TMI Blog2019 (1) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 to 1.6.2009 while the remaining ₹ 30 Crores was advance after 1.6.2009. It is the case and contention of the ACB that the advances / payment by SPCL of the said amount of ₹ 141.50 Crores to the Nilesh Thakur Group, constitutes an offence committed by Nilesh Thakur and Ors. under the provisions of Section 13 of the POC Act. Pertinently, the said offence under the POC Act came to be notified as a scheduled offence under paragraph 5 of Part A of the Schedule of the PMLA only by way of the PMLA Amendment Act of 2009 which was brought into force only on 1.6.2009. The legal position is that the purported offence under Section 13 of the POC Act was not a predicate / scheduled offence under the PMLA prior to 1.6.2009 and since the Appellant / SPCL had advanced monies to Nilesh Thakur Group to the tune of ₹ 111.50 Crores prior to 1.6.2009, the provisions of PMLA could not have been applied to the said monies or the properties acquired out of the same and the said monies / properties cannot be treated as proceeds of crime for the purposes of the PMLA. Thus, it was beyond the jurisdiction of the authorities under the PMLA to issue PAO‟s or file Original Complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Stay), FPA-PMLA-1408/MUM/2016, MP-PMLA-3083/MUM/2017 (Misc), MP-PMLA-2641/MUM/2016 (Stay), FPA-PMLA-1409/MUM/2016, MP-PMLA-3084/MUM/2017 (Misc), MP-PMLA-2642/MUM/2016 (Stay), FPA-PMLA-1410/MUM/2016, MP-PMLA-3085/MUM/2017 (Misc), FPA-PMLA-1479/MUM/2016, MP-PMLA-3079/MUM/2017 (Misc), FPA-PMLA-1211/MUM/2016, MP-PMLA-2813/MUM/2016(Stay), FPA-PMLA-1491/MUM/2016 Justice Manmohan Singh Chairman For the Appellant : Shri Gaurav Agarwal, Advocate, Shri Gurmehar S. Sistani, Advocate For the Respondent : Mr. Neeraj Atri, Advocate, Mr. Rahul Narayan, Advocate And Mr. Shashwat Goel, Advocate JUDGEMENT FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 1491/MUM/2016 1. By this common order, I propose to decide all pending appeals and crossappeals filed by the above-mentioned parties. The details of parties/titles are mentioned in FPA-PMLA no. 1407 of 2016 printed above for noticing the array of parties before this Appellate Tribunal as also before the Adjudicating Authority PMLA. 2. The Respondents nos. 2, 3, 4 5 are the accused in the proceedings adopted by the Anti Corruption Bureau under Section 13(1)( e) of the Prevention of Corruption Act, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters dated 16.7.2007 and 19.7.2007 together constitute the agreement / contract between SPCL and Respondent No. 3 and is hereinafter called the subject Agreement . The said letters dated 16.7.2007 and 19.7.2007 are filed in the appeal. g) During the years 2007 and 2008, pursuant to the subject agreement mentioned above, SPCL advanced amounts aggregating to ₹ 84.50 Crores to M/s PRS Enterprises by way of cheques drawn on Standard Chartered Bank and Deutsche Bank. The details of the payments made by SPCL to PRS Enterprises given in paragraph No. 3.8 of the 1104 Appeal along with copies of Bank Statements of SPCL‟s Accounts with Standard Chartered Bank and Deutsche Bank are filed respectively in appeal. h) The payment of ₹ 84.50 Crores as aforesaid were deposited by Respondent No. 3 (Nilesh Thakur) into the Bank Account of M/s. PRS Enterprises (Respondent No. 6) with the Greater Bombay Co-operative Bank, Andheri, Mumbai ( GBCB ) i) Pursuant to the subject Agreement, as per the instructions of the Respondent No. 3, SPCL also made payments aggregating to ₹ 57 Crores to Respondent No. 9 (i.e. M/s AcecardInfrasolPvt. Ltd.) [hereinafter referred to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers], Respondent No. 25 [M/s. Siddhivinayak Enterprises]. Respondent No. 3 is also the Promoter / Director of Respondent Nos. 6 to 19, 21 to 25 Companies and is also Trustee of Respondent No. 20 Trust [Thakur Family Trust] and all the said entities/ Firms/ Companies/ Trust were/are in the control of Respondent No. 3. The said entities / Firms/ Companies/ Trust controlled by Respondent No. 3 [Nilesh Thakur] are hereinafter collectively called Nilesh Thakur Group . o) The immovable properties, vehicles Fixed Deposit Receipts [ FDR‟s] and the monies lying in Bank Accounts mentioned at (a) to (d) above are clearly of SPCL‟s ownership having been acquired out of SPCL‟s funds pursuant to the subject Agreement. The said immovable properties, Vehicles FDR‟s, amounts lying in Bank Accounts as also the amounts advanced M/s. SRB Enterprises and Kalyani Group have been subject matter of various Provisional Attachment Orders issued by Respondent No. 1 [Director of Enforcement] in PMLA proceedings on the allegation that the said properties constitute proceeds of crime. p) By his letters (both) dated 22.3.2010 [as Proprietor of M/s. PRS Enterprises and Director (AIP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u) SPCL received Summons from Respondent No. 1 / Director of Enforcement requiring SPCL to produce some documents. The said documents were duly produced by SPCL. v) By way of its letter dated 25.6.2014, SPCL forwarded a copy of the Consent Decree passed by the Bombay High Court to Respondent No. 1 / Director of Enforcement and requested Respondent No. 1 not to attach the properties under the Consent Decree which belonged to SPCL. w) In February, 2015, Respondent No. 3 [Nilesh Thakur] informed SPCL that some properties of SPCL‟s ownership under the Consent Decree had been attached by the Respondent No. 1 and in respect thereof proceedings were pending before the Adjudicating Authority. x) In March, 2015, SPCL filed Execution Application in the Bombay High Court being Execution Application No. 1580 of 2015 for enforcement of the Consent Decree mentioned above. The Hon‟ble High Court has issued Notice under Order XXI Rule 22 of the CPC to the Defendants / Judgement Debtors therein. The said Notice is pending hearing before the Hon‟ble High Court, Bombay. y) By its Order dated 10.4.2015, the ITAT dismissed the Appeal of the Income Tax Department against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) PAO No. 3 of 2012 dated 17.4.2012 PAO 3/12 was confirmed by the Adjudicating Authority by way of Order dated 31.8.2012 passed in Original Complaint No. 140 of 2012. (ii) PAO No. 7 of 2012 dated 27.11.2012 PAO 7/12 was confirmed by the Adjudicating Authority by way of Order dated 5.4.2013 passed in Original Complaint No. 169 of 2012. (iii) PAO No. 2 of 2013 dated 24.1.2013 PAO 2/13 was confirmed by the Adjudicating Authority by way of Order dated 21.6.2013 passed in Original Complaint No. 174 of 2013. SPCL was not made a party Defendant to the Original Complaint Nos. 140 of 2012, 169 of 2012 and 174 of 2013 mentioned at Notes 1 to 3 above and the decisions on the three Original Complaints confirming the attachment under the PAO‟s were rendered in SPCL‟s absence. 7.7 Respondent No. 1 issued the following Provisional Attachment Orders in September, 2014 and March, 2015 on the basis of the second FIR being: (i) PAO No. 19 of 2014 dated 30.9.2014 PAO 19/14 was confirmed by the Adjudicating Authority by way of Order dated 1.1.2015 passed in Original Complaint No. 370 of 2014. (ii) PAO No. 23 of 2014 dated 31.12.2014 PAO 23/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 in FPA-PMLA 888 of 2015 arising out of O.C. No. 174 of 2013 and PAO 2 of 2013, (iii) M.A 04 of 2015 in FPA-PMLA 889 of 2015 arising out of O.C. No. 169 of 2012 and PAO 7 of 2012, (iv) M.A 07 of 2015 in FPA-PMLA 895 of 2015 arising out of O.C. No. 370 of 2014 and PAO 19 of 2014, (v) M.A 06 of 2015 in FPA-PMLA 896 of 2015 arising out of O.C. No. 408 of 2015 and PAO 23 of 2014. Copy of Misc. Application No. 07 of 2015 isfiled as Annexure 4 in Appeal no. FPA-PMLA- 1407 of 2016). 7.11 During the period 2015 to January, 2016, Respondent No. 1 [Director of Enforcement] through Counsel filed preliminary submission in each of the five 2015 M.A.