TaxTMI 
TaxTMI 
2017 (8) TMI 800
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....llants under section 5 (1) of Prevention of Money Laundering Act, 2002. The impugned order being common to all the three appeals and the facts and issues involved as well as grounds taken in support of the appeals being the same, the three appeals are taken up by this common order. 2. The appeals were listed for hearing on 2nd May, 2017, the learned counsel for the appellant made his submissions. When the appeals were listed on 11th May, 2017, Mr. Saud, learned counsel for the respondent addressed his submissions. While dictating the orders, we have noticed that five applications in the three appeals are still pending disposal and therefore those are to be disposed off first. 3. The first application being no. MP-PMLA-1569/MUM/2015 in FPAPMLA- 658/MUM/2014 filed by Deepali Dilip Bhingarde wherein the appellant has sought stay of the order and directions to restrain the respondent from taking possession of the flat no. 302, Jacob Apartment, Baburao Parulkar Marg, Bhawani Shankar Road, Dadar, Mumbai-400 024. Alongwith the stay application, the prayer is also made for amendment of appeal memo in the application being MP-PMLA-1570/MUM/2015. The prayer for interim relief was granted ....
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....by one of the parties and and there being some delay in filing one of the separate individual appeal. These applications are allowed. 5. As far as the three applications for stay of the order and stay against taking over possession of the flats by the respondent is concerned, we now proceed to deal with the same. The brief facts in this regard are that the charge sheet no. 1-113/2006 dated 26.05.2006 filed by Thane Police authorities reveals that the Charge-sheet is against 18 accused persons namely (1) Gangadharam Gangaram Yeligeti, President of Sarva Dharma Manav Seva Charitable Trust (hereinafter referred as "SDMSCT"), (2) Kum. Prasanna Gangadharam Yeligetti, Treasurer of SDMSCT, (3) Tukaram Arjun Mirje, Ex-Secretary of SDMSCT, (4) Shriniwas Gajapati Naidu, Assistant in SDMSCT, (5) Misal Keshav Rokade, Assistant in SDMSCT, (6) Dilip Bhaskar Bhingarde, Member and Director of Vysya Co-operative Bank Ltd., Parel, Mumbai, (7) Sudesh Madhukar Kulkarni in the job of collecting deposits for the Banks, (8) Sudhakar Vitthal Narvekar Proprietor of Mahakali Enterprises and Mahakali Chitra, (9) Nitin Ramdas Raut - employed in the Protek Phrmaceutical Company, (10) Ashok Himmatlal Parekh Sh....
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.... ECIR No. 13/MZO/2008 dated 22/10/2008, the case was registered under PMLA, 2002 for investigation into the offence of money laundering by the Directorate of Enforcement, Mumbai Zonal Office, Mumbai and for the attachment and confiscation of the properties derived from or involved in money laundering. 7. On the basis of investigation conducted under the PMLA, 2002 and as per charge-sheet and material available, the respondent passed the order of Provisional Attachment Order No. 05/2014 (PAO, for short) in ECIR No. 13/MZO/2008 dated 27th day of March, 2014. The case of the appellant before us is that despite of expiry of eight years from the filing of Charge Sheet in 2006 and six years of registration of ECIR in 2008, there was no fresh material gathered or collected by the respondent and the PAO was passed. Thereafter, the show cause notice was issued by the Registrar, Adjudicating Authority on 28.04.2014 asking the appellants as to why the provisional attachment order in respect of the referred properties should not be confirmed and the appellants were asked to appear before the adjudicating authority PMLA in person or through an Advocate on 25.06.2014. 8. The appellants also ch....
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....ion that the Prevention of Money Laundering Act (PMLA) does not apply in the aforesaid case and finally concluded the investigation and now after a gap of six years, a new officer who is from the same department comes and asked for intervention and tries to apply the PMLA. The outcome of the said application before the Special Court is not clear. However, vide PAO dated 27th May, 2014 the properties in question were attached by the Deputy Director, Enforcement Directorate under the PMLA. An original complaint was also filed by the Deputy Director, Directorate Enforcement before the adjudicating authority seeking confirmation of the Provisional Attachment Order. 10. The case of the appellants in the criminal proceeding and in the proceedings before the Adjudicating Authority was that their properties could not have been attached by this Authority (i.e. Enforcement Directorate) because they are not involved in money laundering and order should not be confirmed as they were no more the member of the society i.e. Serva Dharma Manav Seva Charitable Trust (hereinafter referred to as "SDMSCT") who committed the crime which is reported in Chief Judicial Magistrate Court, Thane in Court Ca....
