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TMI Blog2019 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... rged with any offence by any agency. After hearing, we have orally pronounced the order of allowing the appeal, now reasons are to be given below. 3. It is not denied on behalf of respondent that the appellant was not arrayed in the FIR or charge sheeted. She was not involved in schedule offence. No prosecution complaint is pending against her and seller. 4. The brief facts as per appellant are that the complaint made by Dy. Director, Directorate of Revenue Intelligence (DRI), Lucknow, Zonal Office a case was registered at P.S. Kavi Nagar, Ghaziabad (U.P.) as FIR No. 76 of 2015, u/s. 420, 467, 468, 471 & 469 of IPC, on premise of allegations that the accused Manish Jain & Ors. were indulged in making illegal foreign remittance to Hong Kong through Banking channels by submitting fake import documents to the Bank authorities. 5. It was also alleged in the aforesaid FIR that in course of search of the residential & business premises of aforesaid Manish Jain & Associates, various incriminating materials were seized, comprising of huge no. of blank postal wrappers of Hong Kong post & bogus pan cards, ID cards in the name of factious identities, which were being allegedly appropriated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -eccused in the case were involved in setting up various fake entities in the name of non-existing persons by forging ID's & opened accounts with the various banks for depositing cash & thereafter, to transfer the same in the account of the such created entities, which was being laundered outside India under the garb of import advance by using fake import documents. It is further observed in the impugned order, as was being claimed, the complainant had reasonably believed, based on the aforesaid investigation that the accused persons & its entities purchased various movable & immoveable properties from the proceeds of crime, thus are involved in money laundering in terms of Sec. 2 (1) (u) r/w Sec. 3 of the Act of 2002. 11. The impugned order was served upon at (with regard to property in question) addressed to the Respondent No. 9 vide Notice dated 21.11.2017, which was served upon the appellant on 29.11.2017, which came to the appellant represented the complainant as well as to the Adjudicating Authority vide letter dated 30.11.2017, which was sent to the concerned authorities under post. 12. The Respondent No. 9, Smt. Bimla Devi, seller had represented in unambiguous terms as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant is occupying the property in question under her independent title from that of the accused persons, which fact has been asserted by the appellant, by seeking mutation of the property in the record of the municipal authorities and had been remitting the property tax qua property in question before the Municipal authorities, falsifies the claim of the complainant, as to title of Respondent No. 9 in respect of property in question.The copy of Order of mutation of the property in question passed by Deputy Assessor and Collector, Karol Bagh Zone of North Municipal Corporation of Delhi is annexed herewith as Annexure P/9 and the copies of the property tax remitted by the appellant with the Municipal Authorities since Acquisition of its title by the appellant till date are annexed hereto as Annexure P/10. 16. The Respondent no.1 in their reply in Para 18 admitted the fact the property in question is in the name of the appellant. Thereafter, it is submitted on behalf of appellant that the property is not a proceed of crime but the appellant is a bonafide purchaser. It has not come on record that Smt. Bimla Devi had acquired the property from proceed of crime. 17. The detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at stilt floor, ground floor, first floor, second floor and thied floor Sanction Plan passed by the M.C.D. Karol Bagh Zone, New Delhi iv. Smt. Neelam Jolly above named sold her all rights, titles, interests in respect of built up entire second floor, without terrace roof rights measuring 200 Sq. Yards, along with 1/4th share in parking space at stilt area (below ground floor), out of freehold property bearing No. 15-A/18, along with proportionate undivided, indivisible and impartiable ownership rights of the underneath land measuring 200 Sq. Yards, with super structure situated in the abadi of East Patel Nagar, New Delhi-110008 to the Vendor - Smt. Bimla Devi Wadhwa, vide Regd. Sale Deed as No. 3117 in Addl. Book No. I,.Volume No. 21564, on Pages 32 to 40, dated 19.02.2014, entered in the office of the Sub- Registrar, Sub-Distt. No. II, Basai Darapur, New Delhi. On the basis of the above mentioned Regd. Sale Deed, the Vendor has become the complete owner of the above mentioned property under sale. v. The Vendor has got full rights, clear titles and absolute authority to sell and transfer the built up entire Second Floor, without terrace roof rights along with 1/4th share in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after - (a) considering the reply, it any, to the notice issued under sub-section (1); (b) hearing the aggrieved person and the Director or any other officer authorized by him in this behalf, and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering. 22. It is evident from the material available on record and from the Impugned Confirmation Order that Respondent and the Adjudicating Authority were aware that the Appellant was a 'Claimant' to the said Property in terms of proviso to Section 8(2), PMLA. 23. Despite of having full knowledge about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by declining to pass an order of confirmation of the provisional attachment; either in respect of the whole or such part of the property provisionally attached in respect whereof bona fide acquisition by a person is established, at the stage of the Section 8(2) process. A further opportunity of establishing bona fide acquisition of property or that the property in question is not proceeds of crime involved in money-laundering is available and mandated, prior to the adjudicating authority passing an order of confiscation, under Section 8(6). 104. Proceedings for attachment and confiscation of proceeds of crime are a process distinct and dissimilar to the process for prosecution of the offence of money-laundering. Deprivation of property involved in money-laundering is the sanction in the first process while deprivation of personal liberty is the sanction enjoined in conviction for the offence. Mens rea is not a jurisprudentially non-derogable adjunct for visitation of civil consequences and therefore the legislative policy in this area is eminently within the domain of legislative choice. This challenge must therefore fail. Challenge to dispossession before conviction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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