TaxTMI 
TaxTMI 
2015 (12) TMI 1736
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....ted that M/s. Govinda Constructions is a partnership firm and Shri Rajeev Kumar is a partner in this firm and that the respondent has made the firm defendant in the Original Complaint through its partner Shri Rajeev Kumar who was authorized by the partnership firm to represent it before the Adjudicating Authority. He states that the present appeal is filed on behalf of the partnership firm through Shri Rajeev Kumar, partner after authorization by the partnership firm. With the consent of both the parties, appeal was taken up for final disposal. Brief Facts 2. An FIR No. 13/13, dated 1st May, 2013 was registered with Economic Offence Unit, Patna alleging that the Shri Sunny Priyadarshi, Chandan Kumai @ Tinku Kumar, Shri Krishna Kumar @ Krishna Rai, Shri Surender Tiwary and others have committed offences under Sections 419, 420, 467, 471, 472, 473, 120B of IPC. It is alleged that accused persons created fake cheques and then signature of authorized signatory were forged on the cheques so created which were drawn on bank accounts held by the Government and semi-Government departments located in Bihar. These high value fake account payee cheques with forged signatures were depos....
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....hi, Ms. Amisha Priyadashi, Sh. Shantanu Shamdarshi and M/s. Sterling India revealed that substantial cash was deposited in the bank accounts which was later on utilized for purchase of movable and immovable properties. The source of cash deposited in the bank accounts could not be explained by the accused and it is alleged that amount withdrawn from the bank accounts against the encashment of the forged cheques was deposited in the bank accounts and utilized for purchase of movable and immovable properties. Consequently the respondent provisionally attached various movable and immovable properties vide Provisional Attachment Order No. 05/2014, dated 26th August, 2014 and filed Original Complaint No. 357/2014 before the Adjudicating Authority praying confirmation of the provisional attachment of properties. The Adjudicating Authority after considering the documents filed by the defendants in the Original Complaint and after considering arguments of the parties, confirmed the provisional attachment of the properties vide impugned order dated 1st January, 2015 which is now being challenged in the present appeal. 4. The learned counsel for the appellant submitted that the present....
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....cating Authority has committed grave error in concluding that Sh. Sunny Priyadarshi is owner of Flat No. 204. He contended that as all the cheques for payment of sale consideration have bounced and appellant had not received any money from the accused Sh. Sunny Priyadarshi, it could not be held that the flat No. 204 would be proceeds of crime. 7. The counsel for the appellant drew our attention to the copy of the sale deed registered at document No. 2537 dated 5th February, 2013 showing that the payment of sale consideration was made through four cheques drawn on Axis Bank Limited for Rs. 10,66,000/- each. He drew our attention to the copy of the letter dated 14th June, 2013 filed before the respondent wherein it is stated that the flat No. 204 was sold to Sh. Sunny Priyadarshi for consideration of Rs. 40,00,000/- and the amount of Rs. 2,64,000/- was charged for interior work and total sale consideration of Rs. 42,64,000/- was paid by four cheques as follows:- "Flat No. 204 was sold out for a consideration of Rs. 40,00,000/- Further, an amount of Rs. 2,64,000/- was charged towards interior work cost (Mode and manner of payment of consideration + Interior Cost) Cheque No. ....
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....sale deed duly registered on serial No. 253 on dated 5th February, 2013 in favour of the accused Sh. Sunny Priyadarshi after receipt of entire sale consideration and unless the registration of sale deed is cancelled and sale is declared null and void by the Competent Court of Jurisdiction, Sh. Sunny Priyadarshi would continue to be the rightful and legal owner of Flat No. 204. He submitted that the FIR was registered on 1st May, 2013 and thereafter, the backdated cheque No. 996974, dated 5th March, 2013 and cheque 496948, dated 5th April, 2013 were presented by the appellant in its bank account only on 2nd May, 2013 which were returned unpaid on 3rd May, 2013. He contended that the appellant had already received entire sale consideration for sale of flat No. 204 at the time of registration of sale deed on 5th February, 2013 as stated in the sale deed. However in order to save the property from attachment and confiscation under PMLA, the accused Sh. Sunny Priyadarshi entered into another conspiracy with the appellant through its partner Shri Rajeev Kumar who claimed receipt of sale consideration though the cheques and as soon as they came to know about the registration of the FIR on....
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....e consideration. He submitted that he has filed a paper book on 9th September, 2015 after seeking permission of this Tribunal on 26-8-2015 which contains some additional documents i.e. certified copy of sale deed No. 2537, dated 5-2-2013 in respect of sale of flat No. 204, Lotus Apartment, Patliputra Colony, Patna obtained from the office of Joint sub-registrar, Patna which is a public document and certified copy of bank statement for account No. 07240500005352 in the name of appellant M/s. Govinda Constructions as held in UCO Bank, Patliputra Branch, Patna. During the course of arguments on 20th November, 2015, Mr. N.K. Matta submitted that as these documents were received in August, 2015; one document is a public document and another is statement of bank account of the appellant and they are relevant for determination of the issue, therefore, these documents may be taken on record for consideration. On notice to appellant, his counsel did not make any objection. After careful consideration, for the reasons stated by the respondent, it was decided to allow these additional documents for consideration of appeal. 13. The counsel for respondent drew our attention to copy of ban....
