JUDGMENT (Prayer: Petition filed under Section 482 of The Code of Criminal Procedure, 1983, praying to call for the records in C.C.No.21 of 2016 pending on the file of the learned Principal Sessions Judge at Chennai and to quash the entire proceedings in C.C.No.21 of 2016.) P.N. Prakash, J. 1. This Original Petition has been filed seeking to quash the proceedings in C.C.No.21 of 2016 pending on the file of the learned Principal Sessions Judge at Chennai. 2. The minimum facts that are required for deciding this quash petition are as under: On intelligence that unaccounted money is stashed in the residence of one Nagarajan at No.16, 25th Cross Street, Thillai Ganga Nagar, Chennai 600061, the Inspector of Police, Adambakkam Police Station, along with Revenue Officials, searched the said premises on 12.03.2022. At the time of the search, Nagarajan was present and his statement was recorded. The search resulted in the seizure of Rs.7,20,05,000/- in cash. In his statement, Nagarajan stated inter alia that he, along with his compatriots S.Martin and G.Moorthy, had printed lottery tickets of other States and had sold the same without license in Chennai and had acquired the seized cash of Rs.7,20,05,000/-. At this juncture, it may be appropriate to verbatim reproduce the statement of Nagarajan in Tamil as under:- 3. Based on the above said statement, the Inspector of Police, Adambakkam Police Station, registered a case in Crime No.304 of 2012 on 12.03.2012 under Section 294-A, 420 and 120-B of IPC against Nagarajan (A1), S.Martin (A2) and G.Moorthy (A3). Nagarajan was placed under arrest on the same day and was remanded in judicial custody. On coming to known about the huge seizure of Rs.7,20,05,000/-, the Enforcement Directorate, registered a case on 19.03.2012 in ECIR/CEZO/02/2012/APS as the FIR in Crime No.304 of 2012 disclosed a 'scheduled offence' viz., under Section 420 of IPC under the Prevention of Money Laundering Act, 2002. While Nagarajan was in judicial custody in Crime No.304 of 2012, the Enforcement Directorate obtained the necessary permission from the remanding Magistrate and went to the Central Prison, Puzhal, Chennai, where Nagarajan was lodged and enquired him on 22.03.2012. In the course of the enquiry, Nagarajan's statement was recorded by the officials of the Enforcement Directorate in which he had stated inter alia as under: 4. In the course of the enquiry, Nagarajan's statement was recorded by the officials of the Enforcement Directorate in which he had stated inter alia as under: 4. After Nagarajan was released on bail, he retracted the statement that was given to the officials of the Enforcement Directorate. While investigation in Crime No.304 of 2012 was in progress, Moorthy (A3) and Smt.Leema Rose (A5), who is the wife of S.Martin (A2), filed Income Tax Returns explaining the source of Rs.7,20,05,000/-. A3 & A5 submitted a sale agreement on a stamp paper dated 02.03.2012 to show as if that the sum of Rs.7,20,05,000/- was advance received for the sale of an immovable property. When this sale agreement was submitted to the police, it was noticed by the investigating officer that the stamp paper for the sale agreement was itself issued by the Treasury only on 09.03.2012 and, therefore, the sale agreement dated 02.03.2012 was a fake one. Therefore, Adambakkam Police altered the case in Crime No.304 of 2012 by adding Sections 467, 468 and 471 of IPC to the FIR along with the existing provisions. It appears that the FIR in Crime No.304 of 2012 was quashed by this court by order dated 15.10.2014 in Crl.O.P.Nos.13106 and 14971 of 2013 on the ground that the FIR did not disclose the commission of any offence. Challenging the same, the State went on appeal to the Supreme Court and in Crl.A.Nos.423 - 424 of 2018 by order dated 28.03.2018, the Supreme Court set aside the order of this court quashing the FIR and permitted the State Police to proceed with the investigation in Crime No.304 of 2012. In the mean while, the Enforcement Directorate, completed their investigation and filed a complaint in C.C.No.21 of 2016 on 07.01.2016 in the Court of the Special Judge for PMLA Cases, Chennai, against 5 accused viz., Nagarajan (A1), S.Martin (A2), G.Moorthy (A3), Smt.N.Usha (A4) and Smt.Leema Rose (A5) under section 3 r/w 4 of the PMLA. Challenging the same, the present quash petition has been filed by Nagarajan (A1) and Usha (A4). 5. Heard Mr.N.R.Elango, the learned senior counsel appearing on behalf of Mr.R.Vikanandan, the learned counsel on record for the petitioner and Mr.S.Sasikumar, the learned Special Public Prosecutor (ED Cases) appearing for the respondent. 