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HIGH COURT OF DELHI
Date of Decision: 16th February, 2023
OMKAR REALTORS AND DEVELOPERS PRIVATE LIMITED ..... Petitioner
Through: Mr. Siddharth Aggarwal, Sr. Adv, Mr Ashwani Taneja, Mr. Amit Khemka, Mr. Udit Atul Kokanthankar, Ms. Arshiya Ghose, & Mr. Abhishek Chandravanshi, Advocates (M-
9711530305)
AND ORS. ..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by M/s Omkar Realtors and Developers Private Limited seeking setting aside/quashing of the Provisional Attachment Order No. PAO/MBZO-II/1/2022 (hereinafter ‘PAO’) dated 14th January, 2022 passed by the Directorate of Enforcement (ED) under Section 5(1) of the Prevention of Money Laundering Act, 2002 (hereinafter ‘PMLA’). The present petition also seeks the release of the attached property under the impugned PAO.
3. The present case was first listed on 2nd August, 2022 when Mr. Anurag Ahluwalia, Ld. Counsel for the Respondents made a preliminary objection with regards to the maintainability of the petition on the ground of lack of territorial jurisdiction. The said preliminary objection was rejected, placing reliance on order dated 2nd June, 2022 passed in W.P. (C) 6354/2022 titled ‘M/S Incred Financial Services Ltd. vs. Deputy Director, Directorate of Enforcement’. In addition, on the said date, status quo was directed. The relevant extract of the order directing status quo is extracted as under:
6. Till the next date of listing, the respondent shall stand restrained from taking further steps as contemplated under Section 8 of Prevention of Money Laundering Act, 2002. The petitioner shall also stand restrained from disposing of or creating any third party rights or encumbering the property which forms subject matter of the provisional order of attachment.
4. Thereafter, on 19th January, 2023, ld. Counsel for the Petitioner informed the Court that the closure report in the case has been filed in the predicate offence and accepted by the Special Court under PMLA, Greater Bombay. Even discharge orders have been issued in the ED case as well. In response to this submission, the ld. Counsel for the Respondents requested for time to seek instructions from the Directorate of Enforcement.
5. Today, all the ld. Counsels for the parties have made their submissions.
6. The case of the Petitioner is that the impugned PAO would no longer be valid and would have to be set aside as orders, considering the position that orders have now been passed by the Special Court under the PMLA, Greater Bombay whereby the proceedings against the Petitioner, its directors, and shareholders in the scheduled offense as also the offense under the PMLA have been closed. Ld. Counsels for the Petitioners have relied on the orders dated 24th August, 2022 passed by the Special Court under the PMLA, Greater Mumbai by which two of the directors/shareholders of the Petitioner Company, namely, Sh. Babulal Mulchand Varma and Sh. Kamalkishor Gokalchand Gupta have been discharged.
7. It is further submitted that pursuant to this order of discharge, the Special Court under the PMLA vide its order dated 18th October, 2022 has also discharged the Petitioner-Company- M/s Omkar Realtors and Developers Private Limited. The submission on behalf of the Petitioner relying upon the judgments in Vijay Madanlal Choudhary & Ors. v. UOI & Ors., 2022 SCC OnLine SC 929 and the recent judgment of this Court in order dated 10th January, 2023 in EMTA Coal Limited and Ors. v. The Deputy Director of Directorate of Enforcement, 2023/DHC/000277 is that the present impugned PAOs can no longer continue and the same deserve to be quashed. Ld. Senior Counsel for the Petitioner also places reliance on the order of the Supreme Court in W.P.(C) 368/2021 titled Indrani Patnaik & Anr. v. Enforcement Directorate and Ors.
8. Mr. Anurag Ahluwalia, ld. CGSC on the other hand submits that the matter may be adjourned and not be disposed of at this stage as the Enforcement Directorate has challenged the order dated 18th October, 2022 by which the company has been discharged by the Special Court under the PMLA. He submits that the same is pending in revision before the Bombay High Court.
