Gujarat High Court
Jagdish Kumudchandra Vaidya vs State Of Gujarat on 15 March, 2019
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.A/528/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2019
In
R/CRIMINAL APPEAL NO. 528 of 2019
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JAGDISH KUMUDCHANDRA VAIDYA Versus STATE OF GUJARAT ================================================================ Appearance:
MR MAULIK VAKHARIYA for the PETITIONER(s) No. MR MIHIR VAKHARIYA for the PETITIONER(s) No. MS HANSA PUNANI APP for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 15/03/2019 IA ORDER
1. The applicant-original accused No.2 has preferred this application seeking suspension of sentence as well as payment of fine pending consideration of appeal.
2. Heard Mr. Maulik Vakhariya, learned advocate for the applicant, Ms. Hansa Punani, learned APP for the respondent-State and Mr. Kshitij Amin, learned Standing Counsel for the respondent No.2 -original complainant.
3. Learned advocate for the applicant points out that the present applicant came to be charged for the commission of offence punishable under Section 4 as well as for the offence punishable under scheduled offence of the Prevention of Money Laundering Act, 2002 and argued that though both the proceedings arise out of the same alleged incident, however, in two different sections, offences are made punishable. Consequently, therefore, he has relied upon the decision of the Jharkhand High Court rendered in the case of Binodkumar Sinha @ Binod Kumar; Kamlesh Kumar Singh @ Kamlesh Singh; Anosh Ekka Vs. State of Page 1 of 4 R/CR.A/528/2019 IA ORDER Jharkhand reported in 2013 LawSuit(Jhar) 26 and argued that when such matter came up for consideration before the Jharkhand High Court, as to whether the prosecution for scheduled offences as defined under the provision of Money Laundering Act, 2002 is necessarily to be proceeded in trial along with the offence punishable under Sections 4 of the Prevention of Money Laundering Act, 2002, wherein the Jharkhand High Court, after considering the position of law, observed as under :-
"33. No doubt it is true that procedure relating to investigation, enquiry etc. of the scheduled offence is different from the procedure of the investigation of the offence under Section 4 of the Prevention of Money Laundering Act but that difficulty would have arisen when the question would have been there for clubbing of the charges.
34. Here, the point is never related to clubbing of the charges, rather the point is whether the special Court can proceed simultaneously with the trial of the scheduled offence as well as trial of the offence punishable under Section 4 of the Prevention of Money Laundering Act.
35. Keeping in view the provision as is enshrined in Section 3 postulating therein that whoever is connected with the proceeds of the crime projecting it as untainted property would be committing offence of Money Laundering Act and further that the proceeds of crime must have been derived or obtained, directly or indirectly by any person as a result of criminal activity relating to scheduled offence, in terms of sub-section (u) of Section 2 of the Prevention of Money Laundering Act, there has been no doubt that unless one is held guilty for the scheduled offences, he cannot be held guilty of the offence punishable under section 4 of the Prevention of Money Laundering Act but hardly there appears to any embargo for the special court to proceed with the trial of the scheduled offences as well as offence under Section 4 of the Prevention of Money Laundering Act simultaneously particularly when there has been nothing in the Act nor intention of the legislator seem to be there of taking of the trial of the offence punishable under Section 4 after one is found guilty for the scheduled offence . Of course, the Special Court trying the offence under the PMLA Act will have to wait for the result of the trial relating to scheduled offence. This recourse not only seems to be the Page 2 of 4 R/CR.A/528/2019 IA ORDER practical solution of the matter but it will also expedite the trial."
4. In view of the aforesaid interpretation made by Jharkhand High Court for both the offences namely offence punishable under Section 4 of the Prevention of Money Laundering Act 2002 and scheduled offences of the said Act are required to be proceeded simultaneously and upon inflicting the punishment in the scheduled offences, thereafter punishment could be imposed under Section 4 of the said Act.
5. In view of the aforesaid position of law, in the present case, the learned trial Court has indisputably kept the trial pending, so far as offences punishable under scheduled offences of the Act is concerned and separately conducted the trial under Section 4 of the Prevention of Money Laundering Act 2002.
6. In that view of the matter, this Court deems it appropriate to suspend the sentence as well as fine imposed upon the present applicant till pending consideration and final disposal of appeal. It appears that the present application requires consideration and prayer in terms of bail is allowed. The sentence imposed by judgment and order dated 29.1.2019 passed by learned Principal District & Sessions Judge and Designated Special Judge( PMLA), Ahmedabad (Rural) in PMLA Case No.2 of 2011 is hereby suspended pending hearing and final disposal of the present criminal appeal. The applicant shall be released on regular bail by executing fresh bond of Rs.15,000/- (Rupees Fifteen Thousand Only) and one surety of like amount to the satisfaction of trial Court on condition that he shall proceed with the criminal appeal as and when it may be listed, and he shall surrender his passport, if having, before the learned trial Court and shall not leave India without prior permission of this Court.
Page 3 of 4R/CR.A/528/2019 IA ORDER
7. Mr. Kshitij Amin, learned Standing Counsel shall seek instructions from the Enforcement Directorate as to why such procedure are adopted in the learned trial Court and as to whether the present matter can be cured by remanding the matter back to the learned trial Court for conducting simultaneous proceedings. He shall point out before this Court for taking up the matter for early hearing.
Direct service is permitted.
(R.P.DHOLARIA, J) chandrashekhar Page 4 of 4