TMI Blog2017 (8) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 57,00,000/-(Rupees fifty seven lacs only) is part of the sum of ₹ 1,30,00,000/-(Rupees one crore thirty lacs only) siphoned by Mr. Arun Kumar Kajjayam. The investigation agency has never disputed the said fact. The order passed by the Special Court has not been challenged. The trial in the matter is pending. The request of the respondent to release the moveable and immoveable properties was not allowed by the Special Court even upon filing of an application. It is also a matter of fact that Mr. Arun Kumar Kajjayam in his statements recorded U/s. 50 of PMLA does not in any manner state that the Appellant was involved in the commission of the offence. On the contrary he admits to his wrong doing. He never denied that said money does not belong to the appellant rather he has confirmed that the money in question belonged to the Appellant. A mere perusal of the charge sheet filed by the police in FIR No. 291/2011 and the statements of Mr. Arun Kumar Kajjayam recorded U/s. 50 of PMLA shows that neither he nor his immediate family members had the means to purchase the immoveable property or the gold jewellery or have the capacity to be in possession of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of his employment siphoned/misappropriated a sum of approximately ₹ 1,30,00,000/- (Rupees one crore thirty lacs only) from the Appellant. Consequently FIR No. 291/2011 was registered U/s. 420/409 IPC at Police Station Kadapa. The money siphoned/embezzeled by Sh. Arun Kumar Kajjayam was part of the money earmarked for replenishing the ATMs of the Appellant Bank. 4. The police during its investigation not only discovered that Mr. Arun Kumar Kajjayam had dishonestly and fraudulently taken away the sum of ₹ 1,30,00,000/-(Rupees one crore thirty lacs only) but also discovered that he had utilized a part of the money siphoned from the Appellant to purchase a 242 Square Yards plot at Survey No. 601/1 at Chemmumiapet Village, Kadapa registered vide document no. 335/2012 by SRO Kadapa (Rural), having value of ₹ 40,00,000/- (Rupees forty lacs only). 5. Admittedly, the police recovered ₹ 57,00,000/- (Rupees fifty seven lacs only) from Mr. Arun Kumar Kajjayam. The police recovered gold ornaments worth ₹ 1,25,000/- (Rupees one lac twenty five thousand only) from him. The police seized the papers of the immoveable property, ₹ 57,00,000/- (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Gold ornaments worth ₹ 1,25,000/- (Rupees one lac twenty five thousand only) in custody of the police in case Fir No. 291/2011 U/s. 420,409, 468, 471 IPC registered at Police Station Kadapa (Andhra Pradesh). 12. On 22.03.2016, the Deputy Director, Directorate of Enforcement, Hyderabad filed a complaint U/s. 5(5) of PMLA before the Ld. Adjudicating Authority, Hyderabad. The complaint was subsequently transferred to the Ld. Adjudicating Authority, New Delhi vide letter dated 06.04.2016. 13. On 24.05.2016, the Appellant upon receipt of the notice U/s. 8(1) of PMLA filed its reply before the Ld. Adjudicating Authority praying that the Provisional Attachment Order No. 01/2016 in so far as it relates to the attachment of the amount of ₹ 57,00,000/- (Rupees fifty seven lacs only) be not confirmed. 14. On 08.07.2016, the Ld. Adjudicating Authority passed the Order being OC-No. 555/2016 (herein after referred to as the Impugned Order ) confirming the Provisional Attachment Order No. 01/2016 passed by the Joint Directorate of Enforcement, Hyderabad continuing the provisional attachment. GROUNDS A. For that the Impugned Order has been passed by the Ld. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 and has been released to the Appellant only pursuant to giving of a bond, thereby acknowledging that the said money can now not be concealed or transferred or dealt with any manner which would frustrate the confiscation proceedings and yet the order of confirmation of order of provisional attachment was passed. The pre-condition for passing an order U/s, 8(1) of PMLA is that there must be reason to believe'' that any person has committed an offence u/s 3 or is in possession of proceeds of crime.. In the present case the Appellant was admittedly not the perpetrator of the crime but its victim. The proceeding against the appellant under Schedule Offence and/or under PMLA, 2002 are pending. It is public money which own by the appellant bank. 19. By means of the impugned order, the Ld. Adjudicating Authority by depriving the Appellant of the money by confirming the order of provisional attachment has in fact harmed the Appellant for no fault of its own. 20. It is settled law that an Order U/s. 8(1) of PMLA can only be passed if the Respondent would prima facie to establishes that act of the Appellant falls within the preview of the definition of money laundering as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble reasoning, conclude or infer regarding the nature of the thing concerned. 24. In the present case, the Adjudicating Authority did not understand the implication of the Order dated 04.02.2012 passed by the Ld. Ist Additional Judicial First Class Magistrate, Kadapa whereby the Ld. Court handed over custody of the money to the Appellant. The Ld. Adjudicating Authority erred in holding that ...The temporary custody of cash given to the Bank does not entitle them to any right unless it is finally proved that the amount relates to the fraud committed by the first defendant... . The Respondent failed to understand that the Ld. Magistrate has granted custody to the Appellant only after prima facie satisfaction of the Appellant's ownership of the money. 25. The Ld. Adjudicating Authority erred in holding that Defendant counsel has not submitted any such proof which would determine that cash money is entirely out of the cash siphoned off by defendant No. 1 . The said finding is totally contrary to the record because it is the finding of the investigating agency in FIR No. 291/2011 that the sum of ₹ 57,00,000/-(Rupees fifty seven lacs only) is part of the sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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