Delhi District Court
Directorate Of Enforcement vs . on 23 December, 2021
IN THE COURT OF SH. CHANDRA SHEKHAR, LD. SPECIAL
JUDGE (PC ACT), CBI19, ROUSE AVENUE COURT COMPLEX,
NEW DELHI
CC No. 30/20 & Filing No. 290/2020
Case No. ECIR 21/DZ1/2012
Directorate of Enforcement Vs.
M/s. Raja Aederi Consultants Pvt.
Ltd. & Ors.
U/s: 44 & 45 of Prevention of Money
laundering Act, 2002
ORDER ON THE POINT OF COGNIZANCE
The Assistant Director, Directorate of Enforcement, Govt.
of India, Central Region, 1st and 2nd floor, MTNL Building, Jawaharlal
Nehru Marg, New Delhi, instituted a complaint u/s 44 & 45 of
Prevention of Moneylaundering Act, 2002 (for short "PMLA") for
commission of offences u/s 4 of PMLA against accused no. 1 M/s. Raja
Aederi Consultants Pvt. Ltd. (for short "M/s. RACPL") and accused no.
2 Raja Aederi and accused no. 3 Uday Shankar Bhat, who were the then
Director and Executive Director respectively during the period of
commission of alleged scheduled offences under PMLA, before the Ld.
Principal District & Sessions JudgecumSpecial Judge, CBI (PC Act),
Rouse Avenue Courts Complex, New Delhi; who assigned the said
complaint to this court on 02.11.2020 for adjudication and disposal of
the same, in accordance with law.
(ii) The complaint, in brief, discloses that an FIR vide RC No.
21722011A002 dated 09.03.2011, was registered by CBI against (i)
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 1 of 28
Sanjiv Sengupta, the then Chief Architect, New Delhi Municipal
Corporation (for short "NDMC"), (ii) R.S. Thakur, the then
Superintendent Engineer, NDMC, (iii) V.K. Gulati, the then Executive
Engineer, NDMC, (iv) P.V. Gupta, the then Superintendent Engineer,
NDMC, (v) K.K. Muterja, the then Engineer Incharge, NDMC, (vi) H.S.
Dogra, the then ADG, CPWD, (vii) Sharad Bhatiya, the then ADG
(Arch.), CPWD, (viii) Raja Aederi, the then Chairman, M/s. RACPL,
(ix) Uday Bhat, the then Director, M/s. RACPL., (x) other unknown
officials of NDMC, (xi) M/s. RACPL, u/s 120B of Indian Penal Code,
1860 (for short "IPC") and section 13 (2) r/w section 13(1)(d) under
Prevention of Corruption Act, 1988 (for short "PC Act") on the
allegations that the officials of the NDMC in criminal conspiracy with
M/s. RACPL abused their official position in awarding a consultancy
contract for upgradation and renovation of Shivaji Stadium and
Talkatora Stadium to M/s. RACPL for a sum of Rs. thirty crores though
it did not have the requisite experience as stipulated in the contract of
tender. The aforesaid officials of NDMC also awarded the work of
consultancy of fivestorey building with two basements in both the said
stadiums to M/s. RACPL for a sum of Rs. one hundred sixty crores
without retendering the contract.
(iii) The offences punishable u/s 120B of IPC and section 13
(2) r/w section 13(1)(d) under PC Act are covered in the list of scheduled
offences under PMLA therefore, on the basis of aforesaid FIR, an ECIR
vide ECIR No. ECIR/21/DZ/2012 dated 08 th August, 2012 was recorded
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 2 of 28
in Zonal Office of Directorate of Enforcement at New Delhi (for short
"ED") against the aforesaid suspects/accused persons for commission of
offences u/s 4 of PMLA and investigation was initiated by ED.
(iv) After completion of investigation in the aforesaid FIR, on
28.09.2012 CBI filed a chargesheet u/s 120B IPC r/w section 420 IPC
and section 13 (2) r/w section 13 (1) (d) under PC Act in the court of Ld.
Spl. Judge, (PC Act) at Patiala House Courts, New Delhi against accused
R.S. Thakur, V.K. Gulati, Raja Aederi, Uday Shankar Bhat and M/s.
RACPL.
(v) The Ld. Special Court of PC Act took cognizance of the
offences, summoned the accused, tried them and after conclusion of trial
on 08.05.2017, Ld. Court of Sh. Arvind Kumar, Ld. Spl. Judge, CBI01,
Patiala House Courts, New Delhi, convicted the accused Raja Aederi,
Uday Shankar Bhat and M/s. RACPL u/s 120B IPC r/w section 420 IPC
and u/s 420 IPC and acquitted the accused R.S. Thakur and V.K. Gulati.
