Money laundering involves disguising financial assets so that they can be used without detection of the illegal activity that let to its production. Through the process of money laundering a person converts illegal money into a legal entity. 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 and projecting it as untainted property shall be held guilty of the offence of money laundering.

 Legislative History: 

In India, before the enactment of the Prevention of Money Laundering Act 2002, the Government of the day brought several legislations to address the menace of money laundering.

These statutes were, The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, The Income Tax Act, 1961, The Benami Transactions (Prohibition) Act, 1988, The Indian Penal Code and Code of Criminal Procedure, 1973, The Narcotic Drugs and Psychotropic Substances Act, 1985, The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and also included demonetization of currency.

However, the provisions of such statute were inadequate and in consonance with GLOBAL concerns a specific statute to deal with the issue was introduced.

The specific legislation dealing with money laundering is the Prevention of Money-Laundering Act, 2002 (for short ‘PMLA’). The law was enacted to combat money laundering in India and has three main objectives:

• To prevent and control money laundering;
• To provide for confiscation and seizure of property obtained from laundered money; and
• To deal with any other issue connected with money-laundering in India.

It came into force with effect from 1st July 2005. The Act was amended by the Prevention of Money Laundering (Amendment) Act 2009 w.e.f. 01.06.2009. The Act was further amended by the Prevention of Money Laundering (Amendment) Act, 2012 w.e.f. 15-02-2013.

Key terms under the Act:

1. “Attachment” means prohibition of transfer, conversion, disposition or movement of property by an order issued under Chapter III;

2. “Beneficial owner” means an individual who ultimately owns or controls a client of a reporting entity or the person on whose behalf a transaction is being conducted and includes a person who exercises ultimate effective control over a juridical person [Sec 2 (fa)].

3. “Client” means a person who is engaged in a financial transaction or activity with a reporting entity and includes a person on whose behalf the person who engaged in the transaction or activity, is acting [Sec 2 (ha)].

4. “Corresponding law” means any law of any foreign country corresponding to any of the provisions of this Act or dealing with offences in that country corresponding to any of the scheduled offences [Sec 2 (ia)].

5. “Payment system” means a system that enables payment to be affected between a payer and a beneficiary, involving clearing, payment or settlement service or all of them.

6. “Payment system operator” means a person who operates a payment system and such person includes his overseas principal.

7. “Property” means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets [Sec 2 (v)].

Explanation. -For the removal of doubts, it is hereby clarified that the term “property” includes property of any kind used in the commission of an offence under this Act or any of the scheduled offences;

8. “Reporting entity” means a banking company, financial institution, intermediary or a person carrying on a designated business or profession [Sec 2 (wa)].

9. “value” means the fair market value of any property on the date of its acquisition by any person, or if such date cannot be determined, the date on which such property is possessed by such person

10. “Contracting State” means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise [Section 55].

What is money laundering?

The goal of any criminal enterprise is to generate a profit, for the individual or group that carries out the act. Money laundering is the method adopted to mask these criminal proceeds to disguise their illegal origin. This process is of critical importance, as it enables the criminal to enjoy these profits without jeopardizing their source.

In a developing country like India, the main source would be corruption, extortion, blackmailing, Illegal arms sales, smuggling, and the activities of organized crime, including for example drug trafficking and prostitution rings, which can generate huge amounts of proceeds.

Other sources would include fraud, theft, insider trading, bribery and Ponzi schemes.

When a criminal activity generates substantial profits, the individual or group involved have to devise a method to be in possession of the ill-gotten wealth, without attracting attention to the underlying activity or the persons involved. The method adopted is to do this by disguising the sources, changing the form, or moving the funds to a place where they are less likely to attract attention.

How does Money Laundering take place?

There are three stages to a transaction of money-laundering:

The first stage is Placement, where the criminals place the proceeds of the crime into normal financial system.
The second stage is Layering, where money introduced into the normal financial system is layered or spread into various transactions within the financial system so that any link with the origin of the wealth is lost.
The third stage is Integration, where the benefit or proceeds of crime are available with the criminals as untainted money.

Legislations In Consonance With PMLA:
1. Banking Regulation Act, 1949.
2. Chit Funds Act, 1982.
3. deposit Insurance and Credit Guarantee Corporation Act, 1961
4. NABARD Act, 1981.
5. National Housing Bank Act, 1987.
6. Reserve Bank of India Act,1934.
7. Securities and Exchange Board of India act,1992.

