TMI Blog2019 (5) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... ng complaint against the dead person does not arise. Therefore, in the facts of the present case, the provision of sub-section 7 of section 8 cannot be revoked by the respondent in the absence of pending valid complaint against him. Admittedly, the prosecution complaint has not been filed in the above said appeal under section 8 of sub-section 3(a) of the Act even against the legal representative before the Special Court within the knowledge of the respondent. Thus, in case no action is taken under the provision of sub-section 3(a) of Section-8, the retention of seizure/ property lapses under the mandatory provisions of law. Therefore, the present appeal is allowed. The impugned order is set aside, the property - FPA-PMLA-1431/MUM/2016 - - - Dated:- 21-5-2019 - Justice Manmohan Singh Chairman For the Appellant : Shri Abhishek Kumar Nidhi, brother of Appellant For the Respondent : Shri Rajeev Awasthi, Advocate JUDGEMENT FPA-PMLA-1431/MUM/2016 1. Directorate of Enforcement had registered a case vide ECIR/02/MZO/2007 on 8.1.2007 against Hasan Ali Khan Kashinath Tapuriah under the Prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death certificate was also produced. Thereafter, the legal representative had filed the application of the deceased Amlendu Pandey and the same was allowed by order dated 19th December, 2017. Ms. Shivani Kumari was impleaded as legal representative of the deceased. All the orders were passed within the knowledge of the respondent as well as the respondent counsel. 7. The counsel for the appellant has informed that no charge-sheet under schedule offence was pending against the deceased. It was also informed that Amlendu Pandey has nothing to do with the other defendants and has not committed any offence directly or indirectly. On his behalf, it is submitted that once he expired, all the proceedings against him are abated. It is stated that no prosecution complaint was filed when he was alive. After his death, no complaint is maintainable against the dead person. 8. The Hon ble Supreme Court in the matter of U. Subhadramma Ors. Vs. State of Andhra Pradesh, Crl. Appeal No. 1596 of 2011 decided on July 4, 2016. The paras from 6 to 12 reads as under: 6. The Learned Senior counsel for the appellants submitted that the scheme of the Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness (vide Section 3) along with copies of the order and the application etc. Section 5 provides for an investigation of objections to the attachment who have been served with notices under Section 4. Sub-Section (3) empowers the District Judge to pass an order making the ad interim order of attachment absolute or varying it by releasing a portion of the property or withdrawing the order. 8. Section 13 requires the Government to inform the District Judge about the status of the criminal proceedings. It requires the Government to furnish the District Judge with a copy of the judgment or order of the trial court and with copies of the judgment or orders, if any, of the appellate or revisional court thereon. Sub-section 2 mandates that the District Judge shall forthwith withdraw any orders of attachment of property made in connection with the offence if (a) cognizance of alleged scheduled offence has not been taken or (b) where the final judgment and orders of the criminal court is one of acquittal. While, this clause is clear that the orders of attachment must be withdrawn if cognizance of the offence has not been taken or there has been an acquittal; the clause is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s perverse: A criminal trial is not like a fairy tale wherein one is free to give flight to one s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worthy and the animus of witness. 11. The facts involved herein did not warrant presumption of commission of offence by Appellant No.1 and thus the findings recorded by the courts below are not tenable. 12. In fact, we find that the learned District Judge could not have proceeded with the attachment proceedings at all since the attachment proceedings were initiated by the State against Ramachandraiah under Section 3 of the Criminal Law Amendment Ordinance, 1944, who was actually dead. Section 3 contemplates that such an application must be made to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business, in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. When Amlendu Pandey was alive, his case was that the said amount was no doubt recovered from his premises, it was the amount received with regard to the prosecution of the properties and has nothing to do with receiving any amount from main accused i.e. Hasan Ali Khan. 12. As already mentioned in the retention order passed in the above said matter, no prosecution complaint was filed by the respondent when he was alive. He expired on 25th May, 2017. The prosecution complaint was filed only on 17th July, 2018. 13. It is a matter of fact that the respondent as well as the counsel was fully aware that he expired on 25.5.2017, however, the prosecution complaint which was filed on 17.7.2018 after the death of Amlendu Pandey. One is failed to understand how the prosecution complaint against the dead person is maintainable. In the complaint, Amlendu Pandey is arrayed as appellant no. 5. 14. It is also a matter of record that when the legal representative of the deceased was brought on record on 19th December, 2017, still the complaint has been filed against the dead person. The factum of his death has not been disclosed in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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