Anosh Ekka Vs Directorate of Enforcement (Jharkhand High Court)
It is argued on behalf of the appellant that since both the cases i.e. the present case under PMLA and that under PC Act arise out of the same transaction, therefore, the benefit of Section 427 of the Cr.P.C should have been extended to the appellant. The plea to invoke Section 427 of Cr.P.C. in the present case is misconceived, for the reason that offence under PC Act and that under PMLA are distinct offences and so the provision of this section will not apply. It has been held in Satnam Singh Puransing Gill Vs The State of Maharastra 2009 SCC On Line Bom 52 that the discretion to award concurrent sentence is when the cases which fall in the category at one trial of two or more offences. On a bare reading of this Section, it has no application to the cases where a person is tried and convicted under two or more different trials for different offences.
It has been held in Benson v. State of Kerala, (2016) 10 SCC 307
In terms of sub-section (1) of Section 427, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced.
It is a settled principle that criminal law generally adheres to the principles of proportionality in sentencing. Imposition of sentence without considering its effect on the social order in many cases can render the criminal adjudication as an exercise in futility. Appellant in the present case was none other than an elected representative of the people, who was reposed with faith to discharge his constitutional obligations with the highest degree of probity. Unfortunately, power blinded his wisdom and he indulged in rampant corruption by acquiring movable and immovable property much beyond his known sources of income. The proceeds of crime under a grand design and various contrivances, were projected as untainted by the process of money laundering. The nature of crime, post held by the appellant, does not justify any leniency in sentencing.
On the point of sentence, considering the gravity of offence and the position of responsibility as held by the appellant/accused, the sentence of imprisonment and fine needs no interference by this Court. The learned Court below has recorded adequate and sufficient reasons for awarding sentence which will meet the ends of justice. These are species of crime that strike at the financial foundation of the State and the convict does not deserve any clemency so that the deterrent effect of punishment is not completely diluted. Accordingly, the order of confiscation of crime proceeds is also affirmed.
The Judgment of conviction and sentence passed by the learned Court below is upheld.
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
1. This appeal is preferred against the Judgment of conviction and sentence passed by the special judge, PMLA-cum-CBI, Ranchi in ECIR 01/Pat/09/AD (S), whereby and where under, the appellant has been held guilty for the offence under Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter called PMLA) and sentenced to undergo rigorous imprisonment for seven years and for a fine of Rs. 2 Crores and in default of payment of fine, one year R.I. in additional has been imposed. There is further direction for confiscation/forfeiture of the tainted money/properties of the convict of Rs.22,38,40, 247.92/-.
PROSECUTION CASE
2. Complaint filed by one Kumar Binod on 25.10.2008 is the basis of Vigilance P.S. Case No.26/2008 dated 26.11.2008 registered under Sections 406, 409, 420, 423, 424, 465/120B IPC and Sections 11/13(2) read with Section 13(1)(e) of the P.C. Act, 1988 for accumulation of disproportionate assets accumulated by the accused/ MLA/ Minister, Anos Ekka and Harinarayan Rai.
3. Complainant made allegation of criminal conspiracy, misappropriation, criminal breach of trust, cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount and to have acquired assets disproportionate to his known lawful source of income and also to have acquired lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka.
4. After investigation Vigilance Bureau submitted, interim charge-sheet no 2 1/2009 dated 5.10.2009 u/s 406,409,420,423,424,465/120 B of IPC and section 11/13(2) r/w 13(1)(e) of the PC Act, 1988 for possession of disproportionate assets by the accused MLA’s/Ex-Minister Anosh Ekka and Hari Narayan Rai . During the pendency of the case, further investigation was taken up by the CBI under the direction of this Court passed in W.P.(PIL) No.4700 of 2008 and WP (PIL) No.2252 of 2009, CBI vide order dated 08.2010 wherein direction was given to the CBI to take up investigation of Vigilance P.S. Case No.26/2008. The CBI after re-registering the case as R.C. No .04(A)/20 1 0-AHD-R(B) submitted Charge-sheet no.02/12 dated 27.01.2012 was submitted under Section 109 IPC and 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 against all the accused persons.
