TMI Blog2018 (6) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... The Adjudicating Authority ought to have complied with all the principles of duly conducting a judicial proceeding where rights of the parties are to be based on the cogent findings based on the evidence led in the case, as every proceedings under the PMLA 2002 is a judicial proceeding within the meaning of section 50 of PMLA Act 2002. Sri Pandari 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. Except one property i.e. agricultural land which was purchased on 5th August, 2009, all other immovable properties were purchased/acquired during the period 1995 to 2007 in the name of Sri Pandari and his family members. 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. Appeal allowed - MP-PMLA-2840, 2842, 2898/BNG/2016 (Stay), FPA-PMLA-1498/BNG/2016, FPA-PMLA-1524, 1496, 1494, 1495, 1497/BNG/2016, MP-PMLA-2899/BNG/2016 (Exem.) MP-PMLA-2900/BNG/2016 (COD), MP-PMLA-,1542, 1543, 2901/BNG/2016, MP-PMLA-2838, 2839, 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,67,66,869 4 Justifiable Income earned by the accused during Check Period Rs.81,26,654/- 5 Total value of Disproportionate Assets earned by the accused during Check Period (Value of Assets during check period+Amount on expenses incurred during check period-Justifiable income earned during check period)=(2+3-4) ₹ 86,40,215 6 Percentage Value of Disproportionate Assets earned 11458544=5308325- 8126654=8640215x100 8126654 106.31 INVESTIGATION UNDER PMLA 4. The Directorate of Enforcement, Bangalore Zonal Office, has made enquiries and having found that there is a prima facie case under PMLA, and in the process summoned Shir Pandari, his two wives viz., Smt. Nirmala and Smt. Arati, his son Sri Mallikarjun and his brother Sri Lakshminarayana under sub-section (2) and (3) of section 50 of PMLA and recorded their statements and also collected the relevant documents. 5. During the course of investigation, prima-facie, it has come to the notice of the Directorate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and have no details of the amount spent from salary and agricultural income separately. From the statement of agricultural income it has come to notice that agriculture was shown without expenditure on agriculture. The agricultural income was not declared to the Income tax authorities. The agricultural income derived was not co-related to the agricultural land in his name. Thus his claim of agricultural income merits rejection. The cost of the house was estimated at ₹ 5,86,373 as per the Evaluation Letter dated 07/12/2012 of Assistant Commissioner, Divisional Office 3, Kalburgi. Thus there was suppress of the facts regarding the cost of construction. Documents submitted by Smt. Nirmala W/o Shri Pandari on 18-02-2016 to the Directorate, in response to the summons, reveals that she constructed a residential House in the above mentioned site for which she stated the source of income were from agriculture income, income from tailoring and gift from father. However there were no documents to prove her claim of income. She also stated that she has not filed any Income tax returns for the years 1995-96 to 2001-02 depicting either agricultural income or tailoring income. She also st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21-08-2007 for ₹ 9,02,000. The cost of the house was estimated at ₹ 13, 91,235/- as per the Evaluation Report dated 01/02/2013 of A.E.E, PWD Port Inland Water Transport Department, Kalburgi. Thus there was suppression of the facts regarding the cost construction. He also stated that source for purchase, construction and repayment of loan was from salary savings and agricultural Income and have no details of the amount spent from salary and agricultural income separately. The details of land holding from which the agricultural products raised are made. Receipt for the sale of agricultural products and the statement of Agriculture income is made and submitted. From the statement of agricultural income it has come to notice that agriculture income was shown without expenditure on agriculture. The agricultural income was not declared to the Income tax authorities. The agricultural income derived was not corelated to the agricultural land in his name. Thus his claim of agricultural income merit rejection. (e) He purchased (1) agricultural land in Sy. No 109, Hosur, Chittapurtaluk, Gulbarga District measuring 9 acres and 28 guntas in the name of his first son Sri Mallika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s name. There was no proof made available for earning agricultural income for the years 1988-89 to 1995-96 as the official claimed. Thus his claim of agricultural income merits rejection. (f) He purchased three piece of agricultural land in the name of his second wife Smt. Arati (a) vide Registration Sale Deed bearing No. 2369/2002-2003 dated 28/03/2003 measuring 1 acre 38 guntas in Sy. No. 100 from Sri Sharannappa for ₹ 50,000 (b) vides Registration Sale Deed bearing No. 2378/2003-04 dated 03-01-2004 measuring 1 acre 39 guntas in Sy. No. 100/1 from Sri Sabanna S/o Ningappa for ₹ 50,500 paid by cash (c) vide Sale Deed bearing No. 885/2006-07 dated 27-05-2006 measuring 1 acre 39 guntas in Sy. No. 100/1 from Sri Tippana s/o Ningappa for ₹ 55,000 all situated at Sathnoor Village Chitapur, Taluk Gilburga District paid by cash. Later vide Registration Sale Deed vide document No 1970/2007-08 dated 13/08/2007 registered in SRO-Chitapur purchased these agricultural land in sy. No 100/1 Sathnoor village, Chittapur taluk, Gulbarga District measuring 5 acres and 36 guntas from his wife Smt. Arati for ₹ 1,52,500/- paid by cash due to divorce. He also