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2018 DIGILAW 1115 (ALL)

PARAS NATH VERMA @ DOCTOR v. STATE OF U. P.

2018-05-04

DINESH KUMAR SINGH I, RAMESH SINHA

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JUDGMENT : 1. Heard Sri Namit Kumar Sharma, learned counsel for the applicants, Sri Vikas Sahai , learned A.G.A. for the State and perused the record. 2. This application u/s 482 Cr.P.C. has been moved seeking quashing of the entire proceedings of Complaint Case No. 01 of 2016, under Section ¾ Prevention of Money Laundering Act, 2002 (in short to be referred as PMLA), District Allahabad, pending in the court of District and Sessions Judge, Allahabad and also to quash the summoning order dated 5.4.2016 in the said complaint case under Section ¾ of PMLA. 3. The details of the case as mentioned in the affidavit filed by the petitioners are that on 10.10.2008 Central Bureau of Investigation, Bank Securities & Fraud Cell, New Delhi registered an FIR No. RC/BDI/2008/E/2007 under suspicion of criminal conspiracy, cheating and forgery using forged documents as genuine, on the basis of a complaint dated 8.10.2008 made by Sri G.P. Prabhakar, Senior AFA (Construction)/General for FA and CAO (Construction), North Eastern Railway, Gorakhpur. 4. After investigating the matter, the said Cell filed charge sheet (final report) dated 7.8.2009 in the court of Special Judge, Anti Corruption (Central), Central Bureau of Investigation, Lucknow against Sri Parasnath Verma @ Dr. and others under Section 120-B r/w 420, 467, 468, 471 and 498-A, 489-B IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and also substantive Sections thereof for causing pecuniary loss to the North Eastern Railway, Gorakhpur by way of printing forged cheques and encashing the same through different accounts. 5. Further on 12.11.2010, an ECIR No. ECIR/02/VSI/2010 was registered at Directorate of Enforcement, Varanasi (now Allahabad) Sub-zonal Office. The Provisional Attachment Order No. 02/ALSZO/2014 dated 30.10.2014 was issued by the Joint Directorate of Enforcement, Lucknow Zonal Office, provisionally attaching the proceeds of crime of Rs. 93,90,399/- under Section 5(1) of the PMLA. Further it is mentioned that an original complaint was filed on 24.11.2014 before adjudicating Authority, PMLA, New Delhi pertaining to above mentioned Provisional Attachment Order and the the adjudicating Authority confirmed the provisional attachment order on 3.3.2015. 6. 93,90,399/- under Section 5(1) of the PMLA. Further it is mentioned that an original complaint was filed on 24.11.2014 before adjudicating Authority, PMLA, New Delhi pertaining to above mentioned Provisional Attachment Order and the the adjudicating Authority confirmed the provisional attachment order on 3.3.2015. 6. It is contended by the learned counsel for the applicants that all the applicants and other co-accused are not residing in the territorial jurisdiction of the Sessions Court, Allahabad and yet without complying with the provisions of Section 202 Cr.P.C. and without enquiring into the case himself or issuing any direction for investigation to be made by a Police Officer or by some other person, he has proceeded against the applicants and has issued summons against them to face trial. As per the law laid down in National Bank of Oman Vs. Barakara Abdul Aziz and Anr., MANU/SC/1123/2012, it is held that the compliance of provisions of Section 202 Cr.P.C. is mandatory by the concerned court. The summoning order dated 5.4.2016 has been passed in a mechanical way. The applicants have been regularly attending before the Central Bureau of Investigation Court, Lucknow on all dates in connection with the case and that they had no knowledge about the pendency of the present complaint case. One of the co-accused Harish Chand received summons in the month of February, 2018 and soon after he put in appearance through counsel on 27.2.2018 but on the same date bailable warrants of Rs. 20,000/- each have been issued against the applicants and other co-accused. Pursuant to the said bailable warrant Harish Chand surrendered thereon the applicants came to know about the proceedings of the present case and the summoning order dated 5.4.2016 and made contact with their counsel. 7. From the perusal of material on record, no offence under Section ¾ of PMLA is made out against the applicants, hence, quashing of the said complaint has been prayed. 8. Learned counsel for the applicant has mainly argued on the point that in the present case provisions of Section 202 Cr.P.C. have not been complied with by the learned Sessions Judge, Allahabad, which was mandatory as the applicants did not reside in the jurisdiction of the said court. 9. Learned A.G.A. has supported the impugned order and has stated that there is no infirmity or lacunae in the said order and the same is in accordance with law. 10. 9. Learned A.G.A. has supported the impugned order and has stated that there is no infirmity or lacunae in the said order and the same is in accordance with law. 10. Having regard to the arguments on both the sides and having perused the record, it is found that complaint case has been filed under Section 45 of the PMLA for the offence under Section 3/4 of the said Act by opposite party no. 2, Assistant Director, Directorate of Enforcement, Government of India, on the basis of which after having taken cognizance, the learned Sessions Judge, Allahabad has issued summons dated 5.4.2017, thereafter, on various other dates, due to non appearance of accused-applicants. It also emerges from the perusal of the Annexure-1 ( copy of the order sheet of the said case) that one of the accused Harish Chand Tiwari has been taken into custody while against rest of the accused BW-20,000/- have been directed to be issued fixing the next date for appearance as 5.4.2016. 