‟s, whereby it was submitted, inter-alia, as under: (i) that the Judgment of this Tribunal in the case of Central Bank of India Vs. R. Mohandoss was not binding precedent for the Adjudicating Authority. (ii) that the Adjudicating Authority has no power to modify, recall or review any Order passed by him. (iii) the entire exercise being carried out by way of the 2015 M.A.‟s was misplaced and is beyond jurisdiction created by statute and hence the notice issued by the Adjudicating Authority to the Respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that considering that no factual submission was made by Respondent No. 1 / Director of Enforcement and that in the PAO‟s / O.C.‟s in question, SPCL was not made party, it is considered fair and proper that Respondent No. 1 shall consider SPCL‟s claims under the proviso to Section 8 (2) of the PMLA and Respondent No. 1 shall give opportunity of hearing to SPCL. Respondent No. 1 was directed to decide the matter after proper examination and investigation. However, by the Order, the Adjudicating Authority directed that the confirmed PAO‟s [being the five PAO‟s referred to at Sr. Nos. 21 and 22 above] shall remain in force.Copy of the impugned Order dated 16.6.2016 is filed in Appeal no. FPA-PMLA- 1407 of 2016.) 7.16 Aggrieved by the common Order dated 16.6.2016 passed in the five 2015 M.A.‟s, SPCL filed Appeals in connection therewith [five Appeals in all] before this Hon‟ble Tribunal being Appeal Nos. (i) FPA-PMLA Appeal Nos. 1406 of 2016, (ii) FPA-PMLA Appeal Nos. 1407 of 2016, (iii) FPA-PMLA Appeal Nos. 1408 of 2016, (iv) FPA-PMLA Appeal Nos. 1409 of 2016, (v) FPA-PMLA Appeal Nos. 1410 of 2016, The said five Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attachment by way of the PAO‟s. By the said Misc. Applications, SPCL brought on record all the necessary facts and documents which established that it is the legal and beneficial owner of the properties sought to be attached by the Respondent No. 1 by way of the PAO‟s, that the same were not involved in money laundering in any manner and that the same were not proceeds of crime. Thereby, SPCL prayed for vacating the attachment and dismissal of the Original Complaints filed by Respondent No. 1. 8.3 In O.C. Nos. 465/15 and 495/15, certain entities of the Nilesh Thakur Group [who had been arrayed as party Defendants to the concerned O.C.‟s] also filed their Reply Statements opposing the said O.C.‟s and thereby the Nilesh Thakur Group also brought on record that all the properties being subject matter of the PAO‟s were of SPCL‟s ownership and entitlement and were purchased out of SPCL‟s funds under the subject Agreement and were required to be handed over to SPCL as per the mandate of the Consent Decree passed by the Bombay High Court. Thereby, the Nilesh Thakur Group also prayed for vacating the attachment and dismissal of the Original C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith costs. 9. Details of various appeals filed by the appellant before this Tribunal along with description of properties which are subject matter of said appeals, are as follows:- 1. Appeal FPA-1406/16 (OC No.140/12): Sr. No. Particulars Consideration mentioned in the Documents 1 Ro House/ Bunglow No.62/65, Road No.RSC-13, MHADA Layout, Gorai, Borivali West, Mumbai-92 [103 .70 sq. mtrs] 74,00,000 2 Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, Borivali (W), Mumbai-91 [300 sq. ft.] 21,00,000 3 Flat No.1D/201, 2nd Floor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101 [294 sq. ft] 39,54,170 4 Hotel Shoreline at Darbar Road, Murud, Janjira, [700 sq. mtrs] 1,80,00,000 5 Office of Aishwarya Properties [shop] at Vandana CHSH, Near Alibagu Bus Depot, Alibaug [670 sq. ft] city survey No.722, 722/1 and 722/2 11,00,000 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13,91,72,141 13,91,72,141 Details of fixed deposits: Sr. No Name of Bank Bank Account No./FD No. Name of Entity/Company On 08.09.2014 1 GBCB 1576 PRS Developers 41635.92 2 GBCB 1537 PRS Enterprises 2626.05 3 GBCB 30200761612 Aishwarya Investments 18522 4 GBCB 10216009856 AcecardInfrasol Pvt Ltd 1864100.75 5 GBCB 30200287913 Shoreline Exports 3124 19,30,008.7 6 GBCB FDR 30201322722 AcecardInfrasol Pvt Ltd. 13290421.