TaxTMI 
TaxTMI 
2018 (11) TMI 97
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....Part) Plot No. B-1, Netaji Apparel Park, NH-47 Main Road,BettiveeramPalayam Village, Tirupur, Andhra Pradesh, owned by Mr. ManishBabel, the Director of M/s Polestar Traders Pvt. Ltd. 3. The brief facts as per the pleadings of the appellant mentioned in para -2.1 to 2.18 are reproduced hereunder:- 2.1 IndusInd Bank, Mumbai filed a Complaint with D.B. Marg PoliceStation, Mumbai against M/s Yogeshwar Diamonds Pvt. Ltd., M/s.Shree Charbhuja Diamonds Pvt.Ltd. and their Directors viz. Shri AnilKumar MulchandToshniwal, Shri Sunil Kumar Chokhara and ShriAnil Chokhara. 2.2 That it was alleged in the complaint that the bank account holders ofIndusInd Bank viz. M/s. Yogeshwar Diamonds Pvt. Ltd., M/s. ShreeCharbhuja Diamonds Pvt. Ltd., M/s. Kanika Gems Pvt. Ltd. and theirdirectors viz. Shri Anil Kumar MulchandToshniwal, Shri Sunil KumarChokhara and Shri Anil Chokhara had illegally remitted IndianCurrency to the tune of Rs. 3,04,35,77,609/- (US$ 4,90,11,147.07) toabroad by submitting forged Bills of Entry to the IndusInd BankLtd. branches of Opera House & Fort in the form of importremittances. 2.3 That pursuant to which D.B. Marg Police Station, Mumbai registeredan....
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....operty was filed before the DM, Tirupurby the Appellant Bank on 15.07.2017. A copy of loan sanction letterdated 24.06.2013 issued by the Appellant Bank to M/s. PolestarTraders Pvt. Ltd is enclosed as Annexure-. 2.10 That vide the Provisional Attachment Order No. 07/2017 dated16.06.2017 in ECIR/05/MBZO/2016 under Section 5(1) of Preventionof Money Laundering Act, 2002 was passed by the Deputy Director,Enforcement Directorate, New Delhi, inter alia, attaching the abovementioned property purchased by Contesting Respondent No. 2 alongwith other properties of the accused. 2.11 That the Appellant Bank herein was made a party in ProvisionalAttachment Order No. 07/2017 dated 16.06.2017. It is pertinent tomention that the Appellant Bank was neither named in FIR asaccused neither even charge sheeted nor any officials of the bank areinvolved either the scheduled offence or offence committed under theprovision of Prevention Money Laundering Act. Therefore, the onlyreason Appellant Bank was arrayed as Defendant No. 12 in PAO No.07/2017 dated 16.06.2017 is because the scheduled property inquestion in the present appeal was secured against loan with theAppellant Bank. 2....
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.... of fundstook place thereafter. 2.16 That it is stated in the impugned order that even though ContestingRespondent No. 2 admitted to have participated in the allegedoffence of money laundering the money trail has not been tracedand found/retrieved. It is with this reason the EnforcementDirectorate has attached the only asset that was available in thename of Contesting Respondent No. 2. It was humbly submitted thatthe Adjudicating Authority was wrong in attaching the propertywithout ascertaining the fact whether the attached property waspurchased out of the proceeds of crime. 2.17 That the Appellant Bank vide letter dated 19.08.2017 informedDeputy Director, Enforcement Directorate that the scheduled propertywas already mortgaged with PNB for the account of M/s. PolestarTraders(P) Ltd. It was that the account has turned NPA on31.03.2017 and an application bearing no. 32/SA/2017 underSection14 of the Act for seeking physical possession of the scheduledproperty has been filed before the DM, Tirpur by the Appellant Bank. 2.18. That the Adjudicating Authority based on the above stated reasonconfirmed the provisional attachment order in PAO No.07/2017passed unde....
