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TMI Blog2024 (6) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority to the petitioner under section 8 of PMLA pursuant to filing of the Original Complaint. 1.1 The applicant/ petitioner no 1/M/s Revati Cements Pvt. Ltd. in application under disposal stated that the impugned proceedings against the applicant/petitioner no 1 are a gross misuse and blatant abuse of the provisions of the PMLA and allegations made against the applicant/petitioner no 1 are false and unsubstantiated and therefore, the impugned proceedings are liable to be quashed. The respondent no 3 vide Provisional Attachment Order No. 02/2019 (INSZO) dated 23.09.2019 provisionally attached an immovable property i.e. land admeasuring 26.76 hectares situated at Village Saha, Tehsil Raghurajnagar, District Satna (M.P.) having a total value of Rs. 4,68,60,710/- owned by the applicant/petitioner no 1 and believed to have been acquired out of the proceeds of crime. The respondent no 3 filed the impugned Original Complaint OC 1208 of 2019 dated 14.10.2019 before the Adjudicating Authority in terms of Section 5 (5) of the PMLA and thereafter the impugned notice to show cause dated 22.10.2019 was issued by the Adjudicating Authority to the applicant/petitioner no 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Thesgora-B/Rudrapuri coal block. 1.3 CBI initiated a Preliminary Enquiry No. 219 2012 E 0002 dated 01.06.2012 on the reference of Central Vigilance Commission (CVC) vide Letter dated 012/COL/020/1716 dated 13.04.2012 against the officials of the Ministry of Coal for alleged corruption in allocation of coal blocks to private companies during the period 2006-09. FIR No RC No. 219 2014 (E) 0014 dated 30.07.2014 under sections 120B read with section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 was registered against various accused including the petitioner no 1 at C.B.I/EO-I, New Delhi. The respondent no 2/ED on 30.12.2014 registered ECIR No. 03/INSZO/2014 under Section 3/4 of PMLA construing the offences under Sections 420/120-B IPC as Scheduled Offences. The Charge Sheet was filed on 10.08.2017 against 6 accused persons including the petitioner no 1 under sections 420 & 120-B IPC and section 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988 in the Court of Special Judge at New Delhi. The respondent no 3 subsequently initiated attachment proceedings as detailed hereinabove. 1.4 The applicant/petitioner no 1 due to Provisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted as per provisions laid down under PMLA and total proceeds of crime of Rs. 49.2 crores have been quantified during the investigation. Accordingly, the properties worth of Rs. 49.2 crores equivalent to the proceeds of crime have been attached vide two provisional attachment orders. 2.1 The Provisional Attachment Order No. 01/2019 dated 28.03.2019 pertains to assets worth Rs. 28,96,58,795/- derived out of the proceeds of crime which have been attached. The land admeasuring 339.94 acres situated at District Satna having registered sale value of Rs. 13,34,58,985/- and construction work thereon worth Rs. 15,61,99,810/- directly linked with the proceeds of crime have been attached under section 5 PMLA vide Provisional Attachment Order dated 28.03.2019. The Original Complaint bearing No. 1132/2019 as per section 5 (5) PMLA was filed on 26.04.2019 before Adjudicating Authority for adjudication. The Adjudicating Authority issued a notice to show cause to the petitioner no 1 and others as per section 8 (1) PMLA. The petitioner no 1 filed a Writ Petition bearing no W.P.(C) 7026/2019 along with stay application before this Hon'ble Court wherein vide order dated 09.07.2019 proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession to the Adjudicating Authority. Section 5 (5) further provides that the Director or any other officer who provisionally attaches any property under sub-section (1) shall within a period of thirty days from such attachment file a complaint stating the facts of such attachment before the Adjudicating Authority. Section 8 deals with Adjudication. Section 8 (1) provides that the Adjudicating Authority on receipt of a complaint under section 5 (5) and if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached section 5 (1). Section (3) provides that where the Adjudicating Authority decides that any property is involved in money-laundering then Adjudicating Authority shall by an