(vi) The evidence collected during investigation of the aforesaid
case under PMLA shows that there is sufficient evidence on record
against accused (i) M/s. RACPL, (ii) Raja Aederi and (iii) Uday Shankar
Bhat for commission of offence u/s 4 of PMLA and as they have already
been convicted for the offences u/s 120B IPC r/w section 420 IPC and
u/s 420 IPC which, are scheduled offences under PMLA, therefore the
conditions precedent for initiation of proceedings under PMLA are fully
satisfied and there are sufficient incriminating evidences on record to
launch prosecution against all the three accused persons under PMLA.
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 3 of 28
(vii) The offences under scheduled offences and PMLA were
committed in Delhi therefore, cognizance may be taken by this court and
the accused persons may be summoned for commission of offence u/s 4
of PMLA and their properties may be confiscated in terms of section
8(5) of PMLA; the complainant, being public servant, may be exempted
from his initial deposition and as further investigation under PMLA is
continued, he may be permitted to file supplementary complaint on
completion of said further investigation.
2. I have heard the submissions of Ld. Special Public
Prosecutor Sh. Mohd. Faraz for ED on the point of cognizance and
perused the brief note filed by him to support his submissions.
Ld. Spl. PP for ED has succinctly submitted that the
scheduled offences were committed in Delhi; the accused were
convicted for said scheduled offences in Delhi; the cause of action for
offences under PMLA arose in Delhi as the proceeds of crime were
received to the accused M/s. RACPL in Mumbai and thereafter, the said
amount was used for payment to coaccused Uday Shankar Bhat and
many other persons in Delhi; therefore, as per explanation, which was
added to section 3 of PMLA w.e.f. 01st August, 2019, an offence of
moneylaundering is made out in Delhi; this court is duly designated and
notified Special court u/s 43 (1) of PMLA, therefore, this court has
territorial jurisdiction to try the alleged offences; the complainant is
competent u/s 45 of PMLA to institute the complaint, being Assistant
Director, in view of the following order dated 11.11.2014 issued by
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 4 of 28
Ministry of Finance, Department of Revenue, Govt. of India.
"GOVERNMENT OF INDIA,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE
(Department of Revenue)
New Delhi, the 11th November, 2014
ORDER
"In exercise of the powers conferred under subsection (1) of section 45 of the Prevention of Moneylaundering Act, 2002 (15 of 2003) (hereafter referred to as the Act), the Central Government hereby authorizes the officers not below the rank of Assistant Directors in the Directorate of Enforcement to file complaint u/s 45 of the Act before the designated Special Courts constituted under subsection (1) of Section 43 of the Act for trial of offence punishable u/s 4 of the Act."
F.No. 6/14/2008ES Under Secretary to the Govt. of India"
Therefore, cognizance may be taken, accused may be summoned and after conclusion of trial, they may be convicted and if the court reaches to the conclusion that it has no territorial jurisdiction then, complaint may be returned to Ld. Principal District & Sessions JudgecumSpecial Judge (PC Act) (CBI), RACC, New Delhi for assigning the same to the court of competent jurisdiction.
3. I have considered the submissions of Ld. Spl. Public Prosecutor for ED, perused the judicial record and the relevant provisions under PMLA, relevant notifications issued by the Central Government under section 43 and 49 of PMLA and relevant orders ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 5 of 28 regarding transfer and posting (relevant to ascertain territorial jurisdiction of this court under PMLA) of the presiding officer of this court, passed by the Hon'ble High Court of Delhi.
4. A well practiced principle of law is that at the stage of taking cognizance; a Court predominantly, peruses the judicial record of a case to convince and content itself that it contains crucial jurisdictional facts, which constructively empower and authorize the court to adjudicate upon the adjudicational facts. If the jurisdictional facts are found to exist, then only, the court peruses the judicial record, to see if as per the allegations made and evidences collected, commission of some offence is prima facie, made out or not.
The Hon'ble Supreme Court of India in a case titled as Arun Kumar vs. Union of India (2007) 1 SCC 732 in paragraph no. 74, 76 and 84 has discussed about the jurisdictional fact and adjudicational fact, the relevant portions of the said paragraphs are extracted hereunder for reference:
"74. A. "jurisdictional fact" is a fact which must exist before a court, tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non existence of which depends jurisdiction of a court, tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If jurisdictional fact does not exist, the court, authority or officer cannot act.............."
"76. The existence of jurisdictional fact is thus sine qua non or condition precedent for the existence of power by a court of limited jurisdiction."
