Agency sources said the overall grounds for appeal is the fact that the court cannot throw out ED's evidences, gathered through independent investigations under the Prevention of Money Laundering Act (PMLA), just because the scheduled offence being probed by the CBI has been found baseless and is being shut.
The Enforcement Directorate had registered money laundering cases in the 2G case based on CBI FIRs.
The central investigation agency, in an official statement, said the special CBI court that gave its verdict today "failed to appreciate a number of factors which, inter alia, position the offence of money laundering as standalone offence."
It said the same court had "appreciated" the evidence put forth by the agency investigators at the time of framing of charges in this case.
But, it said, the same material "appears to have not been considered while deciding the prosecution complaint (charge sheet) under the PMLA (Prevention of Money Laundering Act) and the accused persons have been acquitted from the offence of money laundering only on the basis of no commission of offence and not the occurrence of criminal activity."
The agency stressed that the thrust of the stringent and criminal provisions of the anti-money laundering law (PMLA) is on the proceeds of crime, generated during the commission of the offence, and it only considers the "criminal activity instead of commission of an offence."
"The acquittal by the court in PMLA prosecution by interpreting the term criminal activity to the extent of commission of an offence appears to be erroneous," it said.
Hence, the ED has "decided to move in appeal against the judgement of the special court...on a number of grounds based on the facts as well as legal provisions."
The special CBI Judge OP Saini ruled in the ED case that, "In view of acquittal of accused in the case relating to scheduled offence (2G), there are no 'proceeds of crime'."
"Proceeds of crime is the foundational fact for the offence of money laundering. Since there are no proceeds of crime, there can be no offence of money laundering, as nothing remains to be laundered.
Referring to the outcome of the main case, the court said, "the very basic fact required for constitution of an offence of money laundering, that is, proceeds of crime, is knocked out".
Sources added that the agency will also hold on and not release the about Rs 224 crore worth attachment of assets done by it in this case against various accused, by invoking section 20(6) of the PMLA that allows it to "withhold" such properties till an appeal is filed.
The ED had taken a similar stance of going for an appeal when earlier this year the same court had discharged former Telecom Minister Dayanidhi Maran, his industrialist brother Kalanithi Maran and others in the Aircel-Maxis deal case and were relieved of the money laundering charges.
Sources said they have "full confidence" in the public prosecutors who fought its case in the court and that they sincerely tried to present the case.
ED had alleged Rs 200 crore, the alleged bribe money of the scam, was paid by Swan Telecom (P) Ltd (STPL) promoters to DMK-run Kalaignar TV as illegal gratification in lieu of grant of 2G spectrum licenses.
The special court today acquitted 19 accused, including former telecom minister A Raja and DMK leader M Kanimozhi in the ED's case.
Besides Mr Raja and Ms Kanimozhi, the Special Judge also acquitted Shahid Balwa, Vinod Goenka, Asif Balwa, Rajiv Aggarwal, Karim Morani, P Amirtham and Sharad Kumar in connection with the case.
In its charge sheet, the Enforcement Directorate had also named DMK supremo M Karunanidhi's wife Dayalu Ammal as an accused in the case.
In its final report, the ED had named 10 individuals and nine companies as accused and listed them in the charge sheet for the offences under the PMLA.
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