TaxTMI 
TaxTMI 
2024 (12) TMI 1717
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.... RC/1(A)/2012/CBI/SCB/LKO dated 02.01.2012 under section 120B & 409 of IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (PC, Act) was registered against Shri G.K. Batra, the then Managing Director M/s Shreetron India Ltd; Shri Neeraj Upadhyay, Proprietor of M/s Radhey Shyam Enterprise, Lucknow, Shri Virendra Goyal, proprietor of M/s Axis Marketing Ltd., New Delhi and Shri Avichal Mishra Executive of M/s HCL Infosystems Ltd., Lucknow by the CBI, SCB Lucknow in compliance with the Order dated 15.11.2011 passed by the Hon'ble High Court of judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No:3611(MB) of 2011(PIL) and connected Writ Petition No. 2647(MB) of 2011(PIL). The allegations levelled were that the said persons entered in a criminal conspiracy and in furtherance thereof misappropriated an amount of Rs. 2.94 crores approx. by showing undue favor to private firms. 3. Based on the aforementioned FIR, it appears that the Proceed of Crime (POC) i.e. tainted money amounting to Rs. 2.94 crore was earned by the accused persons by commission of criminal acts punishable under sections 120B, 420 & 471 of the IPC & section 13(2) r/w 13(1)(d) of the PC Act, w....
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....ealed that after the receipt of the purchase order by M/s Shreetron India Limited, a Limited Tender Notice due for opening among the empaneled Original Equipment Manufacturers (OEM) on 07.08.2009 was published on the website of M/s Shreetron India Ltd. by the then Managing Director (MD) Shri G. K. Batra wherebyM/s Radhey Shyam Enterprises, M/s Axis Marketing, and M/s HCL Infosystems Ltd submitted their bids. After a comparative study of the rates offered, it was decided to award the purchase order to M/s HCL Infosystems Ltd. A letter of intent (LOI) dated 08.08.2009 was issued to the lowest bidder M/s HCL Infosystems Limited for the said purpose. M/s HCL Infosystems Ltd. vide its Letter NO.HCL:LKN:SI:PDI: 1008:2009 dated 10.08.2009 informed the M.D. of M/s Shreetron India Ltd. that M/s Radhey Shyam Enterprises and M/s Axis Marketing would be its partners and it shall be routing its supply through the said partners on 50% each basis. 6. It is pertinent to note from the investigation that M/s Shreetron India Ltd. remitted a sum of Rs. 1,82,25,400/- to M/s Axis Marketing on 16.07.2009 and 04.08.2009, and Rs. 1,62,25,400/- to M/s Radhey Shyam Enterprise on 01.08.2009, both prior to ....
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....profit sharing basis. However, it appears that all the supplies and installations were made by M/s HCL Infosystems Limited only and no legitimate need existed for involving the partners in the supply chain. M/s HCL Infosystems Ltd. was used, in order to cover up the advance payments, which were illegally made to these two firms by Shri G K Batra much before even the finalization of the tender. To allow them a backdoor entry into the contract to adjust the aforesaid illegal advance payments made to them, M/s HCL Infosystems Ltd. issued letter dated 10.08.2009. None of the three bidders were empaneled with M/s Shreetron India Ltd. even though only empaneled firms were allowed to bid. In fact, the empanelment had expired on 14.02.2009 & was renewed on 23.11.2009. During the period of award of tender, thus none of the bidders was empaneled. Moreover, M/s HCL Infosystems Limited had failed to specify a dealer in its technical bid, even though, it could have as per the stipulation of the tender notice. 9. Investigation under PMLA, 2002were conducted in the backdrop of statements of Shri Neeraj Upadhyay and Shri Virendra Goyal u/s 164 of Cr.P.C., Chargesheet dated 04.04.2012 & suppleme....
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....pugned Order brings out that vide PAO No. 01/2015dated 15.01.2015 provisional attachment was made of (i) a Flat at No. A/226 measuring 2900 Sq. Ft. ATS Township Pvt. Ltd. valued at Rs. 65,90,000/- provisionally in the name of Shri Vicky Batra s/o Late G.K. Batra(ii) a property at P-3-305, Tower No. 03, Pavilion Court, Sector - 128, JP Greens, Wish Town Noida valued at Rs. 74,64,000/- to the extent of the invested POC of Rs. 44,12,273/- in the name of Shri Virendra Goyal (iii) Flat No. 404, UPIL Aishbagh Road, Lucknow valued at Rs. 13,00,000/- in the name of Smt. Nidhi Upadhyay W/o Shri Neeraj Upadhyay (iv) Scorpio bearing registration No. UP32-CL-0990 on 30.05.2008 valued at Rs. 9,80,000/- to the extent of the spent POC of Rs. 4,36,700/- in the name of Shri Neeraj Upadhyay (v) Accent GLE bearing registration UP32-CL-0288 valued at Rs. 6,12,003/- to the extent of the spent POC of Rs. 1,82,930/- in the name of Shri Neeraj Upadhyay. Thus, against total proceed of crime amounting to Rs. 2,78,24,546/-, a sum of Rs. 1,29,21,903/- were utilized to acquire the aforementioned five movable/immovable properties and were thus provisionally attached vide the PAO No. 01/2015. The Ld. Adjudicatin....
