IN THE HIGH COURT OF JUDICATURE AT MADRAS  (Special Original Jurisdiction)

 

W.P.No.     18213            of 2022

V.Senthil Balaji

S/o.P.Veluchamy,

123, Rameswarapatti,

Manmangalam Post,

Karur.                                                                                                                 …  Petitioner

-V/s-

 

Karthik Dasari,

Deputy Director

Directorate of Enforcement,

Ministry of Finance,

Through its Deputy Director

Chennai –II Zonal Office,

Chennai – 600 006                                                                     …Respondent

 

AFFIDAVIT FILED BY THE PETITIONER

I, V.Senthil Balaji, son of Mr.P.Veluchamy, Hindu, aged about 45 years, residing at No.123, Rameswarapatti, Manmangalam Post, Karur District, do hereby solemnly affirm and sincerely states as follows:-

1. I most humbly submit that I am the Petitioner herein and as such I am well acquainted and conversant with the facts and the circumstances of this case and I am competent to swear this present affidavit.

 

2. The present writ petition is being preferred seeking a relief to call for the entire records in connection with the summons No.PMLA/Summon/CEZO2/2022/126 issued by the Respondent dated:29-04-2022 in ECIR /MDSZO/21/2021 and quash the same as illegal, unconstitutional, non-est in the eye of law and consequently declare the investigation in ECIR/MDSZO/21/2021 as illegal and unconstitutional and for further reliefs.

 

BRIEF FACTS OF THE CASE:

3. The Petitioner was issued with summons dated: 29-04-2021 by the Respondent in connection with the impugned proceedings in F.No.ECIR/MDSZO/21/2021. The Petitioner was asked to appear in person or through his authorized representative with relevant

documents          enclosed                   with                   the          summons                    on

04-08-2021. The list of documents annexed are duly submitted by the petitioner to the Respondent, the Petitioner was informed that the impugned proceedings was initiated against the Petitioner on the predicative and scheduled offences     in connection with C.C.No’s.19/2020, 24/2021 and 25/2021 pending on the file of Additional Special Court for criminal trial against Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai. The Petitioner was asked to depose the details of the said cases and the

Petitioner has revealed the details of the said cases as per his knowledge.

 

4. It is most humbly submitted that the Respondent has issued summons on various dates commencing from

04-08-2021, 07-10-2021, 17-03-2022, 01-04-2022,              29-04-2022 and the Petitioner has appeared for the summons dated 07-10-2021 and submitted all relevant documents annexed to the summons, and further submitted to the Respondent that he has no involvement in the alleged crime and proved his innocence and requested to drop the proceedings as the same is arbitrary. To the subsequent summons the Petitioner’s authorized representative appeared before the Respondent.

 

5. It is pertinent to explore the details of the cases and the accused in the above cases, the details are as follows: –

 

(a) The allegations of all the above cases are similar and one and the same viz. during the

year 2014-2015 a notification was issued by the State Government of Tamil Nadur for recruitment of Drivers and conductors in the transport department. It was alleged in the said calendar cases that there were malpractices in the process of recruitment and appointments.  Based on the complaints lodged by Devasagayam, Arulmani and V.Ganesh Kumar three different FIRs came to be registered by the Central Crime Branch, Chennai for the alleged offences under

Sections i.e.

 

(i)FIR No.441/2015 U/s. 406, 420 r/w 34 IPC;

 

(ii)FIR No. 298/2017 U/s. 406, 420 and               506 (i) IPC;

 

and (iii) FIR No.344/2018- U/s.406, 420 & 506 (i) IPC.

 

• Consequent to the registration of the said FIRs the investigation was proceeded by the investigation agency and the final reports were filed in the respective FIRs on various dates.

 

• As for as the Petitioner is concerned he was arrayed as Accused No.1 the subject matter

of C.C.No.19/2020, 24/2021 and 25/2021, it is pertinent to mention that among 3 C.C’s, C.C.No.25 of 2021 was quashed by the

Hon’ble                   High                 Court                       of             Madras                       in

Crl.O.P.No.13374 of 2021 by virtue of an order dated 30-07-2021.

 

• DETAILS OF PENDING CCs AND PRESENT STAGE

Sl. No.	FIR No & Date & Police Station	Present CC No.	Name of the Court in which CC is pending	Hearing Date before Spl.Court	Stage
1.	Crime No.441/2015 29-10-2015 CCB-I	24/2021	Spl.Court for MPs & MLAs	28-07-2022	By virtue of an order dated 01-10-2021 passed      in Crl.O.P.No.15122/2021 the Hon’ble High Court  of Madras has stayed all further proceeding in C.C.No.24/2021 until further orders.
2.	Crime No.15/2016 10-08-2016 CCB-I	Nil	Nil	Nil	Quashed by the Hon’ble Madurai Bench of Madras High Court by order dated 19-09-2016 passed in Crl.O.P.(MD)No.14067 of 2016.

 

 

3.	Crime No.298/2017 09-09-2017 CCB-I	19/2020	Spl.Court for MPs & MLAs	28-07-2022	By virtue of an order dated 18-04-2022 passed      in Crl.R.C.No.224/2021 the Hon’ble High Court has stayed all further proceedings in C.C.19/2020 until further orders.
4.	Crime No.344/2018 13-08-2018 CCB-I	25/2021	Spl.Court for MPs & MLAs	Calender case Closed on 08-09-2021	Quashed       by        the Hon’ble High Court of Madras vide order dated 30-07-2021 in Crl.O.P.No.13374/2021.

 

6. Hence as per the mandatary requirement under Section 2 (Y) of the PML Act and Section 3 of PML Act does not attract to the Petitioner.