11. It would be pertinent to mention relevant provisions whereunder the proceedings have been commenced. Under Chapter -II of PMLA Section 3 defines the offence of money laundering as follows that whosever 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 and projecting it as untainted property shall be guilty of offence of money laundering. Under Section 4 of the Said Act, this offence is being made punishable which if committed under such a condition, may be punishable up to ten years as per proviso to that Section. Under Chapter 5 of the said Act, attachment of the property involved in money laundering has been provided for. Under Chapter I Section 2(na), the 'investigation' has been defined to include all proceedings under this Act conducted by the Director or by an Authority authorized by the Central Government under this Act for the collection of evidence. Further under Section 2(u) "proceeds of crime" is defined as property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to scheduled offence or the value of any such property. Further under Section 2(u) "proceeds of crime" is defined as property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to scheduled offence or the value of any such property. Under Chapter-IV, Section 19 power of arrest has been stipulated whereunder the Director, Deputy Director, Assistant Director or any other person authorized in this behalf by the Central Government by general or special order may arrest the person on the basis of material in his possession if he has reason to believe that such person has been guilty of an offence punishable under this Act and that within 24 hours of the arrest, such person shall be presented before the Judicial Magistrate or a Metropolitan Magistrate having jurisdiction. Under Chapter VII, there is provision of establishment of Special Court for trial of case initiated upon the complaint made by an Authority authorized in this behalf under the Act, to take cognizance of the offence for which the accused is committed to it for trial. 12. In the case at hand, the opposite party no. 2, Assistant Director, Directorate of Enforcement Sri S.C. Saxena being an Authorized Officer has instituted a complaint case wherein it has been mentioned that a fraud involving withdrawal of Rs. 1,84,68,500 only has been unearthed by way of forgery of cheques of SBI belonging to its clients i.e. North Eastern Railways, Gorakhpur during the period June 2008 to July, 2008 in connivance with certain Railway Officials in which, involvement of the accused-applicants have been found proved by the Investigating Agency. Specific roles have been found to have been there of each of the applicants which has been narrated in detail in the said complaint and based on that the cognizance has been taken by the learned Sessions Judge, Allahabad under appropriate sections, therefore, no lacunae appears to be there in procedure followed in taking the cognizance. 13. Specific roles have been found to have been there of each of the applicants which has been narrated in detail in the said complaint and based on that the cognizance has been taken by the learned Sessions Judge, Allahabad under appropriate sections, therefore, no lacunae appears to be there in procedure followed in taking the cognizance. 13. As regards the main objection that the mandatory provisions of Section 202 Cr.P.C. has not been adhered to for which the reliance is placed on National Bank of Oman's case (supra), the facts of the said case were that the complainant- National Bank of Oman lodged a private complaint RTC No. 260 of 2007 in the Court of Chief Judicial Magistrate, Ahmednagar against the respondent alleging that he had cheated the bank by swindling 43,15,000/- U.A.E. Dirhams (equivalent to 5.178 Crores Indian Rupees) and in this case in paragraph 5 of the judgment the Apex Court held " we find no error in the view taken by the High Court that the C.J.M. Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 of the Code of Criminal Procedure before issuing the process, considering the fact that the Respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the C.J.M., Ahmednagar. It was therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated as contemplated under Section 202 of the Code of Criminal Procedure before issuing the process." Accordingly, the C.J.M. was directed to pass fresh order after complying with the provisions of Section 202 Cr.P.C. within two months from the date of receipt of the order. 14. Facts of the aforesaid case are distinguishable from the facts of the present case because in the case at hand, the complaint has been filed by an authorized Officer of the Government of India i.e. Sri S.C. Saxena, Assistant Director, Directorate of Enforcement, Allahabad and not by any private person. The record reveals that in the case at hand, thorough investigation had already been made as per the provisions of PMLA and thereafter only a complaint has been filed before the competent court of Sessions Judge, at Allahabad. 15. The record reveals that in the case at hand, thorough investigation had already been made as per the provisions of PMLA and thereafter only a complaint has been filed before the competent court of Sessions Judge, at Allahabad. 15. The main reason for getting the inquiry conducted under Section 202 Cr.P.C. by a Magistrate before proceeding in a complaint in respect of such accused, who resides beyond local jurisdiction of the Court is that there was likelihood of false implication of the accused, who reside in distant places only with a view to harassing them. 16. In the case at hand, there does not appear to be any such apprehension of the accused being falsely implicated for harassing them despite the fact that they reside at various remote places away from the jurisdiction of the District Court of Allahabad but there is no apprehension that they were being falsely implicated as a thorough inquiry has been held by the Competent Authority under law and, thereafter, only the complaint case has been instituted. 17. In view of above, we are not inclined to interfere in the impugned order and the application u/s 482 deserves to be dismissed and is accordingly dismissed.