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TMI Blog2015 (7) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... of payments to principal. The appellant is allegedly one of the Directors of A.B. Services Pvt. Ltd. The appellant is also Proprietor of M/s. A.B. Services 3. According to the appellant, Dr. Kajal Ghosh is a close relative of the appellant and the appellant never had any dealings with Dr. Kajal Ghosh or her husband Shri Sudipta Ghosh. He alleged that in connection with some case registered by CBI against Shri Sudipta Ghosh the residence and bank locker of appellant was searched by the officers of CBI on 18-5-2009 resulting in seizer of Rs. 39,81,000/- and Rs. 27,60,000/- respectively. The seized amount is duly accounted for and all the relevant details and documents were provided to CBI. 4. Appellant alleged that CBI had filed charge sheets dated 29-6-2010 and 29-12-2010 against Shri Sudipta Ghosh and others including the appellant. He alleged that the allegations against the appellant are related to abetment of Section 120B of IPC and various sections of Prevention of Corruption Act. He alleged that the allegations made by CBI against the appellant are false and baseless. He stated that not a single witness has been examined before the trial court. 5. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor of M/s. A.B. Services. Appellant alleged that he had withdrawn various amounts in cash from the accounts of company/firm maintained in Andhra Bank, Indian Bank and Centurian Bank between the period May, 2005 to March, 2009. The total of the said withdrawals (above Rs. 10,000/-) comes to Rs. 79,77,800/-. The appellant also contended that the credits received into said bank accounts are the cheques received from the clients against services provided to them and tax was deducted at source in respect of the credits into the said accounts by way of cheques. The amount seized by CBI is part of the said amount. He further stated 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 Rs. 27,60,000/- was kept in the locker jointly opened with Sh. Kanai Lal Das in a bank in Kolkata. (vi) The details of withdrawals from the bank accounts (above Rs. 10,000/-) are as under : CASH WITHDRAWLS OF Rs. 10,000/- & MORE FROM ANDHRA BANK C/A. No: 109211011000091 for the period 1-4-2006 to 30-5-2009 HELD BY A.B. SERVICES PVT. LTD. Date of withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60,000/- 27-9-2007 50,000/- 8-10-2007 3,50,000/- 16-8-2007 20,000/- 23-10-2007 20,000/- 29-10-2007 1,00,000/- 6-11-2007 20,000/- 15-11-2007 50,000/- 4-12-2007 2,00,000/- TOTAL 2007 15,42,000/- 23-4-2008 2,00,000/- 3-6-2008 1,00,000/- 2-7-2008 35,000/- 5-7-2008 50,000/- 21-7-2008 10,000/- 16-9-2008 20,000/- TOTAL 2008 4,15,000/- 20-1-2009 80,000/- 17-2-2009 50,000/- 6-3-2009 25,000/- TOTAL 2009 1,55,000/- Grand Total Indian Bank Rs. 23,30,000/- Withdrawals from Centurian Bank, A/C of A.B. Services Date of withdrawal Amount 19-4-2008 20,000/- 28-5-2008 1,00,000/- 12-7-2008 20,000/- 19-8-2008 10,000/- 29-9-2008 15,000/- 7-11-2008 25,000/- 28-11-2008 20,000/- 22-12-2008 50,000/- 12-2-2009 50,000/- 5-3-2009 60,000/- 16-3-2009 20,000/- 24-3-2009 3,00,000/- 30-3-2009 60,000/- Total Cenutrian Bank: 7,50,000/- SUMMERY TOTAL CASH WITHDRAWALS FROM ALL THREE BANKS FROM 2005 TILL 2009 MAY Andhra Bank : Rs. 48,97,800/- Indian Bank : Rs. 23,30,000/- Centurian Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the appellant, except the charge sheet filed by the CBI, no documents have been produced by the respondent No. 1 in support of its pleas and contentions. (xii) Appellant alleged that he is a close relative (cousin) of Smt. Kajal Ghosh (Defendant No. 2) and that he never had any business relationship or monetary transactions with her or her husband or any illicit dealings with any of the accused. He reiterated that the source of the seized amount was duly explained to the officers of CBI and to the respondent No. 1 but the documents and material produced by the appellant have not been considered. (xiii) That the appellant contended that an amount of Rs. 39,81,000/- was seized from his residence at Delhi on 18-5-2009 by the CBI. That there is a reference to the said amount in the complaint and has been incorrectly stated in the complaint as the asset held by other accused 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 enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rover, Mahinder Singh Sahani, Smt. Kajal Ghosh, M/s. T.S. Kishan and Company and M/s. R.K. Machine Tools with the object of demanding and obtaining huge illegal gratification in the matter of various supply orders placed by Ordnance Factory Board (OFB) on private manufacturers/suppliers including foreign suppliers and in the matters of transfer and posting of the officers of Ordnance Factories. 