TMI Blog2015 (7) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... raised on behalf of the appellant except those which have been dealt with herein-above by this Tribunal. Therefore the appeal of the appellant must fail. The appellant is not entitled for the reliefs claimed in the appeal. The provisional attachment order and impugned order confirming the attachment order cannot be set aside in the facts and circumstances. - F.P.A.-PMLA No. 373/KOL/2012 - - - Dated:- 9-7-2015 - Justice Anil Kumar, Chairman and Shri Arun Kumar Agarwal and Dr. Rabi Narayan Dash, Members Shri Tripurari Ray, Advocate, for the Appellant. Shri S.A. Saud, Anand, D. Banarjee, Faisal M. Aboobacker, Abhijit Sen Gupta and Ms. Anima Kujur, Advocates, for the Respondent. JUDGMENT The appellant, Ashish Bose (Defendant No. 3 in the Original Complaint No. 134 of 2012) has preferred this appeal against the order dated 18th July, 2012 passed in case, OC No. 134/2012 by the Adjudicating Authority confirming the attachment made by the Enforcement Directorate vide order dated 27-3-2012 passed in F. No. ECIR/09/2009/KOL/PMLA/DK, dated 14-12-2009 confirming attachment of properties. 2. The appellant alleged that he is a qualified engineering graduate and he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority against attachment of his amounts : (i) That the allegations made against him by the respondent No. 1 are false and baseless. The respondent No. 1 has totally ignored the relevant facts and has relied upon the contents of the charge sheet filed by CBI. (ii) That the contents in the charge sheet filed by the CBI is a matter pending before the Hon ble trial court and till now CBI could not produce any witness before the court in support of their allegations. (iii) That the statements made by the appellant before the CBI have totally been ignored by the respondent No. 1. Even the documents submitted by the appellant during the course of recording statement on 6-10-2010 have not only been ignored but have been completely suppressed and have not been made part of the relied upon documents by the respondent No. 1. (iv) That the appellant contended that the amount of ₹ 27,60,000/- was seized on 18-5-2009 from bank locker at Allahabad Bank, Kolkata in the name of appellant and Shri Kanai Lal Das. The seizure of the said amount is not disputed. The source of said amount was explained to the officers of CBI. Unfortunately the said fact has not been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,000/- 21-12-2005 15,000/- 29-12-2005 10,000/- 14-1-2006 10,000/- 2-2-2006 95,000/- 25-2-2006 10,000/- 21-3-2006 10,000/- 22-3-2006 26,500/- 23-3-2006 20,000/- 25-3-2006 10,000/- 3-4-2006 20,000/- 7-4-2006 10,000/- 13-4-2006 10,000/- 18-4-2006 10,000/- 21-4-2006 90,000/- 27-4-2006 99,900/- 28-4-2006 99,900/- 8-5-2006 99,500/- 9-5-2006 99,500/- 15-5-2006 10,000/- 27-5-2006 10,000/- 30-5-2006 30,000/- 9-6-2006 40,000/- 13-6-2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k 48,97,800/- INDIAN BANK CA No: 712057028 A.B. Services (P) Ltd. Preet Vihar Date of withdrawal Amount Date of withdrawal Amount 14-11-2006 99,000/- 23-12-2006 20,000/- 30-12-2006 99,000/- TOTAL 2006 2,18,000/- 5-2-2007 50,000/- 9-2-2007 1,00,000/- 12-2-2007 1,00,000/- 22-3-2007 20,000/- 15-6-2007 45,000/- 25-6-2007 20,000/- 4-8-2007 20,000/- 25-8-2007 20,000/- 18-9-2007 99,000/- 20-9-2007 99,000/- 24-9-2007 99,000/- 25-9-2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TOTAL CASH WITHDRAWALS FROM ALL THREE BANKS FROM 2005 TILL 2009 MAY Andhra Bank : ₹ 48,97,800/- Indian Bank : ₹ 23,30,000/- Centurian Bank : ₹ 7,50,000/- Grand Total : ₹ 79,77,800/- (vii) That the respondent No. 1 had held that the commission of scheduled offence was under provisions of P.C. Act, 1988 and not under any other provisions of the law. The plea of the appellant was that the said P.C. Act, 1988 falls under Part B of the Schedule under PML Act, 2002 and is subjected to monetary threshold of ₹ 30 lakhs. Appellant contended that in present case ₹ 27,60,000/- only is alleged to be involved and therefore, the matter as such does not fall under PML Act. (viii) The appellant alleged that the provisional attachment order dated 27-3-2012 is not maintainable inasmuch as seized amount of ₹ 27,60,000/- is duly accounted for and the question of it being proceeds of crime does not arise. Further there are no allegations in the complaint to the effect that appellant projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused on 18-5-2009. According to him the money seized is not of Shri Sudipt Ghosh but his hard earned money. (xvi) The appellant had alleged that his statements were recorded by the respondent No. 1 on 6-10-2010 and 25-3-2011 but he was not questioned on the said amount seized from residence and enquires in relation to amount seized from bank locker only were made. (xvii) The appellant has explained the source of amount of ₹ 39,81,000/- to CBI officers but the said statement has neither been relied nor referred to in the present matter by the respondent No. 1. 