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 KAPOL 232 Ace Card Hotels Resorts Pvt. Ltd. 1539810.23 24 KAPOL 233 Ace Card Export Pvt. Ltd 4620179.23 25 KAPOL 5392 Dhan Share Trading Pvt Ltd 98,71,770.97 9,08,65,614 26 KAPOL FDR Nos.36828 to 361856 of ₹ 1 crore each Thakur Family Trust 290000000 290000000 27 BOI 3220110000304 Siddhivinayak Enterprises 11812.5 11,812.5 28 UBI 441601010036441 Ace Card Inforasol Pvt Ltd 13219.5 29 UBI 546410110050207 Ace Card InfrasolPvt. Ltd 100000 1,13,219.5 30 HSBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,82,16,616 6. Appeal No.FPA-1104/15 (OC No.465/15): Sr. No. Particulars Consideration mentioned in the Documents 1 Flat No. 3, H‟ wing, FlowerValley, Mahad. 5,00,000 2 Flat No. 53, B Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai. 2,63,95,100 3 Flat No.31, A-Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai. 1,23,95,100 4 Flat No. 1- C Block- C Viceroy Court CHSL. ThakurVillage, Kandivali (East), Mumbai 400101 61,25,100 5 Flat 1208, B Wing, BorivaliDwarkanath CHS (Vijay Nagar), Borivali, Mumbai 47,37,600 5,01,52,900 7. Appeal No.FPA-1105/15 [OC No.495/15]: Vehicle Made Vehicle Registration no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56,02,05,718 9. Appeal No.FPA-1479/16 (OC No.596/16): S. no. Location Consideration mentioned in the deed 1 Balance lying in a/c No.703266871 of M/s. SRB Developers with Indian Bank, Belapur Branch, Navi Mumbai 1,15,00,000 10. Details of payments made to M/s. PRS Enterprises [sole proprietorship concern of Ni lesh Thakur :- CHEQUE NO. DATE AMOUNT DRAWN ON BANK/BRANCH 346049 26.09.2007 Rs.2 crores Standard Chartered/Mumbai Metro Main Branch 346094 26.09.2007 Rs.3 crores Standard Chartered/Mumbai Metro Main Branch 346193 01.10.2007 Rs.3 crores Standard Chartered/Mumbai Metro Main Branch 346263 31.10.2007 Rs.5 crores Standard Chartered/Mumbai Metro Main Branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies were purchased by Ni lesh Thakur Group:- 13. Properties attached in OC No.140/12: (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1406/2016) Sr. No. Date of Execution of Documents Consideration mentioned in the Documents Particulars 1 30.08.2010 74,00,000 Ro House/ Bunglow No.62/65, Road No.RSC-13, MHADA Layout, Gorai, Borivali West, Mumbai-92 [103 .70 sq. mtrs] 2 20.05.2008 21,00,000 Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, Borivali (W), Mumbai-91 [300 sq. ft.] 3 18.01.2008 39,54,170 Flat No.1D/201, 2nd Floor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101 [294 sq. ft] 4 01.11.2007 1,80,00,000 Hotel Shoreline at Darbar Road, Murud, Janjira, [700 sq. mtrs] 5 21.05.2008 11,00,000 Office of Aishwarya Properties [shop] at V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.370/14: (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1407/2016) Sr. No. Date of Execution of Documents Consideration mentioned in the Documents Particulars 1 27.03.2008 13,91,72,141 Land totally admeasuring 76.62 acres [30.64.6 hectare] in 3 villages in Alibagu namely, 26.91.40 Hectare in village Waghvira, 3.41.3 Hectare in Village Chikali and 0.31.9 Hectare in village Hemangar [totally valued at ₹ 19,19,25,000/- out of which ₹ 5,27,52,859/- has already been attached in the investigation carried out under ECIR/03/11. Thus remaining consideration for purchase of Surya Roshni land amounting to ₹ 13,91,72,141 Total 13,91,72,141 Details of fixed deposits: Sr. No Name of Bank Bank Account No./ FD No. Name of Entity/Company On 08.09.2014 1 GBCB 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trading Pvt Ltd 9871770.97 18 KAPOL 16334 Thakur Family Trust 52485092.59 19 KAPOL 211 Ice Card Construction Pvt Ltd 2502710.87 20 KAPOL 212 Ace Card Reality Pvt Ltd 7699480.87 21 KAPOL 230 Ace Card Power Pvt Ltd 1539810.23 22 KAPOL 231 Ace Card Media Pvt. Ltd 1539810.23 23 KAPOL 232 Ace Card Hotels Resorts Pvt. Ltd. 1539810.23 24 KAPOL 233 Ace Card Export Pvt. Ltd 4620179.23 25 KAPOL 5392 Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 