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Issues: (i) Whether a party can, in an appeal against the same judgment, challenge the recording of its own submissions, stand, admissions or concessions as reflected in that judgment; (ii) Whether Rs. 141.50 crores advanced by SPCL to the Nilesh Thakur Group could be treated as 'proceeds of crime' under the PMLA.
Issue (i): Whether a party can, in an appeal against the same judgment, challenge the recording of its own submissions, stand, admissions or concessions as reflected in that judgment?
Analysis: Statements of fact as to what transpired in court, when recorded in a judicial order, are conclusive unless corrected before the very court that made the record. The proper course for a party alleging wrong recording of concessions or submissions is to seek clarification, correction or review before that court. A party cannot, in an appeal against the judgment itself, contradict the record through later assertions, especially when no corrective steps were taken and the recorded statements continue to form part of the order.
Conclusion: The challenge to the recorded admissions and concessions was not entertained in the appeal; the parties remained bound by the record.
Issue (ii): Whether Rs. 141.50 crores advanced by SPCL to the Nilesh Thakur Group could be treated as 'proceeds of crime' under the PMLA.
Analysis: 'Proceeds of crime' under the PMLA requires property derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence. The Court found that the money was advanced through banking channels under a commercial agreement for land acquisition, was reflected in SPCL's accounts, and had already been judicially found by income-tax authorities to be a lawful and valid business transaction. No material showed that the funds were generated from criminal activity or had any nexus with the discharge of public duties by the public servant concerned. The Court also noted that the Prevention of Corruption Act offence became a scheduled offence only from 1 June 2009, whereas a substantial part of the transfers had occurred earlier. In the absence of the essential ingredients of a scheduled offence and a causal link to criminal activity, the attachment under PMLA could not be sustained.
Conclusion: The amount of Rs. 141.50 crores was not 'proceeds of crime' and the PMLA attachment could not be sustained.
Final Conclusion: The appeals were held to be without merit, the impugned tribunal order was affirmed, and the attached properties were directed to be released, with modification only as to the apportionment of accrued interest on the deposited sums.
Ratio Decidendi: For property to fall within 'proceeds of crime' under the PMLA, there must be a proven nexus between the property and criminal activity relating to a scheduled offence; absent that nexus, and absent a sustainable basis to dispute the recorded court concessions, attachment cannot stand.
PMLA attachment fails without proof of nexus to scheduled offence; recorded court admissions cannot be contradicted in appeal
A party cannot, in an appeal against the same judgment, contradict its own recorded submissions, admissions or concessions; the proper remedy is to seek correction, clarification or review before the court that made the record, and the recorded statements remained binding here. 'Proceeds of crime' under the PMLA require property derived or obtained from criminal activity relating to a scheduled offence; money advanced through banking channels under a commercial land-acquisition arrangement, reflected in accounts and found to be a lawful business transaction, did not satisfy that test. In the absence of a proven nexus with criminal activity, the PMLA attachment could not stand, and the attached properties were directed to be released subject to the stated interest apportionment.
