‘Complaint filed by ED cannot survive when co-accused has been acquitted and Trial Court’s judgment has not been challenged till date’: Delhi HC quashes PMLA case against doctor earlier acquitted in kidney transplantation racket case
Justice Sudhir Kumar Jain [15-01-2024]

Read Orders: JEEVAN KUMAR v. DY. DIRECTOR DIRECTORATE OF ENFORCEMENT (CRL.M.C.5229/2013-DEL HC)

and

DR. JEEVAN KUMAR v. PRABHAKANT (CRL.REV.P. 504/2012 & CRL.M.A. 16239/2012- DEL HC)

Tulip Kanth

New Delhi, January 18, 2024: Considering the fact that one of the co-accused, a doctor by profession, was acquitted in a case whereby he was accused of making money from his involvement in an illegal racket of kidney transplantation, the Delhi High Court has quashed the Enforcement Case Information Report in the PMLA case.

The issue before the Single-Judge Bench of Justice Sudhir Kumar Jain was if in case an accused is acquitted/discharged in a predicate offence, in that eventuality, whether the prosecution initiated by the respondent/ED can be allowed to be continued or is liable to be quashed.

The factual background of the case was that an FIR was registered under section 420 of the Indian Penal Code, 1860 and sections 18/19 of the Transplantation of Human Organs Act, 1994 at P.S. Palam Vihar, Gurgaon. The investigation of the abovementioned FIR was entrusted to CBI and consequently, a case was registered under sections 326/342/417/465/473/ 307/506/120B IPC and sections 18/19/20 of TOHO Act. After conclusion of investigation, the final report was filed and the trial was conducted.

It was primarily alleged that Dr. Jeevan Kumar, along with others, was involved in illegal racket of kidney transplantation and committed various offences including the offence punishable under section 307 IPC and the offences punishable under sections 18/19/20 of TOHO Act which are scheduled offences under PMLA. It was also alleged that illegal kidney transplantation was the only occupation of Dr. Jeevan Kumar and his entire earnings were from this source only.

The respondent/ED registered the ECIR based on the alleged income derived by Dr. Jeevan Kumar from his criminal activity and the co-accused persons including the petitioner had been alleged to have assisted him in projecting it as untainted property. The trial court acquitted Dr. Jeevan Kumar of all the charges framed against him. The same had not been challenged and therefore, attained finality.

It was the petitioner’s case that in view of the fact that the co-accused Dr. Jeevan Kumar had been acquitted by the trial court, the present complaint filed by the ED was not maintainable. The Counsel prayed that the complaint filed by the respondent/ED be quashed along with consequential proceedings arising therefrom stated to be pending before the concerned court.

On the contrary, the Central Government Standing Counsel appearing for the ED submitted that in view of the fact that one of the co-accused had been acquitted in respect of the predicate offence, the present complaint couldn’t be quashed. Reliance was placed upon the order passed by the Supreme Court in Directorate of Enforcement V Gagan Deep Singh to submit that the issue whether proceedings under PMLA would survive upon acquittal/discharge of the accused in a scheduled offence was still pending before the Supreme Court. It was submitted that the present petition be adjourned sine die till the decision of the Supreme Court on this issue.

The Bench placed reliance upon Vijay Madanlal Choudhary vs. Union Of India (supra) wherein it was held that if the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money- laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.

Considering all the factual and legal aspects, the Bench said, “…the complaint filed by the respondent/ED and the consequential proceedings cannot survive. Considering that the co-accused Dr. Jeevan Kumar has been acquitted by the trial court vide judgment dated 22.03.2013 and that the said judgment has not been challenged till date, there can be no offence of money laundering under section 3 of PMLA against the petitioner.”

Thus, the Bench quashed the ECIR along with all consequential proceedings arising therefrom stated to be pending before the concerned court.