9. The Court has considered the submissions of the parties. A perusal of the impugned PAO in the present case shows that the origin of the said PAO is an FIR No. 109/2020 which was registered in the PS: City Chowk, Aurangabad, Maharashtra under Sections 420, 406 and 34 of the Indian Penal Code, 1860. It is this very FIR in which the Special Court’s order dated 24th August, 2022 has been passed discharging the accused Sh. Babulal Mulchand Varma and Sh. Kamalkishor Gokalchand Gupta. The relevant extract of the said order is set out herein below: “xxx xxx xxx
18. In this way, the above order passed by the Ld. 3rd JMFC, Aurangabad, having competent jurisdiction clearly indicates that not only the police authority concerned but also the Court having competent jurisdiction finally closed further proceedings in respect of FIR No.109/2020 regarding Scheduled Offence and corresponding Miscellaneous Application No.434/2021 was finally disposed of. It is necessary to note that, ED was quite aware of this fact since it was brought on record by the accused, yet, did not challenge the 'C' Summary acceptance to the Competent Court having jurisdiction to deal with the same. Nor ED had initiated any proceedings independently or through Yes Bank, Mumbai whose money allegedly was relating to the transaction in question under the FIR No.109/2020, for revival of 'C' Final Report ('C' Summary) accepted by the Ld. 3rd JMFC, Aurangabad, having competent jurisdiction. In this background as on today there is no Scheduled Offence in existence nor any criminal activity relating to Scheduled Offence. Admittedly, there is no contemporaneous FIR in respect of money of Yes Bank as required under Sec.66(2) of the PML Act, but E.O.W., Mumbai dropped the said proceedings. Therefore, the 'C' Summary Report and acceptance order thereof passed by the Ld. 3rd JMFC, Aurangabad, having competent jurisdiction for the same has attained finality and became absolute. xxx xxx xxx
51. As per Sec.44(1)(a)&(c) of PML Act the trials of Scheduled Offence and PMLA offence have to be conducted by the Special Judge after commitment of the case relating to the Scheduled Offence. In that event also the instant trial cannot proceed as the Scheduled Offence is not in existence. Hence, I am of the opinion that, the PMLA case relating to both accused in the background of peculiar facts referred above cannot continue to their extent. Therefore, both accused (A[3],A[4]) made out strong prima-facie case that there is not sufficient ground for proceeding against them in respect of trial of the instant PMLA case. Hence, both of them shall have to be discharged. With this, Points No.1 and 2 are answered in the affirmative and following order is passed:- ORDER
1. Applications (Exh.145 and 146) along with Discharge Applications (Exh.149 and 150) are allowed.
2. The initial common order dt.08.08.2022 below Exh.145 and 146 is hereby made absolute.
3. Babulal Mulchand Varma (A[3]) and Kamalkishor Gokalchand Gupta (A[4]) are hereby discharged as per Sec.227 Cr.P.C. from PMLA Special No.377 of 2021 (ECIR No: ECIR/MBZO-II/20/2020) from offences under Section 3 punishable under Section 4 of the PML Act.
4. PMLA Special Case No.377 of 2021 shall continue against the remaining accused.
5. Order dictated and delivered in an open Court.”
10. Pursuant to this order which was passed by the Special Court, the ‘C- Summary Report’ has also been closed as is evident from the order of the Special Court dated 12th February, 2021. The said C-Summary/Closure Report also stands accepted.