 

7. The Petitioner has been falsely implicated in Crime No’s.441/2015, 15/2016, 298/2017 and 344 of 2018. The petitioner has no involvement in the commission of the alleged offences. The allegations in the complaint are vague and plain reading of the statements in the complaint would not disclose any offence. The statements in the complaint are intentional, motivated, false, frivolous, vexatious and without any basis.

 

8. The Petitioner has been falsely implicated due to political vendetta. The petitioner is in active politics for more than 2 decades and has been a member of legislative assembly for the past five consecutive terms. In the year 2016, there was a split in the party after the demise of the then Chief Minister. The Petitioner has joined a different faction at that point of political change, not accepting the views of the petitioner, a case was foisted in Crime No.15 of 2016 registered by the Inspector of Police, District Crime Branch, Sivagangai against him to defame him, though the Petitioner has no involvement in the said crime.

 

9. The said Crime No.15/2016 was challenged by the petitioner in Crl.O.P.(MD)No.14067/2016 before the Hon’ble High Court at Madras and the Hon’ble High Court vide order dated 19.09.2016 was pleased to quash the same inasmuch as there was no material or evidence against Petitioner. Being aggrieved by the quashing of the Crime No.15 of 2016, at the instance of a third party, a Special Leave Petition and the Hon’ble Supreme Court of India vide order dated 05.01.2017 was pleased to dismiss the same. After the dismissal of the Special Leave Petition, the judgment and order dated 19.09.2016 quashing the Crime

No.15/2016 has attained its finality.

10. After quashing of Crime No.15/2016 and dismissal of the Special Leave Petition, another crime was registered against the Petitioner on 09.09.2017 being Crime No.298/2017 (CC No.19 of 2020) with the same set of allegations and in relation to the same period in respect of which Crime No.15/2016 was quashed earlier. There were no materials or substances in the complaint against the Petitioner, however, in spite of the same, the investigation agency proceeded with the investigation and submitted a final report on 07.06.2018. Again, the Petitioner was constrained to challenge the same. It is a well settled law that no subsequent FIR is permitted to be registered based on the same set of allegations in respect to which earlier FIR is registered. However, in order to satisfy political vendetta and to defame and settle score with the Petitioner, multiple FIRs were registered against him illegally for the same and similar occurrence.

 

11. It is most humbly submitted that the Petitioner was a former transport minister during the period from 2011 to 2015 and the allegations levelled against him in the above said 4 calendar cases are alleged to have received money for appointments of drivers and conductors in the transport department through other accused in the calendar cases. It is further submitted that the allegations levelled against the petitioner is due to political rivalry and to fix him to settle scores under the pretext of pending crimes. Not budging to the demands of the rival party, all the above cases were foisted against the petitioner and charge sheet was filed. It is further submitted that the Petitioner was arrayed as A1 in C.C.No.25 of 2021 though he has “nil” involvement in the affairs of the appointments.

 

12. The Petitioner further submits that the co-accused in

C.C.No.25/2021 namely B.Shanmugam has challenged the final report filed in C.C.No.25/2021 before the Hon’ble High Court of Madras in Crl.O.P.No.13374/2021. The said B.Shanmugam has stated that he has entered into a memorandum of compromise with the de-facto complainant namely K.Arulmani way back in the year 2019 and the said settlement was reported to the investigation agency, without adhering to the request of the de-facto complainant and the said B.Shanmugam, a motivated investigation was proceeded by the agency and filed a final report on 12-04-2019, the said

B.Shanmugam and de-facto complainant was shocked about the intentional charge sheet and reported to the Hon’ble Court that the same shall be quashed in terms of the memorandum of compromise between the parties.  Considering the quash petition of B.Shanmugam and K.Arulmani, the Hon’ble High Court was pleased to quash the entire proceedings in C.C.No.25/2021.

 

13. The Petitioner humbly submits that the Petitioner has no involvement in the selection process as alleged, the transport department consisting of board of directors, the vacancies and recruitment process are governed by the board of directors. The process of notifications are issued by the board of directors, followed by a recruitment committee selects appropriate meritorious candidates following the roaster system, the petitioner has no control over the board.

 

14. The Petitioner humbly submit that the Metropolitan Transport Corporation(Chennai) Limited is registered under the companies act and its certification is being No.6088/1971. The Registered company after incorporation has formed its Memorandum of Articles of Association with its objects mentioned therein, the liability of the members are limited, the share capital of the company was started with Rs,285 crores divided into 28,50,00,000/- equity shares of Rs.10/- each, the board of directors are –

 

1. The Governor of Tamil Nadu,

 

1. the Special Secretary to Government of Tamil

Nadu, Transport Department,

 

• the Director of Tamil Nadu State Transport

Department,

 

1. Joint Secretary to Government of Tamil Nadu,

Finance Department,

 

1. the Chairman of Tamil Nadu Electricity Board, Officers on Special Duty are all IAS officers working in the Government of Tamil Nadu along with Director of Technical Education, Madras and Principal Technical Teachers Training Institute, Madras. The share capital, control and allotment of shares, Directors, Proceedings of Directors, powers and duties of Directors, audits, indemnity etc are part of memorandum of Articles of association. Hence from the Memorandum of Articles of Association and certificate of incorporation it is crystal clear that the entire board is governed by the officials of Government of Tamil Nadu and the Petitioner has no involvement in the company affairs nor he is a member of the governing board. The development of the company such as taking policy decisions and other formation of transport units and appointments are also the part of the Memorandum of Article of Association, in where the Chairman of the Board is the ultimate authority and the decision of the Chairman is final, the Directors are appointed/ nominated by the Governor of Tamil Nadu and the Governor of Tamil Nadu has been given with power to appoint and remove.