11. It has been further alleged that Sh. Sudipta Ghosh arranged an account and locker in Oriental Bank of Commerce, Lake Garden Kolkata on 17-3-2009 in the joint names of his wife Smt. Kajal Ghosh and Smt. Luna Das w/o Sh. Kanai Lal Das @ Asit Das, a supplier of Ordnance Factory and an associate of Sh. Ashish Bose, appellant for stashing his ill-gotten money which has been collected from various suppliers through Ashish Bose, appellant during the last days of his service prior to his retirement 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... near Gandhi Hospital, Parel, Mumbai. Shri Sudipta Ghosh brought cash amounts ranging between Rs. 5 lakhs & Rs. 10 lakhs each collected as illegal gratification from various suppliers either directly or through the appellant during his each visit to Delhi in April, 2009. He visited New Delhi on 6th, 14th/15th and 23rd of April, 2009. 14. It has been held that the ill-gotten money was mostly collected from the suppliers by the appellant but the said Shri Sudipta Ghosh also talked to the suppliers from the phone of the appellant calling upon them to pay the due amount of bribe early. The appellant was also putting pressure on the suppliers on behalf of Shri Ghosh for coughing up the agreed amount of bribe before his retirement. These suppliers or their agents include Shri Pradeep Kumar for Israeli Military Industries, Shri Rajender Singh Sahani working for various foreign firms and Shri 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant which was arranged by Shri Satish Mahajan of M/s. R. K. Machine Tools being the bribe amount payable to Shri Sudipta Ghosh @ 2% of the repeat order worth Rs. 2.75 crores placed by OFB on them. The amount of bribe and the corresponding amount of repeat order were discussed between the appellant and Shri Satish Mahajan on 11-4-2009. 16. That the appellant was arranging unofficial as well as official meeting of various private parties with Shri Sudipta Ghosh for which they were required to pay at least Rs. 1 lakh token amount as bribe to Shri Sudipta Ghosh. Some of these meetings were organized in 5-Star Hotels. Two such meetings were held in Hotel Taj Bengal, Kolkata on 9-3-2009 and 29-4-2009 with the foreign parties represented by Shri Sahani. One such meeting was held in Inspection Bungalow, Ordnance Factory, Dumdum on 28-4-2009 with Shri Bipin Mukherjee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the second CBI, ACB, Kolkata Charge Sheet No. 48/2010, dated 29-12-2010 in RCO102010A0030, dated 31-7-2010, relating to disproportionate assets of Sh. Sudipta Ghosh and abetted by others it has allegedly been revealed that 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 Rs. 1,12,63,649/-. Such income included 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. Huge cash was also recovered by CBI during the search of residential premises of Shri Ashish Bose, appellant, at New Delhi. Involvements of other persons also emerged during the course of CBI investigations. 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, Kolkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making the majority of the intercepted calls to the co-accused. Laptop (remittances advises of HSBC, Hong Kong pertaining to the transfer of US $ 60,000 and 40,000 on 7th and 8th November, 2008 respectively, E-ticket pertaining to travel to Kolkata on 9-3-2009 along with Sh. M.S. Sahani, format of authorization used Sh. Sudipta Ghosh for transferred US $ 10,000 from the account of Mendual Development Inc. with RBS Coutts Bank Ltd. Singapore, etc., have been found in the said laptop) and copies of letters of M/s. Machine Tools Ltd., M/s. RAD and M/s. BBT addressed to Sudipta Ghosh, OFB and Ordnance Factories. The disproportionate assets acquired during the check period comes to Rs. 2,98,88,9,47.31 which is 362.96% of the income. 22. In these circumstances, the Adjudicating Authority held that a prima facie case is made 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 abette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said bank locker on 28-3-2009 by the Smt. Kajal Ghosh. In the bank locker of the appellant, huge cash collected as illegal gratification was deposited on 24-4-2009. The said cash was brought from Delhi by appellant who collected the same from various suppliers from Ordnance Factories. 25. According to respondent No. 1, Shri Sudipta Ghosh while working in different posts in Ordnance Factories/Ordnance Factory Board including the post of Director General of Ordnance Factories and Chairman of Ordnance Factory Board during the period from 1-1-2000 to 30-4-2009 has amassed huge assets both movable and immovable to the tune of Rs. 2,65,80,948/- by corrupt and illegal means, either in his own name and/or in the name of his family members and others, including appellant, which are grossly disproportionate to his known sources 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 Rs. 