8. The appellant had also submitted that he hails from West Bengal and wanted to purchase a piece of land at Kolkata and also intended to enter into business partnership with Sh. Kanai Lal Das. With this intention, the amount of ₹ 27,60,000/- was kept in the locker jointly opened with Sh. Kanai Lal Das in a bank in Kolkata. The appellant alleged that the total cash withdrawal from his three banks from 2005 till May, 2009 was ₹ 79,77,800/-. He alleged that the provision of PMLA are not applicable because the amount received from his locker has been accounted for. 9. The appellant further alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on 30-4-2009. Illegal gratification thus obtained in the form of huge cash was stashed in the bank locker on 28-3-2009 by Smt. Kajal Ghosh and Sh. Ashish Bose, appellant, who had visited Kolkata for this purpose from Delhi. In the same bank another locker was allotted on 24-4-2009 in the joint names of Smt. Kajal Ghosh and Sh. Ashish Bose, appellant in which huge cash collected as illegal gratification was secreted by them on 24-4-2009. The said cash was brought from Delhi by Sh. Ashish Bose, appellant who collected the same from various suppliers from Ordnance Factories on behalf of Sh. Sudipta Ghosh. Sh. Ashish Bose, appellant had travelled with this cash. 12. It has been alleged that huge amount of cash collected as illegal gratification had also been stashed in at least 3 other Bank lockers in Delhi which are operated either singly or jointly by Smt. Anita Bose, w/o Shri Ashish Bose, appellant. Shri Ashish Bose, appellant, on behalf of the said Shri Sudipta Ghosh collected illegal gratification which had been stacked in another locker in a Bank at Baranagar, Kolkata on behalf of the said Shri Sudipta Ghosh by the appellant and this locker stands in the joint names of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Ramesh Nambiar mediating for Singapore Technology. The appellant had visited Kolkata on 27-3-2009 and stayed at the residence of the said Shri Sudipta Ghosh. Shri Sudipta Ghosh spoke to Shri Pradeep Kumar over the phone of the appellant demanding bribe for getting payment released. In a similar manner, Shri Sudipta Ghosh also spoke to Shri Sahani and informed him that he was going to get 3 of their projects passed from the Ordnance Factory/Board and as agreed by him he should perform his part of the commitment. He also spoke to one Shri Teli of HYT Engg. and asked him as to by what time he would make the payment of illegal gratification for the favour already shown to HYT Engg. Thus, Shri Sudipta Ghosh in connivance with the appellant had been habitually demanding and accepting huge amounts of bribe from the suppliers of Ordnance Factories. That the said Shri Ashish Bose had already collected ₹ 30 lakhs as illegal gratification from Shri J.K. Thapar of M/s. T.S. Kishan and Co. Pvt. Ltd., New Delhi on behalf of the said Shri Sudipta Ghosh and this fact was also confirmed by the said Shri J.K. Thapar to the said Shri Ashish Bose on 24-3-2009 when it was reconciled that 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjee and his agent Shri Inderjeet Singh Mann. Similar meetings were also arranged with the parties by Shri Ashish Bose, appellant, at New Delhi during the visits of Shri Sudipta Ghosh to Delhi in April, 2009 against monetary considerations. Shri Sudipta Ghosh accompanied by the appellant held meetings with Shri Sahani in Vasant Continental Hotel, Vasant Vihar, New Delhi on 15-4-2009 and 23-4-2009. He along with the appellant also visited Shri Ramesh Nambiar in his office on 15-4-2009 and 23-4-2009. Shri Sudipta Ghosh had told the appellant on 26-4-2009 that Shri Sahani had paid him an amount of ₹ 17.5 lakhs only out of the committed amount of ₹ 25 lakhs and ₹ 7.5 lakhs still remains to be paid by him. Shri Ghosh also informed the appellant to tell Shri Sahani to pay the remaining amount. 