5. As per the prosecution case, during check period from 10.3.2005 to 3.2009 Anosh Ekka had acquired assets worth Rs 57.01 Crore, disproportionate to his known sources of income against the pre-check assets of Rs 10,48,827/-. The property so acquired were invested in land as well as deposits in NSC’s KVP etc and by floating a construction company in the name of M/s Ekka Construction Pvt. Ltd and got it registered in the Rural Works Department of the Govt of Jharkhand as Class I A Contractor without fulfilling the eligibility criteria to project the proceeds of crime as untainted income. After investigation the case was found true against the accused Anosh Ekka of acquiring disproportionate assets to the known source of income in his own name and in the name of his family members and relatives and associates.
6. On the basis of FIR No. 26/2008 dated 26.11.2008, the Enforcement Directorate, Patna Sub-Zonal office, Patna registered ECIR/01/PAT/09/AD for investigation of offence under Prevention of Money Laundering Act, against Anosh Ekka and Ors. on 4.9.2009. The Enforcement Directorate filed prosecution complaint and supplementary prosecution complaints under section 4 of the PMLA against Shri Anosh Ekka and Hari Narayan Rai for committing offence as defined in Section 3 of PMLA, punishable under section 4 of the PMLA for the commission of offence of laundering of proceeds of crime . The trial of Hari Narayan Rai was separated vide order 16.1.2012 and only present appellant/accused was put up for trial in the instant case.
7. Out of the offences in which the Vigilance Department submitted charge sheet, Section 420/423/424/120B of IPC, 1860 & Section 13 of the Prevention of Corruption Act 1988 was covered as scheduled offence.
8. The prosecution case in brief is about the acquisition of disproportionate asset to the known sources of income by the accused Anosh Ekka for the check period of 10.3.2005 to 31.3.2009 and of indulging in process of projecting the proceeds of crime as untainted property. During his tenure as Minister, Shri Anosh Ekka was involved in corruption/ misappropriation of public money and thereby acquired assets in crores which included movable and immovable properties in the name of his wife and other
9. Anosh Ekka had filed his nomination for election in Jharkhand State Assembly in the year 2005 and at the time of filing nomination on 1.2005, a declaration of assets including the assets of his wife and dependent was made on affidavit which valued at Rs. 10,48,827/-. At that time he was not even an income tax payee and had no PAN card in his name. He was elected in the year 2005 in Jharkhand State Assembly Election and became Minister of Rural Development, NREP, Transport, Panchayati Raj and Building Construction Department of the Government of Jharkhand from the year 2005 to 2008. It is alleged that during this period by misusing his official position as a public servant, he acquired huge movable and immovable properties either in his name or in the name of his family members, relatives and associates.
10. In nutshell, accused Anosh Ekka had acquired assets Rs.57.01 Crore disproportionate to his known sources of income against the pre-check asset of Rs.10,48,827/- during the check period 10.03.2005 to 31.03.2009.