"84. ........ If the jurisdictional fact exist, the authority can proceed ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 6 of 28 with the case and take appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on the existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or 'adjudicatory fact' would not make the decision of authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present."
The Hon'ble Supreme Court has reiterated the observations made in the aforecited case in the case of Carona Ltd. vs. Parvathy Swaminathan and Sons (2007) 8 SCC 559, Ramesh Chandra Sankla vs. Vikram Cement (2008) 14 SCC 58, and cited these two cases with approval in a case titled as State, through Central Bureau of Investigation, New Delhi vs. Jitender Kumar Singh (2014) 11 SCC 724.
After a diligent distillation of the aforecited cases, it may plausibly be concluded that the Hon'ble Supreme Court, in sum and substance, has emphasized on the points that: the jurisdictional fact is one, on existence or nonexistence of which, jurisdiction of a court, a tribunal or an authority depends; it is preliminary to or collateral to merits of the case, the existence of which is sine quo non for assumption of jurisdiction by court or tribunal. If the jurisdictional fact does not exist, the court, authority or tribunal cannot act.
The adjudicatory fact is one, on which merits of a case depends, it is generally fact in issue.
5. The jurisdictional fact largely, is law specific and varies with the aims and objects of a legislative enactment and procedure prescribed by it regarding investigation, inquiry, mode of trial, place of ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 7 of 28 trial, competency of complainant, competency of court, protection and privileges of the accused such as requirement of prior sanction for initiation of prosecution and many such other factors, which are considered preliminary or collateral to adjudicatory fact.
Therefore, it is to be seen what are jurisdictional fact under PMLA.
6. The PMLA is a specific enactment for preventing money laundering and to provide for confiscation of property derived from, or involved in, moneylaundering and for matters connected therewith or incidental thereto therefore, a perusal of the sections 43, 44, 45 of PMLA and two notifications issued by the Central Government, one published vide G.S.R. 441 (E), dated 01st July, 2005 and the other published vide S.O. 372(E), dated 5th February, 2016 are indispensable to discern what are jurisdictional facts under PMLA, existence of which, is essential for empowering this court to exercise jurisdiction to determine the adjudicatory facts.
For the relevant purposes, in short, Section 43 is regarding constitution of Special Court(s) for trial of offences under PMLA, Section 44 prescribes the special procedure which a special court shall follow for trial of such offences, Section 45 specifies as to who is the authority authorised to institute a complaint for commission of any offence punishable u/s 4 of PMLA, the aforesaid notification published on 01st July, 2005 issued by Central Government exclusively authorizes ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 8 of 28 the Director of Enforcement, who was holding office immediately before 01.07.2005 under the Foreign Exchange Management Act, 1999 (42 of 1999) to file complaint u/s 45 of PMLA and aforesaid notification published on 05.02.2016 authorizes the Special Courts designated under PMLA in Delhi to have jurisdiction over the area(s) in respect of their respective Districts in National Capital Territory of Delhi to adjudicate upon the offences punishable u/s 4 of PMLA.
The relevant portions of the said sections and the notifications are extracted hereunder, for reference:
"43. Special Courts.(1) The Central Government, in consultation with Chief Justice of the High Court, shall, for trial of offence punishable u/s 4, by notification, designate one or more courts of Session as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification."
.............................
A perusal of section 43 of PMLA displays that it is the Central Government which, in consultation with the Chief Justice of the Hon'ble High Court, by notification, is empowered to designate one or more Courts of Sessions as Special Court or Special Courts for trial of offence punishable u/s 4 of PMLA and the said designated Special Court may be constituted (i) for an area; or (ii) areas; or (iii) for a case; or (iv) class; or (v) group of cases, by specifying the same in the notification therefore, it is apparent that the competency and jurisdiction of the ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 9 of 28 Special Court under PMLA solely rests on the notification issued by the Central Government.
44. Offences triable by Special Courts.(1) Notwithstanding anything contained in Cr.P.C., 1973 (2 of 1974)(a) an offence punishable u/s 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed:
......................
(b) a special court may, upon a complaint made by an authority authorized in this behalf under this Act take cognizance of offence u/s 3, without the accused being committed to it for trial. ................
(c) .............
(d) a Special Court while trying scheduled offence or the offence of moneylaundering, shall hold trial in accordance with the provisions of the court of Criminal Procedure, 1973 (2 of 1974) as it applies to a trial before a Court of Session. ....................
(2) ..................
A perusal of section 44 (1) and 44 (1) (a) of PMLA reflects that notwithstanding anything contained in Cr.P.C., offence punishable u/s 4 of PMLA and any scheduled offence connected with it, shall be triable by Special Court constituted for the area in which, the offence has been committed.