order in writing confirm the attachment of the property under section 5 (1). Section 25 of PMLA deals with Appellate Tribunal. Section 26 (1) provides that the Director or any person aggrieved by an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,58,505/- and deals with Rs. 19,52,845/- in the bank account No. 058111023776 of M/s TCPL with Dena Bank and land admeasuring 26.76 hectares situated at Village Saha, Tehsil Raghurajnagar, District Satna worth Rs. 4,68,60,710/- which were acquired out of proceeds of crime and were directly linked with the proceeds of crime and personal property of Umesh Shahra, Director & beneficial owner of the petitioner no 1 to the extent of Rs. 15,34,44,950/- as equivalent value of proceeds of crime. The Original Complaint bearing No. 1208/2019 as per section 5 (5) PMLA was filed on 14.10.2019 before Adjudicating Authority and the Adjudicating Authority issued a notice to show cause to the petitioner no 1 and others as per section 8 (1) PMLA. The Adjudicating Authority vide orders dated 2.03.2020 and 23.11.2020 has confirmed the provisional attachment order and attachment of the properties attached under section 5 (1). The land admeasuring 26.76 hectares situated at Village Saha, Tehsil Raghurajnagar, District Satna worth Rs. 4,68,60,710/- which is subject matter of present application as per schedule of Provisional Attachment Order No. 02/2019 dated 23.09.2019 was mentioned as directly linked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.02.2021, 29.09.2021 and 08.11.2021. The applicant/petitioners do not have any other efficacious remedy and as such present writ Petition is maintainable. The Adjudicating Authority and the Appellate Tribunal do not have the power to release or substitute the attached property as per the provisions enumerated in the PMLA. Section 11 of PMLA vests the Adjudicating Authority with powers vested in a civil court under the Code of Civil Procedure, 1908. The counsel for the applicant/petitioners to substantiate arguments referred order dated 16.09.2022 passed by the Supreme Court in Properties & Investment Pvt. Ltd & another V. Union of India & others, SLP No. 9335 of 2022 and decision delivered by the Division Bench of Telangana High Court in T Gowrinadha Reddy V Deputy Director, Directorate of Enforcement. The petitioner in present application is seeking substitution of land admeasuring 26.76 hectares situated at Village Saha, Tehsil Raghurajnagar, District Satna (M.P.) having a total value of Rs. 4,68,60,710/-. The respondent no 2 vide impugned Provisional Attachment Order also attached immovable property admeasuring 18.928 hectares situated at village Sejwaya, Tehsil & District Dh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 3 are based in State of Madhya Pradesh and referred order dated 02.03.2022 passed in M/s Faith Cricket Club V Directorate Of Enforcement, W.P. (C) 3603/2022, CM APPL* 10600/2022 & 10601/2022. It is correct that land admeasuring 26.76 hectares which was attached vide impugned Provisional Attachment Order is situated at Village Saha, Tehsil Raghurajnagar, District Satna (M.P.) and the impugned Provisional Attachment Order 02/2019 dated 23.09.2019 was appearing to be issued by Palash Bhoyar, Deputy Director, Directorate of Enforcement at Indore. However the Original Complaint bearing No. 1208/2019 as per section 5 (5) PMLA was filed on 14.10.2019 before Adjudicating Authority at Delhi and the Adjudicating Authority also issued a notice to show cause to the petitioner no 1 and others as per section 8 (1) PMLA at Delhi. CBI registered FIR bearing RC No 219 2014 (E) 0014 dated 30.07.2014 at Delhi and trial arising out of said FIR is pending in Special Court at Delhi. The respondent no 2/ED on 30.12.2014 also registered ECIR No. 03/INSZO/2014 at Delhi and charge sheet was filed at Delhi and trial is also pending in Delhi. Accordingly it cannot be said that the courts at Delhi do not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o release or substitute the attached property. It was further stated that the applicant/petitioners has submitted a representation before the authorized officer for seeking substitution of the attached property which was not permitted by the authorized officer. 