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TMI Blog2023 (8) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority. The reply to it was to be filed on 18th May, 2023. On the receipt of the copy of the notice, reply to it was filed along with an application to seek cross examination of Ms. Kumari Purnima Assistant Director, Directorate of Enforcement. The said application has been dismissed ignoring the valuable right of the Appellant to cross examine the witness. The right of cross examination is not only the part of procedural law but of the principle of natural justice. The Adjudicating was under an obligation to apply principle of natural justice as per the mandate of the Act of 2002 and The Adjudicating Authority (Procedure) Regulations, 2013 (in short the Regulation of 2013). The specific reference to Section 6(15) of the Act of 2002 and Regulation 21 of 2013 have been given. As per Section 6(15) of the Act of 2002 the Adjudicating Authority is not bound by the procedure laid down in the code of civil procedure but would be guided by the principle of natural justice. Regulation 21 of the Adjudicating Authority (Procedure) Regulations, 2013 provides for examination of witness. However, in the instant case, the impugned order has been passed by the Adjudicating Authority in ig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails of transactions undertaken with Pincon Group of Companies/Directors. (d) Subsequently, between 25th August 2021 to 26th May 2022, the Respondent issued 6 additional Summons(s)/Letter(s) to the Appellant seeking physical appearance of the Appellant along with voluminous documents/information from time to time. A bare perusal of the multiple Summon(s)/Letter(s) issued by the Respondent seeking (i) appearance, (ii) documents, (iii) information and then again, (iv) additional information, would elucidate the one-point agenda of the Respondent to harass the Appellant through its abrasive conduct. The Respondent has continuously sought the same information/documents from the Appellant one multiple occasions. However, the Appellant being a law-abiding citizen, has complied with all such Summon(s)/Letter(s) issued by the Respondent by not only undergoing long hours of examination at the office of the Respondent on 21st September, 2021, but also by providing all information/documents sought for by the Respondent in a bonafide manner from time to time when such information/documents were sought. True copies of all summon(s) and letter(s) issued by the Respondent and subsequent repli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 16th November 2021 and vide letter dated 16th November 2021 intimated the Liquidator about such remittance, which was duly acknowledged by the Liquidator, and sent the same by an email dated 16th November 2021. Following which, vide a letter dated 9th December, 2021, the Appellant informed the Respondent authority about the remittance of Rs. 70,00,000/- made by him into the bank account of Pincon Spirit Ltd. (now in Liquidation) in terms of the direction of Mr. Binay Kumar Singhania, Liquidator. Copies of e-mails dated 15th November 2021, 3 emails dated 16th November 2021 and a letter dated 9th December 2021 are annexed herewith and collectively marked as Annexure A/6 (Colly.). (g) Even after receiving the aforesaid letter dated 9th December 2021, the Respondent has continuously harassed the Appellant by issuing fresh Summon(s). It is stated that the Appellant supplied all information and documents explaining the transaction between the Appellant, M/s. AQUILAW and the said Pincon Spirit Ltd. (now in Liquidation) in relation to the fees received against professional legal services. Therefore, there was no further scope for the Respondent to summon the Appellant in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant, at about 7:15/7:30 am, more than fifteen officers from the Respondent's office and innumerable armed CAPF officers stormed into the Appellant's residence. As stated earlier, the Appellant resides with his wife and minor child at his home. The Appellant was informed that the officers had come to conduct search and seizure at his residence in connection with the subject ECIR and was directed to extend cooperation in the process. The officers thereafter started the process of search and seizure at about 7:30 am. During the said process, the officers snatched away all the electronic devices that were in the Appellant's and his wife's possession. They also snatched away the electronic devices of the Appellant's minor child and domestic help(s). The entire process continued for about 30 long hours during which the Respondent found no incriminating material against the Appellant or M/s AQUILAW. Thus, the Respondent failed to seize any proceeds of crime and/or any material that was wrongly suspected to be found at the Appellant's residence in connection with the subject ECIR. (j) The Appellant states that since the Respondent and its officers could not recover anything duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal in the case of Dr. U.S. Awasthi (Supra). The reference of Section of 6(15) of the Act of 2002 and Regulation 21 of the Adjudicating Authority (Procedure) Regulations, 2013 were given therein. The relevant paras of the judgment are quoted hereunder:- "25. Section 6(15) makes it clear that Adjudicating Authority would not be bound by the procedures laid down by the Code of Civil Procedure but shall be guided by the principles of natural justice. It would be open for the Adjudicating Authority to regulate its own procedure subject to other provision of Act. Regulation 21 of the Adjudicating Authority (Procedure) Regulation 2013 quoted above however provides for application of Code of Civil Procedure for issuance of commission for examination of witnesses and documents etc. 26. As per Regulation 21, the Adjudicating Authority has power to issue commission for examination of witnesses and documents etc. Regulation 21 does not talk about the cross examination of witnesses and otherwise it is provided under the Evidence Act and not under CPC. The Evidence Act has not been made applicable however right of cross examination is recognized as part of principle of natural jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss examination is part of principle of natural justice but not in all the circumstances therefore we are not required to elaborately discuss the judgment referred by the learned Counsel for the Appellant. However we record our clarification that a chance of cross examination cannot be sought as a rule and in all the circumstances, rather it can be in a given case. 30. In the case of Shri K.L. Tripathi v/s. State Bank of India & Ors, Supra the Apex Court has referred to the basic concept of fair play in administrative, judicial or quasi-judicial proceedings. Para 32 & 33 are quoted hereunder:- "32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept 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 fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of a person charged with the offence of money- laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money laundering. In view of the above, we could not satisfy ourselves to allow the prayer of cross examination of a person whose statement has not even been recorded either before the Adjudicating Authority or in the process of the search and seizure. The cross examination of witnesses necessarily need examination-in-chief which is missing in this case. Therefore, we are unable to accept the prayer of the Appellant to allow cross examination of Kumari Purnima, Assistant Director, Directorate of Enforcement. This order would however not construe to endorse action of the Respondent rather it would be decided by the Adjudicating Authority. The Appellant would be having liberty to raise all the issues to draw attention of the Adjudicating Authority which may include the status of the Appellant and his wife as a lawyer and his engagement as a lawyer by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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