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.... Manish Babel has also accepted that he operated the account of M/s TopNice International Trading Limited and funds remitted by the accusedcompanies were further transferred to other local companies based inHong Kong. Thus Manish Babel has played a vary prominent andsignificant role in the commission of the criminal activities relating tothe scheduled offences. He has handled the laundered proceeds of crimeto the huge extent of Rs. 212987051. As against the said activities it isnoticed that Manish Babel (D-12) has purchased one plot of land atTripur, Andhra Pradesh in the year 2013 for a total consideration of Rs. 4.50 crores. D-12 has taken a stand that he came to Mumbai in the year 1998 andtill 2011 he did petty services in various firms and thereafter he starteddoing business of brokerage like cheque, RTGS and discounting. Heopened a company named M/s Polestar traders Pvt Ltd in 2013, tradingin metals. He stated of knowing the said Harakchand shah, as he wasalso in the business of cheque/ RTGS and discounting and as they wereboth operating from Opera House. The property attached stands in thename of M/s Pole Star Traders Pvt Ltd. It is his contention that thedep....
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....perty. It is clearly emerging from the reply of D-12that he admits of havingdealtwith the funds received in the account of M/s Top Nice InternationalTrading Limited. It is beyond doubt that the said funds were remitted bythe accused companies M/s Kanika gems, Yogeshwar diamonds and M/scharbhuja diamonds. The said companies are the accused companies inrelation to the scheduled offences. The funds of Rs. 212987051 remittedto M/s Top Nice International Trading limited is beyond doubt theproceeds of crime. D-12, Manish Babel has thus admittedly dealt withsuch huge proceeds of crime and was admittedly instrumental intransferring the proceeds of crime so received by M/s Top NiceInternational Trading Limited to several local companies in hongkong. Itis thus an admitted position that D-12 has dealt with the proceeds ofcrime to the extent of Rs. 212987051 and has played significant part inlaundering of the said proceeds of crime further. The D-12 is thus aparticipant in relation to the criminal activities relating to the scheduledoffence, as well a participant in the offence of money laundering. Havingdealt with proceeds of crime to the extent of Rs. 212987051, which areyet not tra....
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....nks are always bonafide. Both banks areinnocent parties. They were legally entitled to inform the AdjudicatingAuthority about their innocence and they rightly did so but their contentionwas rejected as appeared from the impugned order. 48. This Tribunal in the case of IPRS in appeal no. FPA-PMLA-1302/MUM/2016 decided on 22.06.2017 had dealt with the similar issueas to whether the innocent party whose immovable properties are attachedby the ED can approach the Adjudicating Authority for release of the samein para no. 55 to 60 the same read as under:- "55. Whether innocent party whose properties i.e. movable orimmovable are attached can approach the Adjudicating Authorityfor release of attached property. The Scheme of Prevention of Money Laundering Act clearly providesthe mechanism whereby the innocent parties can approach theAdjudicating Authority for the purposes of release of propertieswhich have been attached in terms of the provisions of Section 5 ofthe Act. This can be seen by reading Section 8(1) and the proviso toSection 8(2) of the Act whereby Adjudicating Authority has to rulewhether all or any of the properties referred to in the notice areinvolv....
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....n 10.05.2016 by Allahabad High Court, it has beenobserved by the Ld. Single Judge after noticing the judgment ofKarnataka High Court that the element of knowingly or mens reahave been provided under the Act so that the aspect of implicatingany innocent person can be ruled out. Relevant para 26 of judgmentis reproduced below :- "26. Thus, upon consideration of the law laid down by the Hon'bleKarnataka High Court, it is clear that the amendment incorporatedin the Money Laundering Act was not held unconstitutional andultra virus, but it was observed by the Karnataka High Court thatthe property of a person can be attached without there being anyprosecution for the offence of Money Laundering, but so far as theprosecution of a person for the offence of money laundering isconcerned, the proceedings under section 3 of the PML Act can beinitiated only in case the person is held guilty of receiving proceedsof crime as a result of commission of scheduled offence. TheKarnataka High Court has also held that the complainant in such acase is not required to wait for the result of trial being held for thescheduled offence. A complaint can still be filed against suchperson, but if ult....
