Partly allowed

FPA-PMLA-1476/MUM/2016 of Kingfisher Airlines Ltd. v/s The Deputy Director, Directorate of Enforcement, Mumbai

ATFP14 Oct 2016FPA-PMLA-1476/MUM/2016

Case brief

AI extract

What is this about?

The Tribunal held that appellants in PMLA attachment confirmation proceedings are entitled to complete copies of statements and documents relied upon by the complainant to ensure natural justice and a fair opportunity to defend, rejecting the argument that existing possession or ongoing investigations justifies non-disclosure.

What did the court decide?

Impugned orders dated 8.9.2016 set aside; Respondent directed to supply copies of relevant witness statements and tendered documents to appellants within 10 days.

FPA-PMLA-1476/MUM/2016 of Kingfisher Airlines Ltd. v/s The Deputy… — Money Laundering | ATFP (2016)

¶1

APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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Date of Decision: 14^th October, 2016

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FPA-PMLA-1474/MUM/2016

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United Breweries (Holdings) Ltd.	…	Appellant
Versus
The Deputy Director,	…	Respondent
Directorate of Enforcement, Mumbai

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Advocates/Authorized Representatives who appeared

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For the appellant	:	Sh. Dayan Krishnan, Sr. Advocate
		Sh. Ankur Saigal, Advocate Sh. Munjaal Bhatt, Advocate
For the respondent	:	Shri Rajeev Awasthi, Advocate

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AND

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FPA-PMLA-1475/MUM/2016

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Dr. Vijay Mallya … Appellant Versus The Deputy Director, … Respondent Directorate of Enforcement, Mumbai

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Advocates/Authorized Representatives who appeared

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For the appellant : Sh. Guru Krishan Kumar, Sr. Advocate Sh. Ankur Saigal, Advocate Sh. Munjaal Bhatt, Advocate For the respondent : Shri Rajeev Awasthi, Advocate

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AND

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FPA-PMLA-1476/MUM/2016

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Kingfisher Airlines Ltd.	…	Appellant
Versus
The Deputy Director,	…	Respondent
Directorate of Enforcement, Mumbai

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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Page 1 of 29

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Advocates/Authorized Representatives who appeared

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For the appellant :	Sh. Swadeep Singh, Advocate Sh. Ankur Saigal, Advocate Sh. Munjaal Bhatt, Advocate
For the respondent :	Shri Rajeev Awasthi, Advocate
AND
FPA-PMLA-1477/MUM/2016
Endeavour Estates Pvt. Ltd.	… Appellant
Versus
The Deputy Director, Directorate of Enforcement, Mumbai	… Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Ms. Radhika Gautam, Advocate For the respondent : Shri Rajeev Awasthi, Advocate AND

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FPA-PMLA-1478/MUM/2016 P.E. Data Centre Resources Pvt. Ltd. … Appellant Versus The Deputy Director, … Respondent Directorate of Enforcement, Mumbai

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Nakul Mehta, Advocate Sh. Faraz Maqbool Advocate
For the respondent	: Shri Rajeev Awasthi, Advocate
CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SHRI KAUSHAL SRIVASTAVA	: MEMBER
SHRI ANAND KISHORE	: MEMBER

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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Page 2 of 29

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JUGEMENT JUSTICE MANMOHAN SINGH : CHAIRMAN

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FPA-PMLA-1474/MUM/2016, FPA-PMLA-1475/MUM/2016, FPA-PMLA1476/MUM/2016, FPA-PMLA-1477/MUM/2016 & FPA-PMLA1478/MUM/2016

¶28

The above mentioned five appeals shall be disposed of by common order having been filed against the same order dated 6.9.2016 as the question involved in these appeals is identical. The facts are being taking from FPAPMLA-1474/MUM/2016.

¶29

In the said appeal, the Complaint was filed under Section 5(5) of the Prevention of Money Laundering Act ("PMLA") by the Respondent before the Adjudicating Authority in respect of Provisional Attachment Order No. 11/2016 dated 11.06.2016 passed by him for adjudication under Section 8 thereof and sought confirmation of provisional attachment of certain properties of the Appellant. On 11.07.2016 the Adjudicating Authority issued Show Cause Notice to the Appellants, under Section 8 of the PMLA. It was stated at the bottom of the notice that:-

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“Notice along with Relied upon documents (RUD) shall be served by the complainant directly to all defendants as per law. Only Advance notice has been sent to defendants”.

¶31

The Advance notice referred above was received on 18.07.2016. However, the copy of complaint and the relied upon documents were served by the complainant only on 2.8.2016 upon the Appellant.

¶32

As the documents supplied along with the complaint were incomplete, the appellant filed an application on 23.8.2016 seeking supply of complete set of documents relied upon in the complaint. The same was opposed by the complainant by filing a reply on 6.9.2016. The Adjudicating Authority rejected the application vide its order dated 8.9.2016 which is under challenge in the present appeal.

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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Page 3 of 29

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The Appellant stated in the application that in the absence of those documents which were not supplied by the Respondent, the right of the Appellant to file a proper reply to the Show Cause Notice would be prejudiced. It was further stated that the complainant has relied upon statements of various persons recorded under Section 50 of the PMLA by officials of the Directorate of Enforcement ("DoE") but the statements supplied to the Appellant are incomplete and other documents shown/produced while such statements were being recorded, have also not been supplied. Further only statements recorded on certain dates of a person have been disclosed while the statements of the same person recorded on subsequent dates have been withheld by the DoE. The Appellant gave the details in paragraph 4 of its application illustrating as to how the DoE has not supplied the complete set of statements and other referred documents.

