TaxTMI 
TaxTMI 
2025 (1) TMI 1042
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.... from the complaint filed by Respondent No. 2, the FIR filed, the statement of witnesses recorded during investigation, the chargesheet filed by prosecution M.E.C.R No. 12 of 2009 and Criminal Case No. 04. of 2014 filed in the Special Court. 2. By order dated 01.09.2016, this Court recorded statement of learned APP that the Prosecutor appearing before the Special Court and the Investigating Officer shall not proceed with the complaint before the Special Judge. Ad-interim order dated 01.09.2016 is being continued till date. 3. I have heard the learned Advocates for respective parties and Mr. Gul Achhra, Respondent No. 2, appearing in person. At their joint request, I have finally heard the CRA considering that it is pending since the year 2016. 4. I heard the parties at length on 15.10.2024, 12.11.2024 and 29.112024. Respondent No. 2 who is the original Complainant in the case appeared in person before me on 15.10.2024. He submitted his written notes of arguments in the present CRA to oppose the CRA. He informed the Court that he will neither make any oral submissions and arguments nor he is represented by any Advocate and the Court should consider his written notes of argu....
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....ment was executed on Rs. 100 Stamp paper between M/s. Sadguru Enterprises and M/s. G.K. Solutions Pvt. Ltd. to provide additional amenities works, renovation, improvements and altercations in respect of commercial premises situated on 1st and 2nd floor of building "Ashok Enclave" at Chincholi Road, Malad (West) (hereinafter referred to as the "subject premises"), for a lumpsum amount of Rs. 4,57,84,400/- scheduled to be paid in three installments of payment viz; Rs. 2,00,00,000/- on 18.04.2007 Rs.1,50,00,000/- on 10.05.2007 and Rs.1,07,84,400 on 31.07.2007 subject to completion of the agreed works. Admittedly the third installment was paid by Respondent No. 2 - Complainant on 24.10.2007 after deducting a sum of Rs. 30,67,500/- from the agreed amount of third installment to be paid on 31.07.2007 due to dispute raised by him for certain incomplete works. Respondent No. 2 - M/s. G.K. Solutions purchased the subject premises and desired to convert the same into a Residential Hotel /Guest House for commercial use. This Agreement is appended at page No. 42 below Exhibit 'A' to the Application. 8.2. On 18.04.2007 a registered Sale Deed was executed between M/s. Kamala Developers and M/....
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....sumer Court, Economic Offences Wing, etc. and would insist on refund of Rs. 3.5 Crores of the payment already paid. The letter stated that M/s. Kamala Developers must complete the Renovation works as agreed and handover possession along with Occupation Certificate (for short "OC") on or before 31.07.2007 as agreed, failing which Respondent No. 2 would be entitled to recover compensation including interest @ 18% p.a. for delayed period as per Clause 4 of the Deed of Confirmation. The letter stated that Respondent No. 2 was ready and willing to pay the final third installment of Rs. 1,50,81,100/- against possession of the premises with OC and the additional amenities as agreed upon in Annexure 'C' of the Sale Deed. 8.8. Since works at the site of the subject premises was not progressing fast and causing financial loss to Respondent No. 2, his Advocate addressed letter dated 02.08.2007 to M/s. Kamala Developers because neither reply to the above letter was received nor possession was handed over. Respondent No. 2 alleged that he was facing loss to the tune of Rs. 1.5 Lakh for every day of delay. 8.9. By reply letter dated 16.08.2007, M/s. Kamala Developers informed Respondent No....