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....ndering. The aspect of knowledge or involvement has been discussed by Ld.Single Judge of Gujarat High Court in the case of Jafar MohammedHasanfatta and Ors (Appellants) Vs Deputy Director and Ors. (Respondents) MANU/GJ/0219/2017 wherein Ld Single Judge hasobserved as under:- "37. A holistic reading of this definition of 'proceeds of crime' andthe penal provision under Section 3 of PMLA, which usesconjunctive 'and', makes it luminous that any persons concerned inany process or activity connected with such "proceeds of crime"relating to a "scheduled offence" including its concealment,possession, acquisition or use can be guilty of money laundering,only if both of the two prerequisites are satisfied i.e.- "(i) Firstly, if he- (a) directly or indirectly 'attempts' to indulge, (b) 'knowingly' either assists or is a party, or (c) is 'actually involved9 in such activity; and (ii) Secondly, if he also projects or claims it as untainted property;" 38. The first of the two pre-requisite to attract Section 3 of PMLAshall thus satisfy any of the following necessary ingredients- ....
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.... Actually involved would mean actually involved into any process oractivity connected with the proceeds of crime and thus scheduledoffence, including its concealment, possession, acquisition or use. There is absolutely no material or circumstantial evidencewhatsoever, oral or documentary, to substantiate any suchallegation qua the petitioners, D. Neither any of the petitioners is arraigned as accused in the'Scheduled Offences' punishable under Indian Penal Code for director indirect involvement, abetment, conspiracy or common intention,nor is any such case made out even on prima facie basis againstany of them." 39. The second of the two pre-requisite to attract Section 3 of PMLAwould be satisfied only if the person also projects or claimsproceeds of crime as untainted property. For making such claim orto project 'proceeds of crime' as untainted, the knowledge of taintednature i.e. the property being 'proceeds of crime' derived orobtained, directly or indirectly, as a result of criminal activityrelating to a scheduled offence, would be utmost necessary, whichhowever is lacking in the instant case." 59. These are four ingred....
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.... (a) in the case of a person charged with the offence of moneylaunderingunder Section 3, the Authority or Court shall, unless thecontrary is proved, presume that such proceeds of crime areinvolved in money-laundering; and (b) in the case of any other person the Authority or Court, maypresume that such proceeds of crime are involved in moneylaundering. 21. In the present case, one G. Srinivasan is accused of havingplayed fraud and obtained a loan of Rs. 15,00,00,000/- byproducing bogus and fabricated documents. From and out of thesaid amount, the property in question was purchased by him in thenames of his Benamies. One Ayyappan was appointed as theirPower Agent. One Gunaseelan purchased the property through thePower Agent Ayyappan. The said Gunaseelan was examined andhis statement was recorded Under Section 50 of the Act. He hadstated that he purchased the property for cultivation. He developedthe property but geologist gave opinion that property will not yieldproper income. In the circumstances, he sold the property toappellants. The respondent has not produced any document ormaterial to disprove the statement of Gunaseelan. There is nothingon record to show t....
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....perties inthe hands of their vendor was proceeds of crime. It was also notdisputed by complainant that the appellants did not have financialcapacity to buy properties. Paragraphs 21, 22, 23 and 24 of orderof Adjudicating Authority is extracted herein for better appreciation. '21. The CBIBS & FC (BLR) has filed a charge sheet in the court ofSpl. Judge for CBI cases Coimbatore, against Sh. Arivarasu, Sh. R.Manoharan, Sh. R. Selvakumar, Sh. G. Srinivasan, Sh. K. MarthaMuthu, Sh. V. InduNesan, Sh. K. Vignesh, Sh. A. Sainthil Kumar,Sh. M. Ram Krishnan, for the offences punishable under Section120-B read with 420, 467, 471 IPC and section 13(2) read with13(1)(d) of PC Act 1988. The offences punishable under section 120-B, 420, 471 are schedule offence under Section 2(1)(y) of the PMLAand therefore on of the condition for issuing provisional attachmentorder is satisfied. The other important point to be determined iswhether the properties attached vide Provisional attachment orderare involved in money-laundering. The only defense or explanationraised by Defendants, particularly Def No. 2 to 8 is that the landedproperties attached by the complainant are not proceeds of crime. ....