 Powers available to the Investigating Officers under the Act

The Investigating Officers have the following powers:

(a) to provisionally attach 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 [Section 5];

(b) to conduct survey of a place [Section 16];

(c) to conduct search of building, place, vessel, vehicle or aircraft & seize/freeze records & property [Section 17];

(d) to conduct personal search [Section 18];

(e) to arrest persons accused of committing the offence of Money Laundering [Section 19];

(f) to summon and record the statements of persons concerned [Section 50].

The provisions of the Act applies to every “Person directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected 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” [Sec 3].

As per Section 2(1)(s) “Person” includes—

(i) an individual,

(ii) a Hindu undivided family,

(iii) a company,

(iv) a firm,

(v) an association of persons or a body of individuals, whether incorporated or not,

(vi) every artificial juridical person not falling within any of the preceding sub-clauses, and

(vii) any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses.

Thus, besides the natural person, even legal entities are also covered under the expression “person” as per the Act.

Offence under Money Laundering Act

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 (Section 3).

 Proceeds of Crime

“Proceeds of crime” means 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 [Section 2(1)(u)].

The offences listed in the Schedule to the Prevention of Money Laundering Act, 2002 are scheduled offences in terms of Section 2(1)(y) of the Act. The scheduled offences are divided into two parts – Part A & Part C.

In Part ‘A’, offences to the Schedule have been listed in 28 paragraphs and it comprises of offences under Indian Penal Code, offences under Narcotic Drugs and Psychotropic Substances, offences under Explosive Substances Act, offences under Unlawful Activities (Prevention) Act, offences under Arms Act, offences under Wild Life (Protection) Act, offences under the Immoral Traffic (Prevention) Act, offences under the Prevention of Corruption Act, offences under the Explosives Act, offences under Antiquities & Arts Treasures Act etc.

Part ‘B’ Omitted by the Amendment in 2012 and all the offences have now been placed in Part A of the Schedule.

Part ‘C’ deals with trans-border crimes and is a vital step in tackling Money Laundering across International Boundaries.

Every Scheduled Offence is a Predicate Offence. The Scheduled Offence is called Predicate Offence and the occurrence of the same is a prerequisite for initiating investigation into the offence of money laundering.

 Provisional Attachment

The Appellate Tribunal Under Prevention of Money Laundering Act

The following conditions are required to be satisfied before a provisional attachment order is passed by the Director or any other Officer authorized by him occupying a rank not below that of a Deputy Director;

i. There should be adequate material before such officer, which makes him believe that if the attachment of the proceeds of crime are not ordered, it might result in frustration of the confiscation.

ii. A person must be in possession of the proceeds of crime

iii. Such person must have been charges of having committed one or the other of scheduled offences under this Act;

iv. Such proceeds of crime are likely to be concealed or transferred or dealt with in any manner, which may result in frustrating any proceedings of their ultimate confiscation.

 “Offence of cross border implication”

(1) Any conduct by a person at a place outside India which constitutes an offence at that place and which would have constituted an offence specified in Part A or Part C of the Schedule, had it been committed in India and if such person transfers in any manner the proceeds of such conduct or part thereof to India; or

(2) Any offence specified in Part A or Part C of the Schedule which has been committed in India and the proceeds of crime, or part thereof have been transferred to a place outside India or any attempt has been made to transfer the proceeds of crime, or part thereof from India to a place outside India [Section 2(1)(ra)].

The two instances mainly pertain to the transfer of the proceeds of crime ‘to India’ or ‘from India to a place outside India’ or an attempt is made in regard to the latter. This provision on its own doesn’t constitute an offence but supplements the offence of money laundering and increases its applicability to cross-border transactions as well. Anyone who is found guilty u/s 2(1)(ra) of PMLA would be held guilty u/s 3 and would be punishable for the offence of PMLA u/s 4 of the Act.

 Institutions / persons must carry out AML (Anti Money Laundering) measures

Reporting Entities are required to carry out AML measures under PMLA. “Reporting Entity” as defined under section 2(wa) of the PMLA means and includes:

1. Banking company: Banking company under PMLA means a banking company or a co-operative bank to which the Banking Regulation Act, 1949 applies and includes any bank or banking institution referred to in section 51 of the Act.

Banking company includes all nationalized banks, private Indian Banks and private foreign banks, all co-operative banks, State Bank of India and its associates and subsidiaries and Regional Rural Banks.

2. Financial Institution: Financial Institution under PMLA means a financial institution as defined in section 45-I(C ) of the Reserve Bank of India Act, 1934 and includes a chit fund company, a co-operative bank, a housing finance institution, insurance companies, hire purchase companies, Non-Banking Financial Companies (NBFCs as defined in section 45-I of the RBI Act) and the Department of Posts.

