TMI Blog2019 (9) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Accused/Respondents, whereas on the other hand, the Appellant Bank itself has to recover more than ₹ 4.79 crores in Cash Credit Account and ₹ 31.18 Crores in Bank Guarantee as on 25.07.2018 from the company i.e. Respondent no. 2. Hence, the bank being the secured creditor has priority over the rights of Central or State Government or any other Local Authority. The Adjudicating Authority failed to appreciate that the Adjudicating Authority has to take into consideration the plea of innocence of the bank and whether the property which has been attached has any nexus whatsoever with that of money laundering or not. The bank had advised by the letter dated 19.11.2016 the list of FDs outstanding in the name of the company which are encumbered and issued against BG facility sanctioned to the company as Cash Margin against BGs issued by the bank. The bank has neither directly nor indirectly attempted to indulge in any activity in connection with proceeds of crime, hence the question of bank s involvement does not arise as they are third party and the bank cannot be asked to wait till the trial/proceeding are over. The Adjudicating Authority failed to appreciate tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation, the respondent has passed the PAO. CBI has discussed each and every document in relation to the case in hand and has come to conclusion that the total loss is ₹ 62,75,020/- and it is pertinent to mention on the basis of same material the respondent says that loss is about 23.92 crores. The findings of respondent have to be tested at the time of trial. How the contrary figures have been mentioned by the respondent as per its own investigation of the same allegation. Without expressing any opinion in this regard, we are of the view that all these contrary figures of two agencies are to be tested in evidence. The banks are innocent parties. One is failed to understand after filing the reply, the banks are un-necessary dragged in the litigation. Their duty amount has to be secured. They cannot be harassed in this fashion. No civil death should be given to banks without their involvement. The banks money is a public money. The appeals filed by the banks are allowed and impugned order is set-aside against them. The attachment is not sustainable, without application of mind and very harshful. There is no material of record that the banks have any nexus and link wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are that CBI, New Delhi registered FIR dt. 24th August, 2015 which inter alia revealed that ZHC incorporated and registered with ROC Mumbai, having registered office in Mumbai is involved at the offences under Section 120B, 420, 467, 468 471 of IPC and PC Act from 2010 to 2013. This company in association with persons holding positions of public office in connivance with others committed certain criminal Acts. These persons included Shri Ashok Gehlot the then Chief Minister of Rajasthan, Shri Duru Miya, then Health Minister, Government of Rajasthan, the then Director NRHM, Rajasthan and others companies Directors are Sachin pilot, Shri Karti P. Chidambaram, Shri Ravi Krishna, Shri Shaffi Mather and Ms. Sweta Mangal. 6. The respondent case is that after registering the FIR by CBI was it found that the said company was involved in generation of funds to the tune of ₹ 6.44 crores illegally while running 108 Ambulance Service in Rajasthan and the offence are punishable under certain sections of IPC. The case relates to award and execution of contract for operation of Ambulance Service in different Districts of Rajasthan by ZHC between 2010-2013. Under section 17 of PMLA se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entre for Emergency Techniques (ICET) (the Consortium Partner), M/s ZHL was technically qualified for opening of financial bids. It is also pertinent to mention here that only Dr. Subrato Das was authorized to sign on behalf of ICET and the Annual Returns of ICET for the year 2006/07/08 bears an endorsement This statement is confidential and for the sole purpose of presenting the bid for tender no. RITES/Training/ICB-MoR/2009 meaning thereby that this report could not have been used in any other tender except for the specified tender. There is no mention of formation of a consortium with ICET for bidding for the operation of 108 Ambulance Service in the State of Rajasthan, in any of the Board Minutes, minutes of the Extraordinary General Meetings or Annual General meetings of M/s ZHL. The Joint Bidding Agreement dated 09.11.2009 and the letter dated 28.01.2010 for encashment of the bank guarantee created the right of accused company to participate in the bid and to be considered for award of contract and thus, the said documents fall in the category of valuable security . Thus, by way of submission of forged documents, M/s ZHL through its CEO Smt. Sweta Mangal and the Director S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 32,60,99,926/- to M/s ZHL as against total claimed amount of ₹ 41,86,19,930/-. (vi) Investigation revealed that during processing of the bills by NRHM officials, several discrepancies were observed in the bills submitted by M/s ZHL viz. non-verification of the claims, non-submission of supporting records, submission of photocopy of the bills in respect of medical/non-medical consumables, non-submission of records to respective CM HOs for verification and instances of multiple trips in the bills/supporting records submitted by the company. The instance of multiple trips came to the