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.... of the subject premises stating that since OC was delayed he could not obtain statutory permissions and licenses for Residential Hotel / Guest House use in the subject premises for which M/s. Kamala Developers was liable to pay damages and called upon it to obtain the OC and get the Co-operative Housing Society registered. 8.15. The Prevention of Money Laundering Amendment Act, 2009 was enacted and came into effect from 01.06.2009, as a consequence of which Sections 120B, 418, 420 and 421 of the IPC (amongst others) became "scheduled" offences. 8.16. By letter dated 15.06.2009 M/s. Kamala Developers informed Respondent No. 2, inter alia, stating that due to the unauthorized works carried out in the building by some flat purchasers, illegal change of user made from residential user to commercial user in Flat Nos. 502, 503 and 504 of A-wing and some flat purchasers having enclosed their balcony areas unauthorisedly inside their living areas, there was delay in procuring the OC. He was informed that M/s. Kamala Developers had already written to the delinquent flat purchasers to restore back the use of their respective flats areas to residential status / user and as Chairman of ....
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....ense, OC, Lodging License, etc. were also not obtained; that works remained incomplete at the time of handing over possession which he received on 24.10.2007 and due to this he deducted the amount of approximately Rs. 30,67,500/- from the third installment and paid an amount of Rs. 77,16,900/- to M/s. Sadguru Enterprises. That he was therefore cheated by Mr. Rakesh Jain, Mr. Akshay Jain, other partners of M/s. Kamala Developers and M/s. Sadguru Developers. On scrutiny os his complaint Malad Police Station filed a detailed Report which is appended at page No. 137 of the Application in response to Respondent No. 2's complaint wherein it opined that the entire dispute was civil in nature and hence Respondent No. 2 was once again advised to file a civil proceedings in the appropriate civil forum. 8.22. On 29.07.2009 Respondent No. 2's Advocate by letter addressed to M/s. Kamala Developers and M/s. Sadguru Enterprises informed that Respondent No. 2 was very upset and felt cheated because M/s. Kamala Developers was trying to distinguish itself from M/s. Sadguru Enterprises and he called upon both to, inter alia, immediately obtain the OC and pay Rs. 4,27,16,900/- with interest @ 18% p....
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....licants did not stay at the said Hotel on 24.10.2007 which is the date when the final Demand Draft (third installment) was alleged to be given by Respondent No. 2 to M/s. Kamala Developers under the Renovation Agreement. By the said letter they informed that CCTV footage was unavailable as the Hotel did not keep recordings for such long period. Vile Parle Police Station forwarded report on 23.02.2010 to the Metropolitan Magistrate requesting for appropriate orders from the Court. The report, inter alia, stated that the transaction of money in the present case was executed between Complainant (Respondent No. 2 and M/s. Kamala Developers in their office but it was mentioned in the complaint about handing over one cheque at Orchid Hotel situated at Vile Parle, hence the case was transferred by Court to Vile Parle Police Station under Section 156 (3) of CrPC. However, it is not clear if any inquiry was made by the Investigating Officer in this regard as to whether any meeting with Complainant indeed took place at Hotel Orchid. Complainant merely alleged that meeting dated 24.10.2007 took place, however he could not submit any evidence to substantiate his claim. It further stated that i....
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.... On 30.07.2013 M/s. Kamala Developers filed Summary Suit No. 2916 of 2013 in the City Civil Court at Dindoshi against Respondent No. 2 for recovery of Rs. 19,73,115/- towards MVAT (Maharashtra Value Added Tax) as per Clause 22 of the Sale Deed dated 18.04.2007. 8.34. On 05.09.2013 Applicants filed Criminal Writ Petition No. 3270 of 2013 for quashing and setting aside of the proceedings being CC No. 1874/PW/2010 pending before the Metropolitan Magistrate Court, Andheri. 8.35. In the meanwhile on 26.02.2014 order dated 26.02.2014 was passed by the ED for provisional attachment under Section 5(1) of PMLA whereby Applicant No. 1's two flats and garage which he had purchased were attached. 8.36. On 28.03.2014 ED filed complaint bearing PMLA Case No. 4 of 2014 against Accused No. 1 (i.e. Applicant No. 1) - Mr. Rakesh Brijlal Jain, Accused No. 2 - Mr. Dhirendra Shukla and Accused No. 3 - Mr. Kiran Shelar before the Additional Sessions Judge, City Civil Court, Mumbai (Designated Court under PMLA) for commission of offences under Section 3 and 4 of PMLA. 8.37. On 10.04.2014 Division Bench of this Court (Coram: Mr. Naresh Patil and Ms. Anuja Prabhudesai, JJ) disposed of Writ Peti....