¶36

The following instances on behalf of the appellant which read as under:-

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(a) Statement was recorded of Ms. Mythili Balasubramanian on 11^th March, 2016 (filed as Annexure-VI) with the complaint. The said statement in answer to Question-3 refers to letter dated 8.3.2016 given by lDBI furnishing details of applications by KAL. However, copy of the letter dated 8.3.2016 has not been supplied. Similarly the delegation of powers of lDBI is stated to be attached in answer to Question NO.8 but the same is not supplied. Similarly in answer to Questio-10 copy of RBI dispensation letters dated 27.8.2010, 13.9.2010 and 22.10.2010 are stated to be attached but have not been supplied. It also appears that in answer to various questions namely Question No, 13, 21, 23, 24, 25 details were answered to be furnished on 14.3.2016 and 15.3.2016. It is not clear as to whether any further statements were recorded on 14.3.2016 and 15.3.2016 as also as to whether any further documents in response to the questions asked on 11.3.2016 were given. The complainant should therefore, be directed to disclose whether the statement as Annexure-VI is the only statement of Ms. Mythili Balasubramanian or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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Page 4 of 29

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(b) Statement was recorded of Mr. Ami Raghunathan on 11^th March, 2016 and 12^th March, 2016 (filed as Annexure- VII) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure- VII is the total statement of Mr. Ami Raghunathan or statements on other dates were also recorded. The complainant should therefore, be directed to disclose whether the statement as Annexure- VII is the only statement of Mr. Ami Raghunathan or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(c ) Statement was recorded of Mr. A. K. Ravindranath Nedungadi on 12lh March, 2016 and 5.5.2016 (filed as AnnexureVIII) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-VIII is the total statement of Mr. AK Ravindranath Nedungadi or statements on other dates were also recorded. Various documents/details were stated to be provided on 15.3.2016. The statement itself notes that Mr. Nedungadi was to appear again on 14.3.2016. However, neither any statement of 14.3.2016 or 15.3.2016 or details supplied on 15.3.2016 form part of the relied upon documents. The statement dated 5.5.2016 in reference to answer to question-7 and 8 relies upon Annexure-A which is part of the statement but has not been supplied. Similarly Question 27 refer to Annexure-B and Question 28 refer to Annexure-C however, these annexures have also not been supplied. The complainant should therefore, be directed to disclose whether the statement as Annexure- VIII is the only statement of Mr. A.K. Ravindranath Nedungadi or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(d) Statement was recorded of Mr. Yogesh Agarwal on 18th March, 2016, 23^rd March, 2016 and 29th March, 2016 (filed as Annexure-IX) with the complaint, The said statement shows that various documents have been referred on the basis of which the FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 5 of

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statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether AnnexureIX is the total statement of Mr. Yogesh Agarwal. Answer to Question-4 of statement dated 18.3.2016 snows that Mr. Agarwal refers to a note dated 4.11.2009 which ties not been supplied. Similarly answer to unnumbered question on 23.3.2016 refers to minutes of meeting dated 27.11.2009 of the EC of the Board of lDBI which has not been supplied. Similarly answer to Question NO.3 refers to an appraisal note signed by Mr. R.S. Sridhar which has not been supplied. The complainant should therefore, be directed to disclose whether the statement as Annexure-IX is the only statement of Mr. Yogesh Agarwal or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(e) Statement was recorded of Mr. S.P. Govindan Nair on 15^th April, 2016 (filed as Annexure-X) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-X is the total statement of Mr. S.P. Govindan Nair. The complainant should therefore, be directed to disclose whether the statement as Annexure-X is the only statement of Mr. S. P. Govindan Nair or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(f) Statement was recorded of Mr. P S. Sashidharan on 1SthApril, 2016 (filed as Annexure-XI) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XI is the total statement of Mr. P. S. Sashidharan. The complainant should therefore, be directed to disclose whether the statement as Annexure- XI is the only statement of Mr. P. S. Sashidharan or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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(g) Statement was recorded of Mr. V. Raju on 18th April, 2016 (filed as Annexure-XII) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents. have been supplied. Further it has not been clarified whether Annexure-XII is the total statement of Mr. V. Raju. The complainant should therefore, be directed to disclose whether the statement as Annexure-XII is the only statement of Mr. V. Raju or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(h) Statement was recorded of Mr. Chandrashekhara Reddy Vinta on 16^th April, 2016, 7^th June, 2016 and (filed as AnnexureXIII) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XIII is the total statement of Mr. Chandrashekhara Reddy Vinta. The statement of Mr. Vinta dated 28.4.2016 refers in response to Question NO.7 or 11 refers to spiral booklets being supplied by him which is not part of statement. The complainant should therefore, be directed to disclose whether the statement as Annexure-XIII is the only statement of Mr. Chandrashekhara Reddy Vinta or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are a/so required to be supplied.

