TaxTMI 
TaxTMI 
2026 (1) TMI 792
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....ls) in the Court of Special Judge, CBI, Assam, Guwahati for offences punishable u/s 120(B), 409 of IPC and Section 13(2) read with Section 13(1)(c) of Prevention of Corruption Act, 1988 (P.C. Act). The charge sheet disclosed the following facts: • That Sh. Depolal Hojai was elected as the Chief Executive Member (CEM), NC Hills Autonomous Council (NCHAC), Haflong on 14.12.2007 and remained in that capacity till 27.11.2008; • That Sh. Anil Kumar Baruah, an officer of the Assam Civil Service cadre, was posted as the Deputy Commissioner, Haflong from 26.02.2004 to 27.02.2009, and also functioned as Principal Secretary (T), NC Hills Autonomous Council, Haflong. He retired from service on 31 May, 2009 and has since expired on 23.10.2010; • That the said Sh. Anil Kumar Baruah had withdrawn a sum of Rs. 1,00,00,000/-on 30.11.2007 from the Account of 'Special Central Assistance/SPL. Central Project Autonomous Council' for payments to be made towards the purchase of medicines for medical institutions in N.C. Hills District, Assam from one M/s Nemee Drugs Distributors, Assam. However, no medicine was supplied by the so-called drug distributor, bu....
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.... Kumar Baruah signed over leaf of the said cheque wherein the currency denomination details were also found to have been written. There is no official record to prove that this amount was utilized for the purpose for which it was drawn; • That another sum of Rs. 30,00,000/- was debited from the Government Account vide cheque no. 121964 dated 31.03.2009 under the signature of Late Shri Anil Kumar Baruah for the purpose of giving incentive to doctors and for purchase of medicines but instead of purchasing medicines and giving incentive to doctors, a Deposit at Call Receipt (DCR) of Rs. 30 (Thirty) lacs bearing No. DN/1/513992 dated 02.04.2009 DCR A/C No. 98818002478- BGL dated 02.04.2009 was purchased by Late Shri Anil Kumar Baruah which was subsequently paid by cash to him on 03.04.2009. Thus, the amount of Rs. 30,00,000/- was withdrawn from the Govt. account as doctors' incentive and for purchase of medicines. and was again misappropriated by Late Shri Anil Kumar Baruah; 3. Thus, investigations had revealed that Late Shri Anil Kumar Baruah misappropriated a sum of Rs. 1,00,00,000/- Rs. 60,00,000/- and Rs. 30,00,000/-from the Government accounts showing false pur....
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....y the appellant, but no Show Cause Notice was received, which was mandatory under Section 8(1) as well as Regulations 13 & 14 of the Adjudicating Authority (Procedure) Regulations, 2013. 8. The next contention of the appellant relates to 'reason to believe' under section 8. It is contended that the same should be that of the Adjudicating Authority itself and not the same as recorded by the Directorate under section 5. The AA cannot borrow the reasons to believe from the OC filed by the Respondent Directorate. In the present case, a perusal of para 4 of the impugned order reveals that the AA has depended solely on the Directorate's reason to believe. 9. The next argument put forward on behalf of the appellant is that the property which has been attached, namely, Flat No. Flat No. A1-102, was acquired out of legitimate and explained sources, which are as follows: 1. Sale of land by Shri Depolal Hojai to Mrs. Hamphola Kemprai Rs. 12,00,000/- 2. Personal/private loan taken by Smt. Vanlaldik Hojai from Sri Lalsanguol Tuolor Rs. 5,00,000/- 3. From the salary/savings of Smt. Vanlaldik Hojai Rs. 3,00,000/- 4. Rest of the amount, from the income o....
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....uments on behalf of the Respondent 14. The Ld. Counsel for the Respondent has strongly contested the arguments put forward on behalf of the appellants. Firstly, regarding the service of notice, he mentioned that there was no lapse. The notice was served through Speed Post which is in accordance with the Adjudicating Authority (Procedure) Regulations and the provisions of the General Clauses Act. As regards the contention that only a copy of the OC was served and no notice was received along with same, the Ld. Counsel for the Respondent submitted that the Directorate has faithfully dispatched by Speed Post the documents received from the Ld. AA which were duly delivered to the appellants as per the tracking report. He emphasized that this is the first case where it has been alleged that only partial service of documents was made. He further pointed out that the Ld. AA has considered all the facts placed before it in this regard and was satisfied that the necessary service was made. The order of the Ld. AA is a speaking order in this regard. He specifically pointed to the facts recorded in para-5 (pg. 14 of 16) of the impugned order wherein it is recorded as below: "5. Di....
