TMI Blog2017 (10) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... or redressal of the grievance. This is not a case where extraordinary jurisdiction of High Court under its writ jurisdiction has to be exercised ignoring the efficacious machinery provided under the Act. Hence, without expressing any opinion on the merits of the matter and making it clear that whatever prima facie opinion is expressed shall be confined only for the purpose of deciding the maintainability of the writ petition, by reserving liberty to the petitioner to urge all necessary grounds before the competent authority, this writ petition is dismissed. It is made clear that that period taken in prosecuting this writ petition before this Court shall be excluded for the purpose of time limit prescribed under the Act, both for seeking redressal by the petitioner and also with regard to duration of the provisional attachment order. - W.P.No.11544/2017 (GM-RES) - - - Dated:- 4-10-2017 - B. S. Patil, J. For the Petitioner : Sri. Udaya Holla, Sr. Counsel For For the Respondent : Sri Nandish A. Patel Sri Omar Ahmed Sri Sushal Tiwari ORDER 1. In the present writ petition filed under Articles 226 and 227 of the Constitution of India, petitioner - Devas Multi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to petitioner, particularly issues with reference to Foreign Exchange and Management Act (for short, the FEMA ) and PML Act. 6. On 29.06.2011, petitioner claims to have invoked arbitration under the ICC Rules challenging termination of the agreement by Antrix and seeking specific performance and in the alternative compensation/damages in a sum of USD 1.4 billion. Petitioner alleges that because of initiation of arbitration proceedings by petitioner, in order to harass the petitioner and its Directors both present and past, series of coercive actions have been initiated against petitioner including the impugned actions. 7. Petitioner alleges that because of the direction issued by the Department of Space, Ministry of Corporate Affairs commenced investigation under the Companies Act through the Registrar of Companies. Petitioner further alleges that Antrix having failed in its attempt to get stay of the arbitration proceedings adopted methods to subject the petitioner to several baseless legal proceedings and investigations with a malafide intention. Reference in this regard is made to letter dated 02.02.2012 by Secretary, Ministry of Corporate Affairs to the Department of Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable; (ii) that the proceedings initiated and investigation sought to be conducted by the respondent authorities under PML Act is without jurisdiction; (iii) that the respondents were applying the provisions of PML Act with retrospective effect contrary to law; (iv) as there is non-existence of proceeds of crime, provisions of PML Act does not apply; (v) that the provisional attachment order is bad in law because there were no reasons to believe that petitioner was in possession of proceeds of crime and that they were likely to be concealed or transferred, etc. 13. Elaborating all the above contentions, Sri Holla urged that after the petitioner company invoked ICC Arbitration, the Government of India has started to harass the petitioner company and its Directors, present and past, with a malafide intention, which is evident from the instructions contained in the letter dated 01.06.2007 issued by Department of Space to Department of Revenue. 14. In the wake of this contention, it is necessary to refer to Annexure-J letter written by Doctor K.Radhakrishnan, Secretary, Department of Space, addressed to Sri D.K.Mitthal, Secretary, Department of Corporate Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were acting with a malafide intention. Such a conclusion of malafide action cannot be arrived at by this Court based on Annexure-J letter, so as to restrain the authorities from proceeding in accordance with the provisions of law. Indeed, as the matter is seized by the Adjudicating Authority all questions can be urged before it. 16. Similarly, mere fact that the High Court of Delhi has stayed proceedings initiated by the Registrar of Companies does not automatically lend support to the contention of the petitioner that action initiated under the provisions of PML Act are the result of malafide intention on the part of the respondent authorities. Reliance placed on Annexure- S letter in this connection, written by Antrix Division of Department of Space to the Secretary, Ministry of Corporate Affairs, New Delhi, cannot be of much help to the petitioner for invoking the writ jurisdiction, because that was in connection with interim order granted by the Delhi High court staying the investigation initiated under Section 235 of Companies Act and requesting for moving the Court for vacation of the interim stay. If vacation of the interim order facilitated investigation by Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was criminal conspiracy, in that the accused public servants had given rights to petitioner company for delivery of video, multimedia and information services to mobile receivers in vehicles and mobile phones via S-Band through GSAT 6 and GSAT - 6A satellites and terrestrial systems in India, the said acts did not constitute scheduled offence as on the date the aforesaid offences of cheating and conspiracy under Section 420, 120B of IPC and Section 13 of the Prevention of Corruption Act, 1988 were allegedly committed in the year 2005; they were not part of the schedule appended to the PML Act; those offences were included in the schedule to PML Act with effect from 01.06.2009 pursuant to PML (Amendment) Act (Act No.21/2009); hence, any retrospective application of penal law was unconstitutional being violative of Article 20(1) of Constitution of India. Petitioner has placed reliance on the following decisions in support of their contention: 1. RAO SHIV BAHADUR SINGH ANOTHER Vs. STATE OF VINDHYA PRADESH - AIR 1953 SCR 394; 2. SONI DEVRAJ BHAI BABUBHAI Vs. STATE OF GUJARAT OTHERS - 1991 (4) SCC 298; 3. VARINDER SINGH Vs. STATE OF PUNJAB ANOTHER - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, money laundering. Section 3 of the Act provides that whoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. 25. It is not in dispute that Section 420 IPC has been included as a scheduled offence only in 2009, so also Section 120B IPC and Section 13 of the Prevention of Corruption Act. The question whether petitioner was involved in money laundering as provided under Section 3 of the PML Act has to be decided by the competent authority. What is the date of laundering in the facts of the present case and what process or activity by which illicit money was being projected as untainted in the facts and circumstances of the case has to be examined by the authorities. This again is an important fact which the authority has to examine. It becomes a mixed question of law and fact. 26. The Act seeks to prevent money laundering which in plain term means preventing legitimization of money earned th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extension of the same transaction that had taken place prior to the amendment that could also be dealt with as they would become part of money laundering activity. It is not necessary to go into this aspect at this stage. 28. In the instant case, as the adjudication process has not yet started and the matter is at the stage of show-cause notice and provisional attachment, it is not proper for this Court to express any opinion on this aspect of the matter. It is also evident from the show-cause notice that allegations of money-laundering are made in respect of transactions spanning over a period of time, even beyond the period when the amendment was brought about. This is evident from paragraphs 9.40 and 9.46 of the show- cause notice. 29. It is well established by catena of decisions of the Apex Court that High Court will not entertain a petition under Article 226 of the Constitution, if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken, itself contains a mechanism for redressal of the grievance. This principle is well enunciated in the case of NIVEDITA SHARMA VS. CELLULAR OPERATORS OF IND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to earlier decision on the point has held that where the statute itself provides the petitioner with an efficacious alternative remedy by way of appeal to the prescribed authority and a second appeal, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring the complete statutory machinery. 32. For all the reasons stated above, I am of the view that this is not a case where extraordinary jurisdiction of High Court under its writ jurisdiction has to be exercised ignoring the efficacious machinery provided under the Act. Hence, without expressing any opinion on the merits of the matter and making it clear that whatever prima facie opinion is expressed shall be confined only for the purpose of deciding the maintainability of the writ petition, by reserving liberty to the petitioner to urge all necessary grounds before the competent authority, this writ petition is dismissed. It is made clear that that period taken in prosecuting this writ petition before this Court shall be excluded for the purpose of time limit prescribed under the Act, both for seeking redressal by the petitioner and also with regard to duration of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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