6. Challenging the same, the present quash petition has been filed by Nagarajan (A1) and Usha (A4). 5. Heard Mr.N.R.Elango, the learned senior counsel appearing on behalf of Mr.R.Vikanandan, the learned counsel on record for the petitioner and Mr.S.Sasikumar, the learned Special Public Prosecutor (ED Cases) appearing for the respondent. 6. At the outset Mr.S.Sasikumar, submitted that the petitioners (A1 & A4) and A3 filed applications in Crl.M.P.Nos.22030 of 2021 for discharge before the trial court which came to be dismissed on 27.03.2017. Aggrieved by which, the petitioners filed a quash petition in Crl.O.P.No.7632 of 2017 on 17.04.2017 but, the same was dismissed as withdrawn on 14.12.2021 as this court was not inclined to accept the submissions of the accused. However, Mr.N.R.Elango, the learned senior counsel refuted the aforesaid contentions and submitted that no arguments were advanced in the quash petition and the same was merely dismissed as withdrawn and therefore, there is absolutely no bar for the accused to file a second quash petition. 7. We carefully considered the aforesaid rival submissions and decided not to dismiss the present quash petition on the aforesaid ground. 8. Mr.N.R.Elango, contended that the inclusion of Sections 467, 468 and 471 of IPC subsequently in the FIR in Crime No.304 of 2012 cannot give a cause of action for the Enforcement Directorate to maintain the complaint inasmuch as, those acts were allegedly committed by the accused subsequent to the seizure in order to prove that the seized amount was not illicit money. 9. We agree with the aforesaid submission of Mr.N.R.Elango. The cash of Rs.7,20,05,000/- had come into hands of the State Police on 12.03.2012 itself and it should be shown that said amount is 'proceeds of crime' for which the subsequent act of the accused fabricating a sale agreement to prove its legitimacy would have no bearing. 10. Mr.N.R.Elango contended that Section 294 of IPC is not a 'scheduled offence' under PMLA which submission also we are in agreement with. However, he contended that there is absolutely no material to show that the offence under Section 420 IPC has been committed for maintaining the present complaint against the petitioners under PMLA. He submitted that no person has ever come forward to state that he was cheated by the accused. However, he contended that there is absolutely no material to show that the offence under Section 420 IPC has been committed for maintaining the present complaint against the petitioners under PMLA. He submitted that no person has ever come forward to state that he was cheated by the accused. He also submitted that the FIR was registered in the year 2012 and till date, the same has not fruitioned into a final report by the police and, therefore, the present prosecution under the PMLA is vexatious. 11. We are unable to subscribe to the above submission because, the statement of Nagarajan which forms the basis of the FIR in Crime No.304 of 2012 itself says that they had printed the lottery tickets of other States and had sold it to people in Tamil Nadu where there is a ban for the sale of lotteries which itself shows that the ingredients of cheating is inbuilt in the statement. Of course, such a statement having been made to a police officer may be hit by Section 25 of the Evidence Act, but nevertheless, that can trigger a police investigation as well an investigation by the Enforcement Directorate under the PMLA. 12. Coming to the statement of Nagarajan that was given to the officials of the Enforcement Directorate on 22.03.2012, Mr.N.R.Elango, the learned senior counsel contended that the said statement is inadmissible in evidence in the light of the following observations of the Supreme Court Vijay Madanlal Choudhary v. Union of India [SLP (Crl) No.4634 of 2014 with SLP (Civil) No.28394 of 2011 etc., batch dated 27.07.2022:- “159. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information 680 Supra at Footnote Nos.120 (also at Footnote No.41) 681 Supra at Footnote No.43 and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money- laundering. If the statement made by him reveals the offence of moneylaundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.” 13. We carefully considered the aforesaid submissions. 14. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.” 13. We carefully considered the aforesaid submissions. 