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(i) Statement was recorded of Mr. Satvinderpal Singh Gulati on 29^th April, 2016 (filed as Annexure-XIV) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XIV is the total statement of Mr. Satvinderpal Singh Gulati. The statement of Mr. Gulati dated 29.4.2016 refers to documents in answers to various questions including Question No.1 0 or 11 which is not part of statement. The complainant should therefore, be directed to disclose whether the statement as Annexure-XIV is the only statement of Mr. Satvinderpal Singh Gulati or there were other statements recorded FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 7 of

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in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(j) Statement was recorded of Mr. Anil Pisharody on 4hMay,2016 (filed as Annexure-XV) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XV is the total statement of Mr. Anil Pisharody. The complainant should therefore, be directed to disclose whether the statement as Annexure-XV is the only statement of Mr Anil Pisharody or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(k) Statement was recorded of Ms. Darshana Kadakia on 3fd May, 2016 (filed as Annexure-XVI) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XVI is the total statement of Ms. Darshana Kadakia. The complainant should therefore, be directed to disclose whether the statement as Annexure-XVI is the only statement of Ms. Darshana Kadakia or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(l) Statement was recorded of Mr. R. S. Sridhar on 13th April, 2016 and 28th June, 2016 (filed as Annexure-XVII) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XVII is the total statement of Mr. R.S. Sridhar. For example in statement dated 13.4.2016 in respect of Question-6 memorandum submitted to Credit Committee has been referred and in answer to Question-7 order dated 4.1.2009 of CMD has been referred but the same is not part of the statement. In statement dated 28.6.2016 Question-1 relates to Corporate Credit Policy 2009, Question-2 refer to

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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appraisal memorandum of M/s. KAL before the Credit Committee which have not supplied with the statement. The complainant should therefore, be directed to disclose whether the statement as Annexure-XVII is the only statement of Mr. R. S. Sridhar or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(m) Statement was recorded of Mr. Srirangam Ranganthan Gopalan on 2nd June, 2016 (filed as Annexure-XVIII) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XVIII is the total statement of Mr. Srirangam Ranganthan Gopalan. The complainant should therefore, be directed to disclose whether the statement as Annexure-XVIII is the only statement of Mr. Srirangam Ranganthan Gopalan or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(n) Statement was recorded of Mr. Manoj Kumar on 211d June, 2016 (filed as Annexure-XIX) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XIX is the total statement of Mr. Manoj Kumar. The complainant should therefore, be directed to disclose whether the statement as Annexure-XIX is the only statement of Mr. Mana} Kumar or there were other statements recorded in respect of investigating into ECIRl03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.

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(o) Statement was recorded of Mr. Gunaseelan Thangaraj on 11^th June, 2016 (filed as Annexure-XX) with the complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has not been clarified whether Annexure-XX is the total statement of Mr.

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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Gunaseelan Thangaraj. The complainant should therefore, be directed to disclose whether the statement as Annexure-XX is the only statement of Mr. Gunaseelan Thangaraj or there were other statements recorded in respect of investigating into ECIRl03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.”

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It is stated in the application that the statement of witnesses were admittedly recorded on various dates but only part of the same was supplied and remaining was withheld. The statements referred/produced various documents which were the part of the statements, are not supplied and without that the complaint was incomplete and proper reply to the show cause notice could not be given and their right to defend themselves was prejudiced.

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In reply, it is stated on behalf of respondent that Mr.Nedungadi, was the President & CFO of M/s UB Group and a Director of M/s Kingfisher Airlines Ltd. It is submitted that M/s UB Group consists of M/s UBHL Ltd., which is the parent company with various other companies under its umbrella including M/s Kingfisher Airlines Ltd. Shri Vijay Mallya, is the Group Chairman, Shri Ravi Nedungadi is the group President & CFO and Shri A. Raghunathan (superannuated) is a Consultant/Advisor of M/s UBHL. Thus, it is evident that Mr. Vijay Mallya is privy to all the documents of M/s KAL & M/s UBHL.

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Regarding M/s P.E. Data Centre Resources Pvt. Ltd., it is submitted that the said company doesn't have any operation and is a dummy company, formed by Shri Anil Pisharody, who works for Mr. Vijay Mallya, and is Director in various companies controlled directly/indirectly by Mr. Vijay Mallya and/or UB Group. The said company was formed only for the purpose of purchasing certain assets of M/s United Spirits Ltd., the finance for which was provided by another

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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company of Mr. Vijay Mallya by the name of M/s Kamsco Industries, by way of pledging of shares of M/s USL (United Spirits Ltd.).

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It is submitted that M/s Endeavour Estates Pvt. Ltd., was another company of M/s UB Group and the directors are dummy acting at the behest of M/s UB Group. The said company was formed for purchasing certain land which was then sold at the instance of M/s UB Group.

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It is averred that all the defendants/appellants herein are interconnected and inter- related and are privy to all the documents which have been submitted by them/their employees during the course of investigation. All the documents so submitted are directly and/or indirectly routed through M/s UB Group. Thus, it would be incorrect to state that the documents supplied to them along with the Complaint and PAO are incomplete.

¶74

It is also submitted that the preliminary investigation conducted under Prevention of Money Laundering Act, 2002, in the subject complaint is limited to the Provisional Attachment of the properties as mentioned in the Original Complaint. All the documents which are relevant and connected to the subject case have been supplied and most of the documents referred to, are within the knowledge and possession of the appellants. It is also alleged that all the persons who have been interrogated and examined are the employees of M/s UB Group and whenever any documents were called, it was they who have brought the documents and submitted. Therefore, documents that are being demanded by these entities are in their possession.

