TaxTMI 
TaxTMI 
2019 (9) TMI 425
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....Adyar Branch, Chennai and (ii) Shri B. Subramaniam, Proprietor, M/s. R.S. Constructions, Chennai, interalia, under Sections 120-B read with 409, 419, 420, 467, 468 & 471 of Indian Penal Code and Section 13(2) read with 13(1)(c)&(d) of Prevention of Corruption Act, 1988 and substantive offences thereof to the effect that the above said persons conspired and cheated the above said bank to the tune of Rs. 16.27 Crores by sanctioning 171 housing loans by abusing official position and by corrupt or illegal means and the outstanding in those loan accounts was Rs. 13.88 Crores plus interest. Further, upon conclusion of investigation by CBI authorities, a Final Report (Charge Sheet) No. 6/2009 dated 29.08.2009 (under Section 173 of Cr.P.C.) was also filed by CBI, BS&FC, Bangalore, before the Hon'ble Special Judge for CBI Cases, Chennai, against S/Shri K. Gnanasekharan, B. Subramaniam and M. Sathyaseelan for violation of the provisions of sections 120-B read with 409, 420, 467, 468 & 471 of Indian Penal Code and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. 3. As per respondent, the Investigation conducted by this Directorate revealed that, during 2005 a crimina....
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....mitted that he had invested a total amount of Rs. 91 Lakhs as mentioned below: (i) An amount of Rs. 46 Lakhs towards the land cost & the construction cost in respect of his project situated at Part - I measuring 1180 sq. ft. at No. 3 Elango Nagar, 4th Street, Padi, Chennai - 600050 and (ii) Rs. 45 Lakhs was invested towards the land cost & the construction cost in respect of his project situated at Part - II measuring 1200 sq. ft. at No. 3 Elango Nagar, 4th Street, Padi, Chennai - 600050. 4. The statements recorded by this Directorate from several other persons, such as S/Shri C. Palpandian, S. Thulasingam, J. Dineshkumar and R. Koteraj have also undoubtedly confirmed that at the instances of Shri B. Subramanyam only, they have applied for housing loans with Union Bank of India, Adyar Branch, Chennai, and the amount disbursed in their names have been utilized by Shri B. Subramanyam, without their knowledge. 5. In the present appeals, this tribunal is concerned only with 1180 sq. ft. As per appellants the entire proceeds of the crime took place with regard to part 2 measuring 1200 sq. ft. The appellants are not charge sheeted under the schedule offence. The a....
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....y occupied by Shri Mohanavelu, who is the owner of the third flat. (d) Shri. J. Dinesh Kumar, S/o Shri V. Jayakumar, in his statement dated 15.06.2012 given before the Assistant Director, Directorate of Enforcement, Chennai, interalia has stated that registration of UDS to the extent of 330 Sq. ft. was done in his name by Shri Harish Bhandari, who was the Power Agent for the plot, in respect of flat at No. 3, Elango Nagar, Padi, Chennai vide Sale Document dated 04.05.2005. (e ) Shri. R. Koteraj, S/o Shri V.N. Raghupathy, in his statement dated 18.06.2012 given before the Assistant Director, Directorate of Enforcement, Chennai, interalia has stated that registration of UDS to the extent of 368.26 sq. ft. in respect of flat at No. 3, Elango Nagar, Padi Village, Chennai, was done in his name by Shri Harish Bhandari, who was the Power Agent for the plot vide Sale Document dated 04.05.2005. 8. It is submitted on behalf of respondent that the Appellant herein, Shri. P. Mohanavelu, in his statement dated 11.06.2012 given before the Assistant Director, Directorate of Enforcement, Chennai, while explaining about the details of the house Survey No. 343/A2, New Survey No.....
