TaxTMI 
TaxTMI 
2015 (8) TMI 1423
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....RC.BD1/2009/E/0014, lodged by Central Bureau of Investigation (in short CBI), Bank Securities & Fraud Cell, New Delhi on 20-8-2009 under Section 120-B r/w 420 IPC, Section 13(2) r/w 13(l)(d) of the Prevention of Corruption Act, 1988 and substantive offences thereunder, against Shri Hinish Ramchandani and other partners of M/s. SRS Investment Company, having its office at 7/92, Tilak Nagar, Kanpur for duping the State Bank of India, Main Branch, Kanpur of Rs. 44,22,15,270.92 during the period June 2008 to July 2009 in connivance with certain bank officials by availing credit facilities without having sufficient funds in the account of M/s. SRS Investment Company and also by resorting to kite flying operation. 3. Consequent upon the completion of investigation, the Central Bureau of Investigation, Bank Securities & Fraud Cell, New Delhi filed Final Report (Charge-Sheet) dated 25-3-2011, under Section 173 of Cr.P.C. before the Court of Hon'ble Special Judge, Anti-Corruption (Central), CBI Cases, Lucknow on 31-3-2011 against S/Shri Sanjay Dixit, the then Deputy General Manager, Vineet Kanaujia, the then Chief Manager, Ramesh Chandra Saxena, the then Manager, Swadesh Kumar, the ....
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....nvestment Company, Kanpur with the Induslnd Bank, Swaroop Nagar Branch, Kanpur and into the bank accounts of M/s. Rajiv Filing Station Pvt. Ltd. with the Induslnd bank, Kanpur. Thereafter, the proceed of crime was utilized for making the said payment to the UPSIDC, Kanpur in the form of advance against allotment of plot. On enquiry UPSIDC, Kanpur informed that the allottee company i.e. Respondent No. 1 M/s Tejal Edibles Pvt. Ltd. has failed to deposit the required reservation money within the stipulated time and therefore, the allotment of plot had been cancelled and 1% Earnest Money i.e. Rs. 13,200/- alongwith processing fees of Rs. 5,000/- had been forfeited by the UPSIDC and an amount of Rs. 33,06,800/- is payable to the applicant without interest. 6. The said amount of Rs. 33,06,800/-, lying with the UPSIDC, Kanpur, being part of the proceeds of crime relating to the scheduled offence was provisionally attached vide third Provisional Attachment Order No. 02/LKZO/2014 dated 31-3-14 and Original Complaint No. 315/2014 dated 25-4-2014 was filed before the Adjudicating Authority. The Adjudicating Authority passed the impugned order on dated 19-9-2014 remanding the matter wi....
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.... being contested in the present appeal. 10. The counsel submitted that as per the provisions of Section 8(1) of PMLA, on receipt of complaint under Section 5(5) of PMLA if the Adjudicating Authority has reasons 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 on such person calling upon him to indicate the source of his income, earning or assets, out of which or by means of which he has acquired the property provisionally attached, the evidence on which he relies and other relevant information and particulars and to show cause why all or any of the properties should not be declared the property involved in money laundering and confiscated by the Central Government. Section 8(2) of PMLA provides that the Adjudicating Authority shall after considering the reply, if any, to the notice issued under Section 8(1); after hearing the aggrieved person and the complainant and after taking into consideration all relevant materials placed on record before him, by an order record a finding whether all or any of the properties referred to in the notice issued under Section 8(1) of PMLA are involved in mone....
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....lant that the Adjudicating Authority has not elaborated as to how and for what reasons the investigation conducted was incomplete. He submitted that the direction of Adjudicating Authority to file a fresh original complaint after further investigation are contrary to the provisions of Section 5(5) of PMLA which stipulates that Original Complaint has to be filed within 30 days from the date of issue of Provisional Attachment Order and new complaint would not be within 30 days. 14. The counsel submitted that the first date of hearing before the Adjudicating Authority was fixed on 7-7-2014. Despite service of show cause notice under Section 8(1) issued by the Adjudicating Authority and service of Original Complaint along with relied upon documents, no one appeared on behalf of the respondents nor any request for adjournment was filed which clearly shows that the respondents were not interested in contesting the complaint and the provisional attachment order. He submitted that on 7-7-2014 appellant's counsel appeared before Adjudicating Authority who was of the view that matter should be remanded back for re-investigation which was opposed. The Adjudicating Authority adopted a ....
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....is possession, that - (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed : Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorized to investigate the offence mentioned in that 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 clause (b), any property of any person may be attached under this sec....
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....the evidence on which he relies and other relevant information and particulars, and to show cause why all any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government : Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under sub- section( 1); (b) hearing the aggrieved person and the Director or any other officer authorized by him in this behalf, and (c) taking into account all relevant material placed on record before, him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section(l) are involved in money-laundering: Provided that if the property is claimed....
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....ed under sub-section (l) of section 5 of the Prevention of Money Laundering Act (15 to 2003), 2002 the evidence on which you rely and other relevant information and particulars and show cause why all or nay such property should not be declared to be the properties involved in money laundering and consequently why the attachment order should not be confirmed. You are called upon to show cause why the provisional attachment order in respect of properties should not be confirmed as representing proceeds of crime being value of properties involved in money laundering (copy of the complaint and Annexure/relied upon documents there to is enclosed here with). You are directed to appear before Shri Mukesh Kumar Hon'ble member, adjudicating authority (PMLA) in person or through an advocate/authorized representative, duly instructed on 7-7-2014 at 11.00 A.M. at adjudicating Authority, Prevention of Money Laundering, 4th Floor Court Room-1, Room No. 25, Jeevan Deep Building, Parliament street, New Delhi-110001 failing which the Complaint shall be heard and decided in you absence. Given under my hand and the seal of the adjudicating Authority, This, 30th April, 2014. Regi....
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....hich is to be filed within 30 days from the date of provisional Attachment order, cannot be filed within statutory period as that period would have already expired. Further the provisional attachment order has been passed attaching properties for a period of 180 days from the date of the order and by the time fresh complaint is filed after further investigation, the attachment may become invalid as period of 180 days may have expired and consequently a fresh Original Complaint would serve no useful purpose. If after further investigation, the Enforcement Director comes to a conclusion that the property is not acquired out of proceeds of crime or is not involved in money laundering and is not to be attached under Section of 5 of PMLA then it would not be necessary to file a fresh original complaint, however, unless fresh complaint is filed, Enforcement Director would not be in a position to comply with the direction to File fresh Original Complain as given by the Adjudicating Authority in its order. This would create absurd situation. 20. Provisions of Section 5(1) of PMLA provides that where the Director or any officer not below the rank of Deputy Director authorized by the....