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2017 Supreme(Mad) 20
IN THE HIGH COURT OF JUDICATURE AT MADRAS
B. RAJENDRAN, J.
M/s. Advantage Strategic Consulting Pvt. Ltd represented by its Director Ravi Visvanathan - Petitioner
Versus
Union of India represented by Secretary Government of India Ministry of Finance Department of Revenue and Ors. - Respondents
Writ Petition No. 40240 of 2015 and Writ Petition Nos. 31288, 32272, 32273, 32274, 32275, 34118, 35844, 35845 and 36736 of 2016
Decided On : 05-01-2017
For the Petitioners: Mr. R. Thiagarajan, Mr. R. Parthiban, Mr. Gopal Subramaniam, Ms. C. Uma, Mrs. Nalini Chidambaram, Mr. R. Parthiban, Mr. R. Krishnamoorthy, Mr. R. Parthiban, Mr. R. Parthiban
For the Respondents: Mr. Anand Grover, Mrs. G. Hema
Headnote:
Writ petitions challenging the maintainability of the writ petitions before the High Court in cases related to the 2G Spectrum Scam. The High Court held that it lacked jurisdiction to entertain the writ petitions as the investigation and prosecution of the 2G Spectrum Scam were being monitored by the Supreme Court.
Fact of the Case:
Multiple writ petitions were filed before the High Court challenging the maintainability of the writ petitions in cases related to the 2G Spectrum Scam. The petitioners argued that the High Court had no jurisdiction to entertain the writ petitions as the investigation and prosecution of the 2G Spectrum Scam were being monitored by the Supreme Court. The respondents, including the Enforcement Directorate, argued that the writ petitions were maintainable before the High Court and that the Supreme Court had not ousted the jurisdiction of the High Court.
Finding of the Court:
The High Court held that it lacked jurisdiction to entertain the writ petitions as the investigation and prosecution of the 2G Spectrum Scam were being monitored by the Supreme Court. The High Court noted that the Supreme Court had passed several orders directing the Central Bureau of Investigation (CBI) and the Enforcement Directorate to investigate and prosecute the 2G Spectrum Scam. The High Court also noted that the Supreme Court had directed that no court should pass any order that would impede the investigation and prosecution of the 2G Spectrum Scam.
Issues: 1. Whether the High Court had jurisdiction to entertain the writ petitions challenging the maintainability of the writ petitions in cases related to the 2G Spectrum Scam.
Ratio Decidendi: The High Court held that it lacked jurisdiction to entertain the writ petitions as the investigation and prosecution of the 2G Spectrum Scam were being monitored by the Supreme Court. The High Court reasoned that the Supreme Court had passed several orders directing the CBI and the Enforcement Directorate to investigate and prosecute the 2G Spectrum Scam. The High Court also reasoned that the Supreme Court had directed that no court should pass any order that would impede the investigation and prosecution of the 2G Spectrum Scam.
Final Decision: The High Court dismissed the writ petitions as they were not maintainable before the High Court.
By consent of counsel on either side, the writ petitions are taken up for final disposal.
2. The only point raised and argued in all these writ petitions is as regards the maintainability of the writ petitions before this Court. A preliminary objection has been raised by the respondents as regards the maintainability of these writ petitions by contending that the issue involved in these writ petitions relate to 2G Spectrum Case and therefore, this Court has no jurisdiction to entertain these writ petitions. It is further contended on behalf of the respondents that cases pertaining to 2G Spectrum are being monitored by the Honourable Supreme Court of India and no writ petition should be filed in any of the High Courts in the Country. Therefore, the respondents pleaded that these writ petitions can only be dealt with or adjudicated by the Honourable Supreme Court and this Court has no jurisdiction to exercise the power conferred under Article 226 of The Constitution of India to grant any relief in these writ petitions. Thus, the arguments advanced by counsel on either side was mainly confined to whether this Court has got jurisdiction to entertain these writ petitions as the dispute involved in these writ petitions relates to 2G Spectrum scam. Therefore, these writ petitions are taken up for disposal to adjudicate whether the writ petitions are maintainable or not.
WP No. 40240 of 2015:-
3. In this writ petition, it is mainly argued that the receipt of the sum of Rs.26,00,444/- by the petitioner company - Advantage Strategic Company Limited (ASCPL) an Indian Company (AVTL) from another Indian Company (ASCPL) in Indian rupee can be the basis for investigation under the Foreign Exchange Management Act, 1999. It is also contended that if the money laundering involves less than Rs.30 lakhs, it cannot be brought under the purview of Prevention of Money Laundering Act (in short PMLA) and therefore the question of invocation of the provisions of PMLA will arise only if the amount involved is more than Rs.30 lakhs. Even according to the enforcement directorate, the alleged transaction in question is only Rs.26,00,444/- which is less than Rs.30 lakhs and therefore the Enforcement Directorate has no jurisdiction to investigate the case. It is further contended that the FIPB approval was granted on 20.03.2006 to M/s. Global Communication Services Holdings Limited, Mauritius by the then Finance Minister. The payment of Rs.26,00,444/- was made by AVTL to ASCPL on 11.04.2006. At that time, when Mr. Sivasankaran was owning ATVL. The genesis of the Aircel Maxis deal is the complaint filed by Mr. Sivasankar, since it is the case of Mr. Sivasankaran that Mr. Maran abused his authority and compelled him to sell the Aircel Shares to Maxis Communication of Malaysia. Therefore, the payment of Rs.26,00,444/- by AVTL owned by Mr. Sivasankaran to ASCPL on 11.04.2006 cannot be linked to FIPB approval on 20.03.2006. It is further contended that the Endorsement Directorate will have jurisdiction only if a scheduled offence is committed. The occurrence of a scheduled offence called the 'predicate offence' is a condition precedent for initiating investigation into the offence of money laundering under the provisions of PMLA. Predicate/scheduled offences are normally investigated by agencies such as Police, Customs, SEBI, NCB and CBI etc., under the respective Act. In this case, the Central Bureau of Investigation (CBI) is the authority which conducted an enquiry into the grant of FIPB approval. However, CBI is yet to file any report on completion of investigation before any Magistrate under Section 173 of Criminal Procedure Code. According to the petitioner, in the absence of a report by the CBI in the grant of FIPB approval and in the absence of a report under Section 13 of Cr.P.C. the Enforcement Directorate will have no jurisdiction to investigate into circumstances leading to the grant of FIPB approval and consequently into the payment of Rs.26,00,44