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in the PMLA. 27. The Adjudicating Authority on consideration of charge sheets filed by the CBI and other material had also come to prima facie inference that the disproportionate assets acquired during the check period by the Sudipta Ghosh comes to Rs. 2,98,88,947.31 which is 362.96% of his income. Considering his movable and immovable properties generated by him while working as a Director General of Ordnance Factories and Chairman of Ordnance Factory Board, Kolkata he has committed an offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, which is a scheduled offence under the PMLA and Smt. Kajal Ghosh wife of Sh. Sudipta Ghosh, Sh. Ashish Bose, appellant, who worked as a conduit in amassing this huge property for Sudipta Ghosh and Sh. P.K. Naug, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was on him. If that be so then the provisional attachment confirmed by the Adjudicating Authority cannot be faulted. The learned counsel for the appellant in the facts and circumstances has failed to make out any jurisdictional error in the order impugned by the appellant. The next plea of the counsel for the appellant that the charge under Section 120B has not been made out cannot be accepted and decided by this Tribunal. The appropriate course for the appellant in that case was to get the charge sheet/FIR quashed against him, which has not been done. These pleas of the appellant cannot be accepted and are repelled and on the basis of these pleas, the order impugned by the appellant cannot be set aside. 29. The next contention of the appellant is that he is not accused of any scheduled offence as the offense 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such concealment or transfer of such proceeds of crime may result in frustrating the proceedings relating to confiscation of such proceeds of crime. Sub-section (1) to Section 5 of PMLA, is clear that, if the proceeds of crime are likely to be concealed, transferred or dealt with in any manner, which may end in frustrating any proceedings relating to confiscation of such proceedings of crime, the Director, or any other officer not below the rank of Deputy Director authorized by him, may order in writing, provisionally attach such property for a period not exceeding one hundred and fifty days from the date of Order. The second proviso to Section 5(1) also contemplates that if the Director or any other officer not below the rank of Deputy Director, has reason to believe (the reasons for such belief to be recorded in writing) that if such property involved in money-laundering is not immediately attached, the 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 charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al facts are not available against the appellant but did not specifically contended as to which facts are not available against the appellant. No allegations of lack of faith or a mere pretense on the part of attaching officer had been made on behalf of the appellant. In these circumstances this Tribunal will not go in the question whether the reasons for the belief have a rational connection or relevant bearing to the formation of the belief and are not extraneous or is relevant for the purpose of the section. The appellant on his part has also failed to show or even aver the details of business activities which got him the monies which were subsequently withdrawn to be kept in locker. In the circumstances it cannot be inferred even prima facie that reason to belief have not been formed honestly and reasonably on the material available with the concerned Authorities. It also cannot be disputed that this Tribunal cannot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge the burden which was on him under the Act. The applicant has alleged that he withdrew the money from the bank to purchase the land with another accused, however, it has not been shown even prima facie as to from where the money had come in the businesses of the appellant. Except making bald allegations that the applicant had been doing businesses, the details of various transactions done by him was given by the appellant. In the circumstances, none of the allegations made by the appellant can be accepted. 37. In the circumstances all the pleas raised by the appellant impugning the order of confirmation of attachment of the properties of the appellant are repelled and cannot be accepted. No illegality, irregularity has been made out in the impugned order which will entail interference by this Appellate Tribunal in exercising its appellate jurisdiction. No other pleas have been raised on behalf of the appellant except those which have been dealt with hereinabove by this Tribunal. 38. Therefore, in the facts and circumstances and for the foregoing reasons, the appeal of the appellant must fail. The appellant is not entitled for the reliefs claimed in the appeal. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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