TMI Blog2023 (1) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of the PMLA. 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 proceed in a speedy manner and go through the various steps provided under Section 8 of PMLA - An application for cross-examination filed before the Adjudicating Authority would be an integral part of the process of adjudication and would not be alien to Section 8 proceedings, when considered in this above statutory scheme and context. In view of the scheme of the PMLA and the provisions of Section 26 of the Act as also the decision of the ld. Division Bench in ARUN KUMAR MISHRA AND M/S AJANTA MERCHANTS PVT LTD VERSUS UNION OF INDIA ANR AND THE DIRECTORATE OF ENFORCEMENT [ 2014 (3) TMI 137 - DELHI HIGH COURT] , this Court is of the opinion that the Petitioner ought to be relegated to the Appellate Tribunal for assailing the impugned order dated 13th December 2022. Cross-examination under PMLA - HELD THAT:- The right to cross-examination may be invoked by any person who wishes to cross-examine a witness. There has to be a reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Zoheb Hossain, Mr. Vivek Gurnani, Ms. Sejal Aneja, Advocates. (M: 9910794077) Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. 2. The present writ petition challenges the impugned order dated 13th December, 2022 passed by the Adjudicating Authority (PMLA), by which the application of the Petitioner - Dr. U. S. Awasthi seeking permission to cross-examine the three persons, namely, Sh. Rajiv Saxena, Sh. Amarendra Dhari Singh @ A.D. Singh, and Sh. Sushil Kumar Pachisia, has been rejected with the following observations: - 12. Moreover, when a person is charged with serious offences of money-laundering affecting the financial status of the nation, cannot be heard to complain about violation of principles of natural 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept of cross-examination is not alien to PMLA proceedings. The Petitioner has filed the application on 25th November, 2022 at the initial stage itself, within a month of the issuance of the show cause notice dated 25th October, 2022. Thus, it is not the intention of the Petitioner to, in any manner, delay the proceedings. In proceedings before the Adjudicating Authority, it cannot be argued that cross-examination would not be permitted in any manner. He has further argued that there has been a retraction by one of the witnesses in respect of statements given before the Income Tax Department. Thus, in certain situations, the persons affected ought to be allowed to avail of the right of cross-examination. 6. According to Mr. Krishnan, ld. Sr. Counsel, in terms of the judgment 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing for the ED, submits that the order passed by the Adjudicating Authority is nothing but an order in exercise of the powers under Section 8 of the PMLA. Thus, the same is appealable. He disputes the fact that the Adjudicating Authority is strictly bound by the provisions of CPC. Reliance is placed upon Section 6(15) of the Act, as also, Section 11, to argue that the Adjudicating Authority may be vested with the power of Civil Courts, but the same need not be mandatorily followed and it can be governed by its own procedure. 10. It is further submitted by Mr. Hossain, ld. Counsel that the ld. Division Bench of this Court in LPA 99/2014 titled Arun Kumar Mishra v. Union of India and Anr, was dealing with a similar situation of rejection of right to cross-examination, and therein, 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 Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of filing of the appeal. Thus, appeals under this provision lie against an order of the Adjudicating Authority under this Act . 15. The Prevention of Money-Laundering (Appeal) Rules, 2005 define order to read as under:- 2. Definitions.-(1) In these rules, unless the context otherwise requires,- (g) order means an order passed by the Director under sub-section (2) of section 13 of the Act or by the Adjudicating Authority- under section 8 of the Act , as the case may be; The Petitioner s contention is that in terms of the Prevention of Money-Laundering (Appeal) Rules, 2005, only orders under Section 13(2) and Section 8 of PMLA are appealable to the Appellate Tribunal. As per the Petitioner, an order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion would, thus, be orders under this Act . It is not to say that against each such order an appeal would be liable to be entertained. It is for the Appellate Tribunal to decide as to whether an appeal ought to be entertained at all. Construing Rule 2 of the Prevention of Money-Laundering (Appeal) Rules, 2005 to the contrary would, in fact, mean that parallel proceedings would continue in writ petitions against procedural orders and before the Appellate Tribunal, once the final order is passed. This could lead to conflicting orders and lack of uniformity and consistency in dealing with the procedures to be followed by the Adjudicating Authority and other authorities under the PMLA. 22. In Arun Kumar Mishra (supra), the ld. Division Bench while dealing with a similar order of the Adjudicating Authority rejecting a request for cross-examination observed as under: 11. We 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when a final order adversely affecting the party is passed, that the said party can be said to be having any grievance. The Supreme Court held that the writ jurisdiction being discretionary, should not ordinarily be exercised by quashing a show cause notice. 23. Thus, in view of the scheme of the PMLA and the provisions of Section 26 of the Act as also the decision of the ld. Division Bench in Arun Kumar Mishra (supra), this Court is of the opinion that the Petitioner ought to be relegated to the Appellate Tribunal for assailing the impugned order dated 13th December 2022. Cross-examination under PMLA: 24. Before parting with the present petition, the Court notes the disconcerting language used in the impugned order, while rejecting the application for cross-examination and terming the same as noise being caused . 25. This Court wishes to emphasise that cross-examination is an integral 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of the said adjudication However, whenever deemed necessary, the opportunity of cross-examination ought to be afforded. It cannot be presumed that the said request is to delay or scuttle. The request for cross examination must be examined seriously and not in a routine manner. The language used by the Adjudicating Authority, in the impugned order, leaves a lot to be desired. 28. In view of the above discussion, the Petitioner is relegated to the Appellate Tribunal under PMLA for agitating the challenge to the impugned order. Since the entire process of adjudication is to be concluded within 180 days, the present writ petition is directed to be transmitted by the Registry to the Appellate Tribunal, so that the same can be taken up in an expeditious manner. Considering that it is a short application seeking permission to cross examine, the Appellate Tribunal shall decide the challenge to the said order or the application for 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 retract ..... X X X X Extracts X X X X X X X X Extracts X X X X
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