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TMI Blog2017 (12) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... is name and in the name of his wife Smt. S. Indira by indulging in corrupt practices during the intervening period. Smt. G. Indira was alleged to have abetted appellant in the matter of acquiring of disproportionate assets out of his illegal earnings. As per the charge-sheet filed by the CBI before the Special Judge for CBI cases, it was alleged therein that the investigation established that the appellant was in possession of assets to the tune of Rs. 65,639.93/- at the beginning of check period i.e. as on 01.01.1995 and Rs. 73,98,628.36 at the end of check period i.e. as on 31.08.2007. Income and other receipts received by appellant is Rs. 102,98,744.2/- and the expenditure incurred is Rs. 75,60,545.61/- during the check period. In this way appellant herein acquired disproportionate asserts to his known source of income to the tune of Rs. 45,94,764.84/- for which he could not satisfactorily account for. 3. In this way CBI charge-sheeted Shri G.N.V. Satyanarayana for the alleged possession of disproportionate assets to his known source of income computed to the tune of Rs. 45,94,764.83/- which is punishable under section 13(2) read with section 13(1) (e) of the Prevention of Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, Jai Residency at Jagir Village, Rajendranagar Mandal, Hyderabad in name of N Raj Kumar, Brother-in-Law of the appellant. The Flat No. 303, Aditya Odyssey was sold in 2012 to Anil Samayam under Sale Deed document no. 3629/12 registered on 29/03/2012 with a market value of Rs. 62,00,000/- and the balance of which has been put as FDR in name of Appellant‟s son i.e. G Ashwini Raja, amounting to Rs. 39 lakhs in HDFC Bank, Kapra Branch, Chanakyapuri, Hyderabad. It has been also alleged that respondent is unable to trace an amount of Rs. 9,04,412/-. 6. The following properties were attached by the Respondent which are described as under: i. Flat No. 101 in Jai Residency in Manikonda Jagir Village, Rajendranagar Mandal, RR Distt. (near Dargarh)- Panchvati Layout, Plot No. 1 38 & 39, having a registered value of Rs. 26.00 lakhs belonging to Shri N. Raj Kumar. ii. Fixed deposit at HDFC, Kapra Branch Sainikpur= Rs. 39,00,000/- (Maturity Date: 24/06/2012) Account No. 01264470125901 created out of Saving Bank Account No. 05451140099441 held in name of Shri G. Ashwini Raja. 7. On merit, it was the case of appellant Satyanarayan that& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected anywhere in the account of G. Ashwini Raja. It was stated the manipulation of internal records of account by Laksmi Vilas Bank for reasons best known to them. 10. It was submitted that onus of proving that whether the loan was a secured facility or an unsecured facility has to lie with respondent and not the appellants in view of reply given by them. 11. It was stated with regard to alleged purchase of schedule of property no. 1 out of proceeds of said 49 Dhanchakra Deposits, the Manager of Dhanlaksmi Vilas Bank, Sh. Y. Venkat Rao, stated in his statement that "xiii) that there was no advice in writing given to bank by the Deposit holders for transferring the amount into the Current account of Shri K. Jaiveer Naidu, as explained to me by my predecessor. xiv) that he does not know the reasons for not honouring Shri GNV Satyanarayan, whose name was shown as a "Nominee" on all 49 Dhanchakra Deposits Account opening Form, as a beneficiary by the bank in the vent of Maturity of the certificates." The statement of Sh. K Jaiveer Naidu wherein he stated as under: "that as regards to how maturity amount of all 49 Dhanchakra Deposits got credited into his account in absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used against him as the same is in contrary to provisions of Indian Evidence Act. 14. The respondent subsequently had also filed complaint before the Learned Special Judge (PMLA), the proceedings were challenged by the Appellants. Issuance was notice was challenged by the appellants. 15. In the said petition for discharge wherein the court has issued summons to the Appellants and subsequently on their appearance applicants who moved discharge application before the court, however, the same was dismissed. 16. The appellants challenged the order of dismissing discharge application in a criminal revision case no. 1770/2015 before the Hon'ble High Court at Hyderabad. By judgment dated 14.09.2017, the Hon'ble High Court has allowed the petition and consequently discharged the Applicant and others from the complaint case filed by Respondent. 17. During the pendency of appeals, the appellants have filed an application for placing on record judgment dated 14.09.2017 passed in Crl. Rev. case no. 1770/2015 by High Court at Hyderabad. 18. In the said judgment passed by the Hon'ble High Court who has discharged the appellants after hearing both parties from the allegations of money laun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Prevention of Money Laundering Act, 2002 against petitioner Nos. 1 to 3. 7. In support of his contention that the offence in question is alleged to have been committed in the year 2008 whereas the amendment Act came into force from 1.6.2009. in which Section 7 to 13 of the P.C. Act were inserted in the Schedule, and the application of the said Act cannot be retrospective, but it is prospective in nature and that 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, and as such, the charge sheet in C.C. No:3/2014 is liable to be quashed, the learned Counsel for the petitioners relied upon an unreported judgment of this in W.P. No:17525/2014 wherein this Court held that the alleged incidents occurred prior to June, 2009, and prior to 2009, the relevant provisions of Indian Penal Code were not included in the schedule appended to the Act 2002 and the filing of the complaint and taking cognizance thereof is unsustainable. He further relied upon the judgment of Delhi High Court in Crl.M.C.No:5581/2014 and also on Tech Mahindra's case, wherein it was observed as under: "It is settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except Section 467 IPC. Therefore, the petitioners cannot be prosecuted by invoking the provisions of Sections 3 and 4 of the Money Laundering Act. 10. In support of his contention, the learned Counsel for the petitioners relied upon an unreported judgment of this Court in W.P. No: 17525/2014, dated 22.12.2014 wherein it was held thus: "In the instant case, the alleged incidents occurred prior to June, 2009. Prior to June, 2009, the relevant provisions of Indian Penal Code were not included in schedule appended to the Act 2002. These provisions were not listed as offences under the Act admittedly when the alleged incidents have taken place. The only provision that is invoked which was in the schedule to the Act is section 467. The illegal activities committed by the persons in the helm of affairs cannot be attributed to the petitioner company, more particularly the allegation of forgery as all those illegalities were committed by them behind the back and without the involvement of the back and without the involvement of the petitioner company. Thus, if the allegations made are taken at their face value and accepted in their entirety, they do not prima facie constitute any offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13th July, 2017 in High Court of Judicature of Madras in the matter of Shri Ajay Kumar Gupta Vs. Adjudicating Authority (PMLA) where the similar issue has been dealt with. In para 12 and 15 of the said judgement reads as under:- 12. From the above judgments and also the fact that the offences allegedly committed by the first and second petitioners prior to 1.7.2005, the Prevention of Money Laundering Act was not in force. Even after 1.7.2005, the offences were not included in the scheduled offences till 1.6.2009. Since the charge sheet dated 13.1.2009, even on that date, Prevention of Corruption Act has not included in the scheduled list of offences. Therefore, this court is of the view that if retrospective effect is given to any statute of any penal nature, it will be directly in conflict with the fundamental rights of the citizen enshrined in Article 20(1) of the Constitution of India. Admittedly, 2nd respondent filed the case only based on the charge sheet of the CBI, who have not conducted any enquiry on their own. In fact, all the documents are original documents of the alleged proceeds of crime, which are in the custody of the CBI Court. When the entire documents are in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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