TaxTMI 
TaxTMI 
2025 (2) TMI 1597
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....sale 1 32.38 acres of land in Old Survey No. 692-1A of Kallara Village, Vaikom Taluk, Kottayam purchased vide sale deed no. 345/1/12 dated 15.02.2012 registered at Kaduthuruthy SRO from peter Joseph Kochuparampil T.L. George Rs. 2,92,800/- 2 42.48 Ares of land in Old Survey No. 691-1 B of Kalllra Village Vaiko, Taluk, Kottayam purchased vide sale deed no. 2406/1/10 dated 24.11.10 registered at Kaduthuruthy SRO from Peter Joseph Kochuparampil, and the building being constructed threin Alice George Rs. 15,86,000/- 3 Apartment no. 802 (Cochin Corporation Door NO. 31/19 H1) in multi-storied apartment building Fern Icon having a super built up area of 132.43 sq meters together with a covered car parking marked as slot no. 802 on the ground and right to use all common facilities and 2.15% equivalent to 0.504 Ares of undivided and indivisible right, titile and interest in 23.43 ares of land situated in Survey No. 346/3 (1.13 Ares), Survey No. 801/1 (13.72 Ares) AND Survey No. 801/2 ( 8058 Ares), of Poonithura Village, Kanayanur Taluk, Ernakulam District. Obtained vide sale deed no. 75/2011 dated 07.01.2011 registered at Maradu Sub Registrar Office executed by....
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....vom Circle), wherein the complainant Darly Biju and her husband alleged that they were cheated by promising to start an off- licence shop (liquor shop) in Newcastle, London on a partnership basis with Joby George and he also promised an admission for Darly Biju for a diploma course in London. 6. Out of the offences alleged in the above three FIRs, Sections 418,419,420 and 271 of IPC are scheduled offences. As per the FIRs and the chargesheet, the total amount received by all the 4 persons through these three criminal activities which are scheduled offences under PMLA, 2002 is Rs. 3,93,90,000/- and this amount falls under the definition of proceeds of crimes as per section 2(1)(u) of the Act. 7. The statements of the complainants in the scheduled offence cases were recorded under section 50 of the Act. 8. On the basis of the investigations conducted by the Directorate of Enforcement (ED), a Provisional Attachment Order ('PAO') was issued on 26.09.2013. 9. An Original Complaint (O.C.) having been filed before the Ld. Adjudicating Authority as per the requirement of Section 5(5), Ld. AA, after holding the adjudication proceedings under Section 8 of the Act, confirmed....
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....the disputed property also. In this connection, it is submitted on behalf of the appellant that there is no iota of evidence produced by the I.O. to show that there was any attempt on the part of the appellants to dispose the disputed property. It is also pertinent to note that there is not even an allegation to that effect also. Even if the alleged statement of Mr. Johnson M Varkey is taken to be true, the Appellants are entitled to sell their other properties during the pendency of the proceedings. The passing of provisional order before the filing of the charge sheet itself shows the malafide intention of the I.O. and also justifies the submission of the Appellants that the I.O. is acting under the influence of Shri. Babu M. George, who is de-facto complainant in one of the cases registered against the appellants and at whose instance other crimes were registered against the Appellants. The Ld. Adjudicating Authority also wrongly relied upon (para 12.6.8) this statement to confirm the provisional attachment order, without even discussing the contention of the appellants/defendants on this aspect. The impugned order is liable to set aside and reversed on this ground also. 14. ....
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....lant and his family. When the matter was being heard, a specific question was put to the counsel appearing for the de facto complainant as to whether the amounts were paid by way of cheque, demand draft or cash, the reply was the amounts were paid in cash. The Hon'ble High Court held that it is unbelievable that Rs. 2.47 Crores has been paid for getting an admission for MBBS course and also, it is unbelievable that all the amounts are paid on different dates in cash. As per the directions in the bail order, the 1st Appellant and his wife surrendered and were released on bail. The appellant Nos 3 and 4, who are the parents of Appellant No. 1, are also granted anticipatory bail by the learned Sessions Court, Ernakulam. (ii) Crime No.1056/2012 of Muvattupuzha Police Station, Ernakulam District: This crime is registered also by the Muvattupuzha Police as per the forwarding of the private complaint filed by the de facto complainant, namely, Rajesh Mathew, who is none other than one of the witnesses in the private complaint filed in crime No.587/2012 and also the brother-in-law of the de facto complainant in the said case, Sri. Babu M. George. When Bail Application in the fi....
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....llant is currently in India and he is not in a position to go to London to collect all the relevant documents, since he is booked under the criminal cases. 16. It is also argued that the Ld. Adjudicating Authority failed to consider that the Appellants are accused in criminal case and they have every right to defend their case in the Court and for that purpose they are not in a position to disclose their defence in advance in a proceedings like this. It is also submitted that a detailed enquiry in to the merits of the criminal cases and allegation are not at all required in the above proceedings. The only question before the Ld. Adjudicating Authority is that whether the disputed property can be prima facie treated as purchased with "proceeds of crime". It is submitted that for that purpose ample circumstances has been shown before the authority to reach a conclusion in negative. But the Ld. Authority discarded all the circumstances stating flimsy reason, such as certified copies, accounts and balance sheets were not produced. The Ld. Authority also failed to note that the transactions and business were held at London and it is not easy to get the documents from there. 17. It....