17. It has been further alleged that Shri Sudipta Ghosh spoke to the appellant on 22-4-2009 when he requested Shri Ghosh to issue the letter requested by Shri Sahani as it would enable him to make the remaining payment of illegal gratification. Shri Sudipta Ghosh enquired from the appellant as to how much amount had been collected when the appellant informed him that a total &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations. 19. The Adjudicating Authority has held that the provisional attachment order confirmed by him was the result of two cases investigated by CBI under Prevention of Corruption Act, 1988. The first case investigated by the CBI was against Sh. Sudipta Ghosh the then Director General, Ordnance Factories and Chairman of the Ordnance Factory Board, Kolkata and the appellant and others for the offences punishable u/s 120B of IPC r/w Sections 7, 8, 10, 12, 13(2) r/w Sections 13(1)(d) and 14 of the PC Act, 1988, for demanding and obtaining illegal gratification in the matters of various supply orders placed by Ordnance Factories on the private manufacturers/suppliers. Sh. Sudipta Ghosh got bank account and locker opened with the Oriental Bank of Commerce, Kolkata in the joint names of his wife Smt. Kajal Ghosh and the wife of Sh. Kanai Lal Das for stashing his ill-gotten money collected from various suppliers through appellant prior to his retirement. He is also alleged to have stashed his ill-gotten money with RBS Coutts Bank Ltd. Singapore, with the help of Sh. Ramesh Nambiar. 20. Prima facie, it was also noticed by the Adjudicating Authority that Sh. Sudipta Ghosh through hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out under Sections 7, 10, 13(2) r/w Section 13(1)(a) and (d) of the PC Act, 1988 and Section 120B of IPC against Sh. Sudipta Ghosh, Sh. Ashish Bose, appellant, Smt. Kajal Ghosh, and others and similarly a case of Section 13(1)(e) of the P.C. Act, 1988 is made out against Sh. Sudipta Ghosh, and Smt. Kajal Ghosh, appellant and Sh. P.K. Naug, have aided and abetted Sh. Sudipta Ghosh in illegal acquisition of assets which is an offence u/s 109 of IPC. The above offences under Sections 7, 8, 9, 10 and 13 of PC Act, 1988 are scheduled offences . The Adjudicating Authority thus confirmed the attachment of ₹ 27,60,000/- and ₹ 39,81,000/- on account of the appellant. 23. The appellant has challenged the order of confirmation on the grounds as detailed hereinabove and agitated before the Adjudicating Authority. It has been contended by respondent No. l that the CBI registered a case under Section 120B of I.P.C. read with Sections 7, 8, 10, 12, 13(2) r/w Sections 13(10)(d) and 14 of the PC Act, 1988 on 17-5-2009 against Sh. Sudipta Ghosh and others and on completion of the investigation filed a charge sheet on 29-6-2010. Another case was registered by the CBI against Sudipta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces of income and which he could not satisfactorily account for. Further Shri Sudipta Ghosh has acquired assets in his name and/or in the name of his family members and others, movable and immovable assets to the tune of ₹ 3,44,19,233/- during the period from 1-1-2000 to 30-4-2009. The assets include flat, plots of land, car, heavy amount in cash in different bank lockers, FDRs, Mutual Funds, KVPs, NSCs, balances in Post Offices, banks and jewelleries, etc. The total income of Shri Sudipta Ghosh and his family members consisting of his wife Dr. Kajal Ghosh and two sons, namely, Shri Abhishek Ghosh and Shri Anirban Ghosh during the said period from all sources was ₹ 1,12,63,649/-. Such income includes salary income of the accused, salary income of wife of the accused, income from interest from Bank accounts/deposits, loan, interests earned on MIS, etc. The total expenditure incurred by said Shri Sudipta Ghosh and his family members during the period from 1-1-2000 to 30-4-2009 came to ₹ 34,25,364/- and such expenditure includes payment of locker rent, kitchen expenses, payment of LIC premiums, expenditure incurred on visits abroad, etc. Taking into consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father in law of Sh. Sudipta Ghosh have aided and abetted Sh. Sudipta Gosh in illegal acquisition of these assets. Since the immovable and movable properties held by Sudipta Ghosh or others on his behalf attached by the respondent were held to be nothing but proceeds of crime and explanation given were found to be not plausible and the properties are involved in money-laundering, the Adjudicating Authority confirmed the provisional attachment and held that the attachment shall continue during the pendency of the proceeding relating to the scheduled offences before a court and become final after the guilt of the person is proved in the trial Court and order of trial Court becomes final. 