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....rest totalling to Rs. 17,64,21,098.25/-. 8.44. On 26.05.2015 Respondent No. 2 filed Civil Suit No. 648 of 2015 (renumbered as Commercial Suit No. 332 of 2015) against Applicant No. 1 and others for recovery of the aforesaid amount as compensation for causing mental agony and harassment to him. 8.45. By order dated 22.03.2016 the Division Bench disposal of Criminal Writ Petition No. 3280 of 2014 holding as under:- "During the course of the hearing , it transpired that learned Special Judge had already passed an order below Exh.1 for issuance of process for the offence punishable under sections 3 and 4 of the Prevention of Money Laundering Act, 2002. The said order is not challenged by the petitioners. Petitioners have also not filed copy of the complaint on record. As against the order of issuance of process, petitioners may have resort to appropriate remedies as permissible in law. In case, the issue of delay in filing the petition for challenging the order of issuance of process is raised, pendency of this petition in this Court shall be considered as a ground for deciding the issue of delay. Petition stands disposed of." 8.46. On 10.01.2018 order dated 10.01.201....
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....tion under the Renovation Agreement which is alleged to be the 'proceeds of crime' under PMLA by the ED in the present case. In support of this submission, he has referred to and relied on the following decisions of the Supreme Court in the case of Paramjeet Batra Vs. State of Uttarakhand (2013) 11 SCC 673 and G. Sagar Suri Vs. State of Uttar Pradesh (2000) 2 SCC 636. 9.2. He would argue that to constitute offence of cheating under Section 420 of IPC the element of deception should be present since the very inception which in this case is when the Renovation Agreement was executed. He would contend that even if for the sake of argument it is assumed that there was a breach of the conditions in the said Agreement executed between parties still invocation of criminal proceedings cannot be the available remedy in law. In support of this proposition he has referred to and relied on the following decisions of the Supreme Court:- (i) Alpic Finance Ltd. Vs. P. Sadasivan (2001) 3 SCC 513; (ii) Anil Mahajan Vs. Bhor Industries (2005) 10 SCC 228; (iii) Uma Shankar Gopalika Vs. State of Bihar (2005) 10 SCC 336; (iv) All Cargo Movers India Pvt. Lt....
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.... that there is no mention whatsoever about holding any meeting or exchanging cheque / demand draft at Orchid Hotel, Vile Parle alleged for the first time in the private Complaint filed and the same is an after thought and has been improvised by Respondent No. 2 in his statement recorded by the Vile Parle Police Station. He would submit that Respondent No. 2 in order to overcome the hurdle of territorial jurisdiction which was already pleaded by him twice earlier concocted and inserted an incident about holding a meeting at Orchid Hotel, Vile Parle for the first time which he had never pleaded earlier and most importantly besides mere pleading he did not place on record any material to substantiate his allegation. 9.6. He would submit that despite the aforesaid lacunae in the case of Respondent No. 2, Prosecution filed chargesheet against Applicants under the provisions of IPC as well as PMLA. He would submit that no prima facie case whatsoever is made out against Applicants by Prosecution and on the above grounds the impugned order of issuing process and hence criminal prosecution be quashed and set aside. 10. PER CONTRA, Respondent No. 2 - Mr. Gul Achhra has submitted his wr....