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....ed 09.07.2009 which submitted its quotation to the Mission Director, NRHM; minutes of the meeting dated 15.07.2009 which revealed the approval of the rates quoted by M/s Shreetron India Ltd. by the Mission Director Chanchal Kumar Tiwari, IAS and Pradeep Shukla IAS, Chairman of NRHM; and Agreement dated 28.07.2009. The letter dated 08.08.2009 of M/s Shreetron India Ltd. to M/s HCL Infosystem Ltd. reveals that the supply and installation of computers and hardware were business transactions and that business proceeds arose with the approval and recommendation of the Government authorities. The terms and conditions of the Purchase Order dated 10.08.2009 and Agreement dated 28.07.2009 have been mis-construed by the Respondent, so as to work out a case for money laundering. Purchase Order and Agreement prove that the transactions which occurred between Mission Director, NRHM and M/s Shreetron India Ltd. and M/s HCL Infosystem Ltd. were business transactions and the profit earned by the Appellants would not fall within the description of Proceed of Crime. The Appellant, Smt. Nidhi Upadhayay, is neither named in FIR nor in Chargesheet. She had been arrayed as Defendant No. 4 in the Impugne....
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....y other proceedings whether civil or criminal. Moreover, during the course of investigation under PMLA, 2002, all documents and records executed between the parties were scrutinized and statements recorded were taken into consideration to bring out the facts of the case. With regard to the non-mention of Section 471 of IPC in FIR filed by CBI, the same is not relevant for the present adjudication in as much as there is no dispute regarding Section 420 IPC which in itself is schedule offence and the investigation falls within the ambit of PMLA. With regard to the contention that the Respondent has repeated the version of CBI investigation, it has been stated that the investigation conducted under PMLA, 2002 has established generation of the proceed of crime and its utilization by the Appellants into acquisition of property. The Respondent also reiterated that there was no contract between the Appellants and M/s HCL Infosystems Ltd. for any maintenance or warranty. 19. Ld. Counsel for the Respondent submitted that the letter dated 10.08.2009 purportedly given by M/s HCL Infosystems Ltd. to M/s Shreetron India Ltd. implied that the Appellants would supply the computers at its behes....
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.... 1,29,21,903/-. She pleaded that the earlier order dated 24.04.2019 of this Tribunal can at best be considered as setting aside the attachment of the property valued at Rs. 65,90,000/- in the name of Shri Vicky Batra, which is also obvious from the last line of the Order stating that the attachment of flat is lifted. Ld. Counsel for Respondent prayed to dismiss the appeals, being without merit. 22. We have considered the rival submissions and the material on record. First and foremost, it is important to appreciate the matter decided on 24.04.2019 by this Tribunal. In this matter, the only appeal to be decided was that filed by Shri Vicky Batra. It is therefore obvious that the Impugned Order could not have been set aside with reference to the properties owned by persons other than Shri Vicky Batra. The Impugned Order has categorically identified the properties which have been attached, specified the proceed of crime involved therein and named the persons in whose names the properties were held. On perusal of the Impugned Order, it is clear that other than the property provisionally in the name of Shri Vicky Batra viz. a hamlet at No. A/226 measuring 2900 Sq. Ft. ATS Township Pv....
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....endment Ordinance, 1944. 7. As far as making the application for attachment, we find that the law authorises the State Government to make such an application even though proceedings against the person may not yet have resulted in a conviction. This is by virtue of Section 3[2] which empowers the Government to authorise making of such an application to the District Judge where it has reason to believe that any person has committed any scheduled offence. But, however Section 3 requires the Government to make such an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business; thus clearly requiring the existence of such a person. It excludes the possibility of proceedings against a dead person. Section 4 of the act empowers the District Judge to pass an order of ad interim attachment on prima facie grounds for believing that the person in respect of whom the application is made has committed any scheduled offence or has procured any money or property thereby. Sub- Section (2) requires the District Judge to issue a notice, presumably at the address where the person ordinarily resides or carries on b....