stated that sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d measuring 6 acres 19 guntas in sy. No 15 Hosur Village, Chittapur taluk, Gulbarga District vide Document No 953/2006-07 dated 02-06-2006 in her name for ₹ 164000 from Kareppa paid by cash. (8) A Plot No 103, 104, and 105 (Vacant sites) behind Pattana Panchyat Office in her in Sy. No 122/A Gurmitkal vide document No 3008/2006-07 dated 19/12/2006, registered in Sub-Registrar, Yadgir from Doda malla reddy for ₹ 2,10,000 by cash. (9) Agricultural land measuring 2 acres in sy. No 114/3 Hosur Village, Chittapur taluk, Gulbarga District vide Document No 2310/2009-2010 dated 05-08-2009 in her name for ₹ 80,000 from Devanna paid by cash (10) Agricultural land measuring 19 guntas in sy. No 13/1 Hosur Village, Chittapur taluk, Gulbarga District vide Document No 506/2007-08 dated 03-05-2007 in the name of her son Sri. Mallikarjun for ₹ 12,500 from Baslingamma paid by cash. (11 Agricultural land measuring 16 acres and 32 guntas in sy. No 526 situated in Chandaki Road, Gurmitkal Village, Yadgir Taluk Gulbarga District vide Document No 4129/2006-07 dated 17-03-2007 for ₹ 3, 87,000/- from Narayana Acharaya paid by cash. She also stated that she exchanged the above p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (e ) ready with section 13(2) of Prevention of Corruption Act,1988. It is informed that no appeal was filed. The Judgement attains finality which was passed after recording the evidence. The relevant para 60 65 are reproduced hereunder:- 60. On perusal of the prosecution papers it is clearly discloses that, vehicle expenses of ₹ 47, 246/- of Rajendra Handral was included in the expenditure account of the accused. As discussed earlier, Rajendra Handral is not family member of the accused. Already the valuation of the vehicle standing in the name of Rajendra Handral was ordered to be deleted. Since Rajendra Handral is not at all the member of the family of the accused, the vehicle expenses incurred by him to the tune of ₹ 47,246/- which is included in the expenditure account of the accused by the Investigating Officer is incorre It is argued that the provisions of section 8(3)(b) 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) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused. 64. Insofar as other assets and income as disclosed by the prosecution are not seriously disputed by the accused. After analyzing 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 ₹ 1,14,58,544/- The items liable to be deleted a. Difference in valuation of the shopping complex at Gurumitkal Rs.5,00,000/- b. The properties acquired by the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of her daughter Anita. ₹ 31,970/- xiv). Nirmala purchased Mahindra Jeep bearing No. KA-32-M-2546 ₹ 2,50,000/- xv). Difference of valuation of the house bearing No. 2/909/65/10 situated at Jayanagar sold by second wife Arati to Tengli Jewelers. ₹ 4,89,235/- xvi). Bullet motorcycle standing in the name of Rajendra Handral (not a family member) ₹ 15,000/- Total ₹ 37,24,291/- (Rs. 1,14,58,544/-(-)Rs. 37,24,291/-)= ₹ 77,34,253/- 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 the check period as per the charge sheet Rs.53,08,325/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The items of income to be added a). Rental income received from shops at Grumitkal shopping complex reported in Assets and Liability Schemes and IT returns from 1997 to 2009. Rs.4,44.000/- b). Agricultural income of the accused reported in the IT returns from 1989to 2008 ₹ 46,53,770/- c). Agricultural loan borrowed from Bank of India by Nirmala on 28.3.2009 after divorce ₹ 6,95,500/- d) Car loan borrowed by Nirmala from HDFC Bank on 18.09.2008 for purchasing car bearing no. KA- 32-M-7147 ₹ 4,55,232/- Total ₹ 62,48,502/- Grand total of ₹ 81,26,554/-+Rs. 62,48,502= Rs. 1,43,75,056/- ANNEXURE-D a) Total assets held by the accused as determined by the Court Rs.77,34,253/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved in the trial court and order of such trial court becomes final. After 15.02.2013 (b) becomes final after an order of confiscation is passed under sub section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section60 by the Adjudicating Authority. 13. It is argued that the provisions of section 8(3)(b) 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. 14. 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. 15. It is also submitted that the applicant 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 and once the appellant has been acquitted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending. Except one property i.e. agricultural land which was purchased on 5th August, 2009, all other immovable properties were purchased/acquired during the period 1995 to 2007 in the name of Sri Pandari and his family members. 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. 22. No appeal has been filed against the acquittal order and quashing of charge sheet ( as informed by the parties). The complaint was decided on merit. The respondent was aware about the said trial. No steps were taken to have the consolidated-trial under schedule offence and prosecution complaint. 23. In the Judgement, it was recorded that the prosecution has examined large number of witnesses and documents were marked. The statement of the accused u/s 313 of Cr.P.C. was also recorded. The case of the accused is of total denial 24. The respondent is now pressing for another/second trial under PMLA for the same offence/allegations against the appellant. It is not alleged by the respondent that the investigation carried out by the respondent un ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
