Tag: White Collar Crime Defence

Private persons employed with private companies cannot be prosecuted as ‘public servants’ under the Prevention of Corruption Act, 1988 unless they perform a ‘public duty’.

DID YOU KNOW that the Prevention of Corruption Act, 1988 provides a very wide definition of the word “public servant” so as to even include private persons employed with private companies on the allegation that they perform “public duty”? ......
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Enforcement Directorate cannot invoke ‘Criminal Conspiracy’ as a stand-alone scheduled offence to launch criminal proceedings under PMLA

DID YOU KNOW that the Enforcement Directorate cannot invoke “criminal conspiracy” as a standalone offence to launch criminal proceedings under the Prevention of Money Laundering Act, 2002? .......
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Piecemeal investigation and filing of separate chargesheets for different offences alleged in the same FIR is not permissible.

DID YOU KNOW that the police cannot file separate chargesheets in relation to different offences invoked in the same FIR?.......
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Chargesheet filed before completion of investigation into all allegations is incomplete.

DID YOU KNOW that a chargesheet filed without completion of the entire investigation with respect to all offences invoked in an FIR is an incomplete and invalid chargesheet within the meaning of CrPC?......
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Trial Courts ought to consider aggravating and mitigating factors during sentencing.

DID YOU KNOW that various aggravating and mitigating factors are required to be considered while determining the quantum of sentence to be served by a convict? These factors include nature of offence, circumstances in which the offence was committed, prior criminal record, age and background of the person with reference to education, familial circumstances, social adjustment, emotional and mental condition, prospects of reformation and rehabilitation, etc.......
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Mandatory to evaluate the aggravating factors prescribed under the NDPS Act before imposing a sentence higher than the minimum punishment.

DID YOU KNOW that the NDPS Act prescribes mandatory aggravating factors for imposing punishment higher than the minimum punishment prescribed for an offence? These factors are - use or threat of use of violence or arms, minors being used for or affected, offence being committed in an educational institution or social service facility; offender belonging to organised international group, and involvement of the offender in other illegal activities........
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Enforcement Directorate can invoke powers under Section 8 (4) of the PMLA to take possession of attached property only under exceptional circumstances.

DID YOU KNOW that the Enforcement Directorate cannot invoke Section 8 (4) of PMLA in a routine manner and take possession of a property whose attachment under the PMLA has been confirmed by the Adjudicating Authority? As per the law laid down by the Supreme Court in the case of Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, the action of taking possession of attached properties under Section 8 (4) has to be undertaken only in exception circumstances.......
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Enforcement Directorate does not have the power to issue orders in the nature of Garnishee Proceedings to attach debts owed to persons accused of money laundering.

DID YOU KNOW that the disputed and uncrystallized debts owed to person accused of the offence of money laundering is completely outside the scope of the definition of 'proceeds of crime' under the PMLA. The ED also does not have the power or authority to issue orders in the nature of Garnishee Proceedings or to determine commercial disputes between two private parties......
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Fair criticism by an expert does not amount to defamation.

DID YOU KNOW that fair criticism by a field expert would not amount to an offence of criminal defamation.......
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General remarks without any specific imputation do not amount to defamation.

DID YOU KNOW that “general remarks” made about any person would not be sufficient to meet the requirements of the criminal offence of defamation.......
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