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....ession of the three flats which are already in the custody of the Special Court where the criminal matter is pending. 14. It is argued on behalf of the appellant that Section 5(1) (c ) mandates the following three conditions for applicability of the Section viz. (a) any person is in possession of any proceeds of crime, (b) such person has been charged of having committed a scheduled offence; (c) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds of crime under this Chapter. 15. It is further contended that there is not even a whisper (in the Provisional Attachment Order) as to what is the basis of apprehension that the proceeds of crime were likely to be concealed, transferred or dealt with in the manner laid down by clause (c) of Section 5(1). The Deputy Director also stated in para-2 of his order that he was relying on the material placed before him i.e. the copy of the FIR registered by Wagle Industrial Police Station, Thane, Police Commissionerate, Thane as well as Charge Sheet filed by Thane Police and material collected during the course of invest....
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....lee happens to be the decree-holder? Obviously it cannot, for the decree -holder's custody is not in his capacity as decree-holder's custody is not in his capacity as decree-holder but only as the bailee of the sapurdar. We, therefore, hold that the decree-holder's possession of the buffaloes in the present case was only as a bailee of the sapurdar." On the basis of the above judgment, it was contended that the application for stay may be allowed by the Hon'ble Tribunal failing which the respondent were likely to take over possession of the flats in terms of the Section 8(4) of the Act. 17. It is the case of the respondent that all the grounds raised by the applicant are untenable in the eyes of the law and the appeal is liable to be dismissed. Mr. Saud, learned counsel for the respondent, contested the submissions made on behalf of the appellant. He referred to the provisional attachment order and the impugned order in the case to contend that after registration of ECIR in 2008, investigations had been made by the respondent under the PMLA wherein the different persons accused in the case were examined and their statements recorded under section 50 of the Act. The recording of ....
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....rned Single Judge of the High Court dated 10th August, 2000. In terms of the same order, that amount was already invested in the specified bank in fixed deposit account. It was not open to the Adjudicating Authority to disregard the order of the High Court and proceed to provisionally attach even that amount. Besides, no prior permission of the High Court has been obtained. The argument, though attractive at the first blush, will have to be stated to be rejected. In the first place, this argument clearly overlooks that the order of provisional attachment has been passed by the Appropriate Authority in exercise of powers under the provisions of the PMLA. The amount, which was frozen in terms of order of the learned Single Judge dated 10th August, 2000, was in connection with the freezing of that amount by the Narcotics Control Bureau under the provisions of the NDPS Act. That would not be any impediment for the Appropriate Authority under the PMLA to proceed with the provisional attachment of the said amount. The purpose of freezing the amount under the provisions of the NDPS Act is different than the purpose of provisional attachment of the amount under the PMLA. It is possible to ....
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....conclusion which we have expressed earlier. In the circumstances, there is no scope for invoking this external aid to the construction of the expressions used in the Act. Secondly, the scope of the two enactments viz. the Act of 1948 and that of 1951 are widely different, and the latter has a definitely more extended scope and is designed to secure substantive advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Therefore, even if the language used in the two enactments were identical - which is not even the case here - the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation. It could not therefore be said that the two Acts are in pari materia so as to attract the Rule relied on. Lastly, the Rule of construction which is certainly not one of a compelling nature, is generally adopted in the construction which is certainly not one of enactments where provisions which have appeared in earlier repealed statutes which have received an uniform and accepted judicial interpretation are re-enacted. Obviously that is not the case here. In the circumstances, we consider....
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....r appeals are in the custody of the Court. The possession was given by the court to the appellants in 2007, despite of opposition of the police authority before the Court, on the basis of bond furnished by them. Later on in 2014, the properties were attached under the PMLA Act. 22. As far as the decisions referred by the counsel for the respondent are concerned, presently we are considering the miscellaneous applications wherein the appellants have sought stay of the action proposed by the respondent to take over possession of the attached property in terms of section 8(4) of the Act specially when the properties in question were already in possession of the Special Court. The judgment cited by the Ld. Counsel of the respondent in the case of Om Prakash Daultram Naugaja Vs. Union of India & Ors., supra is on the question of jurisdiction of the Enforcement Directorate to proceed with the provisional attachment of certain amounts under the PMLA when the said amounts were already frozen under the NDPS Act as per the directions of the Learned Single Judge of the High Court. It was held in the said Judgment that the purpose of freezing the amount under the NDPS Act being different than....
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....arned counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding that a sale held without notice to the Receiver or without the leave of the Court appointing the Receiver in respect of the property, is void ab initio. In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity. The American Courts appear to have taken the view that such a sale is void. In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit. We shall assume for the purposes of this case that such a sale is only voidable and not void ab initio. 8. On the assumption that the sale held in this case without the leave of the Court and without notice to the Receiver, is only voidable and can be declared illegal on that very ground, the suit had been instituted for the declaration that the sale by the revenue courts was illegal. The plaint was subsequently amended by adding the relief f....