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TMI Blog2016 (7) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... 148, 427, 302 506[i] IPC read with 120[b] and 109 IPC. The registration of the First Information Report pertains to alleged offence of murder of one Kathiravan and his brother by eight assailants. [b] The name of the petitioner did not find place in the FIR and in connection with the said crime on 30.03.2013, one Venkatesan and Johnson had surrendered and they have alleged to have given confession statements based on which, FIR was altered. The police effected seizure of Rs. 74,47,700/- at about 11.30 a.m. On 30.03.2013 from the house of one Prabhakaran under the cover of Mahazar. In pursuant to the Alteration Report, sections 212 and 213 IPC were added. Even as per the alleged confession statements, the role of the petitioner have not been stated and so also in the Seizure Mahazar, as to the alleged recovery of Rs. 74,47,700/- which forms the basis of the proceedings under PMLA. One of the wives of the petitioner, viz., Tmt.Banumathi, was said to have been arrested on 30.03.2013 and she is also said to have given a confession statement and it also does not find place in the report submitted for alteration of FIR. [c] The 1st respondent, based on the above said FIR, initiated an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Enterprises and the properties indicated in Items No.2, 3 and 4 of the complaint were purchased from and out of the funds of Tmt.Meena for the benefit of the minor children, namely, Harshavardhan, Dharanidharan and Kushal in their names and the petitioner did not contribute any money for the purchase of the above said items of properties. [f] The 2nd respondent had issued a notice u/s.8[1] of PMLA, calling upon the defendants to submit their reply within 30 days and according to the petitioner, no such notice was sent by the 2nd respondent to the petitioner. Only an intimation was sent by the 1st respondent and notices were sent to the names of the minor children. The petitioner, on receipt of the same, had engaged his counsel, who appeared before the 2nd respondent on 22.04.2016 and filed a Memo stating that section 8[1] Notice has not been served on the petitioner and a submission was also made that the other defendants are minor children and as such, the complaint is defective. However, the 2nd respondent, overlooking the said submission, served the statutory notice on his counsel with a further direction, calling upon the defendants therein to file reply statements by 06.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be served on them directly for the reasons that they are minors and it should be served on the next friend and natural guardian and the said procedure has not been followed and as such proceedings on the defendants 2 to 5, are per se illegal. Learned counsel for the petitioner also made a legal plea that when a statute prescribes a thing to be done in a particular way and manner, it should be done only in that manner and admittedly, per se violating the mandate caste upon section 8[1] of PMLA, the respondents are proceeding further and therefore, prays for quashment of the entire proceedings. 4 Per contra, M/s.S.G.Hema, learned Central Government Standing Counsel appearing for the respondents, had drawn the attention of this Court to the Counter Affidavit sworn to by the Assistant Director, Thiru.J.X.Terrance Rodrigo, Directorate of Enforcement, Chennai-6, wherein it has been averred among other things, that the investigation revealed that a sum of Rs. 7,47,700/- seized by the police authorities from the house of the deceased Kathiravan, was given by the petitioner herein to the family members of the deceased Kathiravan on 23.03.2013 by one of his wives, Tmt.Banumathi, to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent was filed on 27.06.2016 and in paragraphs 4 and 5 of the additional counter, it is averred that the Provisional Attachment Order in PAO No.3/2016 dated 17.02.2016, was served on the petitioner and four others by speed post vide Dispatch Nos.726 to 730 dated 18.02.2016 and the same was delivered by the postal authorities and the Show Cause Notices u/s.8[1] of PMLA were sent to the petitioner and four others vide respondents Department Office Dispatch Nos.962 to 966 dated 14.03.2016 and the same were dispatched by the postal authorities vide receipts dated 14.03.2016 and it was delivered on them on 22.03.2016 vide Delivery Report dated 22.03.2016 and the copies of the Postal Delivery Receipts and Reports were also furnished in the typed set of documents. Since the learned counsel made the complaint as to the non-service of the Show Cause Notices, once again the Show Cause Notices to the petitioner and to the minor sons were sent by Speed Post on 26.04.2016 and were delivered on 27.04.2016 by the Postal Authorities. The next date of hearing was fixed on 28.06.2016. It is the submission of the learned Standing Counsel for the respondents while drawing the attention of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute was enacted. The provisions of the Act, thus, have to be construed to achieve the purpose of its enactment. The Court has to adopt a constructive approach not contrary to attempted objective of the enactment. The Court must examine and give meaning to the said words, in view of the statute of which it is a part considering the context and the subject of the said statute.." 9 Since PMLA or the Rules and Regulations framed therein, have not given any definition as to the meaning of the word any person and in the light of the above cited decision, this Court is of the view that any person includes minors also, properly represented by next friend and natural guardian or in their absence, are acting adverse to the interest of the minor, by a Court appointed guardian. 10 A perusal of the counter affidavit sworn to on behalf of the respondents would disclose as if the Show Cause Notices u/s.8[1] of PMLA were dispatched to the petitioner and his minor sons on 18.02.2016. However, this Court has pointed out that the averments to that effect in paragraphs 10, 12 and 13 may not be correct and thereafter, realising the said mistake, the respondents has filed the additional counter affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner and in the bracket, it is stated as guardian . Therefore, this Court has to come to the conclusion that the defendants 2 to 5 are minors. 14 Section 11 of PMLA speaks about the power regarding summons, production of documents and evidence etc., and it is relevant to extract the same:- "11.Power regarding Summons, production of documents and evidence etc.,:- [1] The Adjudicating Authority shall, for the purposes of this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 [5 of 1908] while trying a suit in respect of the following matters, namely- [a] discovery and inspection ; [b] enforcing the attendance of any person, including any officer of a banking company or a financial institution or a company and examining him on oath ; [c] compelling the production of records [d] receiving evidence on affidavits ; [e] issuing commissions for examination of witnesses and documents ; and [f] any other matter which may be prescribed. [2] All the persons so summoned shall be bound to attend in person or through authorised agents, as the Adjudicating Authority may direct, and shall be bound to state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices to be served, it can be served only on the next friend and natural guardian. In the considered opinion of the Court, in the Cause Title of the complaint also, the array of parties insofar as the minor children of the petitioner, viz., the defendants 2 to 5, have not been properly shown or indicated. Order XXXII CPC speaks about the suit by or against minors or persons of unsound mind. Sub-rule [1] of Order XXXII says that minor to sue by next friend and Sub-rule [2] says where suit is to be initiated without next friend, plaint to be taken off, the file. 17 In the judgment reported in AIR 1968 SC 954 [Ramchandra Vs. Man Singh], it is held that the said provision is based on the principle that since an infant or a lunatic is of immature intelligence and understanding, no act which is prejudicial to his interests may bind him. In the judgment reported in AIR 1990 Kerala 92 [DB] [M.Mathai Vs. The General Manager, KSRTC], it is held that Order XXXII CPC reflects the principles of natural justice to the equity and good conscience, in as much they allow the litigation to be prosecuted or defended on behalf of the persons under a disability. 18 In Rup Chand Vs. Dasoda reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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