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It is submitted by the respondent that the statement of witnesses was recorded on various dates. As further attachments may follow, other relevant statement(s) would be used. Thus, discretion has been rightly exercised not to disclose the entire statement(s) of witnesses but supply copies of the statement(s) which were relied upon in the present P.A.O and original complaint. The documents referred to and sought for by the appellant were irrelevant for the purpose of the present attachment. The investigation is

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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ongoing and disclosure of further information at this stage will jeopardise the further investigations and future attachment(s) if any.

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It is submitted that documents mentioned in various statements and listed by the defendants/appellants herein as having not been supplied to them, are enumerated and dealt in the reply, the details of which are given as under:-

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I. MS. MYTHILI BALASUBRAMANI :- (EXECUTIVE DIRECTOR OF IDBI BANK)

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S.No.	Description of documents	Action
01 ( 41 of RUD)	Q.3 refers to letter dtd.8.3.2016, furnishing details of applications by M/s KAL	These loan applications are documents of M/s KAL who have submitted to IDBI at the time of applying for loan. Thus, all the documents are in the possession of M/s KAL & such, there is no need to supply the same again.
02 (Page 43 of RUD)	Q.8 Sanctioning limit of various committees for loans viz. Delegation of power	The details of the DOP has already been mentioned in the statement. Further, the same is not relevant. However, a copy of the extract is enclosed.
03 (Page	Q.10 Copy of RBI dispensation letters dated	The same is irrelevant. However, copy of the RBI letters are enclosed.
44 of RUD)	27.8.2010, 13.09.2010 & 22.10.2010
04	Q. 13 Personal Guarantee of Vijay Mallya.	It was submitted by Vijay Mallya to IDBI & is readily available with
	Q.21- Collateral security of 12 hire purchase aircrafts. Q. 23- Utilization of funds/loan of IDBI given of KAL & Utilization certificate.	them. The documents were submitted by M/s KAL to IDBI. The same are readily available with them. The bank statements are with M/s KAL and the utilization certificate
	Q. 24- Funds diverted by KAL.	are issued by their Chartered Accountant. Investigation is going on in the subject case. There is non- co-

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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		operation on the part of Mr.	Vijay
	Q.25- Details of restructuring process by banks.	Mallya, and hence, parting o information at this stage jeopardize the investigation. The information are available M/s KAL	f the will with
05	Any further statement	No further statements have	been
	recorded of Ms. Mythili	recorded.
	Balasubramanium on
	14.03.16 & 15.03.16

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II. Shri A. Raghunathan :- Employee of Mr. Vijay Mallya, Ex-CFO of M/s KAL & Presently Advisor of M/s UBHL

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S.No.	Description of documents	Action
01	Only two statements are referred and not other statements.	The present complaint is limited to attachment of certain properties. Hence, all the statements relevant to the said attachments were enclosed. The investigation process is still going on and further attachments may also follow and the relevant statements required, will be used. This is only for confirmation of the provisionally attached property . Further, it is the discretion/prerogative of the investigating agency of decide as to which statements to be referred or otherwise.
02	KAL	Said company is a public limited
(Page		company. Further, it was
No. 57		submitted by the company & it
& 58 of RUD)		must be available with them.
	Q20-List of Free Tickets (FOC)	The list was provided by M/s KAL and same are available with them.
	Q21 Flight manifesto of corporate jet of	The same has not be provided by M/s KAL inspite of repeated
		reminder, which shows their non

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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		co-operation ap these details are the same can b them	proac of M e ob	h. Furt /s KAL tained f	her, and rom
03(	Q7- Details of Payments made	The information	was	provided	by
Page	to group companies.	M/s KAL and	the	same	are
No. 60 & 63 of RUD)		available with the	m.
	Q8 Details of payments received from group	The information M/s KAL and available with the	was the m.	provided same	by are
	Q11 Details of payments to Formula -1	The information M/s KAL and available with the	was the m.	provided same	by are
	Q14 Details of Payments made to Toyota Team	The information M/s KAL and available with the	was the m.	provided same	by are
	Q16 Details of total number of aircraft owned & leased	The information M/s KAL and available with the	was the m.	provided same	by are
	Q27 Copy of end use certificate	The information M/s KAL and available with the	was the m.	provided same	by are

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III. RAVI NEDUNGADI:- EMPLOYEE OF MR. VIJAY MALLYA, GROUP PRESIDENT & CFO OF M/S UB GROUP AND ONE OF THE DIRECTOR OF M/S KAL.

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Sr. No.	Description of documents	Action
01	Only two statements are	The present complaint is limited to
	referred and not other	attachment of certain properties.
	statements.	Hence, all the statements relevant
		to the said attachments were
		enclosed. The investigation process
		is still going on and further
		attachments may also follow and
		the relevant statements required
		will be used. This is only for

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FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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		confirmation of the Provisionally attached property. Further, it is the discretion/prerogative of the investigating agency to decide as to which statements to be referred or otherwise.
02	Q17-Details of overseas companies	Information should be available with M/s UB Group – UBHL & KAL. The same is irrelevant as far as the current provisional attachment is concerned. The investigation is going on & revealing the sensitive information may hamper the investigation.
	Q18-Details of payments made to Vijay Mallya from UB Group.	Information should be available with M/s UB Group –UBHL & KAL. The same is irrelevant as far as the current Provisional Attachment is concerned. The investigation is going on & revealing the sensitive information may hamer the investigation.
	Q19- Details of shares of UBHL which are not under encumbrances	The information are available with M/s UBHL as the same were provided by them. Further, the details are not relevant to the present PAO.
	Q20- Details of funds	Information available with UB
	transferred from UB group to KAL	Group, who had provided the details to us.
	Q21- Copies of balance sheets of UB Group companies	The information are available with them.
	Q22- Details of India Head of Diageo	Information available with UB Group. Further, it is not relevant to the present PAO.
03	He was to appear on 14.03.16. Whether statement recorded.	The present complaint is limited to attachment of certain properties. Hence, all the statements relevant to the said case are enclosed. The investigation process is still going

