TMI Blog2013 (11) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... om one M/s Vishal Plastomer Pvt. Ltd. Which had established the said two turbines in the year 2001 with the help of Industrial Renewable Energy Development Agency, New Delhi which had provided loan to the tune of ₹ 2.30 crores to M/s Vishal Plastomer Pvt. Ltd. who had entered into a Power Purchase Agreement with the Rajasthan Electricity Board for sale of electricity and the said power purchase agreement came to be transferred in the name of the petitioner. 2.2 In 2010, on complaint of Andhra Bank, Parimal Garden, Ahmedabad a case for commission of offences in terms of sections 120B read with 420, 467, 471 of IPC was registered by Central Bureau of Investigation, Bank Security Fraud Cell, Mumbai against M/s Vishal Exports Overseas Ltd. in connection with the loan taken by M/s Vishal Exports Overseas Ltd. leading to filing of charge sheet no. 3/2010 on 10.06.2010 against the company and its Directors. 2.3 As the alleged offences were scheduled offences under the provisions of PMLA, respondent 2 took cognizance of same and issued provisional attachment order no. 7/2011 along with a complaint under section 5 of the Act on 23.06.2011 for attachment of immovable properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 6,50,00,409/as advance for exports in the account of the petitioner company. Out of the said foreign inward remittances, an amount of ₹ 2,30,00,000/and ₹ 45,00,000/was used for paying loans taken by M/s Vishal Plastomer Pvt. Ltd. from IREDA and Andhra Bank for commissioning two wind turbines and on making payment of the said amount, the petitioner acquired the wind turbines and the rights under the power purchase agreements where from the income received is duly credited into the account of the petitioner. The entire allegation is in respect of the loan taken by M/s Vishal Exports Overseas Ltd. from Andhra Bank is that the same was fraudulently obtained and siphoned off abroad and subsequently party brought back as advance remittances in the account of the petitioner. 2.7 The petitioner was carrying out its business by generating electricity through its wind mills for which it had entered in a power purchase agreement with the Rajasthan Government and operation and maintenance agreement with M/s Suzlon Energy Pvt. Ltd. However, vide a letter dated 9.9.2011 sent by the Respondent No. 3, the petitioner was informed that its current a/c no. 00301200078603 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip as he then was, while delivering separate judgment in the case of Union of India vs. Sankal Chand Himatlal Sheth AIR (1977) SC 2328 at this stage: .Primarily, the key to the opening of every law is the reason and spirit of the law it is the animus imponentis is the intention of the lawmaker, expressed in the law itself, taken as a whole Nevertheless, while understanding and interpreting a statute, a fortitude a constitutional code, the roots of the past, the foliage of the present and the seeds of the future must be within the ken of the activist judge .. In the given context, the observations of the Hon ble Supreme Court in the case of Chairman, Board of Mining Examination and others v. Ramjee (1977) 2 SCR 904 that, to be literal in meaning is to see the sin and miss the soul of the regulation also assumes significance. 4.3 In the context of the challenge mounted by the petitioners on the extent of investigatory powers of the authorities under the PMLA, in order to comprehend the broad contours of the terms investigation the Respondents referred to the decision of Apex Court in the case of H.N. Rishbud Vs. State of Delhi ( 1995 Cri LJ 526) where it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used or any relation of the accused cannot be held to be property u/s 102 of the Cr. P.C. and therefore IO has no powers either to seize the said bank account or to issue any prohibitory order, prohibiting the operation of the bank account. It was held that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, prohibiting the account of the accused from being operated upon. It was also held that the legislature having used the expression any property and any offence in section 102 of Cr. P.C. have made the applicability of the provisions wide enough to cover offences created under any Act. 4.7 Further reliance was placed on the decision of the Apex Court in the case of Directorate of Enforcement Vs. Deepak Mahajan AIR 1994 SC 1775, where it was held that section 4(2) read with section 26(b) of Cr. P.C., which governs every criminal proceeding as regards the course by which an offence is to be tried and as to the procedure to be followed, renders the provisions of the Code applicable in the field not covered by the provisions of the FERA or Customs Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation/details are ascertained from the repositories of such information. Such repositories may be required during preliminary enquiry/investigation under the Act to be restrained from allowing normal operations in respect of a property suspected to be involved in the offence of money laundering. It is therefore, crucial to achieve the objectives of the Act that the authorities under PML Act are empowered to collect and if need be, compel disclosure of relevant facts including specific details of the suspected properties, movable or immovable, liable to be attached in the course of investigation. The challenge mounted by the petitioners on such powers of the authorities is therefore, erroneous. The term investigation as defined in section 2 (na) of PML Act has to be read in consonance with the provisions of section 65 which empowers the authorities under PML Act to issue such directions/prohibitory orders. Therefore, any such direction issued in the course of investigation is within the four walls of law and in consonance with the object and reasons of the Act to ensure that the proceed of crime do not change hands making it impossible for authorities to trace and recover such pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the tribunal and thereafter to have the cases stated to the High Court, it was not for the High Court to exercise its extra ordinary jurisdiction under Art. 226 of the Constitution ignoring as it were, the complete statutory machinery. 