11. Assets were acquired during the check period by Sri Anosh Ekka in his own name and in the names of his wife Smt. Menon Ekka, M/s Ekka Construction Pvt. Ltd., Sri Jaykant Bara (cousin of Smt. Menon Ekka and Director of M/s Ekka Construction Pvt. Ltd.), Deepak Lakra (Co-villager and Director of M/s Ekka Construction Pvt. Ltd.), Ibrahim Ekka (brother), Gidiyon Ekka (brother), Roshan Minz, nephew, M/s Motorist Inn Pvt. Ltd. (purchased in the names of Smt. Menon Ekka and Sri Jaykant Bara as directors), etc. After Sri Anosh Ekka became a minister, a company was floated in the name and style of M/s Ekka Construction Pvt. Ltd. under directorship of Smt. Menon Ekka and Jaykant Bara. Later, Smt. Menon Ekka dissociated from the company on paper and made Sri Deepak Lakra the director in her place. Sri Jaykant Bara had been the other director of this company throughout. M/s Ekka Construction Pvt. Ltd. got huge work orders from the Rural Development Department (department under the control of Sri Anosh Ekka) and Rural Works Deptt. (Department under the control of Sri Hari Narayan Ray) of Govt. of Jharkhand. But the income declared by M/s Ekka Construction Pvt. Ltd. does not match the assets found in its name. The Income Tax returns and audit reports of this company mention huge amount as trade liability and efforts have been made by the accused to adjust huge assets against this liability. However, the company had not been able to furnish books of accounts. It showed that the claim of trade liability was bogus and not acceptable. Sri Arun Kumar Mishra and Sri Binod Kumar Jaiswal, the Chartered Accountants who signed audit reports for this company and also filed income tax returns for it, stated in their statements made under Sections 161 and 164 Cr.P.C. that complete books of accounts were never made available to them by this company. Sri Mishra also informed the CBI in writing that the company did not furnish him the lists of trade liabilities and loans and advances.
12. Sri Anosh Ekka acquired land in his name in Fatehpur Beri, New Delhi, for which payment was made from the account of M/s Ekka Construction Pvt. Ltd. Also, he was found to have signed on behalf of M/s Ekka Construction Pvt. Ltd. on the sale deed of a house purchased at Gurgaon. Similarly, a house was acquired in the name of Deepak Lakra for which the money was transferred from the account of M/s Ekka Construction Pvt. Ltd. to the account of Deepak Lakra and there-from it went to the seller of the house at Gurgaon. In view of these facts and circumstances, both assets and income of M/s Ekka Construction Pvt. Ltd. have been taken into account for computing the disproportionate assets of Sri Anosh Ekka.
13. Flats worth Rs.9,07,784/- and Rs. 13,56,353/- were purchased by Sri Anosh Ekka in the name of Gidiyon Ekka and Roshan Minz, respectively. Also, investment for Rs. 1 lakh was made in post-office in the name of Gidiyon Ekka. Gidiyon Ekka and Roshan Minz have not been able to reveal from where they earned the money equivalent to the cost of the flats. Sri Roshan Minz did not claim to have filed income tax returns. Sri Gidiyon Ekka’s returns did not reflect sufficient income justifying purchase of the flat.
14. A Scorpio vehicle was purchased in the name of Sri Ibrahim Ekka and huge sum was paid for obtaining choice registration number for this This apart, substantial land worth Rs. 13 lakh had been purchased in his name, in Simdega. The income tax returns of Sri Ibrahim Ekka did not justify these acquisitions and he could not show from which account he withdrew the amount equivalent to the cost price of the car.
15. Five NSCs, each for Rs. 1 lakh, were purchased by Sri Anosh Ekka in the name of Jaykant Bara, Subhashi Ekka, Menon Ekka, Gidiyon Ekka and Ibrahim Ekka on a single date i.e. 30.3.2007. Similarly, five KVPs, each for One lakh, were purchased by him in the name of Sandesh Ekka, Irin Ekka, Menon Ekka, Nisha Minz and Nishant Minz on a single date i.e. 19.7.2008. Smt. Menon Ekka happens to be the nominee in respect of NSCs purchased in the name of Jaykant Bara and her sister Raien Minz happens to be the nominee in respect of the KVP purchased in the names of Sandesh Ekka, Irin Ekka and Menon Ekka.
`16. Huge investments were made by Sri Anosh Ekka in the Post office in the names of Smt. Menon Ekka and Jaykant Bara and these investments were found deposited as security with the Executive Engineers of Rural Works Deptt. and Rural Development Deptt., Simdega on behalf of M/s Ekka Construction Pvt. The income tax return of the relevant period could not justify these acquisitions.
17. The assets found at the end of the check period are as below:- STATEMENT B (ASSETS AT THE END OF THE CHECK PEREIOD) (Only those assets are mentioned which were not available at the start of the check period).