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		on and further attachments may
		also follow and the relevant statements required, will be used. This is only for confirmation of the Provisionally attached property.
		Further, it is the discretion/prerogative of the investigating agency to be referred or otherwise. This is only for confirmation of the Provisionally attached property.
04 [ Page No. 74 to 80]	Q1. Details of properties held by M/s UBHL	Details were provided by UBHL & the same are available with them
	Q3. New Valuation report	The report are available with UBHL/UB Group
	Q7. Details of Special purpose Vehicles (Paper companies) – Annexure A	Details were provided by UBHL & the same are available with them
	Q8. Infusion of funds in M/s KAL by various group companies	Details were provided by UBHL & the same are available with them
	Q27. Details of holdings of Mr. Vijay Mallya & his family members	Details were provided by UBHL & the same are available with them
	Q28. Assets of M/s USL- Annexure C	Details were provided by UBHL & the same are available with them

¶98

IV. SHRI YOGESH AGARWAL :- EX-CMD OF IDBI BANK LTD.

¶99

Sr. No.	Description of documents	Action
01	Q1: Any further statement	Statement relevant to this
[Page	recorded	complaint has been supplied
No. 81
to
02	Q4:- Note dated 04.11.09 for	The same is within the knowledge
	releasing of 200 crores	of M/s KAL & is irrelevant
03	Q2:- Copy of Minutes of	The same are irrelevant. It related
[Page	meeting dated 27.11.09 of the	to criteria of sanctioning of loan by
89	EC of the Board	IDBI

¶100

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¶102

04	Q:- Copy of recall letter dated	Letter is available with M/s KAL as
[Page 90	13.05.2010	they have received this letter
	Q:- Credit Appraisal Report	The same is irrelevant to the present PAO
05	Q3:- Refers to the Appraisal	The same is irrelevant to the
[Page 93]	note of R. Sridhar	present PAO

¶103

V. MR. SUDERSANAN PILLAI :- ONE OF THE DUMMY DIRECTOR OF THE COMPANY CONTROLLED BY VIJAY MALLYA.

¶104

Sr. No.	Description of documents	Action
01[Page	Q1:- Copies of IT Returns	Documents available with UB
98]		Group as the company is managed from the office of UB Group
	Details of all statements &	Only one statement dated
	documents etc.	15.04.2016 has been recorded & all the documents are maintained by Mr. Anil Pisharody from the
		Group office of UB Group. Hence, all the documents are available with M/s UBHL

¶105

VI. SHRI P.S. SASHIDHARAN :- ONE OF THE DUMMY DIRECTOR OF THE COMPANY CONTROLLED BY VIJAY MALLYA

¶106

Sr. No.	Details of Documents	Action
01	Details of all statements	& Only one statement dated
	documents etc.	15.04.2016 has been recorded &
		all the documents are maintained
		by Mr. Anil Pisharody from the
		Group office of UB Group.

¶107

VII. MR. RAJU :- EMPLOYEE OF MR. VIJAY MALLYA, & PRESENTLY RETAINER WITH M/S UB GROUP

¶108

Sr. NO.	Description of Documents	Action taken
01	Q.5. Details of the Directors of	Only one st	atement	has been
[Page	the companies	recorded &	the	documents
106 to		provided are	available	with UB

¶109

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¶111

108]		Group.
	Q17. Various documents from page no. 1 to 80 are supplied	All these documents are provided by UB. Groups & are available
	but not part of documents given to the Noticee.	with them. The said person was working with UB Group &
		thereafter, on superannuation was working as a retainer for M/s UB
		Group.

¶112

VIII. MR. CHANDRASHEKHARA REDDY VINTA :- ONE OF THE DIRECTOR OF THE COMPANIES THROUGH WHICH MONEY HAS BEEN ROUTED

¶113

Sr. No.	Description of Documents	Action taken
01	Q. No. 4 of the statement dtd.	The details are not relevant to the
[Page	28.04.2016, date of	present Provisional Attachment
No. to 119] 02 [Page 120 to	incorporation of M/s Redect & M/s Margosa. Q.No.7 refers to details of amounts borrowed by Margosa. Q.No. 8 refers to loans of Redect Q.No. 11 refers to details of bank A/cs of Redect, Margosa & Star Investment. Q. No. 12. Refers to conversion of OCDs of KAL & sale of the same. Q.2. Details of shareholder & resignation letter in r/o M/s EEPL. Q.3 Details of Acebin Tech & its shareholders. Q.5:- Bank statement of EEPL. Q.6:- Copy of balance sheet of EEPL.	Order. The details are not relevant to the present Provisional Attachment Order.