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....it that Officers of Respondent No. 3 have acted on the basis of compliant bearing MECR No. 12 of 2009 dated 19.12.2009 for offences under Sections 420 and 120-B of IPC covered under Part A of the Schedule to the PMLA and registered Compliant ECIR/02/MZO/2013 on 23.03.2013 for investigation against Applicants and Dhirendra Rajitram Shukla of M/s. Sadguru Enterprises under PMLA. 11.1. He would submit that investigation in present case has revealed that Applicant No. 1 received amount of Rs. 4,27,16,900/- from Accused No. 2 - Dhirendra Rajitram Shukla and Accused No. 3 - Kiran Venkanna Shelar which they had received for providing additional amenities to Respondent No. 2 in the subject premises. He would submit that Accused did not provide additional amenities and did not return the money to Respondent No. 2. This submission of Mr. Shirsat needs to be dealt with here and itself at the outset since this is the fulcrum of ED's charge / case. This submission or case is prima facie preposterous as such is not even the complaint of Respondent No. 2. I have dealt with the three complaints of Respondent No. 2 in the facts delineated herein above as also elaborately in my findings herein be....
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....iny it is confirmed that Accused received Rs. 6,00,83,100/- paid to M/s. Kamala Developers for sale of subject premises i.e. the commercial property and Rs. 4,27,16,900/- for providing additional amenities to M/s Sadguru Enterprises under the Renovation Agreement which were not provided. According to him money laundering pertains to receipt of amount of Rs. 4,27,16,900/- by M/s. Sadguru Enterprises which is later transferred to M/s. Kamala Developers. Here once again I need to interject. If the additional amenities were not provided, there was no occasion for Respondent No. 2 to pay the above amounts in three installments to Sadguru Enterprises over a period of time as per their contractual obligation. Rather Respondent No. 2 has categorically acknowledged delivery of the obligations by M/s Sadguru Enterprises under the Renovation Agreement. Hence what is pleaded in ED's pleadings and argued by Mr. Shirsat is not the Complainant's case but a completely unsubstantiated case without even reading the pleadings and with complete non-application of mind. 11.5. He would submit that the Special Judge took cognizance of the complaint filed by the Respondent / Department and passed a rea....
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....-interim order dated 01.09.2016 that stayed the trial before the PMLA Special Court which has caused an inordinate delay in the present case. Hence, Respondent - Department filed Interim Application No. 2936 of 2024 for vacating the said stay. He would submit that as observed in a plethora of judgments, stay orders lead to delay and deny the fundamental right of speedy justice. In support of this submission he has referred to and relied upon the judgments of Supreme Court in the cases of- (i) Asian Resurfacing of Road Agency Private Limited & Anr. Vs. Central Bureau Of Investigation (2018) 16 DCC 299 and (ii) High Court Bar Association, Allahabad Vs. State of UP and Ors Criminal Appeal 3589 of 2023 with SLP (Crl.) Nos. 13284-13289 of 2023 and Cri. Appeal Diary No. 49052 of 2023. 11.9. He would submit that stay of proceedings be vacated as the offence in the present case of money laundering is a serious threat not only to the financial system of the country but also to its integrity and sovereignty. To support this submission he has relied upon the judgments of the Madras High Court in the cases of- (i) Sri G. Srinivasan Vs. The Chairperson, Adjudicatin....
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....lly involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. Explanation. - For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatso....
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.... under the same Agreement. The question before the Court is, "Why has ED ignored this Agreement?". The fallacy in ED's charge / claim is that after receiving the above amount M/s. Sadguru Enterprises has not provided any services to Respondent No. 2. This charge of ED clearly falls flat because Respondent No. 2 has himself clearly acknowledged that M/s. Sadguru Enterprises having delivered its obligations under the said Agreement dated 16.04.2007 for which Respondent No. 2 agreed to pay the amount of Rs. 4,57,84,400/- in three installments on fulfillment of the additional amenities to be specifically provided under its various conditions as agreed between them. Evidence on record acknowledged by Respondent No. 2 clearly shows that save and except an amount of Rs. 30,67,500/- Respondent No. 2 has paid the entire above amount to M/s. Sadguru Enterprises intermittently in three installments for having delivered under the very Agreement as per the schedule of installments when the works under the Renovation Agreement were accomplished and completed by M/s. Sadguru Enterprises. Works to the extent of Rs. 30,67,500/- having remained incomplete, Respondent No. 2 has specifically acknowled....
