TMI Blog2014 (6) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... erial in the complaint had reason to believe that the ingredients necessary for the attachment order existed. So read, it follows that the Adjudicating Authority stated in the show cause notice that he had reason to believe that there existed the factors necessary to serve the notice. The reasons, in turn, stand incorporated in the notice from the complaint. It is apparent that the notice has been issued based on the reasons to be found in the complaint and the documents which have been expressly referred to in the contention. The complaint itself expressly sets out the reason to believe. If, on the basis of the facts disclosed in the enclosures, the Adjudicating Authority had formed the opinion that there was no reason to believe the existence of the factors mentioned in section 8, he would not have issued the show cause notice. That he did indicates that he had reason to believe the existence of the said factors. In the facts and circumstances of the case this is sufficient compliance. The above show cause notice was served upon the petitioner on its name as the said property is reflected in the complaint and attachment order. The final order on the show cause notice will dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under sub- section (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf, and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who alleged that they had been cheated by NSEL. On the basis of the said information, the Enforcement Directorate registered a case against NSEL, its Directors and key officials. The order also refers to the investigation of the Directorate of Enforcement in respect of the defaulters M/s. Aastha Minmet India Pvt. Ltd. and another enterprise. It refers to the manner in which money had travelled from NSEL to various entities, including M/s. Aastha Minmet India Pvt. Ltd. and M/s. Juggernaut Projects. The order records the statements of the said Mohit Agarwal that Aastha had sold goods through NSEL without physical stock and had received funds from NSEL which were in turn diverted inter-alia to purchase various properties. Similarly, statements were recorded of a former MD of NSEL. The liability of the Aastha Group to NSEL was about ₹ 242.66 crores. The order then records the money trail leading to properties, including the property which is the subject matter of this petition and of which the petitioner claims ownership. The order specifically records the petitioner's name in respect of the property stating also the purchase price of above ₹ 27 crores. The order sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RDER 9.) NOW, therefore, I order that the properties mentioned in the enclosed Schedule are provisionally attached under sub section (1) of Section 5 of Prevention of Money Laundering Act, 2002, for a period of 180 days from the date of this order. I further order that you shall not remove, part with or otherwise deal with such properties without my prior permission. There are various other allegations also which are presently under investigation by the Economic Offences Wing. Accordingly, the properties stood attached under section 5(1) of the Act. 4. The Deputy Director on 27.02.2014 filed a complaint under section 5(5) before the Adjudicating Authority. Section 5 of the Act reads as under : Section 5 - Attachment of property involved in money-laundering. - (1) Where the Director, or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) any person is in possession of any proceeds of crime; (b) such person has been charged of having committed a scheduled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.- For the purposes of this sub-section person interested , in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. (5) The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority. 5. The complaint also deals in considerable detail with the alleged fraud and money laundering indulged in by various entities and individuals including NSEL and the Aastha group. It refers to the purchase of the property which is the subject matter of this writ petition. It is not necessary to refer to the details of this complaint. Suffice it to note that it states that the said Mohit Agarwal had also purchased shares worth ₹ 50 lakhs in the petitioner and had invested about ₹ 6 crores with the Petitioner by way of ICDs which was utilised to purchase the said property. From the complaint it is noticed that the record indicates tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n money laundering [Copy of the complaint and Annexure/relied upon documents thereto enclosed herewith]. You are directed to appear before the Hon'ble Chairman and Member. Adjudicating Authority (PMLA) in person or through an advocate/authorised representative duly instructed on 12.06.2014 at 11.00 a.m. at Adjucating Authority, Prevention of Money Laundering, 4th Floor, Court Room 2, Room No.20, Jeevan Deep Building, Parliament Street, New Delhi - 110001, failing which the complaint shall be heard and decided in your absence. Given under my hand and the seal of the Adjudicating Authority, this 29th day of April, 2014. 7. The contention that the show cause notice does not state that the Adjudicating Authority has reason to believe that the petitioner has committed an offence under section 3 of the Act or is in possession of proceeds of crime is not well founded. The notice has, for all practical purposes, adopted, incorporated the complaint in toto. The notice, fairly read, indicates that the Adjudicating Authority, on the basis of the material in the complaint had reason to believe that the ingredients necessary for the attachment order existed. So read, it follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In the case before us, the reasons were not merely kept on file and not communicated to the Petitioner. In fact, the show cause notice enclosed copies of the complaint and annexures. 11. As far as the petitioner is concerned, we are not inclined to set aside the order of attachment under section 5 passed by the Deputy Director on the ground that he has not recorded in writing, his reason to believe the existence of the factors mentioned in section 5. The said order dated 31.01.2014, was addressed to Aastha and the said Mohit Agarwal. That order clearly contained the reasons that satisfied all the ingredients of section 5. The attachment over the property, therefore, was levied in accordance with the provisions of the Act. 12. The above show cause notice was served upon the petitioner on its name as the said property is reflected in the complaint and attachment order. The final order on the show cause notice will determine the rights in the property qua the various persons concerned, including Aastha, the said Mohit Agarwal and the petitioner. The hearing on the show cause notice has proceeded. The petitioner has been heard. There is, any event, no warrant for exercising ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
