Delhi District Court
Crl. Rev. No. 304/2018 Enforcement ... vs . Sfio &Ors. on 30 August, 2018
Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE07 (CENTRAL),
(PC ACT CASES OF ACB, GNCTD), DELHI
Criminal Revision No.304/2018
CNR No. DLCT010055082018
Assistant Director,
Enforcement Directorarte
1st & 2nd Floor, MTNL Building,
Jawahar Lal Nehru Marg,
New Delhi110002. ......Petitioner
VERSUS
1. Serious Fraud Investigating Office
Ministry of Corporate Affairs,
Government of India,
2nd Floor, Paryavaran Bhawan,
CGO Complex, Lodhi Road,
New Delhi 110003.
2. Sh. Surendra Kumar Jain
S/o Sh. Jiwan Mal Jain
R/o 555, Double Storey Market,
New Rajendra Nagar, New Delhi - 110060
3. Sh. Virendra Jain
S/o Sh. Jiwan Mal Jain
R/o 555, Double Storey Market,
New Rajendra Nagar, New Delhi - 110060
4. Sh. Mukesh Sharma, Chartered Accountant
S/o Sh. Hari Shankar Sharma
R/o 195H, PktIV,
Mayur Vihar, Delhi 110091.
Also at : 216 Chanakya Complex,
B10&11, Subhash Chowk,
Laxmi Nagar, Delhi110092
5. Sh. Debasis Dixit, Company Secretary
Pages: 1 of 10 (Kiran Bansal)
Spl. Judge07 (Central), (PC ActACB), Delhi.
Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
S/o Sh. Biswanath Dixit
R/o E1/11/39, E1 Block,
Pkt11, Sector15, Rohini, Delhi - 110089
Also at: 42B, Top Floor,
Connaught Place, New Delhi - 110001
6. Sh. Prakash Hirawat, C.A.
S/o Sh. Anup Singh Hirawat
R/o 618F/2A/2E, Shankar Gali,
Vishwas Nagar, Shahdara,
Delhi - 110032
7. Sh. Sanjay Kumar Grover, C.A.
S/o Sh. R.L. Grover
R/o 38, IInd Floor, NRI Complex,
Greater KailashIV, New Delhi - 110019
Also at : 124, BlockK1,
Chittranjan Park, New Delhi110019
8. Sh. Anuj Garg, C.A.
S/o Sh. Hari Krishan Garg
R/o EC43, Maya Enclave,
Hari Nagar, New Delhi110064
also at : 1748/55, Naiwala,
Karol Bagh, New Delhi - 110005
9. Sh. Kuldeep Chauhan, C.A.
S/o Sh. Jagat Singh Chauhan
R/o F259/A, Pandav Nagar, Delhi110091
10. Sh. Vinod Kumar Gupta, C.A.
S/o Sh. Jiya Lal
R/o C450, LIG Flats,
East of Loni Road, Delhi - 110093
Also at : R22, 2nd Floor, Khaneja Complex,
Main Market, Shakarpur, Delhi - 110092
11. Sh. Bineet Kapoor
S/o Late Sh. Subhash Chandra Kapoor
Pages: 2 of 10 (Kiran Bansal)
Spl. Judge07 (Central), (PC ActACB), Delhi.
Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
R/o 72/6, Prime Rose, Vatika City,
Sohna Road, Gurgaon, Haryana122018
12. Sh. Pankaj Kumar
S/o Sh. Rajendra Prasad
R/o Flat No. 17, 2nd Floor, GH24,
MDC Complex, Panchkula, Haryana.
Also at : E17A, Sharma Colony,
Budh Vihar PhaseII, New Delhi
13. Sh. Sant Lal Aggarwal
(Director of M/s Jagat Projects Ltd.)
S/o Sh. Chet Ram Aggarwal
R/o D31, Pushpanjali Enclave,
Pitam Pura, New Delhi110034
14. Sh. Satish Kumar Pawa
(Director of M/s Jagat Projects Ltd.)