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....greements between parties, first is the registered Agreement for Sale of the subject immovable premises and the second is the Renovation / additional amenities Agreement executed between parties thereto for providing additional amenities to convert the subject premises into a Residential Hotel / Guest House user. Sale of premises is by the 'Vendor' called M/s. Kamala Developers who is the Developer. The registered Agreement for Sale with M/s. Kamala Developers speaks for itself. It is a registered Agreement, it does not require any iteration. The second Agreement / Contract is with M/s. Sadguru Enterprises to provide the additional amenities for the subject premises so that intention of Respondent No. 2 to use it as a Residential Hotel / Guest House is fulfilled. 22. Record and letters / correspondence placed before the Court clearly indicates that from February 2007, Respondent No. 2 - Complainant entered into negotiations with M/s. Kamala Developers to purchase the subject premises culminating into the registered Sale Agreement dated 18.04.2007. Simultaneously, Respondent No. 2 desired that the subject premises be changed to commercial user and be provided with additional amen....
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....menities works agreed under the various conditions of the Agreement. Once that is the case, ingredients of cheating are completely non-existent. This is not a case where M/s. Sadguru Enterprises has received and siphoned of the entire amount of Rs. 4,57,84,400/- and absconded and transferred the said amount to Applicant No. 1 and most importantly did not deliver upon its obligations under the said Agreement. Rather this is a case of the Complainant himself acknowledging the works done by M/s. Sadguru Enterprises under the said Agreement and only on being satisfied he paid the second and the third truncated installments to complete the payment schedule. According to Complainant's own letter dated 09.07.2007 appended at page No. 407, he has himself admitted that the subject premises were almost ready. 25. What is noteworthy is the fact that Complainant himself paid the first two (2) installments as per schedule i.e. an amount of Rs. 2,00,000/- and 1,50,00,000/ and the third installment of Rs. 1,07,84,400/- after deducting an amount of 30,67,500/- therefrom upon which M/s. Sadguru Enterprises issued a No-Claim Certificate to Complainant on 24.10.2007 which is appended at page No. 1....
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....would be entitled to 18% interest on the deposited amount until possession is handed over. Complainant has already invoked civil action by filing Civil Suit No. 648 of 2015 for recovery of the amount under the Renovation Agreement along with interest. Why has ED ignored this is only for ED to answer? I have not received any answer for this from the learned Advocate for ED. Merely by alleging preposterous submissions and arguments and using terminologies and definitive words like layering and and integrating funds to be 'proceeds of crime' without application of mind is nothing but an exercise of oppression on the part of ED. 29. In the above facts whether the Complainant would be entitled to his claim as claimed in the Suit would be decided in the trial of that Suit. However, on Complainant's own case and he having paid the three installments, supported by his own correspondence, there is a clear presumption that the amount of Rs. 4,57,84,400/- received under the Renovation Agreement stood fully delivered and complied with. Had this not been so, the Complainant would never have paid the second and third installments later under the same Agreement. Complainant's own grievance tha....
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....riminal breach of trust are seen from the aforesaid facts in this case. None of the ingredients of Section 420 or Section 406 of IPC can be said to be attributable to the amounts received by M/s. Sadguru Enterprises under the Renovation Agreement as the said amounts were primarily paid for providing the additional amenities as per the conditions in the Renovation Agreement which admittedly stood delivered to the Complainant alongwith the subject premises. Hence, no offence of Money Laundering whatsoever is made about in the present case. 34. It is a shocking case that despite the Complainant failing twice in his attempt to register his case with the EOW / Commissioner of Police and Malad Police Station who both concluded his grievance was a clear civil dispute and refused to register the FIR, the Complainant thereafter approached the Metropolitan Magistrate Court Andheri and sought direction to the Vile Parle Police Station to investigate the matter. The Complainant was entitled to approach the Magistrate but he clearly suppressed the findings of the EOW and Malad Police Station in his Application filed before the Metropolitan Magistrate Court Andheri only for the reason that he....