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....es of the land in which the UDS has been sold to Shri. Mohanavelu, Shri. Dineshkumar and Shri R. Koteraj has inter alia stated that the UDS comprised in the land measuring 1180 sq. ft., to the extent of 308 sq. ft. was sold to Shri. Mohanavelu; that the boundaries of 1180 sq. ft. of the land is on the North: land in Survey No. 344; South: Remaining part of land in Plot No. 100; East: Plot No.4; West : Plot No.2, measuring North to South on the East and West Side: 23'10" and East to West on the North and South side: 34'0" accessing through the passage of 46'2"x 8'0". But whereas in the boundaries are wrongly registered as 34'8" x 34'0". But, whereas the measurements from North to South was wrongly registered as 34'8". Though the boundaries remains the same with respect to UDS sold to Shri Dinesh Kumar and Shri. Koteraj, the boundaries were wrongly mentioned as follows: North to South on the Eastern Side: 46'2" North to South on the Western Side: 46'2" East to West on the Northern Side: 26'0" East to West on the Southern Side: 26'0" Though he sold the UDS to Shri. Mohanavelu, Shri. Dineshkumar and Shri R. Koteraj, the documentation was prepared ....
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....tatements, documents and discussions made above that ownership of Undivided Share of land in Part - I measuring 1180 sq.ft. in the said property is only 308.sq.ft. 11. A final report (Charge Sheet) No.6 of 2009 un/s 173 of Cr.P.C. was also filed on 29.08.2009 by CBI, BS & FC, Bangalore, before the Hon'ble Sessions Judge for CBI cases. 12. Based on the F.I.R., and Enforcement Case Information Report (ECIR) was registered on 18.11.2010 in the Directorate of Enforcement, Chennai and investigation under PMLA was initiated. 13. Statement of Shri B. Subramaniam was recorded by Assistant Director, Directorate of Enforcement, Chennai on 29.02.2012. The statement of K. Gnanashekharan, then Branch Manager, UBI, was recorded by Assistant Director, Directorate of Enforcement, Chennai on 14.03.2012. The statement of Mohanavelu was recorded by Assistant Director, Directorate of Enforcement, Chennai on 11.06.2012. The statement of Dinesh Kumar was recorded by Assistant Director, Directorate of Enforcement, Chennai on 15.06.2012. The statement of R. Koteraj was recorded by Assistant Director, Directorate of Enforcement, Chennai on 18.06.2012. The statement of T. Harish Bhandari was record....
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....iled by the appellant dated March 2014. 19. It is stated on behalf that in pursuance to the receipt of part payment of Rs. 5.5 Lakhs by original owner / N. Soundar Rajan from the appellants handed over the vacant possession of the land admeasuring 1180 sq. ft. in the month of April 2004 as a part performance. Since then the appellants are in peaceful possession of the land 1180 sq. ft. till date. 20. It is not denied on behalf of respondent that N. Soundar Rajan executed General Power of Attorney in favour of Shri T. Harish Kumar Bhandari vide document No. 163 of 2003 dated 06.03.2003 with respect to 2380 sq. ft. 21. It is stated on behalf of appellants that N. Soundar Rajan, the original owner after receiving Rs. 5.5 Lakhs and Rs. 50,000/- for the expenses incurred by the appellant for obtaining the plan approval. On receiving Rs. 6 Lakhs from the appellants, N. Soundar Rajan informed the appellants that the Sale Deed would be duly executed by his General Power of Attorney Shri T. Harish Kumar Bhandari. 22. Counsel for the appellants has argued that the disputes between the original owner, Shri B. Subramaniam, the appellants, Shri T. Harish Kumar Bhandari cannot be ....
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....68-493 of Typed Set dated March, 2014filed by the appellants. (b). Purchase bills pertaining to purchase of materials for constructing the house - Annexure-A10 page 468-493 of Typed Set dated March, 2014 filed by the appellants. (c ). Extract of the Town Survey Field Register showing the name of appellants - Annexure-A12 page 561-561A of Typed Set dated March, 2014 filed by the appellants and same is translated in English and filed by the appellants as additional documents dated 08.04.2015 at page 1 to 2. (d). Name Transfer Order issued by Commissioner, Ambattur Municipality in favour of the appellants and the Property Tax Receipt - Annexure-A13 page 562-565 of Typed Set dated March, 2014 filed by the appellantsand same is translated in English and filed by the appellants as additional documents dated 08.04.2015 at page 3 to 6. (e ). Electricity Card issued in favour of appellants - Annexure- A15 page 567-574E of Typed Set dated March, 2014 filed by the appellantsand same is translated in English and filed by the appellants as additional documents dated 08.04.2015 at page 7 to 17. (f). Family Card issued by Civil Supplies and Consumer Pr....