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..... The first argument raised on behalf of the appellants is that no notice was served upon them and the impugned order has been passed ex parte. The submission of the Ld. Counsel for the Appellant in this regard is strongly contested by the Ld. Counsel for the Respondent Directorate who referred to the relevant paragraphs of the impugned order which reveal that the Ld. AA had duly satisfied itself that a valid service was made. It is recorded in sub-paragraphs 4 and 5 of Para 5 on (Page 14 of 16 of the impugned order) as follows: "4. Registrar, PMLA on 25.06.2015 requested Sh. Bora to send confirmation regarding service of Notice and OC on D-2 & D-3 which were stated to be served by speed post. 5. Sh. Bora vide e-mail sent on 26.06.2015 confirmed that notice u/s 8 and OC were sent by speed post No.- ES698621192IN and ES698967914IN on 30.04.2015 to D-2 and D-3 and he further conveyed that speed tracker report shows that these were delivered on 11.05.2015." 18. Furthermore, this Appellate Tribunal had also called for the records of the Ld. Adjudicating Authority. Upon perusal of the records, it is seen that on 23.04.2015 a note has been recorded by the Bench to wh....
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....ating Authority (Procedure) Regulations and the applicable provisions of the CPC, I am of the view that a valid service of notice and accompanying documents was made in this case. The very fact that an advocate claiming to represent the two appellants (Defendants No. 2 & 3 before the AA) had contacted the said authority well before the impugned order was passed reveals that the appellants were aware of the ongoing proceedings. Even so, they decided not to represent the case of the appellants before the Authority, perhaps with the intention of later contending that the order was passed ex parte without hearing them. I find the issue of non-service raised on behalf of the appellants, as well as the further issue raised during the stage of arguments that service of notices should have been made by the Ld. AA itself and should not have been delegated to the ED to do the needful to be hyper-technical objections which did not cause any prejudice to the appellants. The prejudice, if any, was caused by their own conduct of choosing not to remain represented before the Ld. AA to canvass their case. Having failed to do so, the appellants cannot now be allowed to take benefit from their own f....
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....ough no link existed between the property and the alleged proceeds of crime. 24. The submissions made on behalf of the appellants in this regard have been considered. Upon perusal of para-11 (page-15) of the Provisional Attachment Order dated 26.03.2015, it is seen that a finding has been recorded to the effect that the two appellants herein had given inconsistent versions as to the source of income to purchase the property. Further, they had no other income during the period and, therefore, "it appears that he purchased the flat with the misappropriated money". Considering the said observation in the PAO, I find merit in the submission of the appellants that the property has been attached as direct proceeds of crime and not as value thereof. That being the case, it becomes necessary to take a closer look at the legitimacy of the sources claimed by the appellants for the acquisition of the property. In this regard, I have considered the submissions from either side as well as perused the documentary proof submitted from the side of the appellants. The so-called proof comprises an unregistered agreement between Smt. Vanlaldik Khawbung (Hojai) and one Shri. Lalsagzuol Tuolor for t....
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.... be applied retrospectively. 26. Having considered the contention, I do not find any merit in the same. It is by now well-settled that the issue of retrospectivity or otherwise, in so far as the offence of money-laundering is concerned, has to be examined with reference to the time of commission of the act which constitutes 'money laundering' under the PMLA, which includes concealment/ possession/ acquisition/ use/ projecting or claiming of proceeds of crime to be untainted property. If any of these actions takes place after the offence from which the proceeds were derived was added to the Schedule, the offence of money laundering would stand committed. The Hon'ble Supreme Court, in the landmark case of Vijay Madanlal Choudhary (supra) which has been relied upon by the ld. counsel for the Respondent, has held that the criminal activity may have been committed before the same had been notified as scheduled offence under PMLA, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as a scheduled offence, such person may be liable to be pro....