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....inal case is a sheer abuse of the due process of law and the legal system. 37. A mere breach of promise, agreement or contract does not, ipso facto, constitute an offence of criminal breach of trust without there being a clear case of entrustment - Clearly, the allegation / charge under Section 406 of the IPC has no basis. 38. Thus, once it is established that there is no cheating involved under the IPC then there is no proceeds of crime involved under Section 2 (1) (u) of PMLA and therefore there is no Money Laundering involved under Section 3 of PMLA in the present case. 39. ED's Special Case No. 4 of 2014 proceeds on the basis that no work was done by M/s. Sadguru Enterprises, however, this is not the case of the Complainant as alluded to and delineated herein above. The reference to receipt of monies by Applicant No. 1 from M/s. Sadguru Enterprises and its further transmission to M/s. Kamala Developers cannot be deemed to be proceeds of crime or by any stretch of imagination as Money Laundering. During that period Applicant No. 1 purchased two flats and one garage which have been attached by ED on the ground that the consideration involved in the purchase of these prop....
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....e staged process, it is hatched in secrecy and executed in darkness. The present case before me is a classic case of oppression in the garb of implementation of PMLA. In the facts of this case none of the ingredients of cheating are present. There is nothing which prohibits a Developer from entering into a Sale Agreement and allowing execution of a simultaneous Agreement for providing additional amenities / renovation in the same premises through another entity. This is how development in Mumbai City takes place. Both the Agreements have been validly entered into with the Complainant. They are transparent. The entity which provides Renovation / interiors / additional amenities is appointed by the Developer as it is his own project. There are cross holding between the Developer and the entity which is appointed. This is normal business practice. They cannot be faulted with. 42.1. Both the Agreements stand delivered qua the subject premises in question. There is nothing in law which prohibits persons having cross-holding stakes in companies / firms which provide such sale of premises and additional amenities in the same project. This is a fairly common practice in the city of Mumb....
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....eloper much less the Developer in question developing a big ticket project like in the present case will give possession for use before obtaining OC. It may even lead to black listing of the Developer for future. In this case civil action for the delay has already been invoked by Complainant. Hence, whether the Developer can be held responsible is the moot question? In my opinion the Developer is not responsible in such a scenario for any criminal liability. The Metropolitan Magistrate had no territorial jurisdiction to entertain such a proceeding. The Orders passed therein are a nullity. It is seen that the premises purchased by Respondent No. 2 which form subject matter of the present proceedings is situated in Malad. Respondent No. 2's complaint (dated 20.07.2009) was addressed to the Malad Police Station on the basis that the subject premises are situated in Malad. This complaint constitutes an admission that it is the Malad Police Station which has jurisdiction over the matter. However the Malad Police Station after scrutiny opined that the grievance in the complaint was a civil issue and Respondent No. 2 should pursue his claim in a civil Court. 42.4. Respondent No. 2 ....
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....e Station is attached to the Metropolitan Magistrate in Bandra. 42.7. It is thus clear that Respondent No. 2 in order to overcome the conclusion of the Malad Police Station has deliberately with a malafide intention concocted a story which is a complete afterthought about one transaction having taken place at Orchid Hotel in Vile Parle, so that the Vile Parle Police Station could investigate his complaint. This is nothing but a clear abuse of the process of Court and the police machinery. This issue of the territorial jurisdiction of the Vile Parle Police Station and the Metropolitan Magistrate, Andheri, goes to the root of the matter in this case. They do not have the jurisdiction to investigate and try the complaint. All investigations and actions undertaken by them are therefore a nullity. 42.8. In addition to the above, on 25.05.2015, Respondent No. 2 Complainant filed Civil Suit No. 648 of 2015 which was renumbered as Commercial Suit No. 332 of 2015 against, inter-alia, M/s. Kamla Developers and Applicant No. 1, seeking a refund of Rs. 4,27,16,900 along with interest. Notably, the said sum of Rs. 4,27,16,900 is the same amount which ED claims to be 'proceeds of the crime....