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2018 (2) TMI 1061 - AT - Money LaunderingOffence under PMLA - provisional attachment orders - nature of offence - whether M/s Jagati Publications Pvt. Ltd. and Y.S Jagan Mohan Reddy have thereby committed the schedule offence of cheating and the Proceeds of Crime are liable to be proceeded against under PMLA? - Held that:- From the facts of the present case, at the best if proved, it may be a case of cheating. The suit for recovery of amount has not been filed. Shares are with the investors. They have not filed any criminal complaint against the appellant. The period of purchased of shares and investment prior to 1st June, 2009. There is no investment after 1st June, 2009. No case is pending against the investors. There is no complaint or civil action initiated by them. It is matter of fact that the money was invested by the three investor in the year 2006, 2007, 2008 and upto March, 2009 i.e. prior to 01.06.2009 even as per the allegations in the charge sheet (constituting the basis of the impugned order) the alleged crimes, in respect of which allegations are made against the Appellants have taken place prior to 2009. The penal provisions, which are sought to be pressed against the accused, were not included in the Schedule to the PMLA during the relevant time. They were only included in the Schedule only by way of amendment to PMLA vide Act No. 21 of 2009 w.e.f. 01.06.2009. Here is not a case where it could be said that the investors have taken any advantage from the Government of Andhra Pradesh. The respondent has not denied the said aspect. Nothing has been discussed in the provisional attachment order about the factual position of the matter as well as by the Adjudicating Authority while issuing the notice under section 8 of the Act. If the contentions of the respondent is accepted in the case like this, there would be flood of litigations under this Act which is not permissible in law. Even otherwise, the attachments of M/s Jagati Publications seem to be wholly unnecessary as the High Court passed Orders dated 23.05.2012 restraining the alienation of any assets of the company while taking into account that M/s Jagati Publications is a media house and many employees are dependent on the functioning of the company. The said interim order is still continuing. Therefore, the provisional attachment in the present case is bad and against the law applicable to the facts of the case. After having gone through the charge sheet even if the allegations are taken as correct in the predicate charge, no “schedule offence” was prima facie committed for the purposes of PMLA. Thus, the Provisional Attachment Order, and confirmation thereof, is not sustainable in law. The same is set-aside. The attachment order of attaching the amount is lifted forth-with.
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