TMI Blog2017 (12) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... y me today. My respected brother who is a member and heard the matter with me though agreed that the appeals are liable to be allowed but he has given his own independent reasons. - FPA-PMLA-428/HYD/2012, FPA-PMLA-429/HYD/2012, FPA-PMLA-430/HYD/2012 - - - Dated:- 28-11-2017 - Justice Manmohan Singh Chairman And Shri Anand Kishore Member For the Appellant : Shri Shishir Mathur, Advocate Shri Brijesh Kumar Tamber, Advocate For the Respondent : Shri S. A. Saud, Advocate JUDGEMENT FPA-PMLA-428/HYD/2012, FPA-PMLA-429/HYD/2012 FPA-PMLA- 430/HYD/2012 1. By this order, we propose to decide the above-mentioned appeals filed against the impugned order dated 19.11.2012 by which the provisional attachment order dated 26.07.2012 was confirmed. 2. The brief facts are that the CBI, ACB, Hyderabad registered a case RC No. 01(A)/2009 on 29.06.2010 against appellant herein and Smt. S. Indira, Hyderabad on the allegation that appellant who joined Electronic corporation of India Ltd. (ECIL) as a Technical Trainee Officer on 23.03.1971 and retired on 30.08.2007 in the capacity of Director Technical amassed assets disproportionate to his known source of income in his name a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 passed by the learned Adjudicating Authority. 4. The allegation against the appellant, Shri GNV Sataynarayan (who was Govt. employee and for short it would be referred as Satyanarayan) were that on 29/05/2007 31/05/2007 a total of 49 Dhanchakra Deposits Certificates were made under fictitious names totaling an amount of ₹ 20,00,000/- with Lakshmi Vilas Bank Malkajgiri Branch with a common nominee as GNV Satyanarayan (father of Appellant). The other appellants are relatives of the Mr. Sataynarayan. 5. It is also alleged by the Respondent that a loan of ₹ 17,50,000/- was taken by Appellant‟s son, G Ashwinin Raja against the collateral security of above-mentioned 49 Dhanchakra Deposits Certificates. Further that loan was released vide two pay orders dated 29/05/2007 and 01/06/2007 to be paid to M/s Aditya Constructions Company Pvt. Ltd. for purchase of a Flat No. 303 at Aditya Odyssey, Silpa Park, Kondapur Village/Serilingampally Mandal Municipality. The said property was registered under Sale Deed document No. 49030/08 registered on 05/07/2008. It is also alleged that the said deposits were subsequently liquidated by the Appellant and utilized for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Laksmi Vilas Bank as he must have had the knowledge of the source of Deposits, whose stamp is affixed on all the 49 Dhanchakra Deposits despite there being no names as to who are deposit holders on most of deposits and despite such grave suspicion. 9. With regard to alleged loan of ₹ 17,50,000/- taken by G. Ashwini Raja against the collateral security of 49 Dhanchakra Deposits. It was alleged that there was no evidence that the said loan was a secured facility or that a lien was marked upon the 49 Dhanchakra Deposits for the same and in fact the loan was an unsecured facility of temporary nature which was granted when appellant‟s son was in USA and the same was repaid along with interest by cheques bearing no. 029885 dated 12/07/2008 amounting ₹ 19.50 lakhs and cheque no. 0298446 dated 15/07/2008 amounting ₹ 40,000/-, once another loan from HDFC housing was granted to Appellant‟s son i.e. G Ashwini Raja. It is further submitted that loan of ₹ 17,50,000/- was released in two instalments; one of ₹ 13,50,000/- and the other of ₹ 4,05,000/- respectively, whereas documents alleging disbursal of said amount reveal that disbursal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 303, Aditya Odyssey. It is also submitted that the HDFC account being attached in connection with FDR is salary account of G Ashwini Raja and said salary is also attached vide the impugned attachment order. 13. It is the case of Satyanarayan that with respect to tracing the amount of approx. ₹ 9 lakhs, that there is no inconsistency in the account of appellant and it is respondent who has failed to trace the said amount because they failed to notice and understand as cheque no. 83790 (correct no. 837490) is of ₹ 10,00,000/- and not ₹ 1,00,000/- as alleged. This accounts for difference of ₹ 9,00,000/- as alleged by respondent. The impugned attachment order has been passed by ignoring the facts on record. The Adjudicating Authority has even incorrectly interpreted the statement of appellant as confession that he has generated the said deposits himself. The statements relied upon by the Respondent cannot be taken as a gospel truth by the Adjudicating Authority while confirmation of order. It was submitted that there has to be some corroboration with the independent material on record and the statements made by the Appellant before Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering Act mandates that the act of money laundering should be intentional and it has to be traced to the point of time when the actual transaction took place. The allegations that have been made by the C.B.I. in the charge sheet in C.C. No:16/2010 on the file of the 1st Additional Special Judge for C.B.I. Cases, Hyderabad and in the Money Laundering case initiated by the Directorate of Enforcement in C.C. No:3/2010 on the file of the Metropolitan Sessions Judge for the offences under sections 3 and 4 of the Act are one and the same. 6. Be that as it may. Now coming to the facts of the case on hand, the offence was alleged to have been committed during the check period of service of the 1st petitioner and the C.B.I. filed the charge sheet in C.C. No:16/2010 for the offence punishable under Sections 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 against the 1st petitioner. Subsequently, the Directorate of Enforcement filed the charge sheet in C.C. No.3 of 2014 for the offence under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 against Petitioners-1 to 3. There is no explanation for the delay of 3 to 4 years in invoking the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the C.B.I. already filed the charge sheet against the 1st petitioner, who was the public servant, under the provisions of Section 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988. The provisions under Section 7, 8, 9, 10 and 13 of the Prevention of Corruption Act, 1988 were inserted in paragraph 8 of Schedule A, under the amendment Act of Money Laundering 2009 with effect from 1.6.2009 whereas the Directorate of Enforcement has laid the charge sheet in C.C. No:3/2014 against the petitioners-1 to 3 for the offences alleged to have been committed prior to 2009. This charge sheet has been filed only after the introduction of the amendment Act 2009, which came into effect from 1.6.2009. Prior to Amendment Act, 2009, none of the provisions which are now invoked by the Enforcement Directorate were on the statue book except Section 467 IPC. Therefore, the petitioners cannot be prosecuted by invoking the provisions of Sections 3 and have been committed prior to 2009. This charge sheet has been filed only after the introduction of the amendment Act 2009, which came into effect from 1.6.2009. Prior to Amendment Act, 2009, none of the provisions which are now invoked by the Enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered against him is concerned, under FIR dated 06.01.2009 we do not wish to express any opinion on merit. The said allegations against him would have to be determined by the Special Court after the trial conducted in the matter as per allegation under the P.C. Act. At present, our only concerned is as to whether the order of attachment of the properties passed u/s 5 of the Act is still sustainable once the quashing order of all proceeding under the Act has been passed. There is iota of doubt that the PML Act trial for alleged offences u/s 13(2) r/w section 13(1)(e) of Prevention of Corruption Act has to be continued, at present the impact of the judgment passed by the Andhra High Court in favour of the appellants is to examined. It is not denied that the relevant/check period of time, no such provisions of the Act were added as schedule offence. In the present case, the check-period as admitted by CBI is from 1.1.1995 to 31.08.2007. The appellant Satyanarayana retired before 1.6.2009. 22. It is not denied by the respondent that as far as all proceedings in relation to the PML Act, 2002, the said proceedings have been quashed by the judgement dated 14th September, 2017. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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