¶114

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Page 18 of 29

¶116

IX. MR. SATVINDER SINGH GULATI:- HEAD CORPORATE AFFARIS OF M/S LKP FINANCE LTD.

¶117

Sr. No.	Description of Documents	Action taken
01	Q.4 Details of dealings with group company of UB Group Q.8:- Details of loans taken from other entities.	The details are not relevant to the present Provisional Attachment Order.
	Q.10:- Details of OCDs & equity shares purchased/sold of M/s KAL
	Q14. Refers to 3 letters,
	however none of these letters has been supplied. Q15. Refers to copies of ledger A/cs & balance sheet of LKP Finance Ltd.

¶118

X. MR. ANIL PISHARODY:- EMPLOYEE OF MR. VIJAY MALLYA, & ONE OF THE DIRECTORS OF VARIOUS COMPANIES WHICH ARE DIRECTLY/INDIRECTLY CONTROLLED BY VIJAY MALLYA

¶119

Sr. No.	Description of Documents	Action taken
01 [130	The said statement is dated	Only those statements which are
TO	whereas Mr. Pisharody was	relevant to this OC have been
135]	examined by DoE on various	relied upon. The investigation is
	dates, however DoE has only	still progress and parting with
	disclosed part of the	other information will hamper the
	statements and not full	investigation.
	statement of Mr. Pisharody

¶120

XI. MS. DARSHANA KADAKIA:- PARTNER OF GRANT THORNTON INDIA LTD.

¶121

Sr. No.	Description of Documents	Action taken
01	Q.7. Deed of partnership &	The details are not relevant in the
[Page	names of the partners of M/s	instant Provisional Attachment
No. 136 to	Grant Thornton Q.8. Details of brand	Order. The same was conducted at

¶122

FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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¶124

II. MR	valuation done by M/s GTIL. Q.11 Refers to brand valuation in service sector or aviation sector Q.12 Refers to Brand Valuation Report of M/s KAL. Q.17 Refers to details of remuneration received from M/s KAL for conducting brand valuation Q18. Refers to been associated with audit or any other financial services of UB. . R.S. SHRIDHAR:- GM OF IDBI	the instance of M/s KAL & they have all the documents/details with them. Further, the details are irrelevant. Only one statement of the said person has been recorded. BANK LTD.
Sr. No.	Description of Documents	Action taken
01[Page 145 to	Q.6 Memorandum submitted to Credit Committee has been referred but the same is not supplied Q.7 proposal, recommendation of sanction, order dated 04.11.2009 of CMD has been referred but the same is not supplied Q.8 details were answered to be furnished. It is not clear as to whether documents in response to the question were furnished or supplementary statement was recorded	The documents are irrelevant to the subject PAO and no statement was recorded on the same
02 [Page 153	Q.1 refers to Corporate Credit Policy, 2009 but the same is not supplied Q.2 refers to appraisal memorandum of M/s KAL before the Credit Committee which is not supplied with the statement	Explanation has been given. But no documents have been tendered. No documents have been tendered only explanation has been given. All the documents relevant to the case has been supplied.

¶125

XII. MR. R.S. SHRIDHAR:- GM OF IDBI BANK LTD.

¶126

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¶128

It was also submitted by the Complainant in the reply that the persons whose statements have been recorded are the employees of Mr.Vijay Mallya, directly or indirectly working in the same Group of Companies under the umbrella of UB Group and M/s UB Holding Limited and all the documents tendered during the recording of the statement(s) are privy to the Group Companies which are headed/controlled by Mr. Vijay Mallya.

¶129

In the course of arguments advanced before the Adjudicating Authority on 8.09.2016, it was submitted on behalf of all Appellant that they were ready and willing to pay the Respondent the cost of photocopying the documents and hence, no prejudice would be caused to the Respondent.

¶130

It is submitted by Mr. Rajeev Awasthi, learned advocate appearing on behalf of respondent that copies of all the relied upon documents mentioned in the Original Complaint have been provided to the appellant. The petitioner has asked for various other documents/statements which are:-

¶131

(a) Either not mentioned at all in the Original Complaint (OC), or

¶132

(b) not relied upon in the OC; and

¶133

¶134

Most of said documents have been submitted by the appellant himself or its employee or the companies controlled (directly or indirectly) by the Vijay Mallaya.

¶135

It is also submitted by Mr. Rajeev Awasthi that the appellant is deliberately adopting a delaying tactics to scuttle the judicial proceedings with a view to extend the use of the proceeds of crime for a longer period as the purpose of attachment is to deprive the offender from enjoying the proceeds of crime. As per the mandate of the Act if the Provisional Attachment order (P.A.O.) is not confirmed within 180 days of the date of the order (P.A.O.) by the Adjudicating Authority, it will loose its validity.

¶136

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¶137

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¶138

We have perused the case records and considered the rival contentions. It is well settled that the question of compliance with the principles of natural justice in a proceeding under an Act is to be seen in accordance with the scheme of the Act. We may take note of the framework of attachment and adjudication under the PMLA. Thus, in terms of the provisions of Section 5 of the Act, if the attaching authority, on the basis of material in his possession, has reason to believe (such reasons to be recorded in writing) that the conditions as prescribed under section 5(1) of the Act are met in respect of certain property(s), the related property(s) can be attached by him, in the manner prescribed, for a period not exceeding 180 days from the date of the order. Pertinently, this stage does not provide for issue of notice to the concerned parties. However, in terms of Section 5(2) of the Act, a copy of the attachment order alongwith the material in his possession as referred in Section 5(1) ibid is required to be forwarded immediately to the Adjudicating Authority (AA, for short) and in terms of Section 5(5) ibid, the attaching authority is required to file a complaint [hereinafter referred to as Original Complaint (O.C.,for short)] with the Adjudicating Authority within 30 days of the attachment seeking confirmation of the Provisional Attachment Order (P.A.O.) order.

