MEMORIAL FOR RESPONDENT

Name-Sahil Thakur Roll No- 302 University Roll No-

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Sno 1 2 3 4 5 6 7 8

Contents Abbreviations Index of authorities Statement of jurisdiction Facts of the case Issues Raised Summary of arguments Arguments advanced Prayer

Page no 3. 4. 5. 6. 7. 8. 9-13. 14.

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List of Abbreviations
AAll India Reporter A.C....................Court of appeal A.I.R All India Reporter Anr Another Edi Edition Etc.. ..Et Cetera Honble Honourable Cri L.JCriminal law journal SC ..Supreme Court SCC.Supreme court cases No..Number p.Page Orsothers Volvolume U.O.I.....Union of India u/s..Under Section u/a..Under Article &.And DB.Double Breach Rereference

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Index of authorities

a) Table of Statutes1) Indian Penal Code . 2) Anti corruption act 3) Prevention of Money Laundering Act

b) Table of Books1 Banking law and Negotiable Instrument Act,B.r.Sharma ,Allahabad Law Agency
,Faridabad.

c) Table of Dictionaries1. Oxford Advanced Learners Dictionary, Oxford University, Press Edi 7th 2. K.J. Aiyar, Judicial Dictionary, Lexis and Nexis, Buttersworth, New Delhi, Edi. 2001

d) Table of cases1) 2) 3) 4) 5)
Sailendranath Bose v. State of Bihar. Abhinandan Jha V.Dinesh Mishra . K.Hasin . V.State of Tamil Nadu. Rajaram Gupta V. Dharamchand. NCT of Delhi V.Navjot Sandhu.

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Statement of jurisdiction

The Respondent has approached the HonSupreme Vourt, since the cause of

action and the parties to the suit, both lies with in the territorial and appellate jurisdiction

of this HonSupreme court. Therefore, this Hon,ble Court has the jurisdiction to deal with the

present matter.

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STATEMENT OF FACTS

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ISSUES RAISED

(1) Whether the investigation by the sub-inspector was valid or not? (2) Whether the Ld. Special Judge of the Kohima had jurisdiction or not? (3) Whether the alleged charges under sections 7, 8, 9, 13(1)(d)read with 13(2)of the i. p.c. act are valid or not? (4) Whether the alleged charges under section 120b ,409 ,420 of I .P.c are valid or not . (5) Whether the alleged charges under section 4 of prevention of money laundering act 2002 is valid or not.

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Summary of Arguments

(1) Whether the investigation by the sub-inspector was valid or not? . The investigation so convened by the sub-inspector was valid and proper under the eyes of the law. (2) Whether the Ld. Special Judge of the Kohima had jurisdiction or not? . The Ld.special judge of the kohima had proper and valid jurisdiction to entertain the matter. (3) Whether the alleged charges under sections 7, 8, 9, 13(1)(d)read with 13(2)of the i. p.c. act are valid or not? . The charges so framed under the given sections are correct and valid. (4) Whether the alleged charges under section 120b ,409 ,420 of I .P.c are valid or not . . The charges so framed under the above sections are correct and valid. (5) Whether the alleged charges under section 4 of prevention of money laundering act 2002 is valid or not. . The charges so framed under the act are correct and valid.

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Body of Arguments
1) Whether the investigation by the sub-inspector was valid or not? the first issue which has been so raised by the petitioner is that the the investigation so conducted with respect to the petitioner by a sub- inspector is not valid hence shall be deemed to be improper. Before the court seeks to the validity of the investigation it is first necessary to throw light on the very section itself which speaks with regards the investigation. Section 18 of prevention of corruption act 1988 deals with the provision of person authorized for investigation it states Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank, (a) In the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) In the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 9 of the Code of Criminal Procedure, 1973, of an Assistant Commissioner of Police; (c) Else where, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant; Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be or make arrest therefor without a warrant: Provided further that an offence referred to in Clause (e) of sub-section (1) of Section 13 shall not he investigated without the order of a police officer not below the rank of a Superintendent of Police. Here if the same is seen in the present case the investigation took shape only after RC no78A/2007 had been registered by the Deputy Superintendent of police upon a complaint, Ms. Datta.thereby completely and clearly indicating that the proper procedure was complied with regard to investigation by the party and the investigation is valid in nature. Further as to the contention raised that the investigation was so conducted by sub inspector which is lower than the basic requirement of the said section in this matter the supreme court has expressed its view through different cases .