A perusal of section 44 (1) (b) of PMLA stipulates that a Special court, upon a complaint instituted by an authority authorized in this behalf under this Act, may take cognizance of offence u/s 3 of PMLA without the accused being committed to it for trial.
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 10 of 28 A perusal of section 44 (1) (d) of PMLA stipulates that while trying scheduled offence or offence of moneylaundering, a Special court shall hold trial in accordance with the provisions of Cr.P.C. as it applies to a trial before a court of Session. Therefore, a Special court has to adopt and apply that procedure of trial, which has been provided in Cr.P.C. for a trial before a court of Session.
"45. Offences to be cognizable and nonbailable. ......................
Provided further that the Special Court shall not take cognizance of any offence punishable u/s 4 except upon a complaint made in writing made by
(i) the Director; or
(ii) any officer of the Central Govt. or State Govt. authorized in writing in this behalf by the Central Govt. by a general or special order made in this behalf by that Govt.
......................."
The section 45 of PMLA mandates that Special Court shall not take cognizance of any offence punishable u/s 4 of PMLA except upon a complaint made in writing by (i) the Director; or (ii) any officer of the Central Government or the State Government authorised in writing by a general or special order, in this behalf by the Central Government.
(i) Notification issued by the Central Govt. u/s 49 of PMLA published on 01st July, 2005:
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 11 of 28 NOTIFICATION APPOINTING DIRECTOR OF ENFORCEMENT In exercise of the powers conferred by subsection (1) of section 49 of the Prevention of Moneylaundering Act, 2002 (15 of 2003), the Central Govt. hereby appoints, with effect from the first day of July, 2005, the Director of Enforcement holding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999), as the Director to exercise the exclusive powers conferred u/s 5, section 8, section 16, section 17, section 18, section 19, section 20, section 21, subsection (1) of section 26, section 45, section 50, section 57, section 58A, section 58B, section 60, section 62 and section 63 of the said Act and the said Director shall also concurrently exercise powers conferred by subsection (3), subsection (4) and subsection (5) of section 26, section 39, section 40, section 41, section 42, section 48, section 49, section 66 and section 69 of the aforesaid Act.
A perusal of this notification, for relevant purposes, reveals that the Central Govt. has granted the exclusive right to Director of Enforcement, who was holding office immediately before 1 st July, 2005 under the Foreign Exchange Management Act, 1999 (42 of 1999) as the Director to exercise powers u/s 45 of the Act to institute a complaint for commission of offence(s) u/s 4 of PMLA.
(ii) Notification issued by the Central Government u/s 43 of PMLA published on 05.02.2016:
NOTIFICATION DESIGNATING COURTS OF SESSIONS AS SPECIAL COURTS In exercise of powers conferred by subsection (1) of sec. 43 of the Prevention of Moneylaundering Act, 2002 (15 of 2003) and in suppression of the notifications of the Govt. of India in the Ministry of Finance, Department of Revenue numbers S. O. ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 12 of 28 841 (E), dated the 1st June, 2006, S.O.1901(E), dated the 3rd November, 2006, S.O.309(E), dated the 2nd March, 2007, S.O.447(E), dated the 11th February, 2009, S.O.1159(E), dated the 23rd May, 2012 and S.O.1435(E), dated the 28th June, 2012, and in consultation with the Chief Justices of respective High Courts, the Central Government hereby designates the Court(s) of Session, as mentioned in the Table below, as Special Court(s) for the area(s) specified in the said Table against the said courts for trial of offences punishable u/s 4 of the said Act namely The relevant portion of the Table is extracted here under: Sl. State or Union Court of Session Area specified for trial of No. Territory designated as offence punishable u/s 4 of the Special Court under Prevention of Money the Prevention of laundering Act, 2002 Moneylaundering Act, 2002
33. National Capital All Courts of In respect of their respective Territory of Delhi Session or districts in National Capital Additional Sessions Territory Judges in Delhi A perusal of the column no. 3 of the extracted Table shows that the Central Government has designated 'All Courts of Session or Additional Sessions Judges in Delhi' as Special Courts under PMLA and the column no. 4 of the Table shows that area specified for trial of offence punishable u/s 4 of PMLA for all such courts or Judges, is the very district in which, they are posted in National Capital Territory of Delhi.
Therefore, in view of the aforesaid quoted portions of provisions of PMLA and the notifications, issued and published by the Central Govt., it seems that the jurisdictional facts, in the instant case, ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 13 of 28 are to determine (i) whether this court is competent under PMLA to adjudicate upon the complaint and (ii) whether the complainant is competent to institute the complaint.
