Money laundering case: Agency trying to reprobe same set of facts, Karnataka Congress chief D K Shivakumar tells Delhi HC

“From 2020 till date there has been no attachment order against me. If this does not happen then there cannot be proceeds of crime” which is essential under the Prevention of Money Laundering Act, Sibal said.

It is Shivakumar’s case that the predicate offence in the first Enforcement Case Information Report (ECIR) filed by the agency was under criminal conspiracy – 120B IPC alleging that he abused his official position and conspired with others to launder illegal money acquired during his tenure as the minister and MLA in Karnataka between 1989 and 2019. The predicate offence in the second ECIR alleges the acquisition of assets by Shivakumar between 2013 to 2018 “disproportionate to his known sources of income” which clearly shows that the investigation under the PMLA offence is identical in both cases.

Sibal argued that this is a “substantial question of law which will have to be decided as it will have larger ramifications”. On the action of the probe agency, Sibal said, “Nothing can be, according to me, more malafide than this. Why have they waited for two years to proceed in the matter? They knew of these facts in 2020. Because the elections are in May, I can understand if there was some activity I was indulging in and it needed to be heard today and therefore this matter has to be decided.” Sibal also submitted that no chargesheet has been filed till date by the agency.

When the agency, represented by Additional Solicitor General S V Raju, said that the submissions were factually wrong and “unfounded” Sibal said, “I’m only stating a fact here…rest is derivative logic.”

The HC while listing the matter for January 31, 2023, remarked that the “matter needs a hearing at length”.

Shivakumar’s submissions state that the ECIR is an internal document of the agency and not a statutory document under the PMLA. He says that according to remand applications and ED’s reply to his bail applications, the agency had already investigated the issue of disproportionate assets for the period 1989-2019.

“The investigation in the impugned 2nd ECIR is pertaining to the period 2013- 18, which was already investigated by the ED in the previous round,” the submissions stated. He has also challenged the constitutional validity of Section 13 of the Prevention of Money Laundering (Amendment) Act, by virtue of which the Schedule of PMLA was amended and Section 13 of the Prevention of Corruption Act (PCA) was included.

Shivakumar has claimed that the ED, after investigating the entire aspect of disproportionate assets for the period 1989-2019, found nothing incriminating against him as there is no allegation regarding the same in the prosecution complaint.

The agency has said that the 2018 ECIR was based on the complaint filed by the Income Tax Department under Section 120B of the Indian Penal Code (criminal conspiracy) for offences under the Income Tax Act, 1961 and as well as the IPC where the total proceeds of crime amount to over Rs 8.5 crore.

The agency has stated in its submissions that 2020 ECIR relates to a completely different scheduled offence under the provisions of the Prevention of Corruption Act, 1988, based on an FIR filed by the CBI on October 3, 2020 in Bangalore, where it was found that Shivakumar and his family had disproportionate assets “during the check period 01.04.2013 to 30.04.2018”. The agency says that both cases are different and pertain to separate offences.