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....e trial court that Ramachandraiah was alone responsible for the offences is completely vitiated as null and void since Ramachandraiah had admittedly died on the date this finding was rendered. It is too well settled that a prosecution cannot continue against a dead person. A fortiori a criminal court cannot continue proceedings against a dead person and find him guilty. Such proceedings and the findings are contrary to the very foundation of criminal jurisprudence. In such a case the accused does not exist and cannot be convicted. Consequently, the learned District Judge committed a gross error of law in acting upon such a finding and treating Ramachandraiah as guilty of such offences while making the order of attachment and while confirming the said order of attachment of properties. 10. In such circumstance, the courts below erred in recording the finding that Appellant No.1 had committed the offence as alleged by the prosecution. Further, finding recorded by the learned Single Judge of the High Court that Appellant No.1 alone had committed the offence and nor Appellant No.2, must be taken to have misappropriated the said amount is perverse: "A criminal trial is not like....
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.... set-aside by allowing the appeal. The provisional attachment order is also quashed. 19. The attachment of flat is lifted." 23. We, therefore, believe the Order dated 24.04.2019 does not in any manner impair the Impugned Order vis-à-vis the three Appeals before us. Since in paragraph 19 of the Order dated 24.04.2019, it has been made abundantly clear that vide the said Order, it is only the attachment of the flat which was lifted. It is unambiguous that the flat is the one which is provisionally in the name of Shri Vicky Batra, who has been given relief because he was not an accused and could not have substituted in criminal proceedings his expired father Shri G.K. Batra. Thus, the present Appeals need to be decided for the remaining four movable and immovable properties in the name of the three Appellants before us. 24. With respect to the property Flat No. 404, UPIL Aishbagh Road, Lucknow, the payment of Rs. 1,00,000/- was made vide Cheque No. 39805 dated 27.08.2009 and payment of Rs. 12,00,000/- was made by Cheque No. 39886 dated 06.10.2009 to Smt. Vidya Devi. Both the cheques were cleared from the Account No. 4070102200000338 in Axis Bank, Lucknow held in ....
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....en done only to the extent of the alleged POC of Rs. 44,12,273/- held by Shri Virendra Goyal.Payment in cheques were made for the said property. The cheques were drawn on Account No. 0268256006632 maintained with Canara Bank, Account No. 1271545 maintained with ABN Amro Bank, Lucknow and Account No. 772733 maintained with ABN Amro Bank, Noida. These accounts were in the name of M/s Axis Marketing, the firm of Shri Virendra Goyal. The investigations have revealed that the amounts from M/s Shreetron India Ltd. were received in the two bank accounts maintained with two branches of ABN Amro Bank. It is also revealed that there were transfer of funds from the account maintained with ABN Amro Bank, Noida to that maintained with Canara Bank. Shri Virendra Goyal in his statement under Section 50 of PMLA, 2002 has stated that there were interconnected transactions between the various accounts so as to have funds for the purchase of the said property. Subsequently, Shri Goyal has contended that the said flat was purchased by the hard-earned money and had been booked by him earlier to the supply of computers made by him for NRHM Scheme. However, noting the facts that the money which was used ....
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....pants, namely, M/s Radhey Shyam Enterprises, M/s Axis Marketing and M/s HCL Infosystems Ltd. had filed their bids. The participation in the tender was limited to the empaneled Original Equipment Manufacturers. The investigation has revealed that none of the three participants were empaneled at that point in time. The payments which were made in advance of the opening of the tender from the bank accounts of M/s Shreetron India Ltd. were as follows: (a) On 16.07.2009 Rs. 20,00,000/- was paid to M/s Axis Marketing vide Cheque No. 509929 from Account No. 126010200009102 in Axis Bank. (b) On 04.08.2009 Rs. 1,62,25,400/- was paid to M/s Axis Marketing vide Cheque No. 509927 from Account No. 126010200009102 in Axis Bank. (c) On 01.08.2009 Rs. 1,00,00,000/- was paid to M/s Radhey Shyam Enterprises vide Cheque No. 509955 from Account No. 126010200009102 in Axis Bank. (d) On 01.08.2009 Rs. 62,25,400/- was paid to M/s Radhey Shyam Enterprises vide Cheque No. 509956 from Account No. 126010200009102 in Axis Bank. All these payments were made on approval and instructions of Late Shri G.K. Batra, then MD, of M/s Shreetron India Ltd. The payments by M/s Shree....