 

15. In clause 90 (a) of the Memorandum of Article of Association which speaks about the sitting fees of Directors, Managing Director and Managing Directors for attending the meeting of board of directors or a committee or sub-committee in order to take decision into the company affairs. Hence from the

Memorandum of Articles of Association, the time to time management of the company and decisions have been taken only by the board of directors. There is “nil” involvement of the petitioner in this regard, all the decisions governing the board, its development, recruitment process, interviewing committee and appointments are made only through the board and the petitioner has no role to play in the process of appointment.

 

16. The Respondent has wrongly construed and misconceived, as if there is a possibility of involvement by the petitioner, the facts remains that

the petitioner has no role to play in the board and the company, the decision of the board are taken independently by the directors of the board. Hence, logically, and legally it is impossible for the petitioner to look into the affairs of the board and his involvement in the board. This being the case the recruitment process which is a baseless allegation against the petitioner. For the simple reasons that the recruitment notification/advertisement in the year

2014 was issued by the General Manager of Transport Department i.e. M.T.C. and the vacancies were notified by MTC. All the following proceedings such as scrutinizing the applications, certificate verification, eligible appointments were short listed and appointed by the Board of Directors/Managing Director of MTC- a public Sector undertaking of Government of Tamil Nadu.

 

17. The appointing authorities are categorized based on the posts i.e. Managing Director of the Board or

General Manager or the powers delegated person.  While this being the case, the predicted crime against the petitioner has no basis for formation of a crime. The entire case was foisted against the petitioner to wreck vengeance.

 

18. The petitioner most humbly submits that there is a common service rule for appointments, the department which has special rules under ChapterVII for appointments in the department, again the decisions of recruitment/appointment is taken on the board meeting and the ultimate decision of the board of directors.

 

19. The Petitioner humbly submits that the registration of ECIR is based on the alleged scheduled offence and identification of proceeds of crime, in the instant case it is pertinent to note that the petitioner has not acquired the proceeds of the crime, has not concealed the material evidence, does not possess the proceeds of the crime, have not acquired any illegal proceeds and have not predicted as untainted property. To make it short the petitioner has no involved in any alleged crime and have not acquired any benefit out of the said appointments.

 

20. It is further submitted that the de-facto complainant K.Arulmani filed an affidavit before this Hon’ble Court in Crl.O.P.No. 13374/2021 and averred that the case was proceeded with an intention to settle political scores and disputed the statements in the complaint and further denied the involvement of any other persons in the complaint. While the factual scenario

is being so the petitioner’s involvement is nowhere stated in the complaint as per the version of de-facto complainant and does not constitute a cognizable offence and does not attract the provisions of Prevention of Money Laundering Act.

 

21. A plain reading of the complaint in C.C. No.25/2021 would state there was some understanding between B.Shanmugam and K.Arulmani, which lead to incorporation of allegations against persons who are not even remotely connected, but predicted to make out a case for scheduled offence and the said scheduled offence was also quashed by the Hon’ble High Court and at present there are no allegations or offences pending against the petitioner. Hence the impugned proceedings initiated by the Respondent is vexatious and non-est in the eye of law and liable to be declared as illegal and arbitrary.

 

22. With regard to C.C.No.19/2020 a Criminal Original Petition has been filed by Accused No.3 namely R.Sahayarajan seeking a relief to quash the C.C., on the ground that he is no way connected to the allegations of the complaint and he has been falsely implicated in the said C.C. The de-facto complainant in the C.C. viz. V.Ganesh Kumar jointly filed a quash petition as the offence is relating to the charge sheet are compoundable, the said Ganesh Kumar along with 20 list witnesses jointly filed a memo consent to the quash petition, all the list witnesses filed independent affidavits before this Hon’ble Court. Considering the case of the parties, this Hon’ble Court granted interim stay towards all further proceedings in C.C.No.19/2020 and the same has been periodically extended and on 18-04-2022 the stay has been confirmed until further orders. It is peculiar to note that in connection with the C.C.No.19/2020 in FIR No.298/2017, there were two complaints one is on 06-07-2016 with certain facts alleging the involvement of one Sasikumar and Sahayarajan, were the said Sasikumar collected money and handed over to Sahayarajan, since the money was not paid back the complaint has been lodged. After a lapse of 5 months, a developed complaint has been lodged on 26-12-2016 with malafide against Senthil Balaji and others. An FIR in Crime No.298/2017, dated 09-09-2017 was registered against 4 accused on the instigation of the earlier ruling party to implicate the petitioner as an accused, since he has shifted his political party, to wreck vengeance against him the final report came to be filed and it is motivated and malafide.

 

23. With regard to C.No.24/2021, a case was registered on the basis of the complaint from one Devasagayam in Crime No.441/2015, the

investigation agency registered the case against               12 accused, one Gopi alleged to have lost his money in similar transaction lodged a complaint along with 108 others on 07-03-2016. The said Gopi approached this Hon’ble Court in Crl.O.P.No.7503/2016 seeking a direction to register his complaint, on 20-06-2016 this Hon’ble Court was pleased to dispose of the petition filed by Gopi directing the investigation agency to investigate the complaint of Gopi along with crime No.441/2015 and further directed to monitor the same by the Deputy Commissioner of Police, Central Crime Branch.