7. In the arena of aforecited judgments, quoted provisions of PMLA, notifications issued and published by the Central Government and discussions and observations made above, an inspection and examination of the judicial record, is essential to see, if it contains aforesaid jurisdictional facts empowering this court to adjudicate upon the adjudicatory facts.
"Whether this court is competent under PMLA to adjudicate upon the complaint":
A classical principle of law, which is contemporaneously, apposite and applied, with all its might, is that the jurisdiction of a Court; civil or criminal, only emanates from statutory stipulations; and in no other mode. It is the Legislature only, which is empowered to grant, extend or exclude the jurisdiction of a court; the Judiciary is normally not invested with such powers. Therefore; a Court cannot assume its jurisdiction of its own and it cannot be conferred by consent too. The sublimity and majesty of the principle is perfectly poised in the fact that a judgment passed by a court, without jurisdiction, is nullity.
The Hon'ble Supreme Court, in a case titled as A. R. Antulay; Appellant vs. R. S. Nayak and another; Respondent (1988) 2 SCC 602, has aptly elucidated the aforesaid point in para 36 by citing a judgment titled as Kiran Singh vs. Chaman Paswan (1955) 1 SCR 117 and ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 14 of 28 making observations in para 91; the relevant para no. 36 and relevant portion of the para no. 91 are extracted hereunder for reference:
"Para no. 36 In Kiran Singh vs. Chaman Paswan (1955) 1 SCR 117 at 121 wherein, Venkatarama Ayyar, J. observed that "fundamental principle is well established that a decree passed by a court without jurisdiction is a nullity and that its validity could be set up whenever and wherever it is sought be enforced or relied uponeven at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured by consent of parties".
"Para 91: It is settled position in law that jurisdiction of courts come solely from law of the land and cannot be exercised otherwise. So far as position in this country is concerned, conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature..................... The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by Special Statue. It is thus clear that jurisdiction can be exercised only when provided either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the court to deal with the matter and make an order carrying binding force in the facts."
A judgment passed by a criminal court, without jurisdiction, is nullity because, firstly; it is without authority of law and hence, it has no binding force and secondly; a preceding trial, without jurisdiction (prior to passing of judgment), has a wide range of ruthless ramifications which, fully and fundamentally affect the very foundation of even the most efficient, effective and an advanced legal system. In Indian context, it may be illustrated easily in a Constitutional perspective; the ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 15 of 28 Article 14 of the Constitution of India requires that State shall not deny to any person, equality before the law or the equal protection of the laws within the territory of India. If trial of some persons under PMLA, is conducted by a Special Judge of the area and trial of other persons, similarly situated, is conducted by some other court; not having the jurisdiction as per law, this fundamental right of such similarly situated persons, may be violated; the Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The section 44 (1) of PMLA mandates that an offence committed u/s 4 of PMLA be tried not only by a Special Judge, but by such a Special Judge in whose area, the offence was committed, therefore, trial is to be conducted essentially by the said Special Judge of the area and not by any other Judge or the Court. If trial is not conducted by such Special Judge, it may be inferred that, trial was not conducted as per the procedure established by law. Therefore, fundamental rights of a person guaranteed under Articles 14 and Article 21 of the Constitution may be adversely affected. Nonetheless; it is elementary in criminal law that except few, offences are ordinarily committed against the State therefore, State is considered to be a Saviour of its subjects and responsible to penalize the offenders. If the trial is conducted in some other State (in a court, not having the jurisdiction), and not in the State, where the offence was committed, latter is deprived of the opportunity to prosecute and punish the offenders and fails to deliver justice to its subjects. Hence; 'trial and ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 16 of 28 judgment' without jurisdiction, is nullity.
8. The Parliament has defined jurisdiction of Criminal Courts in Criminal Procedure Code, 1973 (for short "Cr.P.C.") which, in section 4 (1) and 4 (2), stipulates that ordinarily, all the offences under IPC or any other law shall be investigated, inquired into, tried or otherwise dealt with, in accordance with the provisions of Cr.P.C.; the section 4 (2) also stipulates that if any enactment for the time being, is in force, which regulates, the manner or place of investigation, inquiring into, trying or otherwise dealing with offences, mentioned in the said enactment, the same shall be investigated, inquired into or tried or otherwise dealt with in accordance with the provisions of the said enactment.
The section 26 (b) of Cr.P.C. stipulates that if, the said enactment also mentions, by whom the offences mentioned in the said enactment, shall be tried, the offences shall be tried by the said court and when no court is so mentioned, it may be tried either by the Hon'ble High Court or any other court, as is shown in the First Schedule of Cr.P.C.