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.... so upon their information and belief. 22. The Ld. Adjudicating Authority failed to consider that the de-facto complainants failed to prove the source of money which is allegedly paid to the Appellants. The Authority ought not have believed the version of the person who themselves are violators of law. The observation in para 12.6.7 is also unwarranted. The Appellants were not urging any benefits out of this contention. The appellants were only pointing out the partisan attitude and harassment of the Enforcement Department. 23. It is also argued that he Ld. Adjudicating Authority in its order (conclusion) referred that it has perused the charge sheet (final report). But it is respectfully submitted that before passing of the order of provisional attachment, no charge sheets were filed before the Court. The charge sheets in two crimes were filed after the issuance of the provisional order and in one case the charge sheet is yet to be filed. The charge sheets were not produced before the Ld. Adjudicating Authority. 24. In the above circumstances it can concluded that the Ld. Adjudicating Authority has not property applied its mind while passing the order and therefore, the o....
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....ies. Detailed and identical submissions have been made on behalf of the all appellants herein. Accordingly, matters are being discussed and disposed of through this common order. Firstly, it is contended that the scheduled offence cases were motivated by malice and ill-will, have absolutely no merit and no chance of success resulting in conviction of the accused (Appellants herein). These contentions of the appellants, are outside the mandate and remit of this Appellate Tribunal and no findings, whatsoever, anticipating or influencing the result of the prosecution proceedings in the said scheduled offences can be recorded by this Appellate Tribunal. It may, however, be noted that the legal position is by now well-settled that the charges under the PMLA, 2002 cannot survive in case the appellant is absolved of the charges in the scheduled offence which constituted the substratum for the charges under PMLA, 2002. The Hon'ble Supreme Court in Vijay Madanlal Choudhary Special Leave Petition (Criminal) No. 4634 of 2014, has categorically held that in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdicti....
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....atter's direction. I am also reasonably satisfied that Shri. Joby George and others (as mentioned at column 3 of table in Para 4) are likely to transfer, convert, dispose, or part with the said properties and nonattachment of the said properties immediately is likely to result in frustrating the confiscation/attachment of said proceeds of crime." 34. Furthermore, it is to be borne in mind that the appellant is a foreign citizen and is running a business abroad. In the present cases, the appellant No.1 and his wife are UK citizens. As such, non-attachment of properties in India could easily lead to the situation contemplated under the said Proviso. In regard to the order granting bail, the appellant himself has submitted that conditions were imposed by the court to ensure the presence of the accused for trial. For the same reason, the action of the Directorate in attaching the property of the appellant in India pending the establishment of the guilt or otherwise of the appellant cannot, in my view, be faulted. In fact, even while claiming on the one hand that there was no reason to believe that the property would be disposed of or alienated, the appellant has asserted his ent....
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....al thereof clearly reveals that the contention of the appellant that the order has been passed without due application of mind and without considering the submissions of the appellants are without merit. 37. Furthermore, chargesheet at least in the Offence No. 1056 was filed on 28.01.2013. Therefore, there was nothing wrong, as has been alleged by the appellant in the AA noting in his conclusion that he had perused the chargesheet. 38. It is next contended that ample circumstances had been shown before the authority to reach a conclusion that the disputed property could not be treated as purchased with proceeds of crime. In this context, the relevant paragraphs of the impugned order, i.e., paragraphs 12.2 to 12.4, 12.6.3 to 12.6.7 have been perused. The relevant paragraphs of the order are extracted below: "12.2 In this context it is seen that the defendants have not produced either certified copies of the agreements or even the copies of commercial sublease agreements signed by all concerned parties. No evidence to prove his case has been filed regarding illegal business etc. The copy of account of Shri Babu M. George, his wife and son i.e. Shri George Babu in the a....
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....inward remittances. The charge that Rs. 15 lakh promised to be given in respect of the property has not been paid also remains un-rebutted with evidence. 12.6.4 Father and mother of Defendant No.1 have denied to have ever met the driver of Defendant No.1 or received any money from persons who have made complaints against him but Shri T. George, driver of Defendant No.1 has given elaborate statement and evidence of depositing money in bank accounts. 12.6.5 Defendant have not categorically denied having financial transactions with Shri Babu M. George, Mrs. Darly, Mr. Rajesh Mathew etc. but have stated that Shri Joby George and his wife were conducting business in partnership with them and money was for that purpose, but no accounts of partnership or evidence have been filed. 12.6.6 It has been conveyed by defendants that Shri Babu M. George was a retired Chief Engineer but has not submitted any evidences in this regard. Whereas complainant side has filed affidavit of Shri Babu M. George that he was not a retired Chief Engineer or even a Govt. Servant. 12.6.7 As regards the plea of the defendant that there are violations of FEMA and unexplaine....