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....Lokatia's case,Department had proved the nexus and link between the personpossessing the property and person accused of having committedan offence. All the persons involved in that case were closerelatives. 26. In the present case, the respondent failed to prove that theappellants did not have sufficient financial capacity to buy theproperty or that the money paid by them as sale consideration wasnot legitimate money derived by agricultural activities.No material was produced to show that theappellants are close relatives of person, whoinvolved in criminal activities and the person, who sent monies topurchase the property did not possess financial capacity to providesuch huge amounts and that they are not genuine purchasers ofagricultural products of appellants. The respondent has not madeany such investigation and has not produced any such material. Further, the Appellate Authority in fact considered the additionaldocuments produced before it, but rejected the same on the groundthatAppellantshave not given any valid reasons for not filing thesame before the Adjudicating Authority. Having considered theAdditional documents, the appellate authority failed to gi....
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....ight to property under the Constitution of India. The propertyof the appellant bank cannot be attached or confiscated if there is noillegality in the title of the appellant and there is no charge of moneylaundering against the appellant. The mortgage of property is the transferunder the transfer of property act. 53. The objective of Prevention of Money Laundering Act, 2005 has agreater relation to crimes connected with reference to Illicit Traffic inNarcotic Drugs and Psychotropic Substances, drug crimes and otherconnected activities. None of the provisions are applicable in the facts ofthe present case. As far as the borrowers are concerned, we are notexpressing any opinion with regard to matters pending before the SpecialCourt in relation to schedule offences and the complaint under this Act. These matters are to be considered as per law. 54. There is no money laundering in the present case as far as thebanks are concerned. Due to the attachment proceedings by the ED theAppellant banks are not able to recover the public money by way of sellingthe properties. The proceedings for recovery have been initiated back in theyear 2009. The ED in its provisional....
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.... and when these properties are sold, the bankswould be able to receive the public money. The banks in the present caseare just victim and not accused. If the attachment would continue againstthe mortgage property of the banks in this matter, the economy of thecountry would suffer. The banks in the present case has proceeded withthe matter in good faith and are not involved in the offence of moneylaundering 58. Thus, in the present case, even though the Ld. Adjudicating Authorityhad all the reasons to believe that the abovementioned were mortgaged tothe Appellant Bank and that the Appellant/SBI had prior charge over thesubject matter/five properties; still the Ld. Adjudicating Authorityconfirmed the provisional attachment order of the Respondent No. 1 andthus causing huge loss to the Appellant/SBI. 59. The Adjudicating Authority did not understand that the allegedillegal money received by the Respondents from the Union Bank of Indiacannot overshadow the huge amount of credit facilities which were takenby the Respondents from the appellant bank in lieu of the properties keptas security with the Appellant Bank. Thus, making the Appellant Bank therightful owner of the....
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....) the primaryrequirement for the attachment is that the proceeds of crime are likely to beconcealed, transferred or dealt with in any manner. In this case it is clearby the order of the Adjudicating Authority that the funds were transferredfor the satisfaction of the bigger credit facilities taken by the respondentsfrom the appellant bank which they could not pay due to the lossessuffered by the companies. The said properties are already in the possession of the appellantbank under the SARFAESI Act. The Hon'ble Supreme Court of India in thecase of Attorney-General of India and others reported in AIR 1994 SC 2179while dealing with the matter under Conservation of Foreign Exchange andPrevention of Smuggling Activities Act has defined the illegally acquiredproperties and has held that the illegally acquired properties are earnedand acquired in ways illegal and corrupt, at the cost of the people and thestate, the state is deprived of legitimate revenue to that extent hence theseproperties must justly go back where they belong, the state. In the presentcase as the money belongs to the Appellant Bank it is liable to berecovered by the Appellants Banks. 63. The prope....
