MILI GHOSH Vs. UNION OF INDIA

JUDGEMENT

(1.) These are applications under Ss. 397/401 read with Sec. 482 of the Code of Criminal Procedure, inter alia, praying for setting aside the impugned order dtd. 19/9/2018 passed by the learned Judge, Special (CBI) Court No. 1, Bichar Bhawan Calcutta in M.L. Case No. 02 of 2007 under Sec. 45 read with Sec. 3 and Sec. 4 of the Prevention of Money Laundering Act, 2002 (State versus Gopinath Das and Ors.) and the impugned order dtd. 19/9/2018 passed by the said Court in ML Case No. 1 of 2007 under similar provisions, respectively, wherein the petitioner's applications for discharge from the said cases were rejected. As common facts and questions of law were involved, the two revisions were taken up for hearing together.

(2.) Mr. A. Bhattacharyya, learned counsel for the petitioner, submitted as follows. The genesis of the present case were the two letters of complaint lodged with the CBI, by the officials of the State Bank of India and the Oriental Bank of Commerce dtd. 23/5/2006 and 9/6/2006, respectively. It was alleged in the said letters of complaint that one Mr. Gopinath Das, the proprietor of M/s Hindustan International had allegedly entered into a criminal conspiracy with some persons and in furtherance to the said conspiracy had prepared forged and fabricated documents were then submitted to the banks as a result of which a sum of Rs.12,28,22,463.00 was allegedly misappropriated from the State Bank of India and a sum of Rs.6.76 crore was allegedly misappropriated from the Oriental Bank of Commerce. Subsequently, on the basis of the letters of complaint as above referred, a case was registered by the CBI, an investigation was carried out and ultimately a charge-sheet was filed before the learned Judge, 3rdSpecial (CBI) Court, Calcutta against certain persons named therein. It would be pertinent to note that the present petitioner was not named in the letter of complaint, the formal FIR, nor in the charge-sheet. The Enforcement Directorate subsequently carried out a preliminary inquiry into the business affairs of the said M/s Hindustan International. It transpired that there was an agreement dtd. 17/3/2006 between the said Mr. Gopinath Das and the husband of the petitioner, Mr. Subrata Ghosh, by virtue of which the shares of a company known as the Dheklapara Tea Co. Ltd., were sold to the said Gopinath Das. The net sum of money was transferred to the Current Account of the husband of the petitioner, Mr. Subrata Ghosh. The said current account was in the name of Mr. Subrata Ghosh only and the petitioner had no connection with the same. It was not the case of the prosecution that the present petitioner received even a single penny in her account. It was not the case of the prosecution that the applicant knew the principal offender, Mr. Gopinath Das, who according to the case of the prosecution, had siphoned off the funds. Accordingly, the first part of Sec. 3 of the PMLA was clearly not applicable against her. The second part of the provisions of Sec. 3 spoke about the knowledge of committing the crime of money laundering of an accused person. Admittedly it was not the case of the prosecution that the applicant herein had any kind of knowledge regarding the alleged commission of the offence. It was the case of the prosecution that Mr. Gopinath Das has transferred a sum of Rs.2.14 crore to the bank account of one Mr. Subrata Ghosh. Any further transaction from the said account by Mr. Subrata Ghosh, who was the solitary account holder of the current account would loose its character as a tainted money unless and until the knowledge of the beneficiary about the money being tainted was brought on record. It is the case of the prosecution that out of the money that was allegedly given by Mr. Gopinath Das to Mr. Subrata Ghosh, an amount of more than Rs.2.00 lakhs, was given to the Union Bank of India, to foreclose the house building loan, which Mr. Subrata Ghosh availed for the purpose of purchasing a flat at Tollygunge. Admittedly the loan account was in the joint name of Mr. Subrata Ghosh and his wife, Mrs. Mili Ghosh, being the applicant herein. The applicant was the second account holder in the house building loan. In these peculiar circumstances of the case, the bank became the primary beneficiary as it had received its money back. The said company, being the Dheklapara Tea Company Ltd., was public limited company and the present applicant/petitioner was a mere share-holder in it. She was not a director of the company. The opposite parties during the course of their arguments before this Hon'ble Court also produced a document being an alleged money receipt which was issued in favour of the petitioner by her husband Mr. Subrata Ghosh. The said receipt indicated that the husband of the petitioner Mr. Subrata Ghosh had received a sum of Rs.6,51,000.00 in cash, from the petitioner. It was contended by the prosecution that such receipt would indicate that the petitioner was somehow connected with any tainted money. This was for the purpose of causing prejudice to the applicant and nothing else. The petitioner had been arraigned as an accused in this case on the basis of presumption only, which had no place in the eye of law. Three judgments were relied on by the prosecution. In the case of P. Chidambaram versus Directorate of Enforcement, 2019 (9) SCC 24, Sec. 26 of the Indian Penal Code was dealt with in absence of a specific definition of "reason to believe" in the PML Act. This judgment supported the case of the defence and not the case of the prosecution. This case was related to a bail application and is not applicable in connection with this case. So far as the other two decisions were concerned, i.e., The Deputy Director, Directorate of Enforcement and Ors. versus Axis Bank and Ors., 2019 (2) Crimes 181(Del) and J. Sekar vs. Union of India (2018) 246 DLT 610, both the cases were relating to confiscation or attachment of property. Confiscation of a property and a criminal trial against a person are two different aspects having two different kinds of requirements and as such, these two judgments were not applicable. The consequences of the failure of prosecution for the scheduled offence upon the offence of Money Laundering was no longer res integra, as had been held by the Hon'ble Supreme Court of India in the case of Vijay Madanlal Choudhary & ors. versus Union of India & Ors., decided on 27/7/2022. Such view was also re-iterated by the Hon'ble Supreme Court in the case of Parvathi Kollur & Anr. Versus State by Directorate of Enforcement, as decided on 16/8/2022. Although the prosecution had harped on Sec. 24 of the Act, they had remained strangely silent about the knowledge, which was one of the essential elements for constituting an offence of Money Laundering under Sec. 3 of the PML Act. The entire prosecution case did not reveal any element of knowledge which could be attributed to the present petitioner and as such, the question of her prosecution for the offence of Money Laundering as defined in Sec. 3 of the Act, did not and could not arise.