A conjoint reading of sections 4 (2) and 26 (b) of Cr.P.C. discloses that the said provisions recognize and rest on a general principle of law that a special law, till it remains in force, prevails over the general law.
The relevant portions of section 4 and section 26 of Cr.P.C. are extracted hereunder for reference:
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 17 of 28 "Section 4. Trial of offences under 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, tried, and otherwise dealt with according to same provisions, but subject to any enactment for the time being enforced regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
Section 26.Courts by which offences are triable.Subject to other provisions of this Code,
(a) any offence under Indian Penal Code (45 of 1860) may be tried by ............
(b) any offence under any other law shall, when any court mentioned in this behalf in such law, be tried by such court and when no court is so mentioned, may be tried by ...
(i) the High Court, or
(ii) any other court by which such offence is shown in the first schedule to be triable."
A perusal of the aforesaid provisions of Cr.P.C. shows that the Section 44 (1) of PMLA, is in consonance with Section 26 (b) of Cr.P.C. and it emphasizes on the fact that notwithstanding anything said in Cr.P.C., the Special Court constituted by the Central Government u/s 43 of PMLA, for the area in which offence has been committed, shall try the offences specified in section 4 of PMLA and any scheduled offence connected with it. The Section 44 (1) (b) and 44 (1) (d) of PMLA prescribe the procedure and power of Special Court.
Therefore, it is writ large that Sections 43, 44, 45 of PMLA and notifications issued and published by the Central Govt., regulate the constitution of Special Court, competency of court, place of trial, manner ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 18 of 28 of trial and competency of the complainant to institute a complaint for commission of offence u/s 4 of PMLA.
A conjoint reading of the provisions u/s 4 (2) and 26 (b) of Cr.P.C. and section 44 and 45 of PMLA, manifestly displays that these provisions speak in same timber; the Sections 4 (2) and 26 (b) of Cr.P.C. acknowledge and award the special status to special enactments and the Sections 44 and 45 of PMLA claim, apply and enjoy the pleasure of said special status.
9. A reappraisal of entry at serial no. 33 in column no. 3 and 4 of the Table annexed with the notification issued and published by the Central Govt. on 05th February, 2016 shows that all Court of Sessions or Additional Sessions Judges in Delhi are designated as Special Judges under PMLA and the area specified for trial of offences punishable u/s 4 of the PMLA is according to their respective Districts in NCT of Delhi. Therefore, a perusal of three orders passed by the Hon'ble High Court of Delhi i.e. (i) order of transfer/posting; (ii) order of redesignation of Special Judges on their shifting from various court complexes to Rouse Avenue Court Complex; and (iii) order of carrying work of PC Act from their respective court complexes to Rouse Avenue Court Complex, New Delhi are relevant to see, which District has been allocated to this court by the Central Govt. for trial of offences punishable u/s 4 of the PMLA, the relevant portions of the said orders are hereunder:
(i) The relevant portion of the order dated 13th March, 2019 ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 19 of 28 passed by the Hon'ble High Court of Delhi regarding transfer or posting of Officers of Delhi Higher Judicial Service is hereunder for reference:
"HIGH COURT OF DELHI: NEW DELHI"
No. 10/DHC/Gaz./G1/VI.E2(a)/2019 Dated, the 13th March, 2019 ORDER Hon'ble the Chief Justice and Judges of this Court have been pleased to make the following transfers/postings in the Delhi Higher Judicial Service with effect from 15.03.2019.
S. Name of From To District to Remarks
No. the which
Officer allocated
(Mr./Ms.)
5. Chandra ADJ04, Spl. Judge South Vice Mr. Vijay
Shekhar New (PC Act) West Kumar Dahiya
Delhi, (CBI)02,
PHC Dwarka
A perusal of this order shows that the Presiding Officer of this court was earlier posted as ADJ04, New Delhi, PHC as shown in column no. 3 of the Table and vide aforesaid order passed by the Hon'ble High Court of Delhi, was posted as Spl. Judge (PC Act) (CBI)02, Dwarka and allocated the area of SouthWest District in NCT of Delhi with effect from 15.03.2019, as shown in column no. 4 and column no. 5 of the Table respectively.