Provisional Attachment Orders (PAO) - power and jurisdiction of authority of the Enforcement Directorate/Authorities for attachment - “reason to believe” that the subject properties were proceeds of crime involved in the money laundering - withdrawal of the concessions given by the Advocate - Meaning of term “proceeds of crime” - proceeds of crime involved in the money laundering - Whether the contention of a party, that its submissions/stand has been wrongly recorded by the Court, be taken up in the Appeal which seeks to challenge the very judgment and order? - HELD THAT:- The Supreme Court in the case of Bhavnagar University V/s Palitana Sugar Mill Pvt Ltd & Others [2002 (12) TMI 563 - SUPREME COURT], after referring to the judgments in the matter of Daman Singh and others [1985 (4) TMI 322 - SUPREME COURT] and State of Maharashtra v. Ramdas Shrinivas Nayak [1982 (7) TMI 265 - SUPREME COURT], has observed that a statement of fact as to what transpired at the hearing, recorded in the order are conclusive of the facts so stated and no one can contradict such statements or recording of facts. The pronouncements of the Supreme Court are having binding effect on all Courts. It is only prudent and matter of judicial discipline that the clarifications, corrections or mis-recordings be clarified before the same Authority/Court. This may be done by filing appropriate proceedings before the said Court. If there are incorrect concessions or statements or the same are misquoted or fact or admission misreported or a different stand was taken by the Advocate for Appellants before learned Appellate Tribunal, the only option or remedy available to the Appellant was to approach the Appellate Tribunal and seek a clarification by filing appropriate proceedings. A perusal of the Impugned Order, passed by the learned Appellate Tribunal, PMLA clearly indicates that certain admissions or statements made by the Advocate of the Appellants, are recorded in the Impugned Order. The same till date are a part of the record. The statements and admissions thus form a part of the record, as no steps have been taken to have them corrected or withdrawn. The parties are bound by the record. Raising the said ground, in the present Appeal will be of no consequences. Term “proceeds of crime” - The term “proceeds of crime”, in any prosecution under the PMLA Act is the basis and foundation for the said action. It being the foundation of the offence of money laundering, it is required to be interpreted and construed in a strict sense. If any of the aforestated ingredients i.e property, derived out of a criminal activity, relating or relatable to a schedule offence is missing, then in that event the property cannot be termed as a “proceeds of crime”. We also note that, one of the vital ingredient and condition to attract or invoke an offence of money laundering, is that the concerned person has knowledge or is knowingly involved in any process or activity which is related to the proceeds of crime. We have noted that, the offence under Prevention of Corruption Act came to be notified as Schedule offence of the PMLA, by the PMLA Amendment Act which came into force on 1st June, 2009. Before 1st June,2009, the offence under Section 13 of the Prevention of Corruption Act was not predicate/scheduled offence under PMLA. Therefore, before 1st June 2009, offence under Section 13 of the Prevention of Corruption Act, was not a scheduled offence. It is settled law that, no person can be prosecuted for an allegation/act which occurred earlier by applying law which has come into force at a later date after the act/allegation is made. There can be no retrospective application of criminal liability for an act/offence which has taken place or committed prior to introduction of the liability in the statute books. Even otherwise, the Enforcement Directorate, does not have any material to show that the money is covered under the definition of “Proceeds of Crime” under section 2 (u) of the PMLA. Without a criminal activity and/or a scheduled offence there cannot be a “proceeds of crime”. Pertinent to note, that it is not even the case or allegation of the Enforcement Directorate that the monies advanced by SPCL are generated from or of a criminal activity, let alone the same being relating or relatable to a schedule offence. Attaching properties under the PMLA, without any legal evidence or basis or when the basic requirements/ingredients under the PMLA are not fulfilled is misplaced and misconceived. Considering the facts and documents on record, and the same viewed from any angle or in any manner, the conclusion can only be one that, the Appellant has incorrectly attached the properties especially in the absence of any criminal activity. No merits in the Appeal. We are inclined to dismiss the Appeals and uphold the impugned Order dated 17th January, 2019 with modification to the extent of refund of the accrued interest to Shapoorji Pallonji and Co. Pvt. Ltd. The Appellate Authority by the impugned Judgment, as far as the interest accrued is concerned, has directed that it be paid to the Shapoorji Pallonji and Co. Pvt. Ltd. As would be evident from the track record of the company, the said companies had all times whilst pursuing its own objectives has strived to develop economic activities in the interest of the nation and charitable works for benefit of the society. We are therefore inclined to modify the said directions of refund of interest accrued on the said principal amount. We therefore, deem it fit to transfer 50% of the interest accrued on the said FD’s to the Armed Forces Battle Casualties Welfare Fund (AFBCWF). We do this in a manner and with an object of balancing the equities.