(3.) Mr. Kundalia, learned counsel representing the respondents, submitted as follows. One Gopinath Das, after discounting bills of lading, purchased the Dheklapara Tea Estate from the said Subrata Ghosh and transferred a sum of Rs.2,14,00,000.00 into his account. The said sum was transferred into the account of Subrata Ghosh through various transactions for a period from January 4, 2005 to January 30, 2006. Out of the said sum of Rs.2,14,00,000.00, a flat in the joint name of Subrata Ghosh and Mili Ghosh was purchased in Kolkata for a total consideration value of Rs.17,25,000.00. A payment of Rs.1,50,000.00 was made as per receipt dated March 29, 2006. A further amount of Rs.6,51,610.00 was paid by Mili Ghosh to Subrata Ghosh evidenced in money receipt. The accused petitioner had shown in her balance sheet on 31/3/2006 that the value of the shares held by her in the Dheklapara Tea Company was valued at an amount of Rs.2,20,000.00 and held cash in hand for an amount of Rs.6,25,685.53. In addition to the above, reliance was placed upon the statement of the current account held by Subrata Ghosh which had various transaction and which in the absence of appropriate narration could not be collated and was treated as coming squarely within the purview of Sec. 3. The provisional attachment confirmation order dtd. 23/9/2009, clearly mentioned that with regard to the property in question, no evidence was produced by the petitioner herein to show that the source of the money used to buy the property was anything other than laundered money originating from Gopi Nath Das that flowed into the account of Subrata Ghosh, who was the husband of the petitioner. Also there was a finding in the aforesaid provisional attachment confirmation order that even though the petitioner had taken a loan purportedly to finance the flat in question, there was no evidence that the petitioner actually paid that amount to the seller or to her husband Subrata Ghosh for payment to the seller. It was an admitted fact on behalf of Subrata Ghosh vide the statement in page 283 of the RUD that he transferred shares in Dheklapara Tea Estate held by him and his family members to Gopi Nath Das for Rs.2.25 crore. This showed that the family members including the petitioner had the requisite knowledge and intention to obtain money from Gopi Nath Das, which brought them under the ambit of money laundering. Further, Subrata Ghosh admitted that the proceeds of crime received from Gopi Nath Das were used to purchase properties including the flat in question, as per page 300 and 301 of the RUD. In Vijay Madanlal Choudhary versus Union of India (2022 SCC Online SC 929), it was held that possession of proceeds of crime constituted offence of money laundering. The provisions of PMLA were attracted when proceeds of crime were involved in any process or activity including mere possession of such proceeds of crime. Sec. 24 of PMLA applied to both proceedings before the Adjudicating Authority and the Special Court. If the involvement of a person in any process or activity connected to proceeds of crime was established, then the onus shifted on that person to rebut the legal presumption that the proceeds of crime were not involved in money laundering. Thus, when there was a clear finding by the Adjudicating Authority that the petitioner had not been able to show that the source of the funds used to buy the property in question as distinct from the proceeds of crime originating from Gopi Nath Das, then the onus to rebut the presumption that the petitioner had not contravened Sec. 3 of the PMLA shifted on to the petitioner herself. Thus, prima facie satisfaction for the Court existed to presume that such proceeds of crime were involved in money laundering as under Sec. 24(b). Consequently, the petitioner had to rebut such presumption in the course of trial, and could not bypass such procedure under law by way of a discharge application.