¶139

Further, in terms of Section 8(1) of the PMLA on receipt of the original complaint(O.C.) under Section 5(5) of the Act, if the Adjudicating Authority has reason to believe that a person has committed an offence of Money Laundering as defined in Section 3 of the Act or is in possession of proceeds of crime, he is required to issue notice of not less than 30 days on such person calling upon him to explain the sources of the income, earning or assets out of which or by means of which he has acquired the property attached. Thus, the stage of confirmation of the P.A.O. by the Adjudicating Authority is the first stage under the PMLA where issue of a notice to the concerned person(s) is provided. Section 8(2) of the PMLA provides that adjudication is required be done by the

¶140

FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016

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¶142

adjudicating authority taking note of all the relevant material placed before him on record.

¶143

It is subsequent to issue of notice under Section 8(1) of the Act, and prior to submission of the reply to the notice that the appellant has sought the copies of the complete documents as referred above. Their contention is that in the absence of the complete documents, their right of giving an effective reply to the charges against them is prejudiced. Reference is also made to Section 6(15) of the Act providing that the Adjudicating authority though not bound by the Code of Civil Procedure shall be guided by the principles of natural justice.

¶144

The framework of attachment and adjudication provided under the PMLA provides for issue of a Notice at the stage of adjudication. As a natural corollary, the evidence/statements/documents etc on which the charges are based and which the appellants are required to meet are also to be supplied to the persons required to show cause. Here, it is also required to note that the adjudication proceedings under the PMLA are interlocutory in nature for deciding the safe keep of the attached property(s) till the completion of the criminal proceedings in the competent Court with regard to the offence of money laundering and therefore these are on a separate footing from criminal proceedings. Also by virtue of Section 71 of the Act, PMLA is a special law overriding above other laws.

¶145

It is submitted by the learned senior counsel appearing on behalf of two of the appellants that the Adjudicating Authority has while rejecting the application failed to consider the scheme of the aforesaid provisions and has further failed to take into consideration the aspects of compliance with natural justice.

¶146

In the present case, the provisions of the Act do not suggest nondisclosure of the documents in the possession of the competent authority/complainant. It is the admitted position that the present case is not a case where merely an inquiry is pending. The stage of the case is for confirmation of attachment of the properties listed in the complaint which as FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 23 of 29

¶147

seen above, has grave consequences for the appellant, though for the period till the completion of the criminal trial for the offence of the money laundering.

¶148

It is settled rule of law that impartial and fair opportunity in a trial are Constitutional as well as human right. It is an undeniable duty of the Court to ensure that nothing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may tantamount to jeopardizing the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to. No Court shall allow breach of these principles. Similarly, the right of disclosure in any enquiry, domestic or otherwise, or in any trial, or other proceedings, which are capable of affecting rights, interests and liberties of a citizen, may have either a statutory genesis, including a provision in the Constitution, or may be based on well recognized principles of natural justice, mandatory requirements of a fair trial.

¶149

The extract of the judgment delivered by Lord Denning in the case of Kanda v. Govt. of Malaya, 1962 AC 322 is reproduced here as under:

¶150

“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.”

¶151

A Division Bench of the Hon'ble Bombay High Court in Writ Petition No. 1703 of 2013 (Lalit Kumar Modi vs. Special Director, DoE & Anr.) pronounced judgement on 6.2.2014. This judgement follows the Supreme Court judgement in Natwar Singh VS. Director of Enforcement (2010) 13 SCC 255, and in effect holds that (A) a noticee is entitled to information or documents relied upon in the show cause notice of the Adjudicating Authority, meaning thereby information or documents which are the basis on which the show cause notice is issued, (B) every document relied upon in the show cause notice ought to be furnished to the noticee, (C) if the show cause notice does not refer to any FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 24 of 29

¶152

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¶153

document except the complaint, then to decide whether a document was relied upon it is necessary to read the complaint itself as the complaint has in effect been incorporated in the show cause notice, and (D) merely because there is an Annexure listing the documents relied upon, it would not follow that the documents referred to in the rest of the show cause notice are not relied upon.

¶154

Based on the aforesaid judgement of the Hon'ble Bombay High Court, on a mere perusal of the complaint, and in particular paragraphs 3.1 to 3.22 thereof, it is evident that there are numerous documents and statements referred to therein which form the basis of the complaint and as listed in the Annexure thereto which are necessarily required to be furnished to the Appellant to enable the Appellant to effectively deal with and respond to the complaint and show cause notice.

¶155

One of the arguments of Mr. Awasthi is that these companies owned and controlled by Mr. Vijay Mallaya and the documents which are now asked for were provided by officer of UB Group when called for recording their statement under Section 50 of the PMLA. The investigation against Mr. Vijay Mallaya and above stated company is still going on. He could be called for recording of statements during the ongoing investigation seeking the explanation qua various other properties detected during investigation but the same could not be made part of the present original complaint, he was called for recording his statement but did not appear. He also did not give response to various summons issued during investigation and presently living in London along with his family who has evaded the process of law. Even non-bailable Warrants have been issued against him by Special Judge PMLA. Not only this, his passport been invoked, he is a declared proclaimed offender. Mr. Awasthi Says that one such person who has not made himself available for the purpose of investigation and evaded the process of law, should not be heard by the court of law. It has been held by Hon’ble Supreme Court in Writ Petition (Crl.) No. 137/2011 in case of Subhash Kopatlal Deva Vs. UOI, wherein the Hon‟ble FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 25 of 29

¶156

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¶157

Supreme Court has held in para 23 of the judgment where it was observed as under:-

¶158

Therefore, I am of the opinion that those who have evaded the process of law should not be heard by this Hon’ble Court to urge that their fundamental rights are in jeopardy.

