Today, On 22nd December, The Delhi High Court has sought responses from Sonia Gandhi and Rahul Gandhi on the Enforcement Directorate’s challenge to dismissal of the National Herald complaint, listing the matter for hearing on 12 March.
The matter came up before Justice Ravinder Dudeja, where the Solicitor General of India, Tushar Mehta, appeared on behalf of the Enforcement Directorate.
Opening the arguments, SG Tushar Mehta strongly opposed the trial court’s order and said,
“If this order is allowed to stand, it turns the PMLA on its head and makes the statute otiose and redundant. I would like to place certain facts before the Court. I have prepared a factual chronology.”
He then took the Court through the background of the case and explained the alleged financial trail.
Referring to the outcome of the transactions, he stated,
“Taking the Court through the facts of the case, the ultimate conclusion is that for an amount of Rs.50 lakh, the accused ended up acquiring properties worth nearly Rs.2,000 crore.”
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The Solicitor General further explained the origin of the proceedings and said,
“A private individual had filed a private complaint before the competent court, which took cognisance of the matter. That order taking cognisance was challenged before this Court, but the challenge was rejected. The matter was then carried to the Supreme Court, which declined to entertain it and thereby affirmed the order taking cognisance.”
He warned that the trial court’s reasoning could have wide consequences and added,
“This would affect several cases. Even if it is a private complaint which has been taken cognisance by a competent court ED can do nothing.”
Explaining the legal position under the Prevention of Money Laundering Act, SG Mehta submitted,
“What is necessary is that there has to be an allegation or a criminal activity. As per me a criminal complaint stands much above an FIR.”
He also pointed out procedural issues by saying,
“There are several sections which are non cognizable. There cannot be an FIR.”
At this stage, the Court sought clarification and asked,
“The court took cognisance of Subramanian Swamy’s complaint after examining the complainant?”
To this, the Solicitor General replied,
“Yes, after examining the complainant as well as the witnesses. The procedure followed was in terms of Section 200 of the CrPC.”
Continuing his submissions, SG Mehta summarised the core issue and said,
“The sum and substance is that the ED cannot start investigation even if competent court has taken cognisance if it is not through an FIR.”
He further questioned the implication of such a view by stating,
“So Mr Swamy would have filed an FIR even if the court is satisfied. Just because the start wasnt an FIR, ED cannot investigate.”
Rejecting the argument that ED’s powers were barred, the Solicitor General said,
“Merely because the matter was taken to court, it cannot be said that a money-laundering investigation is barred. Even if the offence is a scheduled offence and there has been an application of judicial mind, the argument that the ED is precluded from investigating does not hold.”
He urged the Court to examine the issue in detail and submitted,
“This issue requires examination, and I am ready to satisfy Your Lordships. If notice can be issued.”
Senior Advocate Abhishek Manu Singhvi, appearing for the respondents, then intervened and said,
“I would like to make a submission on the question of notice. There is a different perspective from what my learned friend has stated.”
After hearing both sides, the Court observed,
“I propose to record the submissions and issue notice by way of suggestion issuing notice on the petition based on the submissions made, including on the stay application.”
In response, the Solicitor General pressed for an early conclusion and stated,
“This matter warrants final adjudication on the returnable date. Your Lordships may consider hearing us then and disposing of it finally.”
The Delhi High Court has listed the matter for further hearing on 12 March, when the case will continue.
This case originates from a 2012 complaint filed by BJP leader Subramanian Swamy, who accused Congress leaders of cheating and breach of trust in the acquisition of AJL.
The court’s decision on whether to take cognizance will come after receiving clarifications from the ED.
The National Herald case involves a Rs. 90 crore loan provided by the Congress party to Associated Journals Ltd. (AJL), the publisher of the National Herald, which was assigned to Young Indian for a sum of Rs. 50 lakh. Allegations have been made regarding the misappropriation of assets exceeding Rs.2,000 crore in this equity transaction.
Earlier on Nov 29, a Delhi court deferred its decision on taking cognisance of the ED’s chargesheet in the National Herald case, with Special Judge Vishal Gogne rescheduling the order to December 16.
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