 

24. The investigation was carried out by the Assistant Commissioner of Police, Central Crime Branch and a final report was filed in C.C.No.3627/2017 against 12 named accused, the investigation revealed that the petitioner has no involvement in the alleged crime. Strangely after a lapse of two years of final report, while the trial was on process one R.B.Arun Kumar approached this Hon’ble Court seeking further investigation in C.C.No.3627/2017, by virtue of an order dated 27-11-2019 this Hon’ble Court issued a direction to the investigation agency to conduct further investigation in C.C.No.3627/2017. After the direction of this Hon’ble Court a further investigation was conducted by the Central Crime Branch and filed a final report on 01-04-2021 in C.C.No.24/2021 excluding all the accused in previous charge sheet. The charge sheet in C.C.No.24/2021 was instigated by the earlier ruling party to wreck vengeance against the Petitioner and his brother, the charge sheet filed by the investigation agency is malafide, malice, illegal, arbitrary, intentional and motivated.

 

25. It is most humbly submitted, since the alleged charge sheet was against the complaint of the De-facto complainant and statements of the de-facto complainant, the de-facto complainant namely

Devasagayam filed a petition under section               482 Cr.P.C. seeking a relief to conduct a de-nova reinvestigation in C.C.No.24/2021. It was his specific case that the de-facto complainant and his son lodged complaint against one Baskar, Kesavan and others and the investigation agency deliberately left the involved persons in the crime and filed a charge sheet without following the principles of law settled in Bhagawant Singh –Vs- Commissioner of Police reported in 1985 (2) SCC 537 followed by various judgements of this Hon’ble Court.

 

26. The de-facto complainant filed Crl.O.P.No.15122 of 2021and the same was heard by this Hon’ble Court and was pleased to pass the following order: –

 

“14. The learned Senior counsel submitted that the sum and substance of all the victims, is that the investigation in this case not properly conducted. Further the respondent police and the lower Court had failed to follow the guide lines of the Apex Court, wherein the complainant and the defacto complainant are to be issued notice, if there is deletion of name and offence. Hence the investigation in this case conducted in a deficit manner and the petitioner’s grievance ought to be redressed. In view of the same, this Court finds that there is prima facie case made in favour of the petitioner and inclined to admit this Criminal Original Petition.”

 

Considering the prima facie case made out on behalf of the de-facto complainant, on 01-10-2021 the Hon’ble High Court was pleased to grant an order of interim stay towards all further proceedings in

C.C.No.24/2021. Hence it is pertinent to mention here

that the entire proceedings in C.C.No.24/2021 is stayed until further orders.

 

27. It is most humbly submitted that the above said Gopi filed a impleading petition in Crl.O.P.No.15122/2022 and made a statement that on the instance of his complaint dated 07-03-2016, the Hon’ble High Court Madras passed an order to conduct a fair and proper investigation on the monitoring of Deputy Commissioner of Police and the investigation was conducted and a final report came to be filed, such being the case, Gopi made a statement that he was called for enquiry prior to filing of charge sheet in C.C.No.3627/2017 and others were not even called for enquiry and it is most peculiar to note that Gopi along with 108 others were not even called for enquiry and their statements were not recorded in C.C.No.24/2021.

 

28. It is most humbly submitted that the further investigation was misconceived and malafide and the complaints of de-facto complainant and Gopi was given a complete go-bye and totally a false case was filed on the instigation of the rival parties to settle scores and wreck vengeance. The charge sheet No.24/2021 is a complete motivated and intentional report filled with all malafides and the Hon’ble High Court is adjudicating the merits of the matter and the manner in which the reports were filed, hence it is submitted that the C.C.No.24/2021 shall not be taken into account of any investigation with the respondent, as the same is being adjudicated before the Hon’ble High Court of Madras and considering the prima facie of the case of malafides, this Hon’ble Court has granted interim stay towards all further proceedings and the report in C.C.No.24/2021 cannot be referred to.

 

29. It is further submitted that on the instance of one R.B.Arun Kumar, the further investigation was conducted and even the said R.B.Arun Kumar was not called for enquiry during the further investigation and R.B.Arun Kumar also filed a intervening application to express his grievance before this Hon’ble Court, now it is evident that the Central Crime Branch has not acted as per the directions of the Hon’ble Madras High Court, but proceeded in accordance with their own whims and fancies and submitted a final report intentionally including the name of the Accused No.1. Hence a clear malafide has been attributed and there cannot be any reference to the C.C. and the investigation of the respondent cannot be permitted in law. Hence the same shall be quashed at the threshold.
30. The allegations in the complaint are groundless, vague and there is no material to proceed against the Petitioner, but to please the earlier ruling party the investigation agency included the name of the Petitioner.

 

31. While so, without any basis, the allegations were made against the Petitioner, who he is not even remotely connected with the offences alleged. It is submitted that the rival party have instigated third parties to lodge complaints against the petitioner, the allegation made against the Petitioner are alleged and foisted only after the change of political faction by the Petitioner. The petitioner has not committed alleged offences as alleged and predicted by the investigation agency by fabricating their own statements inducing the de-facto complainant and the same is evident from the affidavits and statements of the De-facto complainant and the list of witnesses.

 

32. The affidavits of the de-facto complainant and list witnesses would prove that the allegations are false, frivolous and motivated under the instigation of earlier ruling party. The Hon’ble Courts are taken to a task by the earlier ruling party by foisting repeated cases for the same set of facts and allegations against the proposed parties in order to settle scores and for not surrendering to their political demands.

 

33. The investigation agency has excluded all the named accused in the FIR No.441/2015 and also the list witnesses but filed a motivated investigation report in C.C.No.24/2021 and the same is under challenge before the Hon’ble High Court of Madras in Crl.O.P.No.15122/2021 by the de-facto complainant. The FIR and charge sheet is taken at its face value, shows that the petitioner had no knowledge of the trail of money involved in the proceeds of crime. In the absence of such allegations and material attributing knowledge to the petitioner, the proceedings against the petitioner are liable to be quashed and the petitioner ought not to be forced to undergo the rigmarole of a long criminal trial. Thus, there is nothing to implicate the petitioner with criminal conspiracy, if there is nothing to show any circumstances give rise to a conclusive or irresistible inference of involvement between the petitioner and one or more other persons to commit an offence on which the prosecution relies, if any, cannot be held to be adequate for connecting the petitioner with the commission of the crime of criminal conspiracy.