11. A perusal of the further order dated 18th October, 2022 wherein M/s Omkar Realtors and Developers Private Limited is arrayed as A-2 would also show that the company has also been discharged. The relevant extract of the said order reads as under:
12. In Vijay Madanlal Choudhary (supra), the Supreme Court has in categorical terms held that for the existence of ‘proceeds of crime’ under Section 2(1)(u) of the PMLA, the existence of a criminal complaint pending enquiry and/or trial would be necessary. Further, if the person in question has been finally discharged or acquitted of the scheduled/predicate offence, there can be no offence of money laundering against the said person. The relevant paragraphs of the judgment in Vijay Madanlal Choudhary (supra) are set out below:
295. As aforesaid, in this backdrop the amendment Act 2 of 2013 came into being. Considering the purport of the amended provisions and the experience of implementing/enforcement agencies, further changes became necessary to strengthen the mechanism regarding prevention of money-laundering. It is not right in assuming that the attachment of property (provisional) under the second proviso, as amended, has no link with the scheduled offence. Inasmuch as Section 5(1) envisages that such an action can be initiated only on the basis of material in possession of the authorised officer indicative of any person being in possession of proceeds of crime. The precondition for being proceeds of crime is that the property has been derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. The sweep of Section 5(1) is not limited to the accused named in the criminal activity relating to a scheduled offence. It would apply to any person (not necessarily being accused in the scheduled offence), if he is involved in any process or activity connected with the proceeds of crime. Such a person besides facing the consequence of provisional attachment order, may end up in being named as accused in the complaint to be filed by the authorised officer concerning offence under Section 3 of the 2002 Act.
XXXX XXXX XXXX
300. The procedural safeguards provided in respect of provisional attachment are effective measures to protect the interest of the person concerned who is being proceeded with under the 2002 Act, in the following manner as rightly indicated by the Union of India: xiii. However, under Section 8(6) if the Special Court on the conclusion of the trial finds that no offence of money-laundering has taken place or the property is not involved in money-laundering it will release the property which has been attached to the person entitled to receive it.
307. It is unfathomable as to how the action of confiscation can be resorted to in respect of property in the event of his acquittal or discharge in connection with the scheduled offence. Resultantly, we would sum up by observing that the provision in the form of Section 8 (4) can be resorted to only by way of an exception and not as a rule. The analogy drawn by the Union of India on the basis of decisions of this Court in Divisional Forest Officer v. G.V. Sudhakar Rao, Biswanath Bhattacharya, Yogendra Kumar Jaiswal v. State of Bihar, will be of no avail in the context of the scheme of attachment, confiscation and vesting of proceeds of crime in the Central Government provided for in the 2002 Act.
467. In light of the above analysis, we now proceed to summarise out conclusion on seminal points in issue in the following terms:
(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of moneylaundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.”
13. Thus, insofar as M/s Omkar Realtors and Developers Private Limited is concerned, considering that the basis of the PAO was FIR No. 109/2020 i.e., the scheduled offence, and given that the Petitioner and its directors/shareholders and the accused have been discharged in the scheduled offence and even in the PMLA offence, following the decision in Vijay Madanlal Choudhary (supra) and the recent decisions of the Supreme Court, the PAO can no longer be continued. The said recent decisions of the Supreme Court are as follows: i. Parvathi Kollur v. Enforcement Directorate [Criminal Appeal No. 1254/2022, decided on 16th August, 2022], ii. Adjudicating Authority v. Shri Ajay Kumar Gupta & Ors. [Criminal Appeal Nos. 391-392/2018, decided on 2nd December, 2022], iii. Directorate of Enforcement v. M/s Obulapuram Mining Company Pvt. Ltd [Criminal Appeal No.1269/2017, decided on 2nd December, 2022]. The ratio of Vijay Madanlal Choudhary (supra) has been followed in the abovementioned cases and the Supreme Court has quashed the ECIRs in the respective matters.
14. Vide order dated 16th August, 2022, in Criminal Appeal No.154 of 2022 titled ‘Parvathi Kollur v. Enforcement Directorate’, the Supreme Court also specifically referred to the paragraph as mentioned above in Vijay Madanlal Choudhary (supra) and held that when the accused person has been acquitted in the scheduled offence under the PMLA, the closure of the proceedings under the PMLA against the accused person and persons said to connected to the accused person would be the natural consequence. The relevant portion of the said judgment reads as under:
6. Aggrieved by the said discharge order, the Directorate preferred a revision petition before the High Court. The High Court proceeded to set aside the discharge order while observing that the allegations made in the complaint and the material produced, prima facie, made out sufficient ground for proceeding against the Appellants for offences under the Act of 2002.