notice of officials of NRHM in the month of June, 2011 while examining the bill for the month of May, 2011 along with the supporting records. Earlier, such instances could not be identified as the requisite record was not available. It revealed that the company was treating each patient attended by the ambulance as individual trip by giving separate ID to every patient attended. Thereafter, while on account payment was continued to be made, an exercise was undertaken by Sh. Lalit Tripathi, the then Consultant, ISC to calculate the excess payment made to M/s ZHL on account of claim of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to ₹ 1.37 lakhs which were not covered by the terms of agreement, non-medical consumables (stationery) amounting to ₹ 1,86,727/- which were not covered under sub-head stationery but got reimbursed by ZHL, operational unit cost of ₹ 94,899/- per ambulance per month, inter alia included the cost of postages and courier services, thus, unauthorized reimbursement of ₹ 1,21,983/- on account of courier services was made to M/s ZHL etc. (x) Investigation also revealed that the company dishonestly and deliberately did not submit the requisite data in the initial period of its operation which was required for the verification of its claims, thereby rendering the Government unable to verify the claims made by the company. In furtherance of criminal conspiracy with the object to cheat the Government, the company and its CEO Smt. Sweta Mangal and Sh. Ravi Krishna, Director deliberately and dishonestly did not get the services verified from the respective CM HOs during the entire centralized period i.e. from July, 2010 to November, 2011, as was required to be done for claiming payment from NRHM, Rajasthan, in line of the decision taken in the meeting dated 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not eligible. (xv) Since M/s ZHL did not submit the record for three months after starting operation of ambulances and complete record for entire centralized period was not available, the exact magnitude of loss suffered due to multiple trips could not be ascertained. It is pertinent to mention that after calculating the excess payment made to M/s ZHL on account of multiple trips during a part of the centralized period, a recovery of ₹ 3.55 crores was affected by NRHM. However, ₹ 60,15,875/- was remaining to be recovered as per CAG calculation on the basis of available material. Therefore, a loss of ₹ 60,15,875/- has been caused by M/s ZHL on account of multiple trips. A loss of ₹ 1,21,983/- on account of courier charges and ₹ 1,37,162/- on account of procurement of articles/materials not covered by the terms of agreement has also been caused by M/s ZHL to Rajasthan Government. PMLA investingation 10. From the investigation held so far, documents obtained from various agencies, examination of witnesses, directors of alleged company M/s ZHL, there are sufficient reasons to believe that the alleged company M/s ZHL and its directors, had h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laundering. 11. The above said Proceeds of crime of ₹ 11,88,62,519/- trace out so far, has been attached vide Provisional Attachment Order No. 02/2017 dated 31.03.2017 and subsequently confirmed by the Adjudicating Authority vide order dated 04.08.2017 in OC no. 769/2017. It is further submitted that in this matter prosecution complaint has also been filed against the accused company namely Ziqitza Health Care Ltd., Sh. Ravi Krishna and Mrs Sweta Mangal. Further investigation in this case under progress. 12. No separate reason to believe were recorded nor those were produced at the stage of search and seizure proceeding which were conducted under section 17(1) of the Act. The same was mandatory to be recorded in writing before such operation. 13. The Provisional Attachment Order was passed by the Joint Director after duly recording of reasons to believe that the properties attached are proceeds of crime and that the same are involved in money laundering. That the reasons for passing provisional attachment Order are duly incorporated in the PAO. It is stated that a bare perusal of the PAO would show that the material available and relied upon, for forming the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0005894 25-Mar-16 1,171,673 04-Apr-17 16943600006167 12-July-16 5,000,000 12-July-17 16943600006170 12-July-16 10,000,000 12-July-17 16943600006205 04-Aug-16 205,000 04-Aug-17 Total 2,13,76,673/- Details of Immovable Property in the name of M/s. ZHL Annexure A- 3:- Immovable Properties Apartment No. 1A in the First Floor in the Second Tower of the proposed building known as High Lands on the land described in scheduled A mentioned below with an undivided share of 273/100000 (including one half part in depth of joints between the ceiling of each apartment and the floor of the apartment above it and internal and external walls between such levels admeasuring area 1233 Sq. ft (Approx.) and one covered car park. Schedule A Property covered by Document no. 2584/06, 2585/06, 2588/06, 2822/07 and 2954/07 of Thrikkakara Sub Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so is intended to override the first proviso. The authorized officer must reach a satisfaction, to be recorded in writing, that there is a reason to believe that if the property involved in money-laundering is not attached immediately, such non-attachment is likely to frustrate proceedings under the PMLA. In other words, even pending the filing of the charge-sheet/challan under Section 173 Cr PC before the criminal court, a provisional