9. In yet another case of Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement Another Civil Appeal No. 3221 of 2010 Date of judgment 12.04.2010 the Hon ble Supreme Court has observed that : .The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property earlier described as Land measuring 792 Sq yards with building therein located at Surya Prakash Cooperative Housing Society Ltd. S.No.114/1 and 114/2 Vastrapur, Ahmedabad now known as Bungalow no.18, Vasuma Hill Society, Near L.J. College, Opp. Saket Bungalows, Vastrapur, Ahmedabad380015 . (b) 01/07/2009 (c) Shri Pradip S. Mehta M/s FFR Software Pvt. Ltd. Ahmedabad ₹ 2,45,00,000/ d)The said order has been confirmed by the Adjudicating Authority vide its Order in Original Complaint No.109/2011 dated 16.11.2011. e) It is submitted that M/s.FFR Software Pvt., Ltd., which had purchased the properties in auction of SBI namely at Sr. No.1 and settled the loan in respect of property No.2 above is controlled by Shri Pradip Mehta himself. It is submitted that in the course of investigation it has also been found that many of the properties including Vishal House which were auctioned by State Bank of India, have been purchased by the entities controlled/known to Pradip Mehta. f) Funds have come from M/s. Vishal Exports Overseas Ltd., which is the company controlled by Shri Pradip Mehta (and of which he is the CMD), to M/s.Vikalp Rasayan Pvt. Ltd., Ahmedabad a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Attachment Order No.07/2011 dated 23.06.2011, Shri Pradip Mehta started selling the properties including Vishal House , which was then owned by M/s.JMD Media Pvt Ltd., which is controlled by him. The said Provisional Attachment Order No.07/2011 dated 23rd November 2011 has been confirmed vide order dated 16.11.2011 in O.C. No.109/2011 by Adjudicating Authority, PMLA, New Delhi. j) As primafacie, the said property Vishal House, Opposite Sales India, Ashram Road, Ahmedabad had appeared to be involved in money laundering, for stopping the sale/transfer of this property as a precautionary measure the prohibiting letter dated 21.07.2011 was served to SubRegistrar, Memnagar and till date this property is owned by M/s.JMD Media Pvt Ltd, as the title has not yet been transferred. But Pradip Mehta has knowingly attempted sale of this property, which was acquired from Proceeds of Crime, which is itself a fraud committed with the Applicant. Thus, the liability of Pradip Mehta is towards the Applicant. It is therefore prayed that the seller as named in the unregistered Sale Deed, may be directed by this Hon'ble Court to return the money to the applicant. k) Apart from above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayan Pvt Ltd. 8 26.12.2011 A letter received from Shri Pradip Mehta including some clarification. In response to said letter, letter was issued to Shri Pradip Mehta enclosing a fresh summons dated 26.12.2011 for his appearance on 27.12.2011 declaring his letter as mischievous attempt to avoid presence. 9 27.12.2011 Shri Pradip Mehta appeared in office and his statement was recorded. 10 30.12.2011 Shri Pradip Mehta vide its letter dated 30.12.2011 submitted to details of IT Returns for A.Y. 200607, 200708, 200809 200910. However, incomplete Returns were submitted by him. 11 02/01/12 Summons issued to Shri Pradip Mehta for appearance on 03.01.2012. 12 03/01/12 Statement of Shri Pradip Mehta recorded. Directives issued to Kalupur Commercial Cooperative Bank, Swastik Char Rasta for providing details of bank accounts of M/s. JMD Media 7 M/s. Alive Hospitalities. Letter dated 03.01.2012 received from Shri Pradip Mehta enclosin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 19.01.2012 Letter dated 19.01.2012 received from Shri Jagdish Patel requesting for adjournment on ground of sickness, then Summons dated 19.01.2012 issued to Shri Jagdish Patel for appearance on 24.01.2012 and also to Shri Pradip Mehta for appearance on 23.01.2012. Letter received from SubRegistrar, Memnagar enclosing the copy of letter dated 4.01.2012 and seeking for further directions regarding the property Vishal House . 21 23.01.2012 Statement of Shri Pradip Mehta recorded. On 23.01.2012, he also submitted and excel sheet vide it letter dated 23.01.2012 regarding the utilization of funds of Packing Credit Limit taken from Andhra Bank from 01.04.2005 to 31.03.2006. 22 24.01.2012 Statement of Shri Jagdish Ishwarbhai Patel recorded on 24.01.2012 Shri Pradip S. Mehta's letter dated 24.01.2012 received in which he made request to amend his statement dated 23.01.2012. 23 25.01.2012 Directive issued to Axis bank, Ankur branch for providing bank account details of M/s.JMD and Alive Hospitality and Foods Pvt Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the petitioner had purchased the said two wind turbines. The above transaction, prima facie, reveals nature of crime committed and considering the overall facts and circumstances of the case, including nature of investigation carried out so far, orders passed by the authorities of provisional attachment, which came to be confirmed by the adjudicating authroity and availability of alternative efficacious remedy to the petitioner, I am not inclined to interfere with the impugned orders in exercise of writ jurisdiction under Articles 226 227 of the Constitution of India. So far as other submissions canvassed by the learned advocate for the petitioner, the answer is that the above aspects are considered and dealt with in detail by the Division Bench of Andhra Pradesh High Court in the case of B.Rama Raju [supra] and I am in complete agreement with the conclusions drawn in the said judgement. 12 Considering the sum and substance of the case, I am of the view that no interference is called for by this court in exercise of powers under Article 226 of the Constitution of India at this stage as it would be tantamount to usurping the statutory mandate under the Act. Notice discharged ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
