009 and after investigating the case, filed charge sheet on 28/01/2010, against the accused persons including Kamlesh Kr. Singh on the charge that Kamlesh Kr. Singh has acquired properties movable as well as immovable worth Rs. 1,75,15,918/ -, which was disproportionate to his known sources of income and, thereby, it was alleged that he committed offence punishable under Sections 409, 420, 423, 424, 465 and 120B of the Indian Penal Code and also under Sections 7, 10, 11 and 13(2) read with Section 13(e) of the Prevention of Corruption Act. Subsequently, this Court passed an order on 04/08/2011 in W.P. (PIL) No. 4700 of 2008, directing the C.B.I. to take up the Vigilance Case No. 9 of 2009 for its farther investigation. In compliance of the order passed by this Court, the C.B.I. re -registered the case as RC Case No. 5(A)/2010/AHD/Ranch:. On complete of investigation, charge sheet was submitted on 26/03/2012, against the accused persons including Kamlesh Kr. Singh on the charge that he has acquired assets during the period from March, 2005 to July, 2009 to the tune of Rs. 5,46,07,597/ - which is disproportionate to his known sources of income. Before the charge sheet was submitted, the Enforcement Directorate had lodged an ECIR case against the accused persons. After investigation of the case, a complaint was filed against Kamlesh Kr. Singh under Section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as P.M.L. Act) on 14/02/2011. After the charge sheet was submitted by the C.B.I., when further facts came to light in the investigation of the C.B.I., the Enforcement Directorate took up the matter for further investigation in the said ECIR case, whereby culpability of these petitioners and other accused persons was found and, hence, a supplementary complaint was filed before the Special court under Section 45 of the P.M.L. Act, on 12/08/2013, on the allegation that during investigation made by the Enforcement Directorate when it was found that Surya Sonal Singh, son of Kamlesh Kr. Singh, had claimed that he had acquired certain properties out of the amount of one crore after getting loan from Ankita Singh (petitioner No. 2), wife of Narendra Mohan Singh (petitioner No. 1), a summon was issued to him under Section 50 of P.M.L. Act. He responded to that summon and made statements that he had taken loan of Rs. 1 Crore from his sister Ankita Singh, which was utilized for acquisition of the properties at Vipul Trade Centre, Gurgaon. Thereupon, Smt. Ankita Singh was also noticed, who confirmed that she had given loan of Rs. 1 crore vide two cheques to his brother Surya Sonal Singh in two equal installments of Rs. 50 lakhs each on 22/07/2008 and 28/08/2008 respectively, after taking loan from her husband Narendra Mohan Singh (petitioner No. 1). Narendra Mohan Singh having been noticed, also responded and disclosed that he had given loan of Rs. 1 crore to his wife Ankita Singh (petitioner No. 2). But, the income tax returns (I.T.Rs. ) filed by them never reflected that Narendra Mohan Singh has given loan to his wife, who in turn, had given it to his brother Surya Sonal Singh as loan. It has been further alleged that Narendra Mohan Singh though had claimed before the authority of the Enforcement Directorate that he had taken loan/advance from many parties, but he never disclosed the name of the parties before the Enforcement Directorate. Thus, it was submitted that all the aforesaid three persons have taken false plea that the properties at Gurgaon was acquired by Surya Sonal Singh by the amount taken on loan, rather the properties had been acquired through the proceeds of crime generated by his father Kamlesh Kr. Singh by committing scheduled offence. The Court having found prima -facie case being made out, took cognizance of the offences vide order dated 12/08/2013, passed in ECIR/02/Pat/2009/AD(B) against these two petitioners, i.e. Narendra Mohan Singh and his wife Ankita Singh. That order is under challenge.