attachment can be ordered under the second proviso to Section 5 (1) PMLA can be passed if conditions are complied with otherwise it cannot be invoked. Counsel for the respondent has admitted before us that no separate reason to believe were recorded within the meaning of second proviso of Section 5(1) of the Act. 16. It is submitted on behalf of respondent that on the basis of FIR dated 10.6.2014 the department has made searches on the premises of the accused company/persons namely on Mr. Ravi Krishna, Ms. Sweta Mangal and M/s. Ziqitza Health Care through its Director wherein some documents electronic record was seized. In respect of the said seizure OA was filed before Adjudicating Authority, and retention was allowed. Thereafter on reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices. The first initiative of the Company was in the form of Dial 1298 for Ambulance . Under the 1298 model, the Company provided ambulance services under the pay per use model to patients and a fixed price contracts to hospitals, government bodies and events. (c). In September, 2008, 108 Ambulance Services was launched in Rajasthan by Hon. CM Vasundhra Raje Scindia operated by EMRI. Under the said scheme on January 2009, Government of Rajasthan issued invitations to tenders, mentioning the same technical specifications as mentioned in the MOU between EMRI and GOR. (d). On 07/04/2010, an agreement for operation of ambulances between Appellant No. 1 Company and Government of Rajasthan, after Appellant No. 1 company was found lowest bidder amongst three technically qualified bidders. The Appellant No. 1 Company was awarded the contract for running 108 ambulance services in Rajasthan from 6th April 10 to 6th April 13, at ₹ 94,899/- per ambulance per month which was lower than other two technically qualified bidders. That on 1/07/2010, Appellant s Company successfully took over the operations of 164 ambulanced under 108 service from GVK-EMRI. The aforesaid allotment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of written complaint against Lalit Tripathi, Consultant to NRHM, Rajasthan. The nonpayment of invoices was one of the points raised in the dispute resolution proceeding before the Dispute Resolution Committee. The Dispute Resolution Committee after detailed examination, on 16/11/2011 directed payment of 80% of the invoice was to be released within 15 days of submission every month and 20% was to be released after deduction of penalties if any. However, despite this award by the Dispute Resolution Committee NRHM had not paid the 80% of the invoice. (i). As per the aforesaid payment was not made by NRHM under the aforesaid award, the Company was constrained to move for execution of the award before a Civil Court of competent jurisdiction in Jaipur. While the execution petitions was still pending before the Civil Court, NRHM moved a writ petition before the Hon ble High Court under Article 227 after the Civil Court dismissed their objections filed against the execution petition moved by the Company. (j). It was NRHM on 25.03.2013 which seeked the company consent for extension of the contract for 3 more months. On 4/04/2013, the company gave conditional acceptance to the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on F. No. 228/73/2014-AVD-II dated 30.07.2015, by which the aforesaid FIR was transferred to the central Bureau of Investigation (CBI). That on 24.08.2015, the CBI registered a false and baseless FIR NO. 217015A0011 dated 204.08.2015 alleging the commission of offences under Section 120-B, 420, 467, 468 and 471 of IPC during the period of 2010 to 2013. The allegations in the FIR are as follows:- a. That the company is association with persons holding positions of public office in the Rajasthan state government such as Shri Ashok Gehlot (The then Chief Minister of Rajasthan), Shri Duru Miya (the then Health Minister) Government of Rajasthan. b. The directors of the Company as per the FIR are Shri Sachin Pilot, Shri Karti P. Chidambaram, Shri Ravi Krishna and Ms. Sweta Mangal. c. The company is involved in generation of funds to the tune of ₹ 6.44 crores illegally while running 108 Ambulance Service in Rajasthan. The case relates to award and execution of contract for operation of Ambulance services in different districts of Rajasthan by ZHC between 2010-2013. (n). Solely on the basis of the aforesaid FIR and without application of mind as to whether positive step ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the answering respondents herein. (q). All these documents were supplied by the answering respondent to the Directorate of Enforcement through its Managing Director in reply to the notice of summons which was replied through counsel. The same documents were again asked for and it was pointed out that the same documents have already been supplied. Subsequently after supply of these documents the same documents again have been seized by the Directorate of Enforcement form the office of the Appellant, and most importantly the same are public documents available on the web site of the Registrar of the Companies. (r). On 24.11.2015, the Directorate had taken actions under Section 17 of PMLA Act, 2002 against the Company and its Managing Director, Shri Naresh Jain in Mumbai and seized the files alleging it to be crucial for investigation of the offences of money laundering. The said documents seized are under investigation. The said documents were not at all required to be seized as the same were either supplied by the Company or were already in the public domain. 