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2019 (4) TMI 1087 - AT - Money LaunderingDisproportionate assets case filed by CBI against the Retired Army officer [Appellant No. 1] - Appellant No. 2 is the wife of Appellant No.1 and Appellant No.3 is the son of Appellant No.1. - assets of Appellant Nos. 2 & 3 have been incorrectly attributed to Appellant No.1, income of the Appellant No.1 has been suppressed and several other errors have been made in computation of income, assets and expenditure of the appellants - mandation of prescribed period of 180 days for adjudication - HELD THAT:- The CBI in its final report has merely charged the appellants for having committed the offences punishable under sections 12(2) r/w 13(1)(e)of the Prevention of Corruption Act, 1988 and under Section 120-B r/w Sections 465, 471 of the IPC 1860, however in the conclusion last para of the impugned order, it is concluded by the Adjudicating Authority that the appellants have committed the schedule offence. The said conclusion is on the face of is without any basis as the evidence in the schedule offence is yet be concluded,such declaration made by the Adjudicating Authority is an abuse of the process of court. How can any authority comes to the conclusion in advance. The final judgement is yet to be delivered by the Special Court after evidence as to whether the accused has committed the schedule offence or not.In other cases, also similar observations are made against the person who are not even name in the FIR or any charge-sheet is filed under this Act. The Authority under this Act is duty bound to deal with the reply and materials on record within the meaning of Section 8(2) of the Act and decide the same on merit rather to simply adopt the CBI report and to give sweeping findings that the person concerned has committed the schedule offence when such matter is still pending before Special Court. The Adjudicating Authority in the Impugned Order merely on presumptions has come to the conclusions arrived at merely on the basis the CBI Final Report dated 19.12.2014, without conducting any independent inquiries, despite the Act requiring the authority to independently apply its mind to the entire matter. When it was pointed out to the learned counsel for the respondent who supports the impugned order. The said explanation is unimpressive as it is the duty of the Adjudicating Authority to deal with the plea of the person concerned and material placed on record but the same has not been discussed. Section 8(2) of PML Act, 2002 is a mandatory provision if the reply and material available on record are not dealt with in the impugned order. The same is liable to be set aside. The prescribed period of 180 days for adjudication has already been expired under Section 5 of the Act. Thus, there is no need to remand back the matter. Counsel for the appellant after hearing made the fair suggestion without prejudice which is quite reasonable. The impugned order is accordingly modified. I is the admitted position that the charge-sheet against the appellants under the scheduled offence as well as prosecution complaint under PMLA and under this Act is also pending before the Special Court. Without expressing any opinion on merit, the impugned order is modified to the following extent:- a) That as far as account maintained by Smt. Minni Narang and Sumant Narang ( A/c. No. 0181012002249 of Kotak Mahindra Bank, Sector-18, NOIDA - balance amount as ₹ 5,66,604.74) and also account maintained by Smt. Minni Narang and Sh. J.K. Narang (account no. 00431000084976 of HDFC Bank, Saket, New Delhi – balance amount as 14,59,940.54) – totalling ₹ 20,26,545.28, the said amount be appropriate by the respondent. Without prejudice, the FDR be prepared initially for a period of two years in the nationalized bank till the date of final judgement passed by the Special Court. It can also be reviewed for further period in case the final order is not passed. b) With regard to the property bearing no. C-80, Sector 47, NOIDA(U.P), without prejudice, the attachment of the said property shall continue till final judgement is passed by the Special Court. However, the attachment will continue and the and the appellant shall not dispose of the said property till the final order is passed after recording the evidence. c) The observation made by the Adjudicating Authority in the conclusion part of the impugned order shall not be used against the appellants. The Special Court even otherwise is to pass the final order after recording the evidence without having any influence of the impugned order dated 15.7.2016.
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