(2.) MR . Raval, learned senior counsel appearing for the petitioners submits that to establish an offence of money laundering, it is essential that the persons, charged, should have directly or indirectly attempted to indulge or knowingly assisted or knowingly been a party or actually involved in any process or activity connected with proceeds of crime. Whereas, in terms of Section 2(u) of P.M.L. Act, proceeds of crime means property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence and the scheduled offence in terms of definition given under Section 2(1)(y) of the P.M.L. Act, happens to be the offence under Part A, Part B and Part C of the schedule, but allegation against the petitioners of projecting a sum of Rs. 1 crore as untainted money, is never the subject matter of the charge sheet submitted by the C.B.I. and, therefore, any prosecution under Section 3 of the P.M.L. Act against the petitioners would not be maintainable as for prosecuting a person under P.M.L. Act, precondition is that one should involved himself in the process or activities connected with the proceeds of crime and the proceeds of crime be derived or obtained as a result of criminal activity relating to scheduled offence. But, here in the case as has been stated above, the charge upon wh.ch cognizance has been taken under the P.M.L. Act, that never form part of the charges upon which C.B.I. has submitted charge sheet. In this regard, further submission is that two transactions, which are said to be the proceeds of crime committed by Kamlesh Kr. Singh under Section 13, of Rs. 50/ - lakhs each, took place on 22/07/2008 and 28/08/2008, on which dates Rs. 50 lakhs and further Rs. 50 lakhs on being taken loan by Ankita Singh from her husband Narendra Mohan Singh, gave it to her brother Surya Sonal Singh as loan but Section 13 of the Prevention of Corruption Act, has been added as scheduled offence by virtue of the amendment made in the year 2009, w.e.f. 01/06/2009 and, thereby, it is evident that those two transactions were made before Section 13 of the Prevention of Corruption Act, was added as scheduled offence and, thereby, those transactions even if, are taken to be proceeds of crime, cannot be said to have been generated from the scheduled offence and, hence, on this ground alone, prosecution cannot be maintained under the P.M.L. Act and, thereby, the order taking cognizance is fit to be quashed. In this regard, it was further submitted that the amended Act, whereby Section 13 was incorporated, cannot have retrospective effect as the statute, which affects substantive rights is always presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment. In this regard, learned senior counsel has referred to the decisions rendered in the cases of "State of Andhra Pradesh and Others v. Ch. Gandhi [ : (2013) 5 SCC 111] and "Ritesh Agarwal and Another v. Securities and Exchange Board of India and Others, [ : (2008) 8 SCC 205]. Second limb of the argument is that the Directorate of Enforcement in relation to the transactions of Rs. 1 crore given by way of loan by petitioner No. 2 to her brother Surya Sonal Singh, had passed an order on 14/07/2013 for provisional attachment. For confirmation of the same a complaint was filed before the Adjudicating Authority under the Provisions of Money Laundering Act, 2002. The learned Adjudication Authority after thorough consideration of the matter did record that the amount of Rs. 1 crore is a legitimate money and is not connected with the proceeds of crime and, thereby, the entire case of the Enforcement Directorate that the petitioners have indulged themselves in a process connected with the proceeds of the crime by projecting it as untainted money generated by Kamlesh Kr. Singh by committing scheduled offence falls flat on the ground and, thereby, it is liable to be quashed in view of the decision rendered in a case of "Radheshyam Kejriwal v. State of West Bengal and Another, [ : (2011) 3 SCC 581", wherein it has been held that the charges against Sri Radheshyam Kejriwal for contravening the provisions of Section 9(1)(f)(i) end Section 8(2) read with Section 64(2) of the Foreign Exchange Regulation Act, 1973, cannot be sustained. In the face of the finding given by the Enforcement Directorate in adjudication proceeding that there is no contravention of any of the provisions of the Act. Thus, it was held that it would be unjust and an abuse of the process of the Court to permit the enforcement Directorate to continue with the criminal prosecution. Incidentally, it was also submitted that the provisions as contained in Section 44(1)(b) of the P.M.L. Act, 2002 does empower a Special Court to take cognizance of the offence under Section 3 upon a complaint made by the authority authorized in this behalf and at the same time proviso to Section 45 of the P.M.L. Act, 2002 does provide that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by the authority prescribed therein and, thereby, when both the provisions do stipulate that the cognizance can be taken only upon 'a complaint', contemplation never seems to be there to have more than one complaint and, thereby, there does not appear to be any scope for launching prosecution by way of a supplementary complaint. Since, the cognizance of the offence has been taken upon a supplementary complaint, the said order cannot be held to be sustainable in the eye of law.
(3.) AS against this, Mr. Das, learned counsel appearing for the Enforcement Directorate submits that initially a complaint was lodged -under Section 45 P.M.L. Act, against Kamlesh Kumar Singh when he was found to have been projecting the proceeds of crime as untainted properties but after submissions of the charge sheet by the C.B.I., certain new facts came to light that Surya Sonal Singh, son of Kamlesh Kumar Singh had claimed to have acquired a property from the legitimate sources by way of advances etc., he was noticed under Section 50 of the P.M.L. Act, to which he responded wherein he claimed to have raised the money by taking loan of Rs. 1 crore from his sister Ankita Singh for acquiring properties at Vipul Trade Centre, Gurgaon. When Ankita Singh was noticed, she disclosed that the money, which had been given to her brother, had been taken from her husband Narendra Mohan Singh (petitioner No. 1). When Narendra Mohan Singh quizzed on this point, he admitted that he had given the money to his wife after taking loan from some persons, but at that point of time he never disclosed the name of the persons from whom he had taken loan. That apart, the income tax returns, filed by all the three persons never reflected those transaction and, thereby, their pleas were not accepted to be true. In this regard, it was further submitted that now the petitioners, on the basis of certain documents such as balance sheet, have been taking plea that those documents reflect the said fact, which has been taken on behalf of those persons, but those documents can be said to be the products of an afterthought as the I.T.Rs. submitted by them, which had been obtained by the authority of the Enforcement Directorate from Income Tax authority, had never reflected about those transactions and that a new plea has been taken on behalf of the petitioners, which though had never been taken at the time of giving statements that he had taken loan from Bhawesh Metal Private Limited and M/s. Dynamix Reality, but on verification, the claim made by petitioner No. 1, has been found to be false. Under the circumstances, a supplementary complaint has been filed and filing of which has never been prohibited under the P.M.L. Act nor under the Code of Criminal Procedure.;