2021 Supreme(Bom) 1655

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Nitin Jamdar, Sarang V. Kotwal, , JJ.
Shri Anil Vasantrao Deshmukh, - Appellant
Versus
Directorate Of Enforcement & Ors. - Respondents
Criminal Application No. 625 of 2021
Decided On : 29-10-2021

The issuance of summons by the ED under Section 50 of the PMLA is part of the lawful investigation and does not amount to legal or factual malice unless the Applicant can establish otherwise.

Headnote:

The High Court dismissed the Applicant's application seeking to quash summons issued by the Enforcement Directorate (ED) under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) and restrain the ED from taking any penal/coercive action against him. The Court held that the Applicant failed to establish legal or factual malice on the part of the ED in proceeding with the investigation and that the issuance of summons was part of the lawful investigation under the PMLA. The Court also rejected the Applicant's prayer for transfer of investigation to a special investigating team and for audio/video-graphing of CCTV cameras during questioning. However, the Court allowed the Applicant's lawyer to remain present during questioning at a visible distance but beyond the audible range.

Fact of the Case:

The Applicant, a former Home Minister of Maharashtra, was summoned by the ED under Section 50 of the PMLA in connection with an investigation into alleged money laundering. The Applicant challenged the summons and sought various reliefs, including quashing of the summons, restraint on the ED from taking coercive action, and permission to appear through an authorized representative or through electronic mode.

Finding of the Court:

The Court found that the Applicant failed to establish legal or factual malice on the part of the ED in proceeding with the investigation. The Court held that the issuance of summons was part of the lawful investigation under the PMLA and that the ED had the duty to investigate the offence of money laundering. The Court also found that the Applicant, without any valid reason, had refused to cooperate with the investigation by not attending the summonses issued by the authorities.

Issues: 1. Whether the Applicant established legal or factual malice on the part of the ED in proceeding with the investigation? 2. Whether the issuance of summons was part of the lawful investigation under the PMLA? 3. Whether the Applicant was entitled to quashing of the summons and restraint on the ED from taking coercive action? 4. Whether the Applicant was entitled to appear through an authorized representative or through electronic mode? 5. Whether the Applicant was entitled to transfer of investigation to a special investigating team? 6. Whether the Applicant was entitled to audio/video-graphing of CCTV cameras during questioning?

Ratio Decidendi: 1. The Court held that the Applicant failed to establish legal or factual malice on the part of the ED in proceeding with the investigation. The Court observed that the Applicant's arguments were based on the manner in which the summonses were issued and their timings, but that these factors alone did not establish malice. The Court also noted that the Applicant had not provided any evidence of mala fides on the part of the ED officers. 2. The Court held that the issuance of summons was part of the lawful investigation under the PMLA. The Court observed that the PMLA conferred powers on the authorities to investigate the offence of money laundering and that the ED had a duty to carry out the investigation. The Court also noted that there was no interim order passed by any court restraining the ED from proceeding further with the investigation. 3. The Court held that the Applicant was not entitled to quashing of the summons and restraint on the ED from taking coercive action. The Court observed that the Applicant had failed to demonstrate that the summonses were issued beyond the jurisdiction of the ED or were illegal. The Court also noted that the Applicant had not made out a case for the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure (CrPC) to quash the summonses. 4. The Court held that the Applicant was not entitled to appear through an authorized representative or through electronic mode. The Court observed that the ED had the discretion to decide the mode of questioning and that the Applicant had not shown that this discretion was being abused. 5. The Court held that the Applicant was not entitled to transfer of investigation to a special investigating team. The Court observed that the Applicant had failed to establish factual or legal malice in the investigation carried out by the ED. 6. The Court held that the Applicant was not entitled to audio/video-graphing of CCTV cameras during questioning. The Court observed that this was not provided for under any of the provisions of the PMLA.

Final Decision: The Court dismissed the Applicant's application. The Court allowed the Applicant's lawyer to remain present during questioning at a visible distance but beyond the audible range.