(ii) The relevant portion of the order dated 04 th April, 2019 passed by the Hon'ble High Court of Delhi regarding redesignation of the Courts presided over by the Officers of DHJS on their shifting from ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 20 of 28 various court complexes to RACC, New Delhi is hereunder for reference:
"HIGH COURT OF DELHI: NEW DELHI"
No. 17/DHC/Gaz./G1/2019 Dated, the 4th April, 2019 ORDER Hon'ble the Chief Justice of this Court has been pleased to issue following directions:
(i) to redesignate the courts presided over by the following officers of DHJS, on their shifting from various Court Complexes to Rouse Avenue Court Complex with effect from 09.04.2019, as under: S. No. Name of Officer Present Court Redesignated (Mr./Ms.) Court
20. Chandra Shekhar Special Judge [PC Special Judge [PC Act] [CBI]02, Act] [CBI]19, Dwarka, New Delhi Rouse Avenue Court Complex A perusal of the aforesaid order reflects that the Hon'ble High Court of Delhi with effect from 09.04.2019, redesignated this court from Special Judge (PC Act) (CBI)02, Dwarka, New Delhi to Special Judge (PC Act) (CBI19), Rouse Avenue Court Complex, New Delhi.
(iii) The order dated 06th April, 2019 passed by the Hon'ble High Court of Delhi regarding shifting of courts of Special Judge, (PC Act) (CBI) from various court complexes to RACC, New Delhi.
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 21 of 28 "HIGH COURT OF DELHI: NEW DELHI"
No. 21/DHC/Gaz./G1/2019 Dated, the 6th April, 2019 ORDER In continuation of this Court's order No. 17/DHC/Gaz/G1/2019 dated 04.04.2019, the Hon'ble the Chief Justice of this Court has been pleased to issue following directions:
(i) Subject to the exception as indicated in para (ii) below, the Sessions Cases, Criminal Appeals and Criminal Revisions thus far pending as additional work allocated to the existing Courts of Special Judge (PC Act) at different locations of the District Courts shall stand withdrawn from such Courts w.e.f. 09.04.19 and the same shall be allocated by respective District & Sessions Judges to other Courts of Sessions under their control for further proceedings in accordance with law. The Courts of Special Judge (PC Act) which are moving from their existing location to the Rouse Avenue Court Complex w.e.f. 09.04.2019 shall carry with them the remainder work for further proceedings as per law.
(ii) The existing Court of Special Judge [PC Act] [CBI]05, PHC [redesignated as Special Judge [PC Act] [CBI]09, (MPs/MLAs Cases) Rouse Avenue Court Complex] is also the specially designated Court to try cases involving MPs/MLAs. The said Court will carry along all such additional work to the new location at Rouse Avenue Court Complex.
BY ORDER OF THE COURT REGISTRAR GENERAL A perusal of this order, for relevant purposes, reveals that the Hon'ble High Court of Delhi, by this order, directed that w.e.f., 09.04.2019, the Courts of Special Judges, (PC Act) (CBI) functioning at various Court Complexes in NCT of Delhi, shall carry their respective ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 22 of 28 works of PC Act and function at Rouse Avenue Court Complex, New Delhi.
It is axiomatic that the aforesaid orders dated 04 th April, 2019 and 06th April, 2019 passed by the Hon'ble High Court of Delhi do not affect its order dated 13th March, 2019, 'on the point of allocation of area' to Special Judges, PC Act in NCT of Delhi. There was no change in the post; only place of posting was modified by the order of re designation therefore, redesignation only relates to situs of the court and not to allocation of the area.
A conjoint reading of notification issued and published on 05.02.2016 by the Central Government under PMLA and the transfer/posting order dated 13.03.2019 passed by the Hon'ble High Court of Delhi, aptly shows that: (i) this court is duly constituted and notified Special Court under PMLA, (ii) it has territorial jurisdiction for trial of offences u/s 4 of PMLA only over area of SouthWest district in National Capital Territory of Delhi.
The Central Govt. has not constituted this Court as Special Court under PMLA for any particular case; or class; or group of cases.
10. There is nothing in the order of redesignation from which, it may plausibly, be inferred that the territorial jurisdiction of this Special Court has been enlarged or extended beyond its allocated District therefore, it shall not only be improper and unfair for this Court, to assume its jurisdiction beyond allocated District, but may also be ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 23 of 28 transcending the order dated 13th March, 2019 passed by the Hon'ble High Court of Delhi. This is consistent with the general principle observed by the Hon'ble Supreme Court, in the case of J. Jaylalitha vs. Union of India & Anr. (1999) 5 SCC 138 in para no.25 that, 'the Court does not ordinarily, have extra territorial jurisdiction' and in case of A. R. Antulay.. Appellant vs. R.S. Nayak and another; Respondent (1988) 2 SCC 602 in para 91 that, 'it is settled position of law that jurisdiction of court comes solely form law of the land and cannot be exercised otherwise'.
11. Therefore, if the offences u/s 4 of PMLA, in this case, were allegedly committed within the area of SouthWest district in the NCT of Delhi, this court shall have the territorial jurisdiction to entertain and adjudicate upon the complaint and if the offences were not committed within that area, this court shall not have such jurisdiction.
