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2017 (8) TMI 965 - ATPMLAPrevention of Money-Laundering - Provisional Attachment - Held that:- In the present case, the Adjudicating Authority did not understand the implication of the Order dated 04.02.2012 passed by the Ld. Ist Additional Judicial First Class Magistrate, Kadapa whereby the Ld. Court handed over custody of the money to the Appellant. The Ld. Adjudicating Authority erred in holding that "The temporary custody of cash given to the Bank does not entitle them to any right unless it is finally proved that the amount relates to the fraud committed by the first defendant.". The Respondent failed to understand that the Ld. Magistrate has granted custody to the Appellant only after prima facie satisfaction of the Appellant's ownership of the money. Adjudicating Authority erred in holding that "Defendant counsel has not submitted any such proof which would determine that cash money is entirely out of the cash siphoned off by defendant No. 1". The said finding is totally contrary to the record because it is the finding of the investigating agency in FIR No. 291/2011 that the sum of ₹ 57,00,000/-(Rupees fifty seven lacs only) is part of the sum of ₹ 1,30,00,000/-(Rupees one crore thirty lacs only) siphoned by Mr. Arun Kumar Kajjayam. The investigation agency has never disputed the said fact. The order passed by the Special Court has not been challenged. The trial in the matter is pending. The request of the respondent to release the moveable and immoveable properties was not allowed by the Special Court even upon filing of an application. It is also a matter of fact that Mr. Arun Kumar Kajjayam in his statements recorded U/s. 50 of PMLA does not in any manner state that the Appellant was involved in the commission of the offence. On the contrary he admits to his wrong doing. He never denied that said money does not belong to the appellant rather he has confirmed that the money in question belonged to the Appellant. A mere perusal of the charge sheet filed by the police in FIR No. 291/2011 and the statements of Mr. Arun Kumar Kajjayam recorded U/s. 50 of PMLA shows that neither he nor his immediate family members had the means to purchase the immoveable property or the gold jewellery or have the capacity to be in possession of ₹ 57,00,000/-(Rupees fifty seven lacs only). The Adjudicating Authority has simply passed the mechanical order without applied its mind that the money so embezzled is public money being held by the Bank on behalf of the account-holders in the Bank.It is rightly argued on behalf of the appellant that if the duty of the bank to safeguard such money. Therefore, we are of the view that attachment of the same by the Respondent and confirmation by the Ld. Adjudicating Authority would amount to gross violation of law.
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