TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 755
X X X X Extracts X X X X
X X X X Extracts X X X X
....e leading to the filing of this complaint:- (i) The Anti Corruption Bureau (hereinafter referred to as 'ACB'), Worli, Mumbai, have registered an FIR No. 35 of 2015 dated 11.06.2015 invoking Sections 13 (1) (c), 13 (1) (d) and 13(2) of Prevention of Corruption Act 1988, and Sections 109, 406,409,420, 465, 468, 471, 474, 477(A) read with Sections, 120(B) and 34 of Indian Penal Code and they are presently investigating the same. The FIR is registered against Shrt Chhagan Bhujbal, then PWD Minister, Maharashtra, his relatives, M/s K.S. Chamankar Enterprises, its partners, PWD officials and others. The FIR alleges that the cash generated out of such illegal gratification was then channeled into various companies of the Bhujbal group and integrated into the business activities of the group companies. The complaint revealed that: a) The Accused persons, especially the public servants misused their designation and entered into a criminal conspiracy to cheat and cause financial loss to the Government and undue gain to the developer, M/s KS Chamankar; that they have put up bogus/fabricated financial statements before Infrastructure Facilities Committee of the Maharashtra Government for o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Shri Chhagan Bhujbal, (iv) Shri Krishna Shantaram Chamankar, partner of M/s. K.S. Chamankar Enterprises, (v) Smt. Pravina Prasanna Chamankar, partner of M/s. K. S. Chamankar Enterprises, (vi) Smt. Pranita Prashant Chamankar, partner of M/s. K. S. Chamankar Enterprises & Other persons alleging that the aforesaid persons hatched a criminal conspiracy to cause loss of crores of rupees to the government exchequer. The public servants intentionally prepared bogus documents which they were aware that the same are false in order to show undue favour and cause undue gain to the developer i.e. M/s K.S. Chamankar Enterprises it is alleged by the ACB in the said chargesheet that the accused persons which included Shri Chhagan Bhujbal, then PWD Minister, Government of Maharashtra and related persons/entities hatched a criminal conspiracy to cheat and cause financial loss to the Maharashtra Government and undue gain to the developer, in respect of the development of R.TQ. Office Andheri, Mumbai. By resorting to misrepresentation of facts and forgery, the project was fraudulently awarded to the developer M/s K. S. Chamankar Enterprises by taking bribes and other pecuniary benefits by Shri Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 16 Area 321.30 Square Meters, Nashik M/s Parvesh Construction Ltd. 25,50,000/- 7. Gat No.- 277/1-3 H+54 R Area Gat No.- 277/2-3 H+54 R Area Gat No.-277/3-92 R Area in Indore, Taluka- Dindori, District- Nasik Bhujbal Wines Pvt. Ltd. 9,00,000 8. Sai Kunj on Plot No. 214 Dadar Matunga Estate Dadar (East) Mumbai- 400014 Niche Infrastructure Pvt. Ltd. 1,59,000,00 9. Tenancy rights of Flat No. 4, Saikunj, Plot No. 214 Dadar (East) Mumbai- 400014 Mrs. Vishaka Pankaj Bhujbal 60,00,000/- 10. Tenancy rights of Flat No. 7, Saikunj, Plot No. 214 Dadar (East) Mumbai- 400014 Mrs. Meena Chaggan Bhujbal 45,00,000/- 11. Land comprising area 390.90 Sq mt. having CTS No. 791/1A+797/2/ A /46+47 inside plot no. 46+47, Nashik M/s Armstrong Pure Water Services Pvt. Ltd. 36,00,000/- 12. Survey NO.- 157/A1 (old Survey No.- 157/A-1/2+1 total Area- 0.16R+Constructed area 783.18 Sq Mtrs including ground Floor+1st Floor) M/s. Bhujbal Wines Pvt. Ltd. 72,90,000/- 13. Gat No.- 1072-1.94 & 1073- 2H.06 R Adgaon, Nasik Dilip Khaire 72,00,000/- 14. 3 Gat No.- 277/1-3 H+54 R Area Gat No.- 277/2-3 H+54 R Area Gat No.- 277/3-3 H+54, 277/4- 3H 53R in Indore....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (iv) Cheques for a sum of Rs. 50,00,000 bearing No. 259904 dated 10.08.2016 drawn on Union Bank of India, Kalba Devi, Mumbai Branch; (v) Cheques for a sum of Rs. 62,35,000 bearing No. 259905 dated 17.08.2016 drawn on Union Bank of India, Kalba Devi, Mumbai Branch; 10. One of the post dated cheque for the sum of Rs. 62,35,000/- was received by the vendor on 17th August, 2016 after passing of provisional order of attachment on 11th August, 2016. The said issue was also raised by the learned counsel for the respondent which would be considered in later part of our order. 