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....y to take a prima facieview on available material and facts produced. All the contentions raisedby Mr. Matta has no substance. The provisional attachment in the presentmatter is bad and against the law." 9. This Tribunal has gone through the Order passed by the AdjudicatingAuthority. It is very clear that despite of the Order having been passed by theFull Bench of this Tribunal, the same has been ignored by the AdjudicatingAuthority, who has failed to appreciate the interpretation of the Section 31-Bof Recovery of Debt Due to Bank and Financial Institution Act, 1993, whichhas come into force w.e.f. 1.09.2016, notwithstanding contained in any otherlaw for the time being inforce, the right of the Secured Creditors to realizeSecured Debts Due and Payable to them by sale of assets over which securityinterest is created, shall have priority and shall be paid in priority over all otherdebts and Government Dues including revenue, taxes, cesses and rates due tothe Central Government, State Government or Local Authority. 10. The Adjudicating Authority also did not correctly deal with theprovisions under Section 26-E of the SARFAESI Act, 2002, notwithstandingcontained in any other law ....
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....come custodial egis on the institution of Original Application for recoveryunder the Act and summons upon the defendants. 16. The Adjudicating Authority has failed to ignore that Recovery of Debtsdue to Banks & Financial Institution Act, 1993 as amended by Enforcement ofSecurity Interest & Recovery of Debts Laws & Miscellaneous Provisions(Amendment) Act, 2016 (44 of 2016) dated 16.08.2016 is contemporary andcertainly much subsequent to the enactment of PMLA Act, 2002. Therefore, theproperties which are mortgaged to the Appellant bank or any other financialinstitution and are subjected to special enactments viz. Recovery of Debts dueto Banks & Financial Institution Act, 1993, Securitization & Reconstruction ofFinancial Assets & Enforcement of Security Interest Act, 2002, the provisionsof the PMLA Act, 2002 would not be applicable to the detriment of suchsecured creditors. 17. The impugned order is totally perverse and against the law and withoutapplication of mind that as per Section 19 (20) (A) and Section 19 (20) (B) ofRecovery of Debt due to Banks & Financial Institution Act, 1993 being a Nonobstinateclause will have an over ridding effect over the PMLA Act, 2002,which stat....
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....interpretation that if one construction leads to a conflict, whereason another construction two Acts can be harmoniously construed,then the latter must be adopted. 49. In view of the observations of this Court in the decisionsreferred to and relied on by the learned counsel for the parties wefind that, the purpose of the two enactments is entirely different. As observed earlier, the purpose of one is to provide ameliorativemeasures for reconstruction of sick companies, and the purpose ofthe other is to provide for speedy recovery of debts of banks andfinancial institutions. Both the Acts are "special" in this sense. However, with reference to the specific purpose of reconstruction ofsick companies, the SICA must be held to be a special law, thoughit may be considered to be a general law in relation to the recoveryof debts. Whereas, the RDDB Act may be considered to be aspecial law in relation to the recovery of debts and the SICA maybe considered to be a general law in this regard. For this purposewe rely on the decision in LIC Vs. Vijay Bahadur (supra). Normallythe latter of the two would prevail on the principle that theLegislature was aware that it had....
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....true purpose of an application for recovery is toproceed to the logical end of execution and recovery itself, that isby way of execution and distraint. We thus have no hesitation incoming to the conclusion that Section 22 clearly covers andinterdicts such an application for recovery made under theprovisions of the RDB Act. We might remind ourselves of the oftquotedstatement of the principles of contextual construction laiddown by this Court in Reserve Bank of India Versus PeerlessGeneral Finance and Investment Co. Ltd. &Ors.[6], where thisCourt has observed:- "33. Interpretation must depend on the text and the context. Theyare the bases of interpretation. One may well say if the text is thetexture, context is what gives the colour. Neither can be ignored.Both are important. That interpretation is best which makes thetextual interpretation match the contextual. A statute is bestinterpreted when we know why it was enacted. With thisknowledge, the statute must be read, first as a whole and thensection by section, clause by clause, phrase by phrase and word byword. If a statute is looked at, in the context of its enactment, withthe glasses of the statute-maker, provided by suc....