5 11.09.2008 6,74,000 Commercial Shop No.9, Shrutisarang Cooperative Society, Alibag Area 382 Sq. Ft. (Built up area) 6 Agreement dated 28.07.2009 Rectification Deed dated 17.08.2009 Agreement value- 1,15,50,000 + other charges ₹ 92,661 + Stamp Duty, registration fee etc. ₹ 6,23,955 Totalling to 1,22,66,616 Flat No.202, 2nd Floor, Sapphire, Ram Mandir Road, MG Cross Road, Vile Parle (E), Mumbai-400057 area 622 sq.ft. (carpet area) 7 15.07.2009 6,00,000 Room/ residential plot admeasuring area 11.20 sq. Mt. (built up area) next to building No.10, Old MHB Colony, Borivali West, Mumbai-400091 8 15.07.2009 5,00,000 Room/ residential plot admeasuring area 150 sq. ft. next to building No.10, Old MHB Colony, Borivali West, Mumbai-400091 9 20.05.2009 20,00,000 Room/ residential plot admeasuring area 10.40 sq. mt. next to building No.10, Old M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment with Respondent No. 2 Firm [i.e. M/s. SRB Developers] for booking 4 ownership Flats in the Building to be constructed by Respondent No. 2 Firm at Plot No. 6, Sector 24, Kamothe, Navi Mumbai. 22. Properties attached in OC No.596/16: - (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1479/2016) S. no. Date of execution of document Consideration mentioned in the deed Location 1,15,00,000 Balance lying in a/c No.703266871 of M/s. SRB Developers with Indian Bank, Belapur Branch, Navi Mumbai 23. Schedule of Properties attached by PAO 3 of 2016 being subject matter of OC 596 of 2016.Balance lying in the Bank Account No. 703266871 of M/s SRB Developers (being Respondent No. 2 Firm) maintained with Indian Bank, CBD Belapur Branch, Navi Mumbai to the extent of ₹ 1,15,00,000/- (Rs. 1.15 Crores) 24. Respondent No. 2 Firm had agreed to issuance of Letters of allotment in respect of the ownership Flats after approval of the building plans by the Municipal Authorities. 24.1 Respondent No. 4 had made pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the amount deposited by the said company in its appeal is to be refunded to SPCL by ED forthwith. 27. Appeal no.1211 of 2016 arising out of Original Complaint no. 512 of 2015. Shapoorji Pallonji Co. Pvt. Ltd., .Appellant/Org. Defendant No. 12 V/s. 1. Dy Director, Directorate of Enforcement Respondent No.1/ Org. Complainant 2. Ravindra G. Sapkal, 3. Kalyani Charitable Trust, 4. Kalyani Education Pvt. Ltd, 5. Nitish J. Thakur, 6. Nilesh J. Thakur, 7. M/s. Ace Card Infrasol Pvt Ltd, 8. PRS Enterprises, 9. Bank of Maharashtra, 10. State Bank of India, 11. Bank of Maharashtra, 12. State Bank of India . Respondent Nos. 2 to 12/Org. Defendant Nos.1 to 11 28. Properties attached in OC No.512/15: - (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1211/2016) A sum of ₹ 61,42,00,000/- was given on loan by Ni lesh Thakur Group to Kalyani Education Group and other connected persons. The ED has sought to attach properties worth ₹ 56,02,05,718/- standing in the name of Kalyani Charitable Trust, Kalyani Education Pvt. Ltd. and one RavindraSapkal. 28.1 The properties which are subject matter of attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 ( i.e Ravindra Sapkal, Proprietor of Ravindra Constructions). 28.3 Out of the aforesaid amount of ₹ 61.42 Crores advanced to Kalyani Group, the Kalyani Group purchased various properties and invested the amount in fixed deposits and made some construction. The amounts advanced by the Nilesh Thakur Group to the entities of the Kalyani Group are shown as loans and advances in the Books of Accounts of the Nilesh Thakur Group. This is also acknowledged by Respondent No. 1 in clause 7.1 of the Original Complaint No. 512 of 2015 ( O.C. 512/15 ).The case of the Kalyani Group is that it was merely a donation to the trust and no investment. 28.4 Respondent No. 1 (Director of Enforcement) issued a Provisional Attachment Order No. 18 of 2015 (PAO No. 18/15) on the basis of the second FIR (ECIR No. 6/M20/2012 dated 18.5.2012) being PAO No. 18 of 2015 dated 21.07.2015 attaching the properties worth ₹ 56,02,05,718/- (i.e. 56.02 Crores) standing in the name of the Respondents (i.e. the Kalyani Group) on the alleged basis that the said properties had been acquired out of proceeds of crime involved in money laundering. 