11. We have heard the parties on the issuance of requirement of issuance of notice mandated u/s 8 of the Act as well as the merits of the case. The mandatory requirement of law i.e. section 8 reads as under:- 8. Adjudication. - (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under subsection (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an [offence under section 3 or is in possession of proceeds of crime], he may serve a notice of not less than thirty days on such person calling u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in first proviso any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.] (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....datory requires under section 5(1). There was no proper investigation. Even at the time of passing the impugned order by the Adjudicating Authority (who confirmed the provisional attachment order) did not comply with the mandatory provisions. He stated that since the period of 180 days has already been expired, and under the provision of section 5 (3), the attachment has already ceased to have any effect in relation to serial no.-1 property which is now owned by the appellant. He referred that sub section (3) of section (5) which mandates that every order of attachment made under section (1) shall cease specified thereon. Section 5(3) reads as under: 5(3):- Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. 16. It is a settled legal position that if law requires that a particular thing should be done in a particular manner, it must be done in that way and none other. Reliance in this regard is placed on a judgments of Hon'ble Supreme Court in the cases of Dipak Babaria and another v/s. State of Gujar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e requirement is not mandatory and the specified consequence should not follow." 18. Under these circumstances, we are of the view that there is a total violation of the provisions i.e. Section 8(1) and (2) read with section 5 (3) of the Act on the part of the Adjudicating Authority, who failed to issue the notice which was required under section 8 of the Act. 19. On merits, the learned counsel for the respondent has also argued that the last installments for the payment in this regard was made on 17th August, 2016 after passing the order of provisional attachment, therefore the plea raised by the appellant that the property was sold prior to provisional attachment is not sustainable. He also submits that the appellant has disclosed this fact in the ground of appeal. 20. We are not agreeable with the argument of the respondent because as per settled law, once the sale deed is registered, the same would relate back to the date of execution which is 14.07.2016 in case and is much prior to the date of POA. Hamada Ammal Vs. AviappapPathar and 3 ors, (1991) 1 SCC 715 is on this point. As far as transfer of property in question is concerned, the ownership thereof stands transferred ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ved of possession of property till criminal proceedings against some third party are concluded under section 8(4) and 8(5), which is contrary to provisions of Article 300A of the Constitution of India. 25. Mr. Kirpal submits that under section 8(1) of the Act, if the Adjudicating Authority on receipt of complaint under section 5(5) of the Act has reasonable belief that any person has committed an offence under section 3 of the Act or is in possession of proceeds of crime, a notice is to be served upon that person within the prescribed time calling upon him to indicate its source of income, earning or assets, out of which or by means of which the attached property has been acquired. 26. It is argued by Mr. Saurav Kirpal, Advocate that the provisions of section 24 of the Act provide that when a person is accused of having committed the offence under section 3 of the Act, the burden of proving that the proceeds of crime are untainted property shall be on the accused. In the present case, despite the fact that the appellant has not been accused of committing any offence under section 3 of the Act, the appellant, in the present appeal who is a purchaser, has placed relevant materials ....