PMLA Probe Identical In 2018 And 2020 Cases, ED Trying To Re-Investigate Same Allegations: DK Shivakumar Tells Delhi High Court

Stating that the Enforcement Directorate's money laundering investigation is identical in both 2018 and 2020 cases, Karnataka Congress Chief D.K. Shivakumar has told Delhi High Court that the probe agency is trying to re-investigate the same set of facts which have already been probed.

The submission has been made by the Congress leader in the written submissions filed in his plea challenging the investigation initiated by the probe agency against him in a money laundering case.

Shivakumar has challenged the proceedings initiated by ED in the year 2020, arguing that the agency is "re-investigating the same offence" which it had already investigated in a previous case registered by it in 2018. His prayer is that the entire investigation along with the continuing probe, including the issuance of summons in the 2020 case, be quashed.

"The impugned investigation commenced and continued by the Respondent-Enforcement Directorate in ECIR/18/HIU/2020 is a complete abuse of process of law and malafide exercise of power. The power of the Court including this Court cannot be curtailed to examine the investigation conducted by the ED," the submissions read.

Shivakumar has said that the predicate offence in 2018 ECIR was section 120B of IPC and the allegations were that he abused his official position and conspired with others to launder illegal money acquired while serving as Minister and MLA in Karnataka i.e. during 1989 to 2019.

The predicate offence in the second ECIR alleges acquisition of assets by him during the period between 2013 to 2018 disproportionate to his known sources of income.

This clearly shows that the investigation under the PMLA offence is identical in both the cases, Shivakumar has submitted.

The Congress leader has said that ED had already investigated the issue of disproportionate assets for the period between 1989 to 2019, adding that investigation in second ECIR pertains to the period 2013 to 2018, which was already investigated by the agency earlier.

"Thus, it is the humble submission of the Petitioner that the commencement and continuation of investigation in the 2nd ECIR/18/HIU/2020 is wholly without jurisdiction and is in grave violation of the fundamental rights of the petitioner," it has been submitted.

It has further been submitted that ED, after investigating the aspect of disproportionate assets for the period 1989 to 2019, found nothing incriminating against Shivakumar "as there was no allegation regarding the same in the prosecution complaint."

The Congress leader further said that nothing prevented the probe agency from including the allegations pertaining to disproportionate assets in the prosecution complaint filed in the first ECIR.

"The only conclusion that can be drawn is that ED could not find sufficient evidence to charge the Petitioner on the aspect of disproportionate assets after thorough investigation.…..," the submissions read.

Shivakumar in the petition has also challenged the constitutional validity of Section 13 of the Prevention of Money Laundering (Amendment) Act, 2009, by virtue of which the schedule of the Act was amended and Section 13 of the Prevention of Corruption Act was included under the anti-money laundering law.

The court had framed the question as to whether the tainted money having been held to be disproportionate asset under Section 13(1)(e) of the Prevention of Corruption Act, can fall within the ambit of an offence of money laundering, for the reason that the said money is held to be disproportionate in the hands of the accused or any other person?

Making submissions on the said question, Shivakumar has said that there is no possibility of generation of proceeds of crime in a case where the scheduled offence is Section 13(1)(e) of PC Act.

It has been submitted that in order to fall within the definition of proceeds of crime, the property must be derived as a result of criminal activity relating or relatable to a scheduled offence.

"The same can never arise in a case where the schedule offence in Section 13 (1)(e) of the Prevention of Corruption Act, as the property involved is already layered and integrated by the accused in the commission of the schedule offence itself," Shivakumar has said.

Stating that in a disproportionate assets case, the investigation can only be conducted regarding the schedule offence itself as there cannot be any further activity apart from the schedule offence, Shivakumar has submitted that the inclusion of Section 13(1)(e) of the PC Act in the Schedule is clearly violative of Act 14, 20 & 21 of Constitution of India.

Previously, ED had opposed the plea and submitted that the same is premature and that no fundamental rights of the Congress leader have been violated to warrant interference under Article 226 at the stage of summons.

The agency had also submitted that both the ECIRs relate to two different scheduled offences and different set of facts, with certain overlapping of facts, The same cannot be termed as re-investigation, it had argued.

Title: DK Shivakumar v. ED