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2025 Supreme(Online)(ATFP) 187
APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI MP-PMLA-447/DLI/2024 (Stay)
FPA-PMLA-5993/DLI/2023 M/s iSec Services Private Limited … Appellant v/s The Deputy Director, Directorate of Enforcement, Delhi … Respondent Advocates/Authorized Representatives who appeared For the Appellant : Counsel appeared For the Respondent : Counsel appeared CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN SHRI V. ANANDARAJAN : MEMBER
FINAL
The Tribunal established a prima facie case of cheating and conspiracy under IPC, upholding the legality of the provisional attachment under the PMLA due to confirmed wrongful gain and loss.
Headnote:(A) Prevention of Money Laundering Act, 2002 - Section 3 - Indian Penal Code, 1860 - Sections 120B and 420 - Appeal challenging order of provisional attachment - Allegations of illegal interception of telecommunication involving wrongful gain and loss - Appeal dismissed by Tribunal upholding prima facie case under PMLA and Sections 120B and 420 IPC due to evidence of a conspiracy between the appellant and officials of NSE to unlawfully benefit the appellant Company. (Paras 1-30)
(B) Criminal Law - Elements of Cheating and Conspiracy - The essential elements of an offence under section 420 IPC require a fraudulent or dishonest inducement to deliver property; section 120B predicates a conspiracy involving an agreement to commit an illegal act - Evidence suggested conspiracy between the appellant and NSE officials for unlawful gains. (Paras 52-59)
Facts of the case:
The appellant, a private limited company, faced allegations of illegally intercepting calls of NSE employees while conducting a study on cyber vulnerabilities, leading to wrongful gains and loss - FIR included various sections of the IPC, Information Technology Act, and Prevention of Corruption Act.
Findings of Court:
The Tribunal found prima facie evidence against the appellant for offences under Section 120B, 420 IPC, and Section 3 of the PMLA, dismissing the appeal on the basis that wrongful gain to the appellant and loss to NSE were established.
Issues: Whether a predicate offence was made under PMLA, the validity of the provisional attachment order, and the existence of conspiracy and cheating.
Ratio Decidendi: The court ruled that the allegations of illegitimate interception of calls constituted a breach of privacy and implicated serious offences under the outlined legal provisions. The nexus between gain and loss due to the contrived arrangements was critical in affirming the case against the appellant.
Result: Appeal dismissed.
ORDER
19.03.2025
1. By this appeal under section 26 of the Prevention of Money Laundering Act, 2002 (in short) the Act of 2002, a challenge has been made to the order dated 21.02.2023 passed by the Adjudicating Authority confirming the provisional attachment order.
2. It is a case where an FIR was registered on 07/07/2022 alleging predicate offence under section 72 of Information and Technology Act of 2000 and 420 IPC , 1860.
3. It was alleged that the appellant Company was incorporated by Smt. Santosh Pandey mother of Sanjay Pandey , former Commissioner of Police, Mumbai and Anand Narayan as Directors. The son of Sanjay Pandey (IPS officer) also remain Director from time to time in addition to Manish Mittal who remain Director of the Company between 20.03.2013 till 01.10.2013. The appellant Company gave undated proposal to National Stock Exchange India Ltd. (NSE) to conduct periodic study of Cyber vulnerabilities. The proposal was processed in NSE. It was followed with work order for conducting periodic study of cyber vulnerabilities at exchange plaza.
4. The work order was issued with a note “kind attention to Mr. Sanjay Pandey ” on 03.06.2009. The instrument was installed by M/s Comptel to monitor/intercept the calls of four PRI lines used by the employees of NSE. The Company submitted copies of transcript of conversation to the top management from time to time. It was however alleged to be without required permission under section 5 of the Indian Telegraph Act, 1885 and without the consent of the employee.
5. The interception of the telephone lines was identified by Ms. Chitra Ramakrishna (DMD) NSE, Mumbai and conveyed to Sh. Ravi Varanasi, Executive Vice President. It was alleged that interception and recording of the calls was without the consent of the employees and thus not only provisions of the Indian Telegraph Act of 1885 but Information and Technology Act were violated. The appellant Company was awarded Rs. 4.54 crore which alleged to be unlawful gain to the Company and unlawful loss to the NSE. The serious allegation of connivance of the officers of NSE with the appellant Company was made.
6. The FIR was thus registered for the offence under section 120 B read with section 409, 420 of IPC , section 20, 21, 24, 26 of Indian Telegraph Act, 1885 and section 13 (2) read with section 13 (1)(d) of Prevention of Corruption Act,1988 apart from section 72 of Information and Technology Act, 2000.
7. The learned representative for the appellant submitted that no scheduled offence is made out against the appellant, thus recording of ECIR and the attachment of the property becomes illegal. A reference of the order passed by the Delhi High Court on the bail application filed by Sanjay Pandey and reported in 2022 SCC online Delhi 4297 has been given. The accused Sanjay Pandey was granted bail by Delhi High Court finding no predicate offence. The Delhi High Court minutely considered the case and found that predicate offence has been alleged under section 72 of the Information and Technology Act of 2000, section 420 of IPC and under Prevention of Corruption Act of 1988.
8. A categorical finding in regard to the offences have been given while granting the bail. The Delhi High Court did not find a case under section 72 of Information Technology Act, 2000 so as under section 420 of IPC . The Delhi High Court did not find even offence under section 13(2) read with 13(1) d of the Act of 1988. The prayer was accordingly made to set aside the impugned order.
9. The learned representative of the appellant made a reference of the charge sheet filed subsequent to the filing of the appeal. The charge sheet is however not part of the record.
10. The argument was raised even in reference to the Section 5 of the Telegraph Act and Information Technology Act. It was stated that the interception of the private lines of the NSE would not be covered under the Telegraph Act. The prayer was accordingly made to set aside the impugned order.
11. T