3. Intermediary: Intermediary under PMLA includes the following persons registered under Section 12 of SEBI Act- Stock brokers, sub-brokers, share transfer agents, bankers to an issue, trustees to trust deed, registrars to issue, merchant bankers, underwriters, portfolio managers, investment advisers, depositories and depository participants, custodian of securities, foreign institutional investors, credit rating agencies, venture capital funds, collective investment schemes including mutual funds, an association recognised/ registered under the Forward Contracts (Regulation) Act, 1952 or any member of such association, an intermediary registered by the Pension Fund Regulatory Development Authority, and a recognized stock exchange.

4. Person carrying on a designated business or profession: Section 2(1) (sa) defines “person carrying on designated business or profession” to mean:

“(i) a person carrying on activities for playing games of chance for cash or kind, and includes such activities associated with casino;

(ii) a Registrar or Sub-Registrar appointed under section 6 of the Registration Act, 1908(16 of 1908), as may be notified by the Central Government;

(iii) real estate agent, as may be notified by the Central Government;

(iv) dealer in precious metals, precious stones and other high value goods, as may be notified by the Central Government;

(v) person engaged in safekeeping and administration of cash and liquid securities on behalf of other persons, as may be notified by the Central Government; or

(vi) person carrying on such other activities as the Central Government may, by notification, so designate, from time to time.”

Transactions for which reporting requirements apply

The PMLA and the Rules thereunder require every reporting entity to furnish FIU-IND information relating to-

i. All cash transactions of the value of more than rupees ten lakhs or its equivalent in foreign currency;

ii. All series of cash transactions integrally connected to each other which have been valued below rupees ten lakhs (Rs. 10,00,000) or its equivalent in foreign currency where such series of transactions have taken place within a month;

iii. All transactions involving receipts by non-profit organizations of value more than rupees ten lakh (Rs. 10,00,000) or its equivalent in foreign currency.

iv. All cash transactions where forged or counterfeit currency notes or bank notes have been used as genuine or where any forgery of a valuable security or a document has taken place facilitating the transactions.

v. All suspicious transactions whether or not made in cash.

vi. All cross-border wire transfers of the value of more than five lakh rupees (Rs. 5,00,000) or its equivalent in foreign currency where either the origin or destination of fund is in India.

vii. All purchase and sale by any person of immovable property valued at fifty lakh rupees or more that is registered by the reporting entity, as the case may be.

As per section 14 of the PMLA provides that Reporting Entities and their officers shall not be liable to any civil or criminal proceedings against them for furnishing information under clause (b) of sub-section (1) of section 12.

On whom the burden of proof is cast

It is clear that, a person accused of an offence under Section 3 of PMLA, whose property is attached and proceeded against or Confiscation, shall discharge the onus of proof (Section 24) vested in him by disclosing the sources of his Income, Earnings or Assets, out of which or means by which he has acquired the property attached, to discharge the burden that the property does not constitute proceeds of crime.

the statement recorded before the Investigating Officer under PMLA is admissible evidence in the Court as such a proceeding under Section 50(2) and 50(3) of the Act is a judicial proceeding within the meaning of Section 193 and 228 of IPC.

The provisions of PMLA, 2002 have over-riding effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force [Section 71].

What will happen to the proceedings initiated under PMLA, 2002 in the event of death or insolvency of the person?

In cases where any property of a person has been attached under section 8 and no appeal against the order attaching such property has been preferred, then, the legal representatives or the official assignee or the official receiver may prefer an appeal to the Appellate Tribunal / High Court or to continue the appeal before the Appellate Tribunal / High Court, in place of such person.

Proposed amendments

The amendment seeks to treat money laundering as a stand-alone crime.
Till now Money Laundering was not an independent crime; rather depended on another crime, known as the 'predicate offence' or 'scheduled offence', the proceeds of which are made the subject matter of crime of money laundering.
It also expands the ambit of “proceeds of crime” to those properties which “may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence.

The most crucial amendments are the deletion of provisions in sub-sections (1) of Section 17 (Search and Seizure) and Section 18 (Search of Persons).
These provisions required the pre-requisite of an FIR or charge sheet by other agencies that are authorised to probe the offences listed in the PMLA schedule.
An explanation is added to Section 45 that clarifies that all PMLA offences will be cognisable and non-bailable.
Therefore, ED will be empowered to arrest an accused without a warrant, subject to certain conditions.
Another vital amendment makes concealment of proceeds of crime, possession, acquisition, use, projecting as untainted money, or claiming as untainted property as independent and complete offences under the Act.
Section 72 will now give power to the Centre to set up an Inter-Ministerial Coordination Committee for inter-departmental and inter-agency coordination for operational and policy level cooperation, for consultation on anti-money laundering and counter-terror funding initiatives.