S/o Sh. Ram Pawa
R/o D842, 2nd Floor,
New Friends Colony, New Delhi - 110065
15. Ms. Swati Pawa
(Director of M/s Jagat Projects Ltd.)
D/o Sh. Satish Kumar Pawa
R/o D842, 2nd Floor,
New Friends Colony, New Delhi - 110065
16. Sh. Rajesh Agrawal, C.A.
S/o Sh. T.C. Agrawal
R/o 505, HIG DDA Flat,
Block No.1, Motia Khan,
Pahar Ganj, New Delhi 110065
17. Sh. Ravinder Goel, C.A.
S/o Sh. Ishwar Chand Goel
R/o 57, Kamdhenu Apartment,
Sector9, Rohini, Delhi - 110085
Also at: 1011, Padma TowerI,
Pages: 3 of 10 (Kiran Bansal)
Spl. Judge07 (Central), (PC ActACB), Delhi.
Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
Rajindra Place, New Delhi.
18. Sh. Dhirendra Kumar, C.A.
S/o Sh. Dev Chandra Lal Das
R/o WB185, 3rd Floor,
Shakarpur, Delhi - 110092
Also at : 208, 2nd Floor,k
Tirupati Complex, Shakarpur, Delhi110092
19. M/s Jagat Projects Ltd.
Regd. Office : 287, Tarun Enclave,
Pitam Pura, Delhi 110034
20. NKS Holding Private Limited (NKS)
Regd. Office at:
3198/15, Gali no.1, Sangatrashan,
Paharganj, New Delhi - 110055
21. Sital Holdings Private Limited
(earlier known as Quality Cybertech Pvt. Ltd.) (SHPL)
Regd. Office at: 3198/15, 4th Floor, Street No.1,
Sanga Rashan, Paharganj, New Delhi - 110055
22. Avail Financial Services Private Limited (AFSPL)
Regd. Office at : 205556, 3rd Floor, Gali No.6,
Chuna Mandi, Paharganj, New Delhi - 110055
23. Carewell Exim Private Limited (CEPL)
Regd. Office at: 209, Bhanot PlazaII,
3D.B. Gupta Road, Paharganj, New Delhi110055
24. Solomon Holdings Private Limited (SOHPL)
Regd. Office at : 3198/15, Gali No.1,
Sangatrashan, Paharganj, New Delhi - 110055
25. Legend Infoways Private Limited (LIPL)
Regd. Office at : 3198/15, 4th Floor, Gali No.1,
Sangatrashan, Paharganj, New Delhi - 110055
Pages: 4 of 10 (Kiran Bansal)
Spl. Judge07 (Central), (PC ActACB), Delhi.
Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
26. Microland Developers Private Limited (MDPL)
Regd. Office at: F37, Sushant LokII,
Extn., Sector57, Gurgaon, Haryana122002
27. Utsav Securities Private Limited (USPL)
Regd. Office at: 4th Floor, 15/3198, Street No.1,
Sangatrashan, Paharganj, New Delhi - 110055
28. Shalini Holding Limited (SHL)
Regd. Office at : 209, 2nd Floor,
6/41, Sunder Kiran Building,
WEA, Karol Bagh, New Delhi - 110055
29. Shri Niwas Leasing & Finance Limited (SNLFL)
Regd. Office at : 22, Rajendra Park, New Delhi - 110060
30. Aquarius Fincap & Credits Pvt. Ltd. (AFCPL)
Regd. Office at: 3198/15, 4th Floor, Gali No.1,
Sangatrashan, Paharganj, New Delhi - 110055
31. Sh. Niranjan Kumar Sharma
S/o Sh. Chhagan Lal Sharma
R/o 3198/15, 4th Floor, Gali No.1,
Sangatrashan, Paharganj, New Delhi - 110055
32. Sh. Sandeep Aggarwal
S/o Sh. Rajendra Prasad Aggarwal
R/o 209, Bhanot PlazaII,
3D.B. Gupta Road,
Paharganj, New Delhi - 110055. .....Respondents
Date of Institution on : 23.04.2018
Order reserved on : 23.08.2018
Order delivered on : 30.08.2018
JUDGMENT
Pages: 5 of 10 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi. Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
1. The present revision has been filed assailing the order dated 23.03.2018 passed by the court of Ld. ACMM vide which the application under Section 44(1)(c) of the Prevention of Money Laundering Act, 2002, was dismissed.