 

34. The ECIR registered by the respondent is based upon the CCB case. However, the facts involved and the allegations in both the cases are same and offences alleged are substantially same, which are also scheduled offences under PMLA. The petitioner, being accused in the CCB case, the statement of the petitioner and the production of documents by him, as insisted upon by the respondent under the impugned summons, would compel the petitioner to give incriminating statement and documents under compulsion, thereby violate the protection available to him under the Constitution of India as well as under Criminal Procedure Code.

 

35. It is stated that the impugned summons is issued in exercise of powers under Section 50 of PMLA and Section 63 of PMLA provides for punishment for giving false information or for failure to give information etc. Further Section 22 of PMLA raises a presumption that records of property produced by a person is presumed to be belonging to such person and the contents of the record are true etc. Hence, reliance is placed upon Article 20(3) of the Constitution of India, which provides that no person accused of any offence shall be compelled to be a witness against himself. Thus, the petitioner state that as he is alleged to be an accused in the CCB case and by virtue of the impugned summons, the respondent is forcing and compelling the petitioner to appear and give statement and that disobedience of the same is also a punishable offence. Hence, the petitioner has a reasonable apprehension that any question asked by the respondent during interrogation will incriminate the petitioner and that will have a material bearing on the CCB case as well as on the ECIR.

 

36. It is further submitted that Section 50 of PMLA, which empowers the first respondent to summon any person to give evidence and produce documents, does not include an accused person involved in any scheduled offence, as otherwise, it would be ultravires Article 20(3) of the Constitution of India. Hence, petitioner is seeking a relief to declare the same as unconstitutional.

 

37. It is humbly submitted that the scope of investigation of the respondent is restricted to the probe into the aspects of proceeds of crime and subsequent moneylaundering only. It is specifically stated that the role of the respondent is to investigate the aspects of proceeds of crime derived from the commission of scheduled offence and the subsequent moneylaundering and not to investigate predicate offences. In the instant case there is no incriminating evidence against the petitioner and the proceeds of the crime is not identified by the respondent, simply the investigation is nonspecific and no basis.

 

38. The present impugned proceeding is manifestly attended with a malafide and maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner with a view to spite him due to private and personal grudge.

 

39. The Petitioner states that the Petitioner has no connection to the proceedings in ECIR/MDSZO/ 21/2021 and seems to have been roped into the same, solely due to the fact that the Petitioner’s name has been arrayed as an accused in the final report filed in C.C.No.24 of 2021, as the Petitioner is in no way related to the case and is being subjected to harassment by the authorities by unnecessarily being dragged into the dispute, in spite of the said C.C.No. 25 of 2021, dated:07-04-2021 as against the Petitioner and all other accused being quashed. A Third Party to the entire criminal proceedings namely P.Dharmaraj was instigated to file a Special Leave Petition before the Hon’ble Supreme Court of India in

S.L.P(Crl)No.1354 of 2022 against the order dated:

30-07-2021, though the third party is neither victim, complainant nor a list witness. C.C.No.19 of 2020 was stayed and C.C.No.24 of 2021 is also stayed.

 

40. The Petitioner states that the proceedings initiated by the Respondent in ECIR/MDSZO/21/2021 in so far as the Petitioner herein deserves to be restrained as the same is illegal and malafide.

 

41. It is humbly submitted that the Respondent has filed three miscellaneous petitions in Crl.M.P.Nos.20053, 20054 and 20055 of 2021 before the Additional Special court for criminal trial against the Members of Parliament and Member of Legislative Assembly of Tamil Nadu seeking certified copies of documents in order to proceed with the investigation connected with C.C.No. 19 of 2020, 24 and 25 of 2021. By virtue of an order dated 09-11-2021, the Learned Trial Judge was pleased to reject the request of the Respondent. The request made by the Respondent before the trial court is to furnish listed documents which were unmarked before the trial court. Against the order of the trial court, the respondent preferred a criminal original petition in Crl.O.P.No. 5725, 5726 and 5727 of 2022, the above said case was listed before the Hon’ble Division Bench of the Madras High Court and after hearing the respondent the Hon’ble Division Bench was pleased to pass a common order dated:

30-03-2022.

 

42. It is most humbly submitted that the case of the Respondent before the Hon’ble Division Bench in the above said Criminal Original Petition was that, a case in ECIR No.21/2021 was registered and the investigation was initiated by the Respondent and the Respondent was not able to proceed with the investigation without the availability of the listed documents which were sought before the Trial court.

 

43. A specific case was made out by the Respondent before the Hon’ble Division Bench in the said Criminal Original Petition that the foundation for the investigation under the PMLA Act initiated against the Petitioner and others is based on the material gathered by the police in the scheduled offence and without the availability of the copies of those documents guilty cannot be brought to proceed under the act. Considering the submissions of the respondent, the Hon’ble Division Bench of the Madras High Court granted an order setting aside the order of the trial court in refusing the unmarked documents and allowed the Criminal Original Petition filed by the Respondent.

