TMI Blog2017 (8) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... per law. - MP-PMLA-3157/MUM/2017 (E.H) MP-PMLA-3156/MUM/2017 (Stay) MP-PMLA-3158/MUM/2017 (Exemption) FPA-PMLA-1649/MUM/2017 - - - Dated:- 3-8-2017 - Justice Manmohan Singh Chairman And Shri Anand Kishore Member For the Appellant : Shri Saurabh Kirpal, Advocate Shri Gurmehar Sistani, Advocate Shri Ashish Batra, Advocate For the Respondent : Shri S.A. Saud, Advocate JUDGMENT FPA-PMLA-1649/MUM/2017 1. By this order, we propose to decide the appeal filed by the appellant under section 26 of PMLA, 2002 against the order dated 20.01.2017 passed by the Adjudicating Authority in O.C. No. 632/16, confirming the Provisional Attachment Order NO. 15/2016 dated 11.08.2016 qua one of the property bearing No. 1(B) A out of Survey No. 570/1/2(2)1, and having C.T.S. Nos. 7232 and Final Plot No. 62/2 admeasuring 1260.38 sq. mtrs. (approx), purportedly under the said Act. 2. The facts mentioned in para no. 3 to 5 of the impugned order dated 20th January, 2017 are reproduced below: 3. Facts and circumstances of the case leading to the filing of this complaint:- (i) The Anti Corruption Bureau (hereinafter referred to as ACB ), Worli, Mumbai, have registered an F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra had in connivance with other concerned officials of PWD fraudulently obtained sanction for the said project from Maharashtra Government in favour of M/s. K.S. Chamankar Enterprises. 4. As Sectionl3 of Prevention of Corruption Act, 1988, and Sections 120(B), 420, 467 and 471 of the Indian Penal Code, 1860, are mentioned in the Schedule to the PMLA, an ECIR has been registered against Shri Chhagan Bhujbal; his relatives, M/s. K. S. Chamankar Enterprises, its partners, PWD officials and others and the case was taken up for investigation under the provisions of the said Act. 5. A chargesheet has been filed on 24.02.2016 by ACB, Mumbai before the Hon'ble Sessions Judge, Special Court, Mumbai in respect of FIR No. 35 of 2015 invoking Sections 13(1) (c), 13(l), 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 and Sections 406, 420,465,468,471,120- B, 109 read with 34 of Indian Penal Code. The said chargesheet is filed against (i) S/Shri Chhagan Bhujbal, (ii) PankajBhujbal, son of Shri Chhagan Bhujbal, (iii) Sameer Bhujbal, nephew of Shri Chhagan Bhujbal, (iv) Shri Krishna Shantaram Chamankar, partner of M/s. K.S. Chamankar Enterprises, (v) Smt. Pravina Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sl. No. Details of property Purchaser POC Value (in Rs) 1. Non Agricultural Land CTS No- 570/1/2(2), Plot No. 1 (B) A, admeasuring 1260.38 sq. Meters, Nasik, Tal District-Nasik Growth Infrastructure Pvt. Ltd. 14500000/- 2 Land bearing CTS No-6697 A admeasuring 1039.67 sq Meters together with structure standing thereon in Tah and District-Nasik Growth Infrastructure Pvt. Ltd. 3,50,00,000 3. Tenancy Rights of Shops numbered 4, 5, 6, 8, 9 10 admeasuring 2500 sq. ft. built up on ground floor of the building named Saikunj , Plot No.- 214, Dadar Matunga Estate, Dr Ambedkar Road, Dadar (East) Mumbai- 400014. Growth Infrastructure Private Limited 2,40,000,00 4. Non Agricultural Land bearing old Survey No.- 19/1B and 19/1C New Gut No.- 19/2 admeasuring 111H-89R equivalent to 189000 Sq meters Village- Shirdi, Tal Rahata, District- Ahma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pakaj Bhujbal 10,44,000/- 16. Gat No. 282-3H.24 R, Indore Village, Tal-Dindori, Nashik Hirabai Magan Bhujbal 3,52,000/- Total Value of Proceeds of Crime ₹ 25,44,84,812/- (Rs. Twenty Five Crores Forty Four Lacs Eighty Four Thousand Eight Hundred Twelve Only) 6. The provisional attachment order was passed on 11th August, 2016 which was confirmed by the impugned order of the Adjudicating Authority. Admittedly the provisional order was passed on 11th August, 2016. Before the said order on 14th July, 2016; the said property had already been purchased by the appellant. 7. After passing the provisional attachment order and at the time of passing the impugned order, the appellant were not called upon to submit the reply or any opportunity was granted to make his submissions before the Adjudicating Authority who admittedly did not issue notice which is a mandatory requirement under section 8(1) and (2) of PMLA. 8. Admittedly, on the date of passing of impugned order dated 20th January, 2017 the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such person calling upon him to indicate the sources of his income, 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 [or frozen] 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under subsection (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the 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. 13. The above fact was brought to the notice by Growth Infrastructure Pvt. Ltd. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on a judgments of Hon ble Supreme Court in the cases of Dipak Babaria and another v/s. State of Gujarat and (2014) 3 SCC 502 and J. Jayalalithaa Anr. v/s. State of Karnataka Ors.(2014) 2 SCC 401. 17. The Supreme Court reported in AIR 1980 SC 303 in the name of Shri Sharif-ud-Din V/s. Abdul Gani Lone wherein para 9; the Hon ble S.C. is held as under: 9. The difference between a mandatory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be submitted thus: The fact that the statue uses the word shall while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on this point. As far as transfer of property in question is concerned, the ownership thereof stands transferred in favour of the appellant by way of registered sale deed prior to provisional attachment order. 21. With regard to objection of concealment of facts, the appellant has filed the copy of the sale deed and the details of the payment are mentioned in page no. 11 12 of the sale deed. Each and every details are mentioned in the sale-deed. We have examined the terms of the sale deed. It is apparent that even last payment was received by the vendor as nothing contrary has been filed. 22. Even as per provisional attachment order the value of the said property is mentioned at ₹ 1,45,00,000/- (One Crore Forty Five Lakh Only). The sale deed was executed prior to the date of provisional order for the sum of ₹ 2,65,00,000/- (Two crore sixty five lakhs) which is more that the value as mentioned by the ED in the provisional attachment order. The entire payment was made by way of cheque. It is not the case of the respondent that in the sale consideration amount mentioned in the sale deed was under-valued, infact consideration which paid to seller was more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committing any offence under section 3 of the Act, the appellant, in the present appeal who is a purchaser, has placed relevant materials on record and has proved beyond doubt that the appellant was in possession of untainted money and purchased the property from legal income and accordingly burden in that regard has been discharged by the appellant before us although the said aspect has not been dealt by the Adjudicating Authority who even failed to issue the notice to the appellant for the purpose of reply and hearing. The impugned order was passed confirming PAO in the absence of the appellant who was never called upon and heard. 27. Mr. Kirpal submits that the appellant in the present case has rebutted the presumption that the property in question is proceeds of crime. It is argued that the respondent failed to prove any nexus or link of the appellant with the accused parties. The appellant, admittedly, has no relation or any association with the vendor directly or indirectly. 28. We would have decided the matter on merit also but it is a matter of fact that the plea of the appellant was not brought on record in the trial court. There were no pleadings before the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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