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2019 (9) TMI 427

..... ns on paper - retention of policies, FDs and other important documents - offence punishable under Sections 120B & 419, 420, 467,471 of Indian Penal Code (IPC) - scheduled offences or not - HELD THAT:- It is an admitted position that the said policies and FDs are in the name of Jiban Kumar Mitra & Mrs. Malobika Mitra, who are the parents of the appellant. The specific submission has been made that her father had been working with I.O.C. for a long period of time and the said policies and FDs are the retirement benefits received from the employers. It is the matter of fact and same is not denied by the ld. counsel for the respondent during the course of the arguments. The ld. counsel for the appellant has also shown the photocopies of the FDs policies which were belonging to the father and mother of the appellant which was, on his retirement, invested the earnings from his retirement benefits and LIC polices. It is also stated by the ld. counsel for the appellant that the same cannot be proceeds of crime. It is apparent that while passing the impugned order, the reply of the appellant has not been dealt with or discussed at all nor any finding arrived by the adjudicating auth .....

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..... ia and Shri Sunil Deb, Proprietor of M/s United Traders, Shri Nabin Sarma Proprietor of M/s Nabin Enterprise and Sh. Sanat Chakraborty by impersonating himself as Ajay Sankar Roy. They dishonestly and fraudulently availed credit facilities consisting of Cash Credit limit which was sanctioned for ₹ 7.50 Crores and Stand by Line Credit Limit of ₹ 0.50 crores from State Bank of India, Chowringhee Branch, Kolkata by using fake documents and accommodative transactions on paper. The offence punishable under Sections 120B & 419, 420, 467,471 of Indian Penal Code (IPC), comes under the purview of the Scheduled Offence in terms of Section 2(1)(y) of Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA). On the basis of these information and documents received from CBI, a prima -facie case for an offence of money laundering under section 3 of PMLA punishable under section 4 of the said Act, appears to have been made out and accordingly investigation under the provisions of PMLA was initiated by registering an Enforcement Case Information Report on 04.07.2017 against M/s. Saharsh Vyapar Pvt. Ltd. and others. (b) During the course of investigation conducted .....

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..... onth of November, December, January, February, (These four receipts are of same date i.e. 24.03.2016 for 4 different months) March receipts is of date 07.04.2016. All these rent were paid in cash i.e. ₹ 40,000 for each month. One deposit slip of ICICI bank dated 13.05.2016 in the name of Mrs. Lalita Shri with account No, 127101000086 is also there. Also a copy of complaint against Mrs. Lalita Shri by Mr. Amit Banerjee addressed to Anandpur Police Station dated 28.05.2016. After this no rent has been paid by mr. Amit Banerjee to Mrs. Lalita Shri. Neither Mrs. Lalita Shri nor her family members have contacted Mr. Amit Banerjee for any rent after that. Whereabouts of Mrs. Lalita Shri is not known. This represents a very suspicious transaction. Similarly for the other two floors also agreements dated 02 November 2015 were executed between Mrs. Lalita Shri and Mrs. Sanchari Banerjee. Mrs. Sanchari Banerjee similar to Mr. Amit Banerjee was paying ₹ 40,000/- as rent per month to Mrs. Lalita Shri. Mrs. Sanchari Banerjee has also not paid any rent after May, 2016. She also does not know the whereabouts of Mrs. Lalita Shri. This represents a very suspicious transaction. The groun .....

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..... nts as per details mentioned in the impugned order. 7. Reply to the application was filed by the present appellant. The main contents of the reply are given as under: (i) The complainant has failed to discharge burden cast upon him under section 17(1) of Prevention of Money Laundering Act, 2002. (a) As per Section 17(1) of the Act, the authorities had to discharge burden of reason to believe (the reasons for such belief to be recorded in writing) and only then proceed further. The only material available on record which contains reason to believe is the ECIR No. KLZO/12/2017 dt. 04.07.2017 wherein there is no mention for the name of the defendant No. 3. But his premises were searched and the records were seized under Section 17(1) vide seizure Memo dt. 03.09.2018. The seizure memo do not contain any reason to believe as mandatorily required to be recorded in writing before making seizure of the records. The authorities have thus failed to discharge statutorily burden cast upon them for conducting such seizure. (b) In the absence of not recording of any reason to believe before searching the premises and /or seizing the records, the seizure itself is illegal and not sustainable. The .....

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..... s no. 1,3,& 4, it is not in dispute that CBI has filed a case against these respondents for defrauding SBI Chowringhee Branch Kolkata for an amount of ₹ 8 crore and charge sheet has been filed by the CBI before the competent court and matter is pending. ED has also carried out investigation intensively and it has been found that the loan amount received by these respondents have been misused in criminal conspiracy with other respondents and in order to gather further evidence in the matter search was conducted at the premises of 4 Respondents wherein largenumber of documents/properties had been recovered and seize. Since examination of these seized items will take time, applicant has requested permission for retention of these documents/properties. Respondents have not made any convincing and acceptable arguments to oppose the retention of seized documents/ properties and they have simply made arguments based on technical aspects. Therefore submission made by them are not strong enough to oppose the retention. In view of these discussion, there is a case for retention of the seized documents/property as it may be helpful in further investigation in the matter. Accordingly .....

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..... een discussed in the impugned order, even copy of the reasons to believe has not been filed nor produced during the course of the arguments. They are never charsheeted under any offence. 11. It is also pertinent to mention here that even after retention of the property, the father of the appellant had written one letter dated 01.05.2019 to the Assistant Director requesting him to release the polices as well as the FDs as he needs the urgent money for medical attention. Copy of the said letter is read as under: To, Sri A.G. Pandey, Assistant Director, Enforcement Directorate Salt Lake, Kolkata-700064. Summon No-AGP/448 dtd. 01/05/2019 Dear Sir, At the outset, I thank you for the kind courtesy shown to my daughter when she called on you on 20/05/2019. Kindly, note that on 23/11/2018 I have submitted all the necessary papers containing 925 pages, showing bonafied sources of funds for the 10 no of FDs, seized by your department on 03/09/2018 however, as desired, I am again enclosing a copy of India Oil Corporation s payment vouchers. I understand from my daughter that you desire to have the details fo sources is more elaborate way. Accodingly I am enclosing the details oas desire. You .....

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