 

44. Aggrieved by the order of the Hon’ble Division Bench of this Hon’ble Court one M.Karthikeyan, Accused No.3 in C.C.No.24 of 2021 preferred a Special Leave Petition before the Hon’ble Supreme Court of India in SLP (Crl.)No. 3941 of 2022 and by virtue of an order dated 19-04-2022 the Hon’ble Supreme Court was pleased to grant the following order:-

 

“4. In the meantime, further proceedings pursuant to the order dated 30-03-2022, passed by the High Court of Judicature at Madras in Crl.O.P. No.5726 of 2022, shall remain stayed” 

 

45. It is humbly submitted that the specific plea of the respondent before the trial court and the High Court is that they are not able to conduct or proceed with the investigation of ECIR/MDSZO/ 21/2021 and it is just and necessary for the respondent to have the listed documents for conducting the investigation or the investigation would be paralyzed to proceed under PMLA Act.

 

46. As per rule 231(3) of Criminal Rules of Practice, 2019 certified copies of photo copies of unmarked documents shall not be given, the rule is a standalone rule that implies to everybody and anybody and a standalone rule which prohibits issuance of unmarked documents. In the above said Criminal Original Petitions the requested documents by the Respondent were unmarked and disputed by the accused in the case and the above said rule is a legal bar for grant of any copies of the documents.

 

47. It is humbly submitted that since the Hon’ble Supreme Court of India in the above said case stayed all further proceedings pursuant to the order dated 30-03-2022, the respondent is not entitled for the listed documents, based on which the respondent is supposed to proceed the investigation as per his own case, in-spite of the stay granted by the Hon’ble Supreme Court, the respondent is at present proceeding the investigation without any available documents.

 

48.It is most humbly submitted that the respondent has issued a summon to the petitioner on 29-04-2022 asking the petitioner to appear before the respondent on 13-05-2022 at 11.30 A.M. along with the documents as per the schedule. The documents annexed in the schedule were furnished to the Respondent on previous appearance on 01-09-2021 such as Aadhaar Card, details of bank accounts, copy of affidavit filed in the quash petition before the High Court and mobile numbers etc, again these documents were annexed

to the schedule. The petitioner repeated request to the respondent to know the nature of the case connected to ECIR/MDSZO/21/2021, on his appearance before the Respondent.

 

49. The Petitioner was told by the respondent that the prosecution under PMLA Act was launched based on CC No.19/2020, 24 and 25 of 2021 pending on the file of Additional Special court for criminal trial of cases against Members of Parliament and Member of Legislative Assembly of Tamil Nadu. It is most humbly submitted that all the above CC’s are challenged before the Madras High Court and the Madras High Court has quashed C.C.No. 15 of 2016 and C.C.No.25 of 2021, the Hon’ble High Court of Madras stayed all further proceedings in C.C.No. 24 of 2021 and C.C.No.19 of 2020. All the calendar cases foisted in connection with ECIR/MDSZO/ 21/2021 are sub-judice and pending adjudication before the High Court of Madras. Hence the basis of case for proceeding under PMLA Act are the above said cases and the same are stayed by the Hon’ble High Court of Madras.

 

50. The case of the Respondent is based on the above said CC’s and the supported documents in the C.C’s. Admittedly the CC’s and the documents to be furnished to the Respondent are stayed by the High Court and the Hon’ble Supreme Court respectively, hence the proceeding under PMLA Act cannot be conducted by the Respondent without the basis being furnished to the Respondent. In the history of the judiciary such malafide proceeding cannot be allowed to proceed, that too a proceeding under Section 50 of PMLA Act which is deemed to be a judicial proceeding and judicial proceedings are certainly be followed with all facilities of principles of natural justice, hence the present proceedings in connection with ECIR/MDSZO/21/2021 cannot be allowed to proceed.

 

51. It is humbly submitted that against the proceedings of the Respondent in ECIR/MDSZO/21/2021, one B.Shanmugam has filed writ petition before this Hon’ble Court in W.P.No.12159/2022 seeking relief to forbear the respondent from proceeding with the investigation in ECIR/MDSZO/21/2021 on the file of the

Respondent without furnishing the copy of the ECIR/MDSZO/21/2021 and connected documents to the petitioner based on the Petitioner representation dated:02-05-2022 as the same is in violation of Article 21 guaranteed under the Constitution of India and considering the case of the Petitioner, on 06-05-2022, the Hon’ble High Court was pleased to grant an order of interim injunction restraining the respondent, his men, agent or any one claiming on behalf the respondent, from in any manner proceeding the investigation in ECIR/MDSZO/21/2021 for four weeks.

<

52. It is most humbly submitted that the impugned order dated 29-04-2022 received by the Petitioner on

30-04-2022 was not duly certified for the reason that the impugned order has been sent through mail and the Petitioner is not in possession of the certified copy.  Hence a prayer has been sought seeking dispense with the production of certified copy of the impugned order challenged herein.

 

53. Prima facie case and balance of convenience lies entirely in favor of me for grant of interim orders. Serious prejudice and irreparable hardship would be caused to me, if the interim stay of operation of the impugned proceeding is not granted, on contra no prejudice will be caused to the Respondent.

 

54. The Petitioner states that with no other alternative efficacious remedy available, the petitioner is constrained to file the present writ petition under Article 226 of the Constitution of India, against the illegal, arbitrary proceedings in F.No.ECIR/ MDSZO/21/2021 of the respondent is being challenged on the following grounds:-

GROUNDS

 

1. The said impugned proceedings has been initiated as against the Petitioner is illegal and violative of the fundamental rights guaranteed under Article

21 of the Constitution of India.

 

1. Secondly, that the summons issued and the ECIRs are vitiated by malafides and malice, and where malafides and malice, abuse of power and political vendettas on the part of the authorities are demonstrated, this Court in the exercise of its writ and inherent jurisdiction shall pass an order protecting the liberty of the citizens.