28.5 Based on the aforesaid PAO No. 18/15, Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2007 and the same constitutes the contract between the parties. The Appel lant Company has placed on record detai led submissions on contract between the Appel lant Company and Ni lesh Thakur page no.823 of Appeal No.1104). The Appel lant Company has also produced many judgments which clearly lay down the legal position that the exchange of letters form a contact , however, the same have not been dealt by the respondent no. 1 in the eyes of law, the basic law laid down has been ignored by both authorities. 32. In the admitted position between al l the parties that in view of to the aforesaid agreement / contract contained in the letter dated 16.07.2007 and 19.07.2007 , the Appel lant Company transferred ₹ 141.50 crores to the Ni lesh Thakur Group in 2007-2009. The said amount of ₹ 141.50 crores is legitimately earned money of the Appel lant and are not proceeds of crime. Since the transfer has been made by the Appel lant Company to Ni lesh Thakur under an agreement and for lawful purposes, the same does not become proceeds of crime in the hands of Ni lesh Thakur. This fact has been admitted by the respondent no.1 as wel l as Ni lesh Thakur, his brother Nitish Thak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property. 174/13 5. 27.03. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 13,91,72,141/- Land totally admeasuring 76.62 acres [30.64.6 hectare] in 3 villages in Alibaug namely, 26.91.40 Hectare in village Waghvira, 3.41.3 Hectare in Village Chikali and 0.31.9 Hectare in village Hemnagar [totally valued at ₹ 19,19,25,000/- out of which ₹ 5,27,52,859/- has already been attached in the investigation carried out under ECIR/03/11]. Thus remaining consideration for purchase of Surya Roshni land amounting to ₹ 13,91,72,141 370/14 6. 25.04. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 4,90,000/- Shop No.9, Parmar Complex, Pali, Raigad 169/12 7. 20.05. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 21,00,000/- Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the record before the Adjudicating Authority who had rendered decision on the Original Complaints filed by the ED based on the Provisional Attachment Orders [PAOs] passed by the Dy. Director of Enforcement. 36.2. The alleged documents produced by way of COD were not part of the material based on which reasons to believe was formed by the Dy. Director of Enforcement for passing the PAOs. It is, therefore, submitted that the alleged documents produced by way of COD cannot be looked into and the ED is not entitled to produce or rely upon the same to oppose the above appeal. 37. This Tribunal despite of objection inclines to deal with the alleged documents produced by way of COD are alleged statements of Nilesh Thakur and Nitish Thakur purported to have been recorded by an officer of the ED during the year 2013/2014. 37.1 The alleged statements were never produced by the ED on any earlier occasion. Some of alleged statements do not appear to be signed by the said Nilesh Thakur and Nitish Thakur or by the sheer recording the delayed statement which is admitted by the respondent counsel, therefore, full credence can be given to the contents of the said statements unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst each other. Nitish even was making the statement against the SPCL in order to save him from the charges. However, the said al legations have consequences once it was admitted that SPCL has paid clean money to Ni lesh who has invested in the properties as per agreement or other for his interest from the amount received from SPCL only. Thus, inter-se fight between two brothers and al legation against SPCL are false and irrelevant on the face of record. 