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TMI Blog2023 (1) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice on the basis of own self-serving perception that he/she being victimized by State action. If such complaint is to be taken note of at every stage of action taken by the authorities concerned, it will not sub serve the due process of law set in motion against the alleged offenders under the statute. It is always open the accused of the alleged offenders to make more noise about the so-called violation of principles of natural justice and such noise can be heard quite often in these type of matters with a view to drag the proceedings and scuttle the efforts of the authorities concerned to pin down the offenders to the crime in furtherance of the provisions of the Act. Ultimately it boils down to the fact that interference by this Authority on the ground of violation of principles of natural justice at every stage for the asking, would ultimately end in stifling the efforts of the authorities in implementing the provisions of the PMLA for which it is enacted. 13. Therefore, in the aforesaid facts and circumstance, I am of the view that no meaningful purpose will be served by cross examination of the persons sought and the request is not acceded to for the reasons discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Hon'ble Supreme Court in K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43, the right of cross-examination is an inevitable part of fair play in any judicial or quasi-judicial proceedings. 7. Reference is made by Mr. Krishnan, ld. Sr. Counsel to Section 11 of the PMLA which vests powers of the Civil Courts in the Adjudicating Authority. On a query from the Court, as to whether the impugned order would be appealable to the Appellate Tribunal, he submits that under Section 26 of the PMLA it is only 'an order under this Act' which is appealable, and not a procedural order. Reference is made to the Prevention of Money-Laundering (Appeal) Rules, 2005 which define an 'order' under Rule 2(g) as an order passed by the Director under Section 13(2) of the Act or an order passed by the Adjudicating Authority under Section 8 of the Act, and no other order. Therefore, the impugned order in the present case is not an appealable order. 8. He submits that, in any event, following the principles laid down in Whirlpool Corporation v. Registrar of Trademarks, Mumbai & Ors. (1998) 8 SCC 1, in case of the violation of principles of natural justice, or any such similar issue, the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Division Bench has observed that the Petitioners herein would be capable of availing their statutory remedies, once the final order of the Adjudicating Authority is passed. 11. He further argues that the Appellate Tribunal entertains appeals against the orders rejecting requests for cross-examination. He relies upon the decision dated 19th December, 2022 passed by the Appellate Tribunal in Abbeys Realcon LLP v. Directorate of Enforcement PMLA, FPA-PMLA-5526/DLI/2017 & FPA-PMLA-5227/DLI/2017, in support of this submission. 12. Finally, he relies upon the recent order of this Court in Sanjay Jain (IN JC) v. Directorate of Enforcement, W.P.(C) 17784/2022, wherein the Court permitted even a non-party to file an appeal before the Appellate Tribunal on the ground that a person who is affected by an order would be a 'person aggrieved'. Thus, as per Mr. Hossain, the Petitioner ought to be relegated to the alternative remedy. 13. The Court has perused the impugned order passed by the Adjudicating Authority in the present case. At the outset, this Court deals with the issue of maintainability. Maintainability: 14. The provision governing Appeals under the PMLA is Section 26, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed in an application seeking cross-examination is merely a procedural order, and not one under either of the provisions specified in Section 26. 16. The powers of the Adjudicating Authority, under Section 8 of PMLA, are quite vast. The said provision stipulates the various steps to be taken, prior to the passing of the final order by the Adjudicating Authority. The Adjudicating Authority has to consider the show cause notice, the reply of the notice/s, hear the aggrieved person, as also, the Director or any officer authorised on his behalf, take into account all relevant materials placed before it, and thereafter, by an order record a finding whether any or all of the property is involved in money laundering under Section 8(2) of the Act. After arriving at a conclusion under Section 8(2), the Adjudicating Authority is to decide the question as to whether the attachment has to be confirmed or modified or detached under Section 8(3) of the PMLA. 17. The entire process has to be concluded within 180 days from the date of issuance of the show cause notice, provisional attachment order under Section 5 of the PMLA. Thus, the proceedings before the Adjudicating Authority have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have further enquired from the senior counsel for the appellant that even if the appellants are right in their contention of having a right to cross-examine the persons whose oral testimony is intended to be used against the appellants and even if the Adjudicating Authority is wrongly depriving the appellants of the said right, is it not open to the appellants to, if at all aggrieved by the orders of the Adjudicating Authority, to take up the said aspect in appeal under Section 26 of the Act against the said orders and which right of the appellants has been protected in the impugned order by the learned Single Judge also. 12. The senior counsel for the appellant, though not controverting the aforesaid legal position, contends that if the appellants have a right in law to cross-examine the witnesses whose testimonies are intended to be used against the appellants, why should this Court not interfere at this stage itself instead of allowing the Adjudicating Authority to proceed on a futile exercise and which will only result in multiplicity of proceedings. 13. We are unable to agree. The Adjudicating Authority is currently seized of and in seisin of the complaints. We, at this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntegral feature of due process and reasonable opportunity. In K.L. Tripathi (supra), the Supreme Court has observed as under: "32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement" 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination, within a period of two weeks from the date of first listing. 29. In the present case, though not spelt out, during the course of hearing before this Court, one of the reasons for seeking cross examination is due to the alleged retraction by one particular witness of the statements made by him to the Income Tax Department. This submission shall be considered by the Tribunal. 30. It is clarified that the period during which the present writ petition remained pending before this Court as also the period of two weeks granted to the Appellate Tribunal to adjudicate the appeal shall also stand excluded from the 180 days period to be computed under the Proviso to Section 5 of the PMLA. 31. Needless to add, the observations of this Court shall not bind the Appellate Tribunal which shall decide the appeal on its own merits. 32. List before the Appellate Tribunal on 18th January, 2023. 33. With these observations, the writ petition, along with all pending applications, if any, is disposed of. 34. Copy of this order along with the electronic record be sent by the Registry to the Registrar, Appellate Tribunal for Forfeited Property (ATFP), through email [Email: registr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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