 

2021. There is no specific overtact or statements against the petitioner by either of the parties much less the list witnesses in support of the final report in C.C.No.25 of 2021. There is no material against the petitioner to constitute an offence under Money Laundering Act. Necessary elements constituting an offence under money laundering is absent, therefore the impugned proceedings and continuation of such investigation is illegal and non-est in the eye of law and liable to be declared unconstitutional.

 

1. The petitioner states that, other than the materials collected by the Central Crime Branch, the Enforcement Directorate did not collect, nor did any further investigation to collect or they cannot collect additional evidence to charge against the petitioner with the offence. According to the act, the enforcement department can only proceed as per the predicative and schedule offence prescribed and defined under section 2(u), 2(y) and section 3 of the PML Act.

 

1. Thus, there is nothing to implicate the petitioner with Criminal Conspiracy, if there is nothing to show any circumstances give rise to a conclusive or irresistible inference of conspiracy between him or other persons to commit an offence, if any, cannot be held to be adequate for connecting the petitioner with the commission of the crime of criminal conspiracy, evaluation of the entire subject matter, there is nothing to implicate the petitioner under the Act.

 

1. The petitioner demonstrates a clear case of malafide and malice, there is nothing offensive against the petitioner, no incriminating evidence or a crime pending against the petitioner, despite the same the petitioner is being dragged in to a unlawful investigation against the statute. Hence the same is liable to be declared as unconstitutional. The scheduled offences are not made out and the charge sheet is quashed against the petitioner and therefore, and in consequence thereof, there cannot exist anymore scheduled offences for the purpose of prosecution under sections 3 and 4 of the PML Act. In view of the same there is no material to proceed against the petitioner.

 

1. Lack of sufficient Evidence. There is nothing incriminating surfaced on the part of the petitioner, the evidence on record is not adequate to launch prosecutable case against the petitioner beyond reasonable doubt to establish that he was involved in the alleged offences. The chance to prove the allegations even for the purpose of provisions of PMLA in the Court are bleak.

 

1. The state investigation has not established the allegations levelled against the petitioner. On the basis of statement of witnesses of LW1 to 14 and documents collected during the investigation, there is no sufficient evidence to launch prosecution against the petitioner, for the offences of Cheating or Criminal misconduct. As per the oral and documentary evidence, the allegations in the FIR to the effect that the involvement of the petitioner obtaining corresponding wrongful gain is not substantiated with prosecutable evidence. Hence the impugned proceedings cannot sustain. Thus, it is clear that the FIR and charge sheet with respect to schedule offence registered by the Central Crime Branch with respect to proceeds of the crime has been closed.

 

1. Nothing is adduced or available on record to proceed against the petitioner, the reasonable belief is thus impaired, the reasonable belief of money laundering the unaccounted money by the respondent is unfound. Consequently, the Reasonable Belief becomes baseless and is mere speculation of the Deputy Director. Such a belief cannot be justified and sustained. In the absence of such basic material, the reasonable belief entertained by the Deputy Director specifically forming the reasonable belief that the accused laundered their unaccounted money in conspiring with the other accused in laundering the unaccounted money, cannot be legally tenable. It is therefore, that the reasonable belief formed by the Deputy Director in this regard cannot be sustained, the same having been not based on any specifically material and the same is merely surmises, conjectures and speculation.

 

30. Therefore, for lack of identity of the source of collected money, it could not be reasonably believed by the Deputy Director (ED) that the unaccounted money is connected with the commission of offence under PMLA. The investigation cannot proceed on the basis of preponderance of probabilities, the Hon’ble high court of Madras in its well-considered order dated 30.07.2021 observed as follows:

 

           “Para.12 “………… as regards A1 and

A2 are concerned, they had given assurance that the appointment order would be issued to the victims, but there is no material to show that A1 and A2 directly involved in the transaction. The other victims namely LW7 to LW11 did not hand over the cash to the accused seeking job. It was to LW1. Further in this case, the appointment order or any other documents in respect of the transactions were not produced. Hence, the allegations seem to be general and vague in nature.”

 

1. The investigation agency was unable to collect any incriminating material against the petitioner and the entire proceedings was vitiated, from the materials collected by the Agency, they themselves are prima facie not satisfied that the offence under PMLA can be proved beyond reasonable doubt and hence the impugned proceedings are malafide and without any basis, if it is allowed to proceed, it will not secure the ends of justice, hence the same liable to be declared as unconstitutional.

 

1. The investigation of the respondent may also be quashed since it is a clear abuse of the process of the court, and the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm and the allegations are absurd and inherently improbable, it is bereft of basic foundation for initiating a proceeding under the PMLA Act.

 

1. There cannot be “mechanical lodging” of an enforcement case information report (ECIR) as the PMLA requires that there must be some indication of the act of money laundering and projecting the proceeds of crime as untainted, there cannot be mechanical lodging of ECIR, or a verbatim business, opening to a threat of investigation without anything more, in the instant case on hand the respondent has acted malafide without any basis and foundation of proceeds of crime.

 

1. Obtaining or holding money illegally is an offence under the Indian Penal Code. This would be called the predicate offence under the PMLA. To constitute a charge under the PMLA, the accused must do something in addition to the predicate offence, such as attempting to legitimize the illegal money. Therefore, an ECIR specifying the additional steps is necessary under the PMLA. The aim of the PMLA was to curb illegally obtained money through drug

trafficking, in the instant case it is entirely unrelated offences had been added as predicate offences.

 

1. What was sought to be criminalized as the offence of money laundering was not the mere acquisition, use or possession of proceeds of crime, but its ‘conversion’ or ‘transfer’ for the purpose of either ‘concealing, or disguising the illicit origin of the property’ or of assisting any person who has been involved in the commission of the predicate offence to “evade the legal consequences of his action”, the ingredient to prosecute the petitioner under the act is absent.