41. After the conclusion at the hearing of the above Appeals on 22.11.2018, this Tribunal had required parties to give necessary details, particulars and information relating to the amount of ₹ 40 Crores or thereabouts which had been made over by Kapol Co-op Bank Ltd. [ Kapol Bank ] to the Respondent No. 1/ Enforcement of Directorate [ E.D. ] pursuant to confirmation of the PAO No. 19 /2014 and Original Complaint No. 370 of 2014, whereby, inter-alia, the balances in Bank Accounts and the FDR monies held by Nilesh Thakur Group entities with Kapol Bank had been attached. The balances in Bank Accounts, FDR‟s of the Nilesh Thakur Group with Kapol Bank is hereinafter for convenience sake referred to as the subject inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit account by whatever name called, subject to conditions stipulated in the RBI Directions. The Kapol Co-operative Bank Ltd will, without prior approval in writing from the Reserve Bank, also not able to grant or renew any loans and advances, make any investment, incur any liability including borrowal of funds and acceptance of fresh deposits, disburse or agree to disburse any payment whether in discharge of its liabilities and obligations or otherwise, enter into any compromise or arrangement and sell, transfer or otherwise dispose any of its properties or assets except as notified in the RBI directions dated March 30, 2017. The Directions have been issued from the close of business on March 30, 2017. 46. The operation of the circular dated 31.3.2017 has been continued till 31.1.2019 as per the RBI‟s subsequent circular / press release dated 27.7.2018. Thus RBI has severely restricted Kapol Bank‟s operations and restricted it from making payment in discharge of its liabilities. It would therefore not be prudent nor in the interest of the Nilesh Thakur Group entities, for the amount of the subject investments to be returned to Kapol Bank into the Nilesh Thaku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1 from the Respondent No. 5 Bank [being The Kapol Cooperative Bank Ltd.] being the amounts which were held by the Respondent No. 5 Bank in various Bank Accounts and/or Fixed Deposits standing in the name/s of the Defendants and/or their various entities including the entities listed in the Schedule of this Chamber Summons. 49. SPCL had already asserted its claim to the attached properties as legal and beneficial owner by filing necessary applications with the Adjudicating Authority and has also filed Appeals in connection therewith which have already been heard by this Hon‟ble Appellate Tribunal along with the above Appeals. SPCL is also party Respondent to the captioned Appeals filed by the Nilesh Thakur Group entities. 50. In view of the above and in the event the above Appeals are allowed and the attachment on the subject investments is raised, it would be just, necessary and appropriate that the E.D. be ordered and directed by this Tribunal to make over / transfer / pay over the said amount of about ₹ 44 Crores or thereabouts lying with itself, along with all interest accrued thereon, to SPCL for being appropriated by SPCL towards the dues under the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney. SPCL is an innocent party who is entitled to recover the entire amount. They have just ignored the decree passed by the court without application of mind. They were dealing the matters as SPCL has given tainted money to Nilesh J. Thakur which is generated from proceed of crime, the same is not correct as admitted by the counsel for the respondent. I t wa s su bmi t t e d b y the ED‟ s Co uns e l tha t the Decree dated 19.10.2011 passed by the Bombay High Court in Suit No.2576 of 2011 is a Consent Decree and not a Decree on contest and, therefore, the Consent Decree ought not to be looked into by this Authority. 