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....ated in the complaint that Shri K. Ganasekharan, the Branch Manager of Adayar Branch of Union Bank, in furtherance of the criminal conspiracy with Shri B. Subramaniam, Proprietor of M/s R.S. Constructions had cheated the Bank to the tune of Rs. 16,27,35,000/- by sanctioning the 171 housing loans by abusing his official position by corrupt or illegal means. The present outstanding in this loan amount is Rs. 13,88,14,141/-. Therefore, CBI was requested to make a thorough investigation in these fraudulent transactions. FIR Based on the complaint dated 13.06.2007, the FIR No.5/08 was registered on 31.03.2008 against A1 - Gnanasekharan, Branch Manager, Union Bank of India and A2 - B. Subramaniam, Proprietor, M/s R. S. Constructions, Chennai for the offences under sections 120B r/w 409, 419, 420, 467, 468, 471 and substantive offences thereof along with 13(2) r/w 13(1)(c) & (d) and substantive offences thereof. 29. The appellants were not made as accused persons in the said FIR. Charge sheet No. 6/2009 dated 29.08.2009 was filed. The appellants were not made as accused persons. The charge sheet deals with details of A1 / K. Gnanasekharan, the then Branch Manager, Union ....
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....etails of J. Dinesh Kumar (As per E.D., Dinesh Kumar is alleged to be one of the owners of the property admeasuring 1180 sq. ft. as per appellants. The same is wholly baseless and proves false. 33.1. Statement dated 14.03.2012 of Shri K. Gnanasekaran, then Branch Manager, Union Bank of India given before the Assistant Director, Directorate of Enforcement, answer No.5, 5th line from the bottom, explaining the methodology adopted in sanctioning house loan. He admits that there were some procedural lapses on his part with regard to the verification of the identity of the borrower, the project site for which the loan was sanctioned, the documents submitted by the individual and with regard to the documents pertaining to the property in question. On account of his procedural lapse there could be around 50 instances where loans were sanctioned thereby causing a loss to his Bank. Further statement dated 24.04.2012 of Shri B. Subramanyam, Proprietor of M/s R.S. Constructions answer No.1 explaining to the question about the purchase / construction of flats by him at Elango Nagar, Padi Village, Chennai. He explains the total land measuring 2380 sq. ft. was owned and possess....
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.....4. Statement dated 18.06.2012 of Shri R. Koteraj, Chennai given before the Assistant Director, Directorate of Enforcement and in answer No.2 explaining the purchase of property from M/s R.S. Constructions "They took me to the flat that, he hadconstructed at No. 3, Elango Nagar, Padi Village, Chennai. The said flat was appeared to have been completed to the extent of 80%. The flat was under construction in 2 Phase at 3, Elango Nagar, Padi, Chennai and shown me the second building which is behind the front building and which is the back side of the plot measuring 1180 sq. ft. ..." 33.5. It is submitted by the appellants that Koteraj had seen the property measuring 1200 sq. fit which is the back side of the plot measuring 1180 sq. ft. as admitted hereinabove and further his statement with respect to the 80% completion of the construction was false on the ground that the charge sheet at page 53 of Volume - I filed by E.D. itself records that A2 did not complete the construction of flats at this site and abandoned the site in 2005. 33.6. The statement of Koteraj, in answer No.3 explaining to the question as to the payment of sale consideration of UDS registration measuring 368.26....
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....s been paid in instalments for which I do not have any written document. I have constructed the building for 1180 sq. ft. only." It is submitted by the appellants that from the above statement it is very clear that Dinesh Kumar and Koterajdid not have any right over the property measuring 1180 sq. ft. 34. Encumbrance Certificates issued by Govt. of Tamil Nadu with respect to 1200 sq. ft. deals with Certificate of Encumbrance on Property to the extent of 1200 sq. ft. deals with a Note is reproduced hereunder:- That the huge amount involved in the offence of particulars: That the huge amount involved in the offence of money laundering has been invested on the property mentioned above for promoting housing project. Any further transaction in respect of the above property would frustrate the proceedings of investigation under PMLA, 2002. At page 37 deals with the property description Elango Nagar, 4th Street, Plot No.100, extent 1180 sq. ft. There is no encumbrance appears. It is submitted by the appellants that the Encumbrance Certificate issued by the Govt. of Tamil Nadu shows that money laundering was involved with respect to 1200 sq. ft. and given a....