TMI Blog2015 (12) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the rights in the property have been transferred by appellant to Sh. Sunny Priyadarshi through deed of absolute sale registered at No. 2537 on 5-2-2013 with the District Registrar Office, Patna. Admittedly the title suit bearing No. 541 of 2013 before the Sub-Judge-1, Patna, Bihar against Sh. Sunny Priyadarshi is pending adjudication and the competent court has not declared the above sale deed No. 2537, dated 5-2-2013 executed by the appellant in favour of Sh. Sunny Priyadarshi as null and void,’fraudulent and without consideration and Sh. Sunny Priyadarshi continues to be the owner of the above flat No. 204. Thus the appellant has no rights in the attached property flat No. 204 as claimed by him. Appeal dismissed. - M.P.-PMLA Nos. 1549 (A.D.) & 1541/PTN/2015 (Stay) and F.P.A.-PMLA No. 816/PTN/2015 - - - Dated:- 17-12-2015 - Shri Arun Kumar Agarwal, Acting Chairperson and Dr. Rabi Narayan Dash, Member Shri Prabhakar Mani Tripathi, Advocate, for the Appellant. Shri N.K. Matta, Advocate, for the Respondent. JUDGMENT [Judgment per : Arun Kumar Agarwal, (Acting Chairperson)]. - FPA-FMLA-816/PTN/2015 : The present appeal is filed contesting the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amount so fraudulently siphoned from the bank accounts of Government and Semi-Government departments was withdrawn in cash and distributed among the accused persons. 3. As the offence alleged to have been committed by the accused persons included offences listed in the Schedule to the Prevention of Money Laundering Act, 2002 (in short PMLA), the respondent registered an ECIR and started investigation under the PMLA. The investigation revealed that Sh. Sunny Priyadarshi was prima facie involved in the process of withdrawal of money from various bank accounts by presenting fake cheques for realization through the bank accounts held in fictitious names since last four years i.e. since 2008 onward which was evident from the statement dated 5th May, 2013 of Shri Chandan Kumar before the Economic Offences Unit, Patna, Bihar, who stated before the investigating officers of the Economic Offences Unit when he was lodged in Alipore Jail, Kolkata in connection with Hare Street Kolkata P.S. Case No. a 100/08. Sh. Chandan Kumar also stated that Sh. Sunny Priadarshi met him in the year 2008 while he was in judicial custody and after being enlarged on bail, Sh. Chandan Kumar got bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- for interior work vide registered sale deed No. 2537, dated 5 February, 2013. 5. The counsel submitted that the payment of sale consideration for the Flat No. 204, Lotus Apartments, Patna (in short subject flat or flat No. 204) was made by the purchaser Sh. Sunny Priyadarshi through four account payee cheques which have bounced on account of insufficient funds in his bank account. He submitted that as all the four cheques received against payment of sale consideration of flat remained unrealized, the appellant had taken back the possession of flat No. 204 from the Sh. Sunny Priyadarshi and it had also filed a suit No. 541/13, dated 6th August, 2013 before the Hon ble Court of Sub-Judge-1 in Patna Civil Court for declaration of sale deed registered vie document No. 2537 on 5th February, 2013 as null and void, fraudulent and without consideration. It was contended that the sale of Flat No. 204 was conditional to the honoring of the cheques for sale consideration issued by Sh. Sunny Priyadarshi in favour of the appellant and as Sh. Sunny Priyadarshi has not paid the sale consideration, because all the cheques have bounced, therefore, the appellant firm is now owner of the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .......... 8. The counsel for the appellant drew our attention to the copy of the above four cheques, pay-in-slips for depositing cheques in the bank account No. 02740500005352 in the name of M/s. Govinda Constructions held with UCO Bank, Exhibition Road, Patna for realization and copies of cheque return memo of Axis Bank Limited, Patna in respect of above four cheques and submitted that when all the above four cheques were presented in the bank account of Sh. Sunny Priyadarshi, they were returned unpaid on account of insufficient funds in the bank account of drawer. He submitted that the appellant has sent legal notices to Sh. Sunny Priyadarshi for payment of sale consideration against the above bounced cheques, however, Sh. Sunny Priyadarshi had not made any payment against returned cheques. He submitted that as Sh. Sunny Priyadarshi did not pay the sale consideration, the appellant had filed a title suit before the Civil Court, Patna for declaring the sale deed as null and void and for restoration of physical possession of the flat No. 204 which title suit is pending in the Court. 9. The counsel submitted that as the appellant is not an accused in the FIR or the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in its bank account on 13th June, 2013 and the same were also simply returned unpaid to UCO Bank by the Axis Bank Limited vide cheque return memo dated 14 June, 2013. He contended that the information about return of the cheques which were returned unpaid by the Axis Bank Limited to the appellant through appellant s bank which is UCO Bank, Patna, would be intimated to appellant only after 14th June, 2013, as is the banking practice, however, the appellant in its letter dated 14th June, 2013 filed before the Assistant Director, Directorate of Enforcement, Patna. Sub-zonal office, Patna stated that all the four cheques have bounced due to insufficiency of funds in the account of Sh. Sunny Priyadarshi. The counsel submitted that in the forenoon of 14th June, 2013 when the letter was filed by the appellant before the respondent, the appellant had not received any intimation/information about return of cheques No. 496949, dated 5th May, 2013 and 496950, dated 5th June, 2013, however, he had stated before the respondent that the cheques have bounced due to insufficiency of funds. The counsel submitted that the appellant has failed to show that how in the forenoon of 14th June, 2013, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noon before the respondent that these cheques were returned unpaid due to insufficient funds in the account of drawer. 