21. The case of SBI in its appeal Nos. FPA-PMLA-1952/DLI/2017 and FPA-PMLA-2428/DLI/2018 in OC 769/2017 filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit limit of Rs .5 crores and Bank Guarantee of 28.63 crores and there is an outstanding of ₹ 4.79 crores in CC account and ₹ 31.18 crores in BG from the company as on 25.07.2018. The bank being the secured creditor has priority over the rights of the Central or State Government or any other local authority. 21.7 The second proviso of section 5 of the PMLA Act reveals it differently that the rest of the section and has additional checks and balance as the word money laundering is used and no proceeds of crime . Therefore apart from merely suggesting that there exist proceeds of crime, the onus is on the Prosecution/Director of Enforcement to make a prima facie case of money laundering, placement and layering. 21.8 As per the provision of section 8(1) and the proviso to section 8(2) of the PMLA Act, whereby the Adjudicating Authority has to rule whether all or any of their properties referred to in the notice are involved in money laundering or not and the Authority while arriving at any conclusion has to give valid reasons. Hence the ED has to take its decision on its reason to believe which is not produced/placed on record by ED. 21.9 This Tribunal has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r their instructions received from time to time. 22.2. It is further stated that at point of time or at any stage, the Appellant Bank has connived in any manner whatsoever with Respondent No. 2 Company and therefore the provisions of Money Laundering Act, 2002 will neither be applicable nor attracted so far the banking activities and operation of account is concerned. 22.3. It is further stated that Appellant Bank has acted always in a transparent manner under the guidelines of apex regulatory authority (Reserve Bank of India) and none of the officials of the branch has connived or acted in any manner to facilitate any unusual activities while conducting or operating the account by Respondent No. 2 Company. 22.4. The impugned order dated 4.8.2017 has totally ignored the law laid down in the case of C. Chellamuthu Vs. Deputy Director, Prevention of Money Laundering Act, C.M.A. (MD) No. 104 to 110 of 2015 passed by the Madurai Bench of Madras High Court, which puts the onus on complainant that being the Directorate of Enforcement to verify Bank statements, and record as to how the private party did not have sufficient financial capacity to buy the property. 22.5 The impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror in law as well as in fact. 22.10. The Adjudicating Authority has completely failed to appreciate the factum that Respondent No. 2 Company was permitted to open account with the Appellant Bank after observing and verifying all the usual banking norms such as KYC, as stipulated by Reserve Bank of India, the regulator and the highest body controlling the financial portfolio of the country as a whole. 22.11. The Adjudicating Authority has not applied his mind judicially and failed to consider that charges had already been credited in favour of Appellant by making lien on the FDs more specifically mentioned hereinabove and hence, the Applicant Bank is a secured creditor. The Adjudicating Authority has simply vast its end by taking view that a charge created by a private agreement would be subject to a statutory charge as it has been held in Jitendranath Singh Vs. OL (2013) SCC 462. 23. The matter came to be listed before the Tribunal on 13.09.2017 whereby the Tribunal issued notice and interalia passed the order granting Status Quo. (a). The matter came to be listed again on 22.09.2017 whereby time was granted to the respondents to file their replies. Interim orders were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason to believe in order to invoke the second proviso of Section 5(1). The same is necessary in order to dispose of the above mentioned matters. One final opportunity is granted to both the authorities to produce the original records on the next date of hearing. The Investigating Officer shall also remain present in person on the next date and explain about the non-compliance of the orders passed by this Tribunal. He should file an Affidavit in this regard by the next date...... (i). On 26.02.2019 the Respondent for the first time produced the record as directed by this Tribunal, however the affidavit to be filed by the Respondent ED in terms of the order dated 18.01.2019, was not filed. (j). The appeal was argued on behalf of the Appellants. Counsel for the Respondent admitted on 02.04.2019 that no separate reason to believe were ever recorded hence not been presented. 24. It is pained to notice, how the orders of this tribunal are not been complied despite of directions. The orders are breached left and right without giving any respect. There is no valid justification is given not to comply the orders during hearing of appeals. 25. It is as essential ingredients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ingredients are pre-requisite for forming an opinion based on reason to believe . Reasons to believe 29. Counsel appearing on behalf of ED submits that it is not necessary to record the reasons to believe prior to passing the provisional attachment order. It can only be recorded in respect of provisional attachment order itself. No separate reason to belief were recorded by invoking second proviso which can only be invoked in emergency situation. 30. Copy of the same is not to be served to aggrieved party even at the stage of arguments in the main appeal or any subsequent proceedings. These cannot be shown to the appellant. 