2. Brief facts necessary for the disposal of the revision are that the SFIO had filed a Criminal Complaint under Section 120B r/w 420, 468 and 477A of IPC and Section 628 r/w 211/233 & 240(3) of the Company's Act, 1956 which is pending for adjudication before the Ld. ACMM. It is stated that the matter was also taken up by the Enforcement Directorate, Delhi Zone OfficeII under the provisions of Prevention of Money Laundering Act, 2002 (i.e. PMLA) as Section 420 and 120B IPC are scheduled offences under PartA of PMLA, 2002. The prosecution complaint under the PMLA is stated to be pending in the court of Additional Sessions Judge/Special Judge, PMLA, Patiala House Courts, New Delhi, after the cognizance of the offences by the court of Ld. Special Judge.
3. It is stated that Ms. Misha Bharti, M.P., Rajya Sabha is also one of the accused in the complaint case under PMLA, 2002 and therefore, the said case has been transferred to the court of Sh. Arvind Kumar, Ld. ASJ, Patiala House Courts, New Delhi being the Special Court designated for dealing with the cases wherein M.P.'s and M.L.A.'s are the accused persons.
4. Petitioner/revisionists has filed an application under Section 44(1)(c) before the court of Ld. ACMM (Spl. Acts) for committal of the case to the court of Ld. Special Judge at Patiala House Courts, New Delhi. However, the said application under Section 44(1)(c) PMLA, 2002, was dismissed by the court of Ld. ACMM on 23.03.2018 and being aggrieved by the said order dated 23.03.2018, the present revision has been filed on the ground that the Ld. Pages: 6 of 10 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
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ACMM failed to appreciate that Section 44(1)(c) is mandatory in nature and there is no discretionary power with the court which has taken cognizance of the scheduled offences but the Ld. ACMM has still declined the committal of the case to the court of Special Judge. It is further argued that the Ld. ACMM has grossly erred while holding that committal of case to any other Special Court has to be within the same sessions division as there is no such suggestion in Section 44(1)(c) of the PMLA, 2002. It is stated that by virtue of Section 71 of PMLA, 2002, the provisions of PMLA, 2002 have an overriding effect, therefore, procedure of Cr.P.C. for transferring the case cannot be adopted in an application filed under Section 44(1)(c) of PMLA, 2002. It is, thus, prayed that the order dated 23.03.2018 by Ld. ACMM be setaside and the criminal complaint No.543416 of 2016 pending in the court of Ld. ACMM (Central) be transferred to the court of Sh. Arvind Kumar, Ld. ASJ, Patiala House Courts, New Delhi.
5. Notice of the revision petition was issued to the respondents. Respondents no.19, 31 and 32 did not appeared despite service. Respondent no.14 and 15 stated that they have no objection, if revision is allowed and they do not wish to file any reply to the revision petition. Respondent no.1,8,13,16 and 17 also did not wish to file any reply to the present revision petition.
6. Respondent no.4 has filed reply to the revision petition stating that the order of the Ld. ACMM is well reasoned and the present case is not a fit case to be committed to the Special Court designated for the PMLA, 2002, because in the complaint case filed by the SFIO, Ms. Misha Bharti, M.P. is neither the witness nor the accused and there is no allegations of Money Laundering against respondent no.4.
Pages: 7 of 10 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi. Crl. Rev. No. 304/2018 Enforcement Directorate Vs. SFIO &Ors.