7. Learned Counsel for the Appellants has contended that the issue as involved in this matter is no more res integra, particularly for the view taken by a 3-Judge Bench of this Court in the case of Vijay Madanlal Choudhary and Ors. v. Union of India and Ors. decided on 27.07.2022 where, the consequence of failure of prosecution for the scheduled offence has been clearly provided in the following terms: 187........(d) The offence Under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.
8. Learned ASG appearing for the Respondent, in all fairness, does not dispute the above position of law declared by this Court.
9. The result of the discussion aforesaid is that the view as taken by the Trial Court in this matter had been a justified view of the matter and the High Court was not right in setting aside the discharge order despite the fact that the accused No. 1 had already been acquitted in relation to the scheduled offence and the present appellants were not accused of any scheduled offence.
10. In view of the above, this appeal succeeds and is allowed. The impugned judgment and order dated 17.12.2020 is set aside and the order dated 04.01.2019 as passed by the Trial Court, allowing discharge application of the appellants, is restored”
15. The Ld. Division Bench of this Court in Harish Fabiani and Ors. v. Enforcement of Directorate and Ors., 2022 SCC OnLine Del 312 has also taken a similar view and observed as under:
16. The Supreme Court in W.P.(C) 368/2021 titled ‘Indrani Patnaik & Anr. v. Enforcement Directorate and Ors.’ has recently held that there cannot be any prosecution in relation to an offence for which the accused person has already been discharged. The relevant portion of the said order of the Supreme Court reads as: “Learned senior counsel has submitted that in the present case, prosecution of the petitioners in relation to the scheduled offence, on which the proceedings under the Prevention of Money-laundering Act, 2022 (PMLA) were based, have already come to an end with the petitioners having been discharged from V.G.R. Case No. 59 of 2009(T.R. Case No. 80 of 2011) by the order dated 27.11.2020, as passed by the High Court of Orissa in Criminal Revision No. 831 of 2018. Learned counsel would submit that in the given state of facts and the law declared by this Court, there cannot be any prosecution for the alleged offence of moneylaundering in relation to the said offence for which, the petitioners have already been discharged. Learned Additional Solicitor General appearing for the respondents though has not disputed the order dated 27.11.2020 passed by the High Court, discharging the petitioners from the scheduled offence but has submitted that he has not received further instructions as to whether the prosecuting agency has challenged the said order or not. The record as it stands today, the petitioners stand discharged of the scheduled offence and therefore, in view of the law declared by this Court, there could arise no question of they being prosecuted for illegal gain of property as a result of the criminal activity relating to the alleged scheduled offence. That being the position, we find no reason to allow the proceedings against the petitioners under PMLA to proceed further.
17. This position of law in terms of proceedings under the PMLA has been recently considered by this Court in EMTA Coal Limited and Ors. v. The Deputy Director of Directorate of Enforcement, 2023/DHC/000277. In the said judgement it was held that once the closure report in the offences under respective FIRs has been filed, no criminality is ascertainable and the respective PAOs as well as the ECIRs are liable to be quashed.
18. Therefore, considering the facts and circumstances of the present case, it is clear that the PAO deserves to be quashed in view of the legal position as held in the above judgments and orders of the Supreme Court and also the recent decision of this Court in EMTA Coal Limited (supra).
19. Accordingly, the PAO dated 14th January, 2022 passed by the ED is set aside. In view of the settled legal position in Vijay Madanlal Choudhary (supra) and the subsequent decisions and orders thereafter, the properties of M/s Omkar Realtors and Developers Pvt. Ltd., which were attached by the impugned PAO, shall be released.
20. It is, however, clarified that if any order is passed by the Bombay High Court, which would permit the ED to seek variation, or to proceed further under the PMLA, the Respondent may proceed accordingly. The Court grants liberty to the ED to seek revival of the PAO in accordance with law, if there is any change in the circumstances.
21. Accordingly, the present petition is disposed of in the above terms. All pending applications are also disposed of.
22. Liberty is also granted to the Petitioners to move an appropriate application if the properties are not released.
PRATHIBA M. SINGH JUDGE FEBRUARY 16, 2023 Rahul/Am [Corrected and uploaded on 23rd February 2023]