31 . The guidelines of recording the reason to believe have been laid down in various judgements of Apex Court and High Courts. It is held time and again by the said Hon ble Courts directing that the approach should be not the subjective satisfaction of the officer concerned. Such power given to the officer concerned is not an arbitrary power and has to be exercised in accordance with the restraints imposed by law. The belief must be that of an honest and reasonable person based upon reasonable grounds, the officer concerned may act on direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple of natural justice. The reason to believe must be recorded in terms of para 22 of my order. Prosecution Complaint 34. It is stated that the respondent has filed a prosecution complaint a copy of which was not produced nor any case number was provided. This Tribunal directed the counsel for the Respondent ED to file fresh affidavit with an advanced copy to the counsel for the Appellant, disclosing the date of filing the prosecution complaint as well as the date of removal of objections before the special court. Counsel for the respondent stated that the prosecution complaint was only filed on 18.07.2018 and admitted that the same was only registered in 2019 i.e. after one year. It was stated that it took time to remove the objection. It appears that the objection were removed, after the start of arguments in the appeal. The first order for retention of documents and equipment was passed on 10.05.2016. The prosecution complaint was not filed for more than two years. The confirmation order of properties were passed on 4.8.2017. The prosecution complaint was allegedly filed on 18.07.2018 i.e. after about 11 months. The objections were not removed for one year raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r respondent argument. Learned counsel is not present. A letter was circulated by the counsel on 23rd May, 2019 stating that she is not keeping fit and the matter be adjourned for two weeks. Learned counsel for the appellant states that at least I.O. should have been present alongwith the record. He states that his client is suffering from great hardship. Therefore these appeals be taken up on an urgent basis. The matter has already been argued on behalf of the appellant. In the interest of justice, list these appeals on 03rd July, 2019. No further adjournments will be granted for the said purposes. Interim order to continue. I.O. shall remain present along with the records on the next date of hearing . (f). Even after the abovementioned order having being passed by this Tribunal and repeated adjournments having being taken by the Respondent, the counsel for the Respondent was again not present for hearing on 03.07.2019. The Investigating officer of the said case was also not present. The order was reserved, the respondent was allowed to file a copy of the written submissions within two weeks. Copy of prosecution complaint was filed alongwith the written submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2002. (d) Only property directly involved in money laundering comes in the sweep of 2nd proviso. 38. It is submitted on behalf of appellants that the order of provisional attachment dated 31.03.2017, does not show any independent application of mind apart from doing a cut, copy paste of the investigation carried out by the Central Bureau of Investigation and fails on account of any independent application of mind or in giving reasoning with respect to the above stated points and fails as a non-reasoned order not satisfying the ingredients required to sustain an order passed under the 2nd proviso of subsection 1 of section 5 of the prevention of money laundering act. Second proviso to Sub-Section 1 of Section 5 is being reproduced herein below; Provided further that, notwithstanding anything contained in {first proviso}, any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorized by him for the purposes of this section has reason to believe (the reasons for a such belief to be recorded in writing) , on the basis of material in his possession, that if such property involvedin mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The doctrine of Proportionality and reasonableness which are high Constitutional Mandates have to be followed. It has been held that the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Fairness and reasonableness of trial as also maintenance of the individual dignity of the accused must be uppermost in the court's mind. The discharge of this presumption is on a much easier scale of evidence that being the balance of Proof . In the judgment in the case of Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748 the Hon ble Supreme court has held in the following terms; . 60. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of the doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 18,18,19,529/- (Eighteen crores eighteen lacs nineteen thousand five twenty nine) as per the pending execution proceedings before the Additional District Judge, 10, Jaipur district. (c) No dividend has ever been paid to the shareholders as evident from the audited balance sheet of the Appellant company. Hence all the Money which came from the Government remained in the system, hence no case even of prima facie layering, placement or projecting money in any other form which it was not of, does not arise at all and even prima facie case is not made out. (d) no intermingling of funds could be substantiated by the ED. No documents were filed or any serious arguments were advanced. (e) the provisional attachment order or any order below record no ground for urgency provision to be invoked or makes any ground of layering or placement at all leave alone a prima facie case. (f) No case made out at all that any property is untraceable or can go untraceable. (g) Even after accepting in the provisional attachment order that ED have examined the Appellant s Bank account, ED has not been able to even make out a Prima Facie case of changing the nature of money or any layering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment order. It is thus most respectfully submitted by the respondent No. 1, that the same reasoning would apply here as the provisional attachment order fails to give any reasoning and deserves to be set aside on this count itself. Further the money on loan from any financial institution cannot be said to be forming part of proceeds of crime from any angle. 46. The ED has failed to give any findings as to whether the property in question is ascribable to money laundering or not. The Authority is required to show that was substantially probable cause to form opinion that the property under attachment is proceeds of crime . The ED has failed to establish that the decision is well thought, well reasoned and has been issued on the basis of the material gathered during the course of investigation carried out under the provisions of PMLA. ECIR was registered on the basis of FIR filed by CBI. Second proviso was invoked but no reason to believe were recorded as prescribed in the second proviso. The impugned order was passed on the basis of charge-sheet filed later on. There is valid investigation and independent investigation by increasing the figures. Even otherwise, if figure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in connection with proceeds of crime, hence the question of bank s involvement does not arise as they are third party and the bank cannot be asked to wait till the trial/proceeding are over. 51. The Adjudicating Authority failed to appreciate that the Scheme of Prevention of Money Laundering Act clearly provides the mechanism whereby the innocent parties can approach the Adjudicating Authority for the purposes of release of properties which have been attached in terms of the provisions of Section 5 of the Act. This can be seen by reading Section 8(1) and the proviso to Section 8(2) of the Act whereby Adjudicating Authority has to rule whether all or any of the properties referred to in the notice are involved in money laundering or not and the authority while arriving at any conclusion has to give valid reasons. 52. The Adjudicating Authority has failed to establish a prima facie case against the appellant banks. There are no proofs on records that the bank is parking the proceeds of crime. It is incorrect to allege that the FDRs will be frustrated if they are not provisionally attached. The bank has exclusive charge over the margin money and the same is safely kept with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole case of the Repondent till today proceeded on the figure of 23.9 Crore Approx, which in reality as on today is nothing but an imaginary figure, without any basis. The same figures are yet to be established at the time of trial and final arguments. 55. It is a matter of record that on the basis of CBI allegation, the respondent has passed the PAO. CBI has discussed each and every document in relation to the case in hand and has come to conclusion that the total loss is ₹ 62,75,020/- and it is pertinent to mention on the basis of same material the respondent says that loss is about 23.92 crores. The findings of respondent have to be tested at the time of trial. 56. How the contrary figures have been mentioned by the respondent as per its own investigation of the same allegation. Without expressing any opinion in this regard, we are of the view that all these contrary figures of two agencies are to be tested in evidence. The banks are innocent parties. One is failed to understand after filing the reply, the banks are un-necessary dragged in the litigation. Their duty amount has to be secured. They cannot be harassed in this fashion. No civil death should be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of multiple trips. The multiple trips used to enhance the trip achievement of M/s ZHL and reduced the proportionate deduction, if any, due to short fall in achievement in trip target as provided in the RFP. An amount of ₹ 3,30,26,322/- was calculated as excess payment made to the company during the months of April to August, 2011 on account of multiple trips shown by the company in its supporting records. Later on, after further exercise, an amount of ₹ 4,15,88,560/- was calculated by the Comptroller Auditor General (CAG) in its report as excess payment made to M/s ZHL due to exaggerated claims made by the company (containing multiple trips). The amount so calculated was calculated on the basis of available record and does not cover the entire period as the requisite data for the entire period was not available so as to enable NRHM to calculate exact magnitude of loss suffered on this account. (iii) After calculation of amount to be recovered on account of excess payment due to multiple trips and the salary of the staff deputed on ambulances during 01-15 July, 2010, a letter dated 25.01.2012 was sent to the CM HOs of Alwar, Udaipur, Jodhpur, Bharatpur, B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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