7. Respondent no.9 has also filed reply to the revision petition wherein he has stated that the present revision is not maintainable and as per Section 407 Cr.P.C., Hon'ble High Court of Delhi has power to transfer the matter from one district to another. It is stated that impugned order of the court of Ld. MM is without any infirmity. Other objections are same which have been taken by the respondent no.4 in his reply. A single reply has been filed on behalf of respondent no. 2,3, 12 and 20 to 30 and in the reply similar objections have been taken by the respondents no.2,3,12 and 20 to 30. Respondent no. 6 and 7 have also filed reply to the present revision petition and they have also taken similar objections as respondent no.4 and 9.
8. Arguments on behalf of revisionists as well as respondents heard. Trial Court Record also perused.
9. Section 44(1)(c) and Section 71 of PMLA, 2002 being relevant is reproduced as under : "44. Offence triable by Special Courts: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), [c] if the court which has taken cognizance of the schedule offence is other than the Special Court which has taken cognizance of the complaint of the offence of moneylaundering under subclause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed."
"71. Act to have overriding effect : The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.'
10. Thus, as Section 44 clearly states with clause "Notwithstanding anything contained in Cr.P.C.", the provisions of Section 44(1)(c) are to have an Pages: 8 of 10 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
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overriding effect over the provisions of Cr.P.C. Similar is the import of Section 71 of the PMLA, 2002. Thus, while deciding the application under Section 44(1)(c), the provisions of Cr.P.C. were not applicable.
11. Section 4 & 5 of Cr.P.C. being relevant are also reproduced below : "4. Trial of offences under the Indian Penal Code and other laws : (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tired, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
"5. Saving : Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
12. The above provisions also clearly reveal that Special Law are not affected by the provisions contained in Cr.P.C. and the offences under any law other than IPC are to be tried as per the enactment regulating the manner or place of trial of such offences.
13. Ld. counsel for revisionist/petitioner has relied upon the order of Hon'ble High Court of Delhi dated 10.08.2018 in Crl. Rev. P. 67/2017 titled as Directorate of Enforcement vs. Surajpal & Ors., wherein it is held as follows: "10. Reading of Section 44(1)(c) of the Money Laundering Act shows that on an application being moved by the authorised authority, the Court, which has taken cognizance of the scheduled offence, is to transfer/commit the case relating to the scheduled offence to the Special Court that has taken cognizance of the complaint of the offence of money laundering under sub clause(b) of Section 44(1) of the Money Laundering Act.
11. It may be noticed that Section 44(1)(c) of the Money Laundering Act used the expression "the Special Court". The use of the expression "the Special Pages: 9 of 10 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
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Court", shows that the intention of the legislature is that the Special Court that has already taken cognizance of the complaint of the offence of money laundering would be the Court to which committal has to take place and not any Special Court which may be empowered by a Notification under the Money Laundering Act.
12. Even if the proceedings pertaining to a scheduled offence were pending before a special court notified under the Money Laundering Act and that court is not the special court that had taken cognizance of the offence of money laundering, on an application being moved by the authorised authority, even that special court would be mandated to transfer/commit the proceedings to the special court that has taken cognizance of the offence of money laundering."
14. In view of the Section 44(1)(c) and in view of the above judgment of the Hon'ble High Court of Delhi, Ld. ACMM was duty bound to transfer / commit the case to the court of Special Judge, Patiala House Courts, New Delhi as the said court is Special Court which is taken cognizance of offence on the complaint for Money Laundering. Ld. ACMM is directed to send the file bearing Criminal Complaint No. 543416/2016 case titled as Serious Fraud Investigation Office (SFIO) Vs. Surender Kumar Jain & Ors., to the court of Special Judge, Patiala House Courts, New Delhi as per rules and law.
15. Keeping in view of the facts and circumstances of the present case, present revision petition is allowed and order of the Ld. ACMM is therefore setaside. Revision petition is accordingly disposed off. Copy of this order be sent to the Ld. Trial Court. Trial Court Record be also sent back. Revision file be consigned to Record Room. Digitally signed KIRAN by KIRAN BANSAL Announced in the open court BANSAL Date: 2018.08.31 on this 30th Day of August 2018 15:31:26 +0530 (Kiran Bansal) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC/Delhi Pages: 10 of 10 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.