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2019 (8) TMI 12 - AT - Money LaunderingProvisional Attachment of Land - development of Ports - proceeds of crime - illegal gratification - main submissions of the Respondent was that the name of Matrix Enport Holdings Pvt. Ltd. was changed to Vanpic Projects Pvt. Ltd. without any involvement of Government of Ras al Khaimah (“GoRAK”), which was based on the board resolution dated 30.06.2008 - HELD THAT:- From the impugned order as well as provisional attachment order and from the stand of respondent no. 1, it appears that the submissions are not correct as the allotment of the VANPIC Project was not to Mr. Nimmagadda Prasad, but, to Ras Al Khaimah, the sovereign Emirate of United Arab Emirates, which had engaged Mr. NimmagaddaPrasad as its Local Partner under the MOU and Concession Agreement, the rationale for identifying a sum of ₹ 267.45 Cr. (instead of which ₹ 274.45 Cr. approx. has been actually attached) is found at pages 82-87 of the Complaint. As per appellants, two sets of investments made and a donation by the Appellants have been wrongly identified as “illegal gratification” paid to Y. S. Jagan Mohan Reddy. Section 35 of PMLA provides the Procedure and powers of the Appellant Tribunal which says that Tribunal shall not be bound by the procedure laid down by Code of Civil Procedure but shall be guided by the principles of natural justice and subject to the other provisions of this Act and Appellant Tribunal shall have powers to regulate its own procedure.One of the main objects and reasons of this Act is to confiscate of proceeds of crime apart to the criminal liability if the accused has committed under the provisions of this Act and schedule offense. Till the time final order is passed by the Special Courts, if a valid case is made by ED, the proceeds of crime must be preserved so that after final order it should be confiscated for the benefit of State. Sub-section (1) of the said provision mandates that any stage if the defendant has absconded or left the local limit of the jurisdiction or is about to abscond or leave and has disposed of his property or part thereof in order to obstruct the execution of decree against him, the court under those circumstances may issue warrant to arrest to bring him before court and ask him to furnish security for his appearance. if the defendant fails to furnish security under sub section 4, under sub section 5, the court if satisfies may direct the defendant for furnish security for production of property in order not to allow the defendant to obstruct the decree - The provisions of Section 5 and 8 of PMLA are not exactly similar but principles and intend to incorporate the said provision to some are the guiding factors. In the present situation, the balance can be strike as admittedly the investment in BCCL had got net profit of ₹ 274.95 crores on an investment of ₹ 342 crores which was sold for ₹ 617.45 crores with an IRR of 30% to the French Company, who is admittedly not charge-sheeted and its money was clean money as admitted by the respondent no. 1. However, in view of allegations by CBI, in order to strike balance, certain directions are necessary to be passed, unless the same are disposed or set-aside. The Appeal of Nimmagadda Prasad and group are partly allowed, subject to the condition that the said group of appellants shall furnish the Indemnity Bond for a sum of ₹ 274.95 crores with the respondent within four weeks from today as surety amount with an undertaking that in case the final order is passed by the final Court under PMLA against the said appellants, they shall secure the said amount with the respondent. The said Indemnity Bond shall be furnished without prejudice. The rest of attachment of Nimmagadda Prasad and group are setaside and properties are released - Admittedly, the attachments at the hands of Jagati Publications are wholly unnecessary as per Orders of the Hon’ble High Court at Hyderabad dated 23.05.2012 made in Cr.LP No. 4523 of 2012 restrain the alienation of any assets of the company Jagati Publications who is a media house employing numerous persons. The present order has been passed only in relation to attachment of properties of the appellants and confirmation thereof.
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