12. The Ld. Special Public Prosecutor for ED has submitted that the scheduled offences were committed in Delhi; the accused were convicted for said scheduled offences in Delhi; the cause of action for offences under PMLA arose in Delhi as the proceeds of crime were received to the accused M/s. RACPL in Mumbai and thereafter, the said amount was used for payment to coaccused Uday Shankar Bhat and many other persons in Delhi; the ED, as per the amended definition of 'offence of moneylaundering' i.e., after addition of explanation to section 3 of PMLA, is only required to prove that the accused were ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 24 of 28 involved in any process or activity connected with proceeds of crime such as its concealment or possession or acquisition or use or projection or claiming the same to be untainted property.
13. It shall be appropriate if the submissions of Ld. Spl. Public Prosecutor for ED are considered and appreciated, in the light of definition of offence of moneylaundering provided under section 3 of PMLA with its explanation which came into effect since 01.08.2019, the same is extracted hereunder for reference:
"Section 3: Offence of Money Laundering: whosoever 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 proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering. Explanation: For the removal of doubts, it is hereby clarified that,
(i) a person shall be guilty of offence of money laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely: (a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property, in any manner whatsoever.
(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever."
ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 25 of 28 It has been submitted on behalf of ED that proceeds of crime were first received to the accused M/s. RACPL in its Citi Bank account at Mumbai.
Therefore, it is obvious that the accused came into possession of the proceeds of crime, on the date, when it was delivered by NDMC in its bank account at Citi Bank, Mumbai; hence, if amended definition of moneylaundering is applied, the activity of the accused connected with proceeds of crime was allegedly 'having possession of proceeds of crime' in its bank account at Citi Bank, Mumbai, which suggests that the offence u/s 4 of PMLA was committed as soon as the accused came into 'possession' of proceeds of crime in its aforesaid Citi Bank account at Mumbai. This explicitly reflects that as per amended definition, if some offence was committed under PMLA, it was committed within the area where the accused M/s RAPCL is having its bank account at Citi Bank, Mumbai.
However, it is observed that as per the complaint, the ECIR was recorded by ED on 08.08.2012 therefore, it is apparent that the investigation with regard to the offences u/s 4 of PMLA was ensued on that date; hence, a natural corollary of the same is that offence under PMLA was committed prior to 08.08.2012. It may be that commission of the offence was continued even thereafter, but there is nothing in the complaint which suggests, 'the place' and 'the period' of continuation of such commission of the offence under PMLA. In such circumstances, it ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 26 of 28 seems that the amended definition of offence of moneylaundering, shall not apply against the accused in the instant case and hence, ED is not only required to show that the accused were involved in any process or activity connected with proceeds of crime such as its concealment or possession or acquisition or use of the proceeds of crime, but also they projected or claimed, the same to be untainted property. The complaint is bereft of such averments. Even if, the averments in the complaint are believed to be true and it is presumed that offence was committed in Delhi, there is no averment in the complaint that the offence was committed within the area of SouthWest district in NCT of Delhi therefore, this court has no territorial jurisdiction to entertain and adjudicate upon the present complaint.
14. In the sphere of aforesaid discussion and observations, since it has already been held that this court lacks territorial jurisdiction therefore, it seems that determination of competency of the complainant to institute the complaint and effect of the order dated 11.11.2014 passed by the Ministry of Finance, Department of Revenue, Govt. of India empowering the Assistant Director to file a complaint u/s 45 of PMLA, visavis the notification of the Central Govt. dated 01.07.2005 empowering exclusively the Director enforcement to file such complaint, is unnecessary, unwarranted and uncalled for and hence, the same is not adverted to.
15. The submissions of Ld. Special Public Prosecutor for ED ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 27 of 28 that if the court reaches to the conclusion that it has no territorial jurisdiction then, complaint may be returned to Ld. Principal District & Sessions JudgecumSpecial Judge (PC Act) (CBI), RACC, New Delhi for assigning the same to the court of competent jurisdiction are not sustainable in view of the provisions u/s 201 of Cr.P.C and hence are rejected.
16. Accordingly, as per procedure prescribed u/s 201 Cr.P.C. r/w section 65 of PMLA, the complaint alongwith the documents, be returned to the complainant for presentation of the same to the proper court as per law.
CHANDRA SHEKHAR Special Judge, CBI19 (PC Act) Rouse Avenue Courts, New Delhi 23.12.2021 ED vs. M/s. Raja Aederi Consultants Pvt. Ltd. & Ors. Page no. 28 of 28