 

1. PMLA was enacted in response to India’s global commitment (including the Vienna Convention) to combat the menace of money laundering. Instead, rights have been “cribbed, cabined and confined”.

 

2002. That the investigation in the impugned proceedings of the Respondent is without jurisdiction, premature and ultra vires the provisions of Prevention of Money Laundering Act, 2002.

 

2021. That the Petitioner had not indulged in any allegations as alleged by the investigation agency in C.C.No.19/2020, 24/2021 and 25/2021.

 

1. The Petitioner is yet to be even charged in the alleged scheduled offences, let alone establishment of the Commission of such alleged scheduled offence by the trial court. Without the establishment of the predicate offence there can be no question of the respondent proceeding with the investigation against the Petitioner. No offence under the schedule of Prevention of Money Laundering Act is established.

 

1. The offences alleged to be the scheduled offences is not offences that falls within the ambit of the Prevention of Money Laundering Act. The invocation of the Prevention of Money Laundering Act in the present case is premature and in undue haste.

 

1. That advertence to the relevant provisions of the Prevention of Money Laundering Act would reveal that without a “scheduled offence”, the provisions of the money laundering statute cannot be attracted. This is apparent from Section 3, 2 (u) and 2(y) of the

PMLA which require that money laundering occurs when the proceeds of crime from a scheduled offence are sought to be projected as untained. The Central Crime Branch is yet to even prima facie establish the charge of commitment of a scheduled offence by the petitioner.

 

1. The trial of the offence under the Prevention of Money Laundering Act can never precede the trial of the schedule offences as the prosecution needs to establish the case, one is having committed scheduled offences has acquired the property through proceeds of crime and unless that is established, any trial which proceeds under the Prevention of Money Laundering Act would be prematured and that if it proceeds then the court will have to assume that the accused is guilty for the scheduled offences which would be against the spirit of the act and the same would tantamount to double jeopardy, and the same is unconstitutional.

 

1. The facts emanating from the record in the instant case when viewed with the salient provisions of Prevention of Money Laundering Act would depict a complete abuse and misuse of the process of law.

 

1. Hence, no specific act has been attributed to the petitioner in the scheduled offence, no “Proceeds of Crime” connected with the said scheduled offence have been identified to be in possession of the petitioner.

 

1. Indubitably, the Respondent have miserably failed to even point out a remote link or connection of the money sought to be attached is the “Proceeds of crime” as contemplated under the act. Thus, the entire proceeding are without any substance whatsoever.

 

1. Be that as it may, on the facts of the case, there is absolutely no basis to infer that the petitioner had in any way directly or indirectly attempted to indulged knowingly assisted or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime. In absence of such material in possession initiating an investigation against the

Petitioner is unwarranted, illegal and unconstitutional.

 

1. Grave prejudice is thus caused to the petitioner violating his fundamental rights guaranteed under Constitution of India without following the procedure established by law and failure of justice occurred at every stage. The Petitioner has been deprived of his reputation without following the “Procedures established by law”.

 

1. Beyond the charge sheet, which is under challenge before the High Court, there is no other material collected by the Respondent to proceed the investigation against the Petitioner, there is no reason to believe that the Petitioner has involved in money laundering as per Section 3 of the Prevention of Money Laundering Act.

 

1. The investigation agency was unable to collect any incriminating material against the petitioner and the entire proceedings was vitiated, from the materials collected by the Agency, they themselves are prima facie not satisfied that the offence under PMLA can be proved beyond reasonable doubt and hence the impugned proceedings are malafide and without any basis, if it is allowed to proceed, it will not secure the ends of justice, hence the same liable to be declared as unconstitutional.

 

1. Thus, for commission of an offence of money- laundering, there should be a scheduled offence and out of that offence, the accused must have derived or obtained proceeds of crime and having obtained such proceeds, must have projected or claimed it as untainted. The principle of statute is absent in the instant case.

 

1. Thus, “Proceeds of Crime” is the essence and an indispensable element of the offence of moneylaundering. It is the core constituent of the offence. Without the existence of proceeds of crime, there cannot be any commission of an offence of moneylaundering.  It is only when “proceeds of crime” is projected or attempted to be projected as untainted property, the offence of money laundering arises.

 

1. The Petitioner crave leave of this Hon’ble Court to urge any other grounds at the time of hearing.

 

For the reasons stated in the above, it is prayed that this

Hon’ble Court may be pleased to: –

 

• dispense with the production of the original impugned summon in Summon No.PMLA/ SUMMON/CEZO2/2022/126 issued by the Respondent dated: 29-04-2022 in F.No. :ECIR

/MDSZO/ 21/2021;

 

• pass an order of ad-interim stay, against the proceedings of the Respondent in

F.No.ECIR/MDSZO/21/2021, pending disposal of the writ petition; and

 

• Issue a Writ or order in the nature of Certiorarified Mandamus calling for the entire records in connection with the Summon No.PMLA/ SUMMON/CEZO2/2022/126 issued by the Respondent dated: 29-04-2022 in F.No. :ECIR /MDSZO/ 21/2021 and quash the same as illegal, unconstitutional, non-est in the eye of law and consequently declare the investigation               in ECIR/MDSZO/21/2021 as illegal and unconstitutional and pass such or other order or orders as this Hon’ble Court may deem fit and proper in the interest of the justice and thus render justice.

 

 

 

Solemnly affirmed at Chennai  }  …Before me, on this the day of     day of July,} 2022 and signed his name in    }

my Presence                         }

Advocate, Chennai