10.1 Section 5 of PMLA deals with attachment of the properties involved in money laundering. Section 8 deals with Adjudication and provides procedure for adjudication. Section 8 (1) deals with issuance of notice after receipt of a complaint under section 5 (5) PMLA to the concerned person. Section 8(2) provides hearing to the aggrieved person and the Director after receipt of reply to the notice. The Adjudicating Authority after taking into account all relevant materials by an order records a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering. Section 5 as such does not empower the Adjudicating Authority for release or substitution of the attached property. Section 26 deals with Appeal to the Appellate Tribunal. Section 26 (1) provides filing of Appeal by the Director or any person aggrieved by an order made by the Adjudicating Authority. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds of crime can be substituted by any other security including bank guarantee or fixed deposit. 11.1 In the present case, the respondent no 2/ED during investigation of ECIR No. 03/INSZO/2014 quantified properties/assets worth Rs. 49.2 crores as proceeds of crime or equivalent to proceeds of crime which were ordered to be attached vide two Provisional Attachment Orders No 01/2019 and 02/2019. The Provisional Attachment Order No. 02/2019 dated 23.09.2019 also includes attachment of land admeasuring 26.76 hectares situated at Village Saha, Tehsil Raghurajnagar, District Satna worth Rs. 4,68,60,710/- and is directly linked with the proceeds of crime. The Adjudicating Authority issued a notice to show cause to the petitioner no 1 and others as per section 8 (1) PMLA in pursuance of Original Complaint bearing No.1208/2019 dated 14.10.2019 as per section 5 (5) PMLA. The Adjudicating Authority vide orders dated 2.03.2020 and 23.11.2020 has confirmed the Provisional Attachment Order and attachment of the properties attached under section 5 (1). The applicant/petitioners have applied for release of the attached land with the authorized officer which was denied vide the communications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Meaning thereby, the order of attachment shall be substituted by the aforesaid fixed deposit. However, the same shall be without prejudice to the rights and contentions of the respective parties in the proceedings to be initiated before the Appellate Authority. The Appellate Authority to deal with and consider the proceedings before it absolutely in accordance with law and on its own merits and without in any way being influenced by the present interim arrangement. 11.2.1 The Supreme Court in Veerbhadrappa G.E. V State of Karnataka & others, Writ Petition (Criminal) No 124 of 2023 in Interlocutory Application No 61135 of 2023 vide order dated 21.04.2023 passed the direction as under:- To secure the ends of justice, in the case at hands, we also direct that in case the petitioner furnishes a fixed deposit receipt of a nationalized bank for a sum of Rs. 1,72,40,951/- with a lien in favour of the CBI and the enforcement directorate within a period of two weeks from today, the attachment of all the properties vide provisional attachment order dated 29.06.2018 by the enforcement directorate shall be lifted. The said fixed deposit receipt would be subject to the final outcome of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties to provide bank guarantee equivalent to Rs. 192 crores. The Order passed by the Division Bench of Telangana High Court was affirmed by the Supreme Court vide Order dated 14.07.2023 passed in Special Leave Petition (Criminal) no. 22285/2023 titled as Enforcement Directorate V Y. S. Bharathi Reddy. It was observed as under:- In the impugned orders, a finding has been recorded that the property which was attached, was acquired from the proceeds of the crime. This finding is not disputed by the petitioner. Moreover, it is not the case of the petitioner that value of the attached property mentioned in the impugned orders is incorrect. In view of this factual position, we decline to entertain these Special Leave Petitions and the same are accordingly disposed of. 11.4 The different Coordinate Benches of High Court of Delhi also passed similar orders. Vide order dated 15.10.2020 passed in Jai Durga Industries & another V Union of India, W.P.(C) 6314/2020, this court allowed release of attached immoveable property i.e. flat from attachment on deposition of equivalent amount by way of Fixed Deposit with the Registrar General with certain conditions. This court Santur Builders Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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