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Saliendranath Bose v. State of Bihar (1) The supreme court while delivering its judgement held that as a basic rue the matters under the act must be investigated by the inspector or the Deputy Duperintendent of police however the same may be also be investigated by an officer of a rank lower than deputy superintendent of police however with respect to the same a prior approval of magistrate of first class and the same can be recognized that the pior approval was taken with respect to the investigation as can be seen from RCNo. 78A/2007which was registerby the deputy superintendent of police. Similarly in the matter of Abhinandan Jha and others V.Dinesh Misr(2) the Supreme court upheld the above stated principle as to who all can take cognizance of the matter. "(1) Except ashereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence(a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made, by any police-officer; (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed." Thus it clearly indicates that the investigation so under taken by the sub inspector is valid in the eyes of law. 2) Whether the Ld.Special Judge of kohema has jurisdiction or not? The second issue so contended is whether the matter so taken into cognizance by the ld. Special judge matter is valid or not the provision with respect to special judge under the act is given under section3 which provides (1) The Central Government or the State Government may, by notification in the official Gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely: (a) Any offence punishable under this Act; and (b) Any conspiracy to commit, any attempt to commit, or any abetment of any of the offences specified in clause (a).

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(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Session Judge or an Assistant Session Judge under the Code of Criminal Procedure 1973 (2 of 1974). Section 3 sub section (b) clearly indicates that the special judge has the power to entertain cases with respect to conspiracy to commit and any attempt with regards to it here I the present caes to there the petitioner has been charged of commission of conspiracy with respect to fulfill his malafide motive hence the same is triable and falls exclusive within the jurisdiction of the said court. Further section 4 of the act clearly states as to what type or nature of offences are triable it provides that: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by special Judges only. (2) Every offence specified in sub-section (1) of Section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such one of them as may be specified in this behalf by the Central Government. (3) When trying any case, a special Judge may also try any offence, other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. 5. The above stated provisions of section 3 and 4 thereby clearly indicate that the special judge was completely competent to try the matter before it and the same is valid (3) Whether the alleged charges under section 7,8,9,13 1(d) read with 13(2)of the P.C.Act are valid or not? With respect to the various provisions so consisting the charges and their validity with respect to the petitioner the same can be dealt briefly and individualy . Section 7of the P.C.Act contends: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or

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disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise shall, be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanation. (a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) "Gratification. -The word "gratification" is not restricted to pecuniary gratification or to gratifications estimable in money. (c) "Legal remuneration". -The words "legal remuneration" are not restricted to remunerations which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organisation, which he serves, to accept. (d) "A motive or reward for doing". -A person who receives a gratification as motive or reward for doing what he does not intend or is not in a position to do, or has not one, comes within this expression; (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. Now if we take the present section into consideration the first question which arises is whether the petioner fell within the domain of public servant, petitioner did fall within the domain of the definition of public servant. The term public servant is defined under the act under section 2 which provides ,public servant means: i) Any person in the service or pay of' the Government or remunerated by the Government by fees or commission for the performance of any public duty; (ii) Any person in the service or pay of a local authority. (iii) Any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956.

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(iv) Any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions. (v) Any person authorised by a court of justice to perform any duty, in connection with, including a liquidator, receiver or commissioner appointed by such court. (vi) Any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority. (vii) Any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election of part of an election; (viii) Any person who holds an officer by virtue of which be is authorised or required to perform any public duty. (ix) Any person who is the president, secretary or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid front the Central Government or State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956; (x) Any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; (xi) Any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever (resignation called, of any university and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations; (xii) Any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government or local or other public authority. Explanation I. - Persons falling under any of the above sub-clauses are public servants, whether appointed by the government or not. Explanation 2. -Whenever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

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From the above definition it can be clearly seen and inferred that the petitioner fell within the definition of petitioner hence the same is liable .further the question which arises is with respect to gratification as to what is gratification ,under the act the term gratification is defined under section 7 itself and if this is taken into consideration in our present case the petitioner clearly falls within the definition of petitioner and secondly the money which he so tried to take to handle the situation fell clearly within the meaning of the term gratification .thus making the petitioner liable undr the provision further in the case of Trilok chand Jain v. State of Delhi the basic principle which was laid down was that gratification under the act refers to that monetary consideration so sought by the public servant to fulfill the malafide motive or object for which the same has been taken or is proposed to be taken . Taking the above law into consideration in our case we can point out the face that the monetary consideration which the petitioner intended to seek falls within the perview of the definition of gratification making the petitioner liable under the present section. Section 8 of the act provides for: Whoever accepts, or obtains, or agrees to accept, or attempts to obtain, front any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. Now if we consider the above section to to our present case and analyse the facts of the case deeply we can see that the conduct of the petitioner clearly indicates that the petitioner who is a public servant tacted in corrupt and illegal means and the same knowingly and with complete knowledge of the fact of the case committed a breach of his official duty . the bankers duty is to safeguard the money of the depositors however in this case the petitioner not only had amount in his personal account but at the same time took a wrongful risk of making the transfer of the money without making any type of efficient inquiry thereby clearly indicating a gross negligence on the part of the petitioner . Section 9 of the act providesfor:

Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions

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of such public servant to show favour or disfavour to any person, or to render to attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. Now taking the above stated section into consideration with respect to the present case it can be clearly inferred from the case that the act so done by the petitioner of transfer of funds to the foreign accounts clearly indicates the act where the petitioner under the capacity of a public servant tried to show favor to the other person by transferring the public money to the use of an individual thus clearly indicating a gross negligence on the part of the petitioner thus ultimately pointing towards the malafide nature of the petitioner and complete non bearence to the responsibility of a public servant to the society at large. Lastly with respect of section 13(1)(d) read with section 13(2)the two provisions state that: (1) A public servant is said to commit the offence of criminal misconduct, (a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to he concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any, person whom he knows to be interests in or related to the person so concerned; or (c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) If he, (i) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or Pecuniary advantage; or (ii) By abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) If he or any person on his behalf, is in possession or has, at any time during the Period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation. -For the purposes of this section "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance, With the provisions of any law, rules or orders for the time being applicable to public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. If the above section is deepely analysed it can be clearly seen that the petitioner is directly and soley responsible for the wrongful conduct. Whether the alleged charges under section 120-b,409and 420 of I.P.C.are valid or not ? Before the determination of the charge under the given sections it is first necessary to understand the above sections itsel so as to bring the petitioner within the preview of these section. Sec120-b before we understand and contend with respect to section 120b which states regarding the punishment with respect to criminal conspiracy it is first necessary to understand the very concept of criminal conspiracy itself . the concept of criminal conspiracy has been dealt and defined under section 120 a of the Indian penal code. It states: 1 120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

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From the above section it can clearly be understood for an act to be regarded or be treated as a criminal conspiracy there must be 1. There should be an agreement between the two or more persons who are alleged to conspire. I f the above stated essential is taken into consideration in our case it can be clearly seen that the did exist an agreement between the plaintiff and the same can be clearly be exhibited from the emails so exchanged between the plaintiff . In k.hasin v. State of Tamil Nadu(3) it was held by the supreme court that the essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed . if the present case law is taken into consideration in our case there did exist the combination as there always remained in the mind of the plaintiff the basic motive that in any way to seek the money to achieve the target and for the same risking the public interest he took the big step of using public money for his own gains. 2. The second necessary is the agreement should be to do or cause to be done a. an illegal act,or b. an act which is though not illegal by illegal means . the second essential necessary to prove that there did exist criminal conspiracy is that there must be some illegal act . or an act forbidden by law,illegal acy means the act which is immoral and or against public policy.F urther even those acts which are which are illegal but not criminal fall within the dimension of criminal conspiracy. In the case of Rajaram Gupta v. Dharamchand (4) it was held that the overtaact constituting a conspiracy are acts either a. signifying agreement ,or b. preparatory to the offence ,and c. acts constituting the offence itself. Considerining the above basic essentials to our case it can be seen that there first existed an agreement between the plaintiff of transfer of cash to each other secondly active participation was taken by the plaintiff to the transaction be completed clearly indicating the intent and the participatory nature of the plaintiff toward the act amounting to criminal conspiracy.furter the act sin done by the plaintiff in the capacity of publicssrvant itself amounts to criminal conspiracy. In the case of State of N.C.T.of Delhi V.Navjot Sandhu(5) the Supremecourt held that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy.taking the present case law into consideration it can be clearly be seen that the plaintiff himself for the offence . Further the prosecution is charged with the offence under section 409 of the act ,section 409 of the Indian Penal Code deals with breach of trust by public servant or by banker merchant or agent it states:

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Whoever , being in any manner entrusted with property or withdomain over property in his capacity of public servant or in the way of his business as a banker , merchant ,factor ,broker ,attorney or agent ,commits criminal breach of trust in respect of that property shall be punished with imprisonment for life ,or with imprisonment of either description for a term which may extend to ten years ,shall also be liable to fine. Now taking the above stated provision into consideration with respect to our case in question it can be clearly bee seen that the plaintiff completely misused his position of a public servant and put to risk the public money as the basic source of income for the banks are the money so deposited by its customers thus there arises a social, moral and legal obligation on the banks and its officials to take due care of the money so deposited by the depositors further ther also imposed an obligation on the banks to ensure the money so used by them is public money so the same ber utilized with due care and caution but here the conduct f the plaintiff who was a such senior official of the bank to just meet his task and there by risking the entire public money and its use having no public interst makes the prosecution liable under the present section.

Whether the alleged charges under section 4 of the Prevention of Money Launderig Act ,2002 is valid or not? Before we determine whether the plaintiff falls within the ambit of sec 4 of the above stated act it is necessary first to understand the section itself and what constitutes money laudering. The meaning of money laundering has been defined under section 3 of the Money Launderng Act as: 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 guilty of offence of money-laundering. Taking the above stated definition into consideration with respect to our caes the plaintiff clearly falls within the definition of money laundering as the plaintiff had the complete knowledge and took active participation with respect to the commission of the ofence the making the same liable with respect to money laundering of public money for his own gains and failing to take care of public interest which of utmost importance with respect to the post so held by the plaintiff. Further plaintiff is charged under section 4 of the act which says that:

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Punishment for money-laundering.-Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine w ich may extend to five lakh rupees: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", t e words "which may extend to ten years" had been substituted. Considering the above stated all the points of the case the plaintiff completely becomes liable and the act so done by him completely falls and amounts to money laundering thus making the prosection completely liable for the offence.