Introduction
The Supreme Court of India has delivered a significant judgment reinforcing that money laundering under the Prevention of Money Laundering Act (PMLA) is a continuing offense that persists as long as proceeds of crime are concealed, used, or projected as untainted property. In the case of Pradeep Nirankarnath Sharma versus Directorate of Enforcement & ANR, a bench comprising Justice Vikram Nath and Justice Prasanna B. Varale has clarified crucial aspects of money laundering law, particularly regarding its temporal application when predicate offenses occurred before the PMLA came into force.
Understanding the Legal Framework of PMLA and Money Laundering
Definition and Scope of Money Laundering Under Section 3
The Prevention of Money Laundering Act, 2002 (PMLA) was enacted with the primary objective of preventing money laundering and confiscating property derived from or involved in such activities. Section 3 of the PMLA, which defines the offense of money laundering, states:
“Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.”
The Explanation to Section 3, added through subsequent amendments, provides further clarity:
“(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:—
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property, in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.”
Proceeds of Crime: The Foundation of Money Laundering
The term “proceeds of crime” is central to understanding money laundering. Section 2(1)(u) of the PMLA defines it as “any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property.” The concept encompasses any property generated through criminal activities listed as scheduled offenses under the PMLA.
The Concept of Continuing Offense in Money Laundering
Distinguishing Continuing Offenses from One-Time Offenses
A continuing offense is fundamentally different from a one-time offense. As explained by the Supreme Court in State of Bihar v. Deokaran Nenshi & Anr.:
“A continuing offence is a type of offence which is subject to the element of continuance. It is also easily differentiated from an offence that takes place once and for all. It is a kind of offence that is a result of failure to obey or follow any rules or attached requirements and also involves certain penalties. The liability of such an offence continues until the rule, or its attached requirement is obeyed or followed.”
In the context of money laundering, this distinction is crucial. While the predicate offense (like corruption or fraud) might be a one-time act, the subsequent handling of the proceeds derived from that crime can continue indefinitely, creating an ongoing offense.
Money Laundering as a Continuing Offense: The Judicial Evolution
The concept of money laundering as a continuing offense has evolved through judicial pronouncements. In Hari Narayan Rai vs Union of India & Ors., the Jharkhand High Court observed:
“What is being targeted by Section 3 and another provisions of the Act is the ‘laundering of money’ acquired by committing the scheduled crimes and, therefore, it would be the date of ‘laundering’ which would be relevant. The ‘laundering’ as used in Section 3 comprises of involvement in any process or activity by which the illicit money is being projected as untainted. Thus, the relevant date is not the date of acquisition of illicit money but the dates on which such money is being processed for projecting it untainted.”
The Pradeep Sharma Case: Facts and Supreme Court’s Reasoning
Background of the Case
Pradeep Nirankarnath Sharma, a former Gujarat IAS officer, was accused of generating proceeds of crime during his tenure as Collector by receiving bribes and engaging in corrupt practices. He sought discharge from PMLA proceedings, arguing that the alleged criminal activities leading to the generation of proceeds of crime occurred before the PMLA came into effect on July 1, 2005, or before certain offenses were included in the PMLA schedule.
Supreme Court’s Stance on the Continuing Nature of Money Laundering
The Supreme Court rejected Sharma’s arguments and held:
“It is well established that offences under the PMLA are of a continuing nature, and the act of money laundering does not conclude with a single instance but extends so long as the proceeds of crime are concealed, used, or projected as untainted property. The legislative intent behind the PMLA is to combat the menace of money laundering, which by its very nature involves transactions spanning over time.”
The Court further elaborated:
“The law recognizes that money laundering is not a static event but an ongoing activity, as long as illicit gains are possessed, projected as legitimate, or reintroduced into the economy. Thus, the argument that the offence is not continuing does not hold good in law or on facts.”
The Court relied heavily on its earlier judgment in Vijay Madanlal Chaudhary v. Union of India (2023), where it had established:
“The offence of money laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence… The criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money laundering under the 2002 Act.”
Implications of the Judgment for PMLA Enforcement
Strengthening the Temporal Reach of PMLA
This judgment significantly enhances the temporal scope of the PMLA. Even if the predicate offense occurred before the PMLA came into force, or before a particular offense was included in its schedule, the continued possession, use, or concealment of the proceeds of crime after the enactment of the PMLA would constitute the offense of money laundering.
Economic Offenses and Stricter Judicial Approach
The Court emphasized the need for a stricter approach in cases involving economic offenses:
“The illegal diversion and layering of funds have a cascading effect, leading to revenue losses for the state and depriving legitimate sectors of investment and financial resources. It is settled law that in cases involving serious economic offences, judicial intervention at a preliminary stage must be exercised with caution, and proceedings should not be quashed in the absence of compelling legal grounds.”
Further, it noted:
“Given the evolving complexity of financial crimes, courts must adopt a strict approach in matters concerning economic offences to ensure that perpetrators do not exploit procedural loopholes to evade justice.”
The Contrasting View: Delhi High Court’s Interpretation
It’s important to note that there have been contrasting views on this issue. The Delhi High Court in Mahanivesh Oils & Foods Pvt. Ltd. vs. Directorate of Enforcement had earlier taken a different stance:
“The central issue in the present case is not on whether the scheduled offence was committed, but whether the attachment under Section 5 of the Act can be sustained where the principal offence as well as the offence of using its proceeds is alleged to have been committed prior to the Act coming into force.”
The Delhi High Court had held that the proceeds of crime which had come into possession and projected and claimed as untainted prior to the Act coming into force would be outside the sweep of the Act. However, the Supreme Court’s recent judgment seems to have overridden this interpretation by emphasizing the continuing nature of money laundering offenses.
Conclusion: Reinforcing PMLA’s Role in Combating Financial Crimes
The Supreme Court’s judgment in Pradeep Nirankarnath Sharma v. Directorate of Enforcement reinforces the legislative intent behind the PMLA and strengthens its role as a crucial tool in combating money laundering and related financial crimes. By establishing that money laundering is a continuing offense that persists as long as proceeds of crime are being dealt with in any manner, the Court has expanded the temporal reach of the PMLA and closed potential loopholes that could be exploited by offenders.
This judgment aligns with the global understanding of money laundering as a process rather than a one-time act, encompassing the placement, layering, and integration of illicit funds into the legitimate financial system. As financial crimes grow increasingly sophisticated, this interpretation ensures that the law remains effective in addressing the full spectrum of money laundering activities, regardless of when the predicate offense occurred.
For practitioners and those subject to PMLA, this ruling underscores the importance of comprehensive due diligence and ongoing monitoring of financial transactions, as liability under the PMLA can extend far beyond the initial criminal act that generated the proceeds of crime.
