TMI Blog2018 (6) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent apparently did not make efforts in this regard. - MP-PMLA-3101/BNG/2017 (Stay) FPA-PMLA-1620/BNG/2017, MP-PMLA-3102/BNG/2017 (Stay) FPA-PMLA-1621/BNG/2017 - - - Dated:- 6-6-2018 - Justice Manmohan Singh Chairman For the Appellants : Shri Raj Kumar, C.A. For the Respondent : Ms.Shilpi Satyapriya Satyam, Advocate Shri Nitish Rana, Advocate JUDGEMENT MP-PMLA-3101/BNG/2017 (Stay) FPA-PMLA-1620/BNG/2017 MP-PMLA-3102/BNG/2017 (Stay) FPA-PMLA-1621/BNG/2017 1. The above-mentioned two appeals have been filed under section 26 of PMLA, 2002 against the Order dated 20.12.2016 passed by the Adjudicating Authority in OC no. 637 of 2016 whereby the Provisional Order no. 17/2016 dated 22.9.2016 was confirmed. The appellant in FPA-PMLA-1621/BNG/2017 is Smt. Basavarajeshwari, who is the wife of Sri Chandrashekhar. 2. The brief facts are that Karnataka Lokayukta Police, Kalburgi registered a FIR in the Crime no. 09/2010, dated 03.08.2010 under 13(1) (e ) read with 13(2) of the Prevention of Corruption Act, 1988 (in short PC Act, 1988) against Sri. Chandrashekar Kakkeri, S/o Late Amarappa Kakkeri, aged 57 years worked as Assistant Executive Engineer, Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the offence of money laundering under section 3 of PMLA, 2002, warranting further investigation in accordance with the provisions of the Act and the Rules made there under. Therefore, a case under PMLA was registered by Directorate of Enforcement, Bangalore Zonal Office in File No. ECIR/01/BGZO/2016, dated 09/02/2016, with a view to investigate the case involving commission of an offence of money laundering, being authorized in terms of Section 48 and 49 of PMLA read with Notification No. 441(E ) dated 01/07/2005. 8. The details of the properties registered in his name, in the name of his wife, father and mother are mentioned in para-6 of the Impugned Order. 9. Sri Chandrashekar Kakkeri has also filed the written submission in support of his reply. In para 1 to 30, he has given the detailed reply to each and every movable and immovable property about him as well as his wife, father and mother. 10. His case before the Adjudicating Authority was that all the properties are legally acquired by him and his family members and none of the properties was purchased or acquired from the proceeds of the crime. The comprehensive details are mentioned in the Impugned Order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed were bogus or were part of a calculated device. The fact that these amounts were actually received from the sources so named were satisfactorily proved by the accused. Furthermore, these amounts and assets are well reflected in the assets and liability statements filed by the accused. 60. Insofar as other assets and income as disclosed by the prosecution are not seriously disputed by the accused. After analysing each and every items as stated supra, upon considering the oral and documentary evidence placed on record, the probative value of each items, it appears that preponderance of probability of the income and expenditure as discussed supra are to be added and deducted respectively. Upon considering all the relevant facts and circumstances of the case, this Court determined the actual income and assets held by the accused and his family members along with expenditure incurred by him which are as under:- ANNEXURE-A Assets held by the accused and his family members during check period determined by the Court. Total assets held by the accused and his family members as per prosecution Rs,83,82,877/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the Fixed deposit amount which are standing in the name of father of the accused and transferred in the name of Sugamma after the death of father of the accused i.e.Amarappa Rs.17,41,202/- 15. Joint deposits made in the name of wife and father of the accused viz. Basavarajeshwari and Amarappa Rs.1,80,000/- 16. Joint deposit made in the name of wife and mother of the accused viz. Basavarajeshwari and Suygamma Rs.20,000/- 17. Deposits made by the wife of the accused viz. Basavarajeshwari in U.T.I. Rs.7,000/- TOTAL Rs.34,51,570/- Rs.83,82,877/- (-) ₹ 34,51,570/- Rs.49,31,307/- ANNEXURE-B Expenditure incurred by the accused during check period as per the charge sheet and items of expenditure ordered to be deleted as determined by the Court. Expenditure incurred by the accused during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above table that only a sum of ₹ 5,77,372/- approximately remains unexplained which is less than 10% of the total income of the accused. In a decision reported in AIR 988 SC 88 (State of Maharashtra Vs. Pollonji Darabshaw Darguwalla), the Hon ble Apex Court held as under: on a consideration of the matter, it cannot be said that there is no disproportion or even a sizeable disproportion There are also other possible errors in the calculations in regard to point (c ). The finding becomes inescapable that the assets were in excess of the known sources of income. But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct ,a somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes disproportion for purposes of Section 5(1) of the Act. 62. In view of the discussion rendered above, at the most a sum of ₹ 5,77,372/- remained unexplained. Accused entered into Government service on 04.05.1984 and there is no breakup so far as assets and expenditures etc. are concerned in the charge sheet. Though the check period was for the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of PMLA Act, 2002 are existed and prevailing as on the date of FIR/ date of search were of the year 2010. The amended provisions of PMLA Act, 2002 are only applicable to cases which are registered/ initiated/ booked on or after 15.02.2013. The said amended provisions to section 8(3)(b) are prospective in nature. 19. It is stated that even otherwise the appellant is entitled for relief as per amended provisions when it was mandated by the law that once the accused is acquitted in schedule offence and the judgement is become final, then the attachment shall cease to exist. 20. Sri Chandrashekhar has already been acquitted in the offence on the basis of allegation made. On the basis of same allegation, prosecution complaint under section 45 of the Act is pending. The attached immovable properties were purchased during the period 2001 to 2004. Section13 of PC Act was added as schedule offence in PMLA, 2002 w.e.f. 1.6.2009. When the acquittal order was passed, the impugned order and prosecution complaint were already available with the respondent. 21. No appeal has been filed against the acquittal order and quashing of charge sheet ( as informed by the parties). The complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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