14. Mr. Matta drew our attention to the copy of letter dated 31-8-2015 written by Joint sub-registrar, Patna to the Enforcement Directorate/respondent and pointed out that the sub-registrar has stated that page No. 16 of the sale deed is missing from the original office record of sub-registrar. He drew our attention to copy of page 16 as filed by the appellant which discloses the mode and manner of payment of consideration at the bottom of the page which is referred to as follows : . (Mode and Manner of Payment of Consideration) Cheque No. Date Drawn on Drawn by Amount (in Rs.) 496947 5-3-2013 AXIS BANK LTD., PATNA [BH], PATNA SUNNY PRIYAD-ARSHI 10,66,000/- 496948 5-4-2013 10,66,000/- 496949 5-5-2013 10,66,000/- 496950 5-6-2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iyadarshi without receipt of any money as he had confidence on him on account of earlier transactions with him and on the date of execution of sale deed on dated 5-2-2013, he has not received any money except post-dated cheques and the sale of flat No. 204 vide sale deed No. 2537, dated 5-2-2013 was conditional to the payment/release/honoring of the four cheques which were returned unpaid when presented for payment in bank and since Sh. Sunny Priyadarshi has not paid the sale consideration to the appellant firm, hence, the appellant firm is owner of the said flat. 18. Following is date wise chart of different events as emerges from the documents produced in the appeal : Date Brief detail of the event 2008 to 2013 Period of alleged scheduled offences and generation of proceeds of crime 5-2-2013 Sale deed for sale of flat No. 204 registered with the sub-registrar, Patna vide document No. 2537 1-5-2013 Registration of FIR No. 13/2013 against Sunny Priyadarshi and others 2-5-2013 Cheque No. 4969 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r letter No. 6364, dated 20-6-2013 which is part of Original Complaint No. 357/2014 and relied upon documents. The appellant has also filed copy of sale deed No. 2537, dated 5-2-2013 along with stay application dated 8-4-2015 stating that the same is copy of documents filed by Enforcement Directorate/respondent in OC. No. 357/2014. Careful consideration of sale deed No. 2537, dated 5-2-2013 as filed by appellant with stay application dated 8-4-2015 reveals that it contains page 16 which reads as follows : Page 16 (Mode and Manner of Payment of Consideration) Cheque No. Date Drawn on Drawn by Amount (in Rs.) 496947 5-3-2013 AXIS BANK LTD., PATNA [BH], PATNA SUNNY PRIYAD-ARSHI 10,66,000/- 496948 5-4-2013 10,66,000/- 496949 5-5-2013 10,66,000/- 496950 5-6-2013 20. Perusal of cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the account of the drawer i.e. Sh. Sunny Priyadarshi. The plea of respondent that on 14-6-2013, the appellant did not have any intimation regarding bouncing of cheque No. 496949 and 496950 for ₹ 10,66,000/- each dated 14-6-2013 when reply dated 14-6-2013 was filed before respondent, in the forenoon by the appellant then how the appellant could have stated in his letter dated 14-6-2013 that these cheques have bounced due to insufficiency of funds unless appellant was in collusion with Sh. Sunny Priyadarshi, has considerable merit. The above two cheques were deposited by appellant M/s. Govinda Construction in its bank account No. 07240500005352 held with UCO Bank dated 13-6-2013 for collection from Axis Bank, Patna. Perusal of cheque returning memos issued by Axis Bank, Patna for return of above two cheques are dated 14-6-2013 and as per banking practice, they are not directly sent to the depositor (appellant in this case) but they are sent to collecting bank i.e. UCO Bank and perusal of statement of bank account No. 07240500005352 with UCO Bank reveals that UCO Bank made debit entries for bouncing of these two cheques on 15-6-2013 along with bank charges for return of cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Sh. Sunny Priyadarshi and others, Sh. Sunny Priyadarshi in collusion of the appellant took steps to project that the flat No. 204 was sold without payment of sale consideration and deposited two cheques dated 5-3-2013 and 5-4-2013 immediately on 2-5-2013 and deposited remaining two cheques on 12-6-2013 in order to wriggle out of the proceedings in respect of flat No. 204, assumes significance and cannot be disregarded. 24. The appellant has claimed that the sale deed No. 2537, dated 5-2-2013 as conditional to the payment/release/honoring of the four cheques which is stated in appeal memo as follows : I. Because the sale deed bearing No. 2537, dated 5-2-2013 was conditional to the payment/release/honoring of above said four cheques, which was not done in favour of the appellants/his firm by Mr. Sunny Priyadarshi. 24. However, perusal of sale deed No. 2537 as reproduced below reveals that it was a Deed of absolute sale and not a deed of conditional sale subject to honoring of cheques as now being claimed by the appellant. Further, the appellant has acknowledged receipt of entire sale consideration prior to execution of sale deed on 5-2-2013 which is mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the absence of any satisfactory explanation it belies all logics. 25. Thus in view of the above discussed facts and circumstance, the arguments of the appellant that (i) the flat No. 204 was sold to Sh. Sunny Priyadarshi without receipt of any money as he had confidence on him on account of earlier transactions with him, (ii) that on the date of execution of sale deed dated 5-2-2013, he has not received any money except post-dated cheques, (iii) that the sale deed No. 2537, dated 5-2-2013 was conditional to the payment/release/honoring of the four cheques which were returned unpaid when presented for payment in bank and (iv) that since Sh. Sunny Priyadarshi has not paid the sale consideration to the appellant firm, hence, the appellant firm is owner of the said flat are not sustainable and are liable to be rejected. 26. Even if the arguments of the appellant that he has not received the sale consideration as all the four cheques have bounced is upheld, still the ownership of the flat No. 204 is also with Sh. Sunny Priyadarshi as all the rights in the property have been transferred by appellant to Sh. Sunny Priyadarshi through deed of absolute sale registered at No. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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