55. The Consent Decree is as much a Decree as a Decree in invitum (meaning a Decree passed on contest) and has the same legal effect and trappings as a Decree passed in invitum. Both Decrees have the trappings of final ity and operate as res- judicata on the matters covered by the Decree and the issues decided by the Consent Decree cannot be re-agitated in subsequent proceedings. ( See judgement of the Hon'ble Supreme Court in Shankar Sitaram Sontake v. Balkrishna Sitram Sontakke, 1995 SCR 99) 56. No Suit wi l l l ie for setting aside a Consent Decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the respondent no. 1 has admitted that there is no cogent evidence gathered to the effect which may l ink SPCL and Nitish Thakur directly or indirectly and any evidence to show where the SPCL has tried to take any favour from Nitish who was the Government employee. 62. A perusal of the Charge Sheet fi led by the ACB, Mumbai would show that the properties acquired by Ni lesh Thakur [from the monies made avai lable by the Appel lant Company] has been treated to be the disproportionate assets of Nitish Thakur without any basis whatsoever. 63. With regard to the objection about nitish Kumar's link and nexus with his brother regarding te purchase of property with his hold as he was the Government employee, in fact, the Appel lant Company has absolutely no concern or connection with Nitish Thakur (brother of Ni lesh Thakur) . The monies paid by the Appel lant Company to Ni lesh Thakur could not have had any connection with Nitish Thakur. The Appel lant had fi led an additional af fidavit of Mahesh Gursale, Deputy Manager of SPCL pointed out factual position along with document evidence. There is no contrary evidence produced by ED. The counsel for ED maintain the si le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The properties have been acquired out of the funds of this Appellant, for the Appellant, under the legal agreement. The payments made by the appellant Company to Nilesh Thakur Group had nothing to do with Nitish Thakur. The attached properties are of the legal and beneficial ownership of the Appellant and those cannot be treated as alleged disproportionate assets of Nitish Thakur. 68. The Respondent No. 1 / mainly in the Original Complainant in the Provisional Attachment Orders was formed on the foundation that the Charge Sheet submitted by ACB states, inter-alia, that the income has been rejected by the Income Tax department as legitimate income in the form of receipt of funds for land aggregation. 69. The reasonable belief was formed in view of the findings of investigation by ACB that the said amounts are nothing but proceeds of crime in terms of Section 2 (1) (u) of PMLA. The Adjudicating Authority failed to appreciate that the Income Tax Appellate Tribunal [ ITAT ] by its Order dated 10.4.2015 passed in the proceedings of Income Tax Appeal Nos. 5766 and 5767 of 2013 filed by the Revenue [Income Tax department] [against the Order of the CIT (Appeals)], has given a defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only on 1.6.2009. 74. Thus, the legal position is that the purported offence under Section 13 of the POC Act was not a predicate / scheduled offence under the PMLA prior to 1.6.2009 and since the Appellant / SPCL had advanced monies to Nilesh Thakur Group to the tune of ₹ 111.50 Crores prior to 1.6.2009, the provisions of PMLA could not have been applied to the said monies or the properties acquired out of the same and the said monies / properties cannot be treated as proceeds of crime for the purposes of the PMLA. 75. Thus, it was beyond the jurisdiction of the authorities under the PMLA to issue PAO‟s or file Original Complaints in respect of the said monies of ₹ 111.50 Crores or the properties acquired out of the same. [76. It is evident that the action of the Directorate of Enforcement is in violation of Article 20(1) of the Constitution of India which protects a citizen from being subjected to any penalty greater that what might have been inflicted under the law in force at the time of the commission of offence. 77. Thus, issuance of PAO‟s or attachment in respect of the said monies of ₹ 111.50 Crores or properties acquired out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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