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....the principle enunciated in the judgmentsdiscussed by us and the observations made by Hon'ble Supreme Court inthe matter of KSL & Industries ltd. (supra).The same donot help the caseof the respondent as when two special Acts have non-obstante clauses, thelater statue will prevail over the earlier statute. At the same time the aimand object of both the special Acts are to be looked into to decide suchissue in the manner and harmoniousconstruction has to be arrived. 21. In the present case, the SARFAESI Act, RDDB Act and PMLA arespecial Acts. The SARFAESI Act and RDDB Act are enacted earlier toPMLA. The RDDB Act and PMLA have non-obstante clause. Recently, theparliament has amended the twin legislations viz. (i) the SARFAESI Act,2002 and (ii) the DRT Act, 1993 (after amendment titled as the Recovery ofDebts and Bankruptcy Act, 1993) by the Enforcement of Security Interestand Recovery of Debts Laws and Miscellaneous Provisions (Amendment)Act, 2016 and its provisions have been given effect from 01.09.2016. TheParliament in its wisdom has not excluded the application of the amendedprovisions to the proceedings under PMLA. In other words, had theParliament intended to exclude the ....
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.... 24. In the present case the aforesaid principle suggest that theamendments carried out in SARFAESI Act and RDDB Act in 2016 willprevail over PML Act, 2002 because the properties involved in the presentappeal were untainted when the same were acquired. Even when theproperties were mortgaged with the appellant Bank the same were nottainted. The allegation of commission money laundering is after themortgage of the said properties with the appellant Bank. After themortgage of the aforesaid properties a legal right has been accrued infavour of the appellant Bank over the said properties which cannot betaken away in the given facts and circumstance of the case. As far asborrowers are concerned (who are the accused parties) even we stress thatas per law, they must face the trail in the complaint filedagainst them. 25. The Respondent has also heavily relied on the judgment or orderpassed by this Tribunal in the matter of Chief Manager, Syndicate BankVs. Dy. Director, PMLA in Appeal no. FPA-PMLA-A-34/CAL/2009. Wehave gone through the said order from which it appears that the facts ofthat appeal are quite different from the facts of the present appeal. In thesaid appeal proceeds of cri....
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....ot be elucidated by the AdjudicatingAuthority in his order. It appears that the only thing was in his mind thatsection 71 of PMLA has an overriding effect. The provisions of PMLA shallhave effect and prevail over provisions of any other Act or its provisions. Tothis we are not in agreement with the Adjudicating Authority because ofthe amendment of 2016 made in SARFAESI Act RDDB Act. The IDBIBank is the rightful claimants of the said property which are already in itspossession under SARFAESI Act. Even recovery certificate has beenissued by DRT. 29. The Hon‟ble Supreme Court of India in the case of Attorney Generalof India and Ors. (AIR 1994 SC 2179) while dealing with the matter underConservation of Foreign Exchange and Prevention of Smuggling ActivitiesAct has defined the illegally acquired properties and held that suchproperties are earned and acquired in ways illegal and corrupt, at the costof the people and the state, hence these properties must justly go backwhere they belong, the state. In the present case as they money belongs tothe IDBI Bank it is public money. The IDBI Bank has the right to propertyunder the Constitution of India. The property of the IDBI Bank cann....
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..... As per the provisions of Section 5(1) (c) the primaryrequirement for the attachment is that the proceeds of crime are likely tobe concealed, transferred or dealt with in any manner. In this case therewas absence of such requirement. The said properties are already in thepossession of the Appellant Bank under the SARFAESI Act. 33. The property of the Appellant Bank cannot be attached orconfiscated when there is no illegality or unlawfulness in the title of theAppellant Bank and there is no charge of money laundering against theBank. The mortgage of property is the transfer under the Transfer ofProperty Act as there is no dispute as regards the origin of funds or thetitle of the properties. As far as the bank is concerned, the bank had torecover its outstanding dues by taking over the possession of themortgaged properties if the borrowers are not returning back the amountin which credit facilities availed by them and by way of the SARFAESIprovisions these properties are being taken in possession by the AppellantBank so that recovery can be made from the accounts which have becomeNPA. 34. From the discussion made above, we are of the view that there is nonexus whatsoever betwe....