14. At the outset, it may be relevant to state that the an officer of the Enforcement Directorate is not a police officer within the meaning of Section 25 of The Evidence Act. As observed by the Supreme Court in a catena of decisions including Ramesh Chandra Mehta vs State of West Bengal (AIR 1 970 SC 940 ) , a person becomes an accused in an economic offence investigated by non-police officials so as to avail of the protection under Article 22(1) of the Constitution of India only when there is a formal accusation laid against him. In this case, the Enforcement Directorate registered the case on 19.03.2012 and Nagarajan (A1) was only considered as a suspect. No formal accusation was laid against him as the enquiry had only then begun. Nagarajan (A1) was in judicial custody in connection with the case in Crime No.304 of 2012 on the file of Adambakkam Police Station and not in the case registered by the Enforcement Directorate. While he was in judicial custody, the Enforcement Directorate obtained the necessary permission from the court and enquired him in the prison under the watchful eyes of the prison authorities. At that time, Nagarajan (A1) gave a statement implicating himself which we have adverted to above. Therefore, on the facts and circumstances of this case, the statement recorded by the Enforcement Directorate on 22.03.2012 will not be hit by either Section 25 of the Evidence Act or Articles 20 and 22 of the Constitution of India. The complaint in this case has been laid against Nagarajan (A1) and others only on 07.01.2016, but, whereas the statement was recorded on 22.03.2012. Even in that statement he has stated that the sum of Rs.7,20,05,000/- was acquired by printing and selling lottery tickets of other States in Tamil Nadu. Though Nagarajan had retracted the statement on 19.04.20212 after his release from the prison that would not affect its relevancy or admissibility in the present trial. Even in that statement he has stated that the sum of Rs.7,20,05,000/- was acquired by printing and selling lottery tickets of other States in Tamil Nadu. Though Nagarajan had retracted the statement on 19.04.20212 after his release from the prison that would not affect its relevancy or admissibility in the present trial. In fact, in K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, (1997) 3 SCC 721 Supreme Court has held that if a confession is retracted, its value gets enhanced because, the accused knows that it would not be beneficial to him. At para 26, the Supreme Court has held as follows:- “20. .......If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab (I), ( AIR 1952 SC 214 ). ” 15. Mr.N.R.Elango, took us through the memo of evidence appended to the complaint and submitted that the Enforcement Directorate has cited only 3 persons as prosecution witnesses out of whom 2 are the officers of the Enforcement Directorate and, therefore, it would be impossible for them to prove the facts alleged in the complaint based on the testimony of 3 witnesses. 16. In our opinion, the impugned complaint cannot be quashed on this ground as it is always open to the trial court to exercise its powers under Section 311 of Cr.P.C. to examine witnesses, who have not been cited in memo of evidence, in the interest of justice. 17. Coming to the contention of Mr.N.R.Elango that in the absence of any person complaining that he was cheated, Section 420 IPC cannot stand attracted, at the first blush, this submission appeared impressive. But, on a scrutiny of the facts alleged in the police case, it is seen that this group appears to have printed the lottery tickets of other States and sold to public in Tamil Nadu. Are not the ingredients of cheating and dishonestly inducing delivery of property inbuilt in this allegation? But, on a scrutiny of the facts alleged in the police case, it is seen that this group appears to have printed the lottery tickets of other States and sold to public in Tamil Nadu. Are not the ingredients of cheating and dishonestly inducing delivery of property inbuilt in this allegation? True, that those who had purchased the lottery tickets from this group have not been identified by the police. But, that cannot be a reason to hold that there is no material in the police case to prosecute the offenders under Section 420 IPC. 18. Thus, looking at from any angle, we are unable to hold that the impugned complaint is bereft of prima facie materials for quashing the same. In the result, this Criminal Original Petition is dismissed. We, however, make it clear that whatever stated above is only for deciding this quash petition and the trial court shall proceed with the trial of the case without in any manner being influenced by what has been stated above. Consequently, connected MPs are closed.