¶159

We do agree with Mr. Awasthi that no one should be allowed to escape the process of investigation and a person who has evaded the law cannot claim the protection of the law as a right. However, his submissions have no relevance to the present issue under consideration. 27. His next submission is that some of the documents are already in the possession of the Group Companies of the appellants, therefore, they are not obliged to serve the copies of the same to the appellants, as all of them are controlled by Mr.Vijay Mallya and most of the documents, even if are lying with one of the Companies, the same can be obtained from the other Company.

¶160

The said submission of Mr.Rajiv Awasthi has no force, as all the Companies are different entities in the eye of law. In case the complaint is filed against all the Companies, the documents referred in the complaint and the statements recorded leading to the complaint which also referred to the accused parties are entitled to receive the documents in view of the settled law on this issue which are in the possession of the competent authority. Here it is necessary to clarify that the appellants are entitled to receive the documents and copies of the statements only pertaining to attachment of properties thatare the subject matter of the present complaint and which are to be referred at the time of deciding the question of confirmation of the subject provisional attachment or otherwise. In the present case, no doubt, a part of such statements have been received by the appellants. We are of the considered opinion that in case the remaining part of the statements is also pertaining to the subject matter of the present complaint and present attachment, the appellants would be entitled to receive the copies of the same which are in the possession of the respondent. However, if any document and part of the FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 26 of 29

¶161

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¶162

statement is pertaining to other attachment or proposed attachment, no doubt the appellants are not entitled to receive the copies thereof.

¶163

There is also no force in the submission of Mr. Rajeev Awasthi that the appellants are adopting the tactics in order to delay the proceedings pending before the Competent Authority. In the present case, the advance notice of the show cause notice under section 8(1) of the Act was issued by the AA on 11^th July, 2016 which was received by the appellant on 18^th July, 2016. However, the copy of the complaint and the documents relied upon were supplied to the appellants for the first time only on 2.8.2016. Not being satisfied with the documents supplied, the present applications requesting for complete documents were filed on 23.8.2016. The notice granted 30 days time for filing the reply. Considering that the documents relied upon have been supplied only on 2^nd August, 2016 and applications were filed on 23.8.2016, the application was filed without waiting till the end of the 30 days period given in the Show Cause Notice for filing reply. In the facts of the case, the submission of the respondent that the applications were nothing but dilatory tactics to delay adjudication process does not carry much weight. Moreover, upon instructions the statement was made by all the concerned counsel‟s for the appellants that they have no objection if the matters be decided by the Adjudicating Authority on or before the expiry of the 180 days period. Therefore, the question of delay does not arise.

¶164

The applications of the appellants were rejected by the Adjudicating Authority, mainly, on the reason that this is not a criminal trial; this Authority has to prima-facie satisfy as to the commission of the scheduled offences/possession of the proceeds of crime or as to whether the defendants/ appellants are involved in money laundering or not and that the grievance regarding non-furnishing of documents seems to be initiated as to delay the adjudication.

¶165

We do not agree with the findings given by the Adjudicating Authority, as the confirmation of attachment of properties is a serious matter. Without giving FPA-PMLA-1474, 1475, 1476, 1477 & 1478/MUM/2016 Page 27 of 29

¶166

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¶167

any opportunity to the accused party to raise its defence in the matter, there would be a grave injustice. We are of the view that no harm would be caused to the Respondent and/or the Adjudicating Authority if the relied upon documents of the subject matter are supplied to the accused party, particularly, when the said party agrees not to delay the adjudication and to bear all expenses. We are of the view that unless the Rule prohibits such entitlement this cannot be denied when valuable rights of the parties for defence of confirmation of attached properties are involved. Neither the respondents have made such a claim/submission nor the Adjudicating Authority has held to this effect. Thus, the impugned order suffers from infirmity.

¶168

It cannot be said that the documents relied upon or referred to in the matter may not be supplied simply on the grounds that most of the documents are already in the possession of the appellants or on the ground that they are not relevant. We are of the considered view that once the documents are referred or likely to be referred while passing the order after considering the reply and taking into account all the relevant material placed on record, under sub-Section (2) of Section 8 of the PMLA, the same are necessary to be supplied, even though some of the documents are already in the possession of the accused person. As far as the attachment of any other properties and/or further attachment of properties are concerned where the investigation is ongoing, the appellants are not entitled to any document and part of the statement(s) of witnesses recorded during the investigation at this stage if it relates to such attachment/on-going investigations. Only the documents referred to in the statement of witnesses in relation to the attachment of properties as covered in the present P.A.O. and relied on in the present original complaint are to be supplied.

¶169

In view of the above said facts and circumstances of the case, the prayers made in the abovementioned appeals are partly allowed by setting aside the impugned orders dated 8.9.2016. The limited prayer is granted by directing