28. This Tribunal has heard the pleas and contentions of the parties. The plea of the appellant that the seized amount is in the custody of CBI and not in the custody of appellant and there is no apprehension that the appellants are likely to conceal, transfer or deal with the said amount cannot be accepted in the facts and circumstances. The respondent/ED is not a party in the case filed by CBI. The apprehension is always there that the concerned CBI court may allow withdrawal of the amount seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense under Section 120B of IPC has not been made out against him. Even if it is assumed that the charge against him has not been made out, so long as the appellant has proceeds of crime, the same can be attached. Keeping in mind the scheme of the second proviso to Section 5(1) of the Act, having a look at the proviso, the construction to be given would be very clear. A person who is in possession of a property that allegedly represents the proceeds of crime, may come under any of the three categories namely :- (i) person who is not accused of any offence, but who has merely come to possess a property that represents the proceeds of a crime; (ii) person against whom a complaint is lodged, but the investigation is not yet complete and a final report under Section 173 of the Code of Criminal Procedure not yet filed; or (iii) a person who is accused of committing an offence and against whom a final report has been filed under Section 173 of the Code of Criminal Procedure before the competent Court. There is no dispute about the fact that out of the above three categories of persons, the case of a person coming under the first category is covered by the second proviso. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-attachment of the property is likely to frustrate any proceedings under this Chapter, he may attach any property of any person under this Section. 31. On investigation many times it is found that the proceeds of crime are not available in the hands of the person charged of having committed a scheduled offence, and the same are in possession of some other person, who is not charged either in the report or the complaint. The second part of the proviso to sub-section (1) of Section 5 contemplates attachment of property involved in money-laundering, even from a person who is not charged of having committed a scheduled offence. However, it requires that the officer authorized must have reasonable belief which is to be recorded in writing. This also requires that such officer must have the material in his possession showing that if such property involved in money-laundering is not attached immediately, the non-attachment of the property is likely to frustrate any proceedings under the Act. 32. The emphasis of Section 5 is to attach every property involved in money-laundering irrespective of whether it is in possession of the person charged of having committed a scheduled offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot go into the sufficiency of the material for forming such belief. Though the Tribunal can certainly examine whether there was any material at all in possession of the officers concerned and whether the material has any nexus with the formation of the belief. Perusal of the material on record relied on by the respondent reflect that the same has nexus with the formation of belief and it cannot be inferred otherwise in the facts and circumstances of the present case. It has also been held that the fact that the authority could have acted only if there was reason to believe that a person is in possession of proceeds of crime does not mean that the Authorities at this stage were obliged to prove the fact beyond doubt that the property in possession of the appellant are in fact proceeds of crime. What the authorities are required to show is that there has been substantially probable cause to form opinion that the properties under attachment are proceeds of crime. 34. The other plea of the appellant that amount seized was less than ₹ 30 lakhs and therefore, respondent No. 1 did not have jurisdiction is contrary to record. Even according to the appellant the amount involved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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