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....sed Sh. Sunny Priyadarshi in order to avoid attachment of Flat No. 204 under the provisions of PMLA which is clearly established from the fact that the appellant had attempted to project before the respondent vide letter dated 14-6-2013 that as all the cheques issued by Sh. Sunny Priyadarshi for purchase of flat No. 204 have bounced, therefore, the appellant is owner of the property and not Sh. Sunny Priyadarshi. He submitted that the flat has been sold after receipt of entire sale consideration on or prior to 5-2-2013 and even if receipt of sale consideration is shown to be made through post-dated cheques, it could merely be an accommodation extended to Shri Sunny Priyadarshi by the appellant in order to project the flat as untainted. He contended that admittedly the sale document is duly registered, therefore, Sh. Sunny Priyadarshi is absolute owner of flat No. 204, and not the appellant as is now being claimed and prayed that the appeal may be dismissed. 17. We have heard the arguments on behalf of both the parties and also carefully considered the documents produced on record. The main argument of the appellant is that since the cheques issued by Sh. Sunny Priyadarshi tow....
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....eply dated 14-6-2013 before respondent stating that all four cheques have bounced due to insufficiency of funds in the account of drawer 14-6-2013 Ch No. 496949 and 496950 returned unpaid by Axis Bank vide memo dated 14-6-2013 15-6-2013 Entries in bank account of appellant M/s. Govinda Construction with UCO Bank for return of cheque No. 496949 and 496950 and bank charges for return of cheques 20-6-2013 Respondent received certified copy of sale deed No. 2537, dated 5-2-2013 for flat No. 204 from District Registrar Office, Patna vide letter No. 6364, dated 20-6-2013 6-8-2013 Appellant M/s. Govinda Construction filed title suit No. 541/13 before the Sub-judge-1, in Patna Civil Court for declaring sale of flat as null and void 19. The respondent during investigation gathered copy of sale deed No. 2537, dated 5-2-2013 from the District Registry Office, Patna vide their letter No. 6364, dated 20-6-2013 which is part of Original Complaint No. 357/2014 and relied upon documents. The appellant has also filed copy of sale deed No. 2537, dated 5-2-2013 along with stay application dated 8-4-2015 stating that the same is copy of documents filed by Enforcement Directorate/....
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.... consideration of copy of sale deed filed by appellant in Tribunal on 8-4-2015 claiming the same as true copy of sale deed filed by respondent in Original Complaint, it was found that the same is not the true copy of sale deed as filed by respondent in Original Complaint. 22. Perusal of letter dated 14-6-2013 filed by appellant before the respondent along with documents reveal that the appellant submitted before the respondent that all the four cheques paid by Sh. Sunny Priyadarshi towards sale consideration of Flat No. 204 have bounced due to insufficiency of funds in the account of the drawer i.e. Sh. Sunny Priyadarshi. The plea of respondent that on 14-6-2013, the appellant did not have any intimation regarding bouncing of cheque No. 496949 and 496950 for Rs. 10,66,000/- each dated 14-6-2013 when reply dated 14-6-2013 was filed before respondent, in the forenoon by the appellant then how the appellant could have stated in his letter dated 14-6-2013 that these cheques have bounced due to insufficiency of funds unless appellant was in collusion with Sh. Sunny Priyadarshi, has considerable merit. The above two cheques were deposited by appellant M/s. Govinda Construction in i....
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....y reason for late deposit of the above cheques in bank for collection. In the backdrop of these facts, the argument of the respondent that after registration of FIR No. 13/2013 against Sh. Sunny Priyadarshi and others, Sh. Sunny Priyadarshi in collusion of the appellant took steps to project that the flat No. 204 was sold without payment of sale consideration and deposited two cheques dated 5-3-2013 and 5-4-2013 immediately on 2-5-2013 and deposited remaining two cheques on 12-6-2013 in order to wriggle out of the proceedings in respect of flat No. 204, assumes significance and cannot be disregarded. 24. The appellant has claimed that the sale deed No. 2537, dated 5-2-2013 as conditional to the payment/release/honoring of the four cheques which is stated in appeal memo as follows : "I. Because the sale deed bearing No. 2537, dated 5-2-2013 was conditional to the payment/release/honoring of above said four cheques, which was not done in favour of the appellants/his firm by Mr. Sunny Priyadarshi." 24. However, perusal of sale deed No. 2537 as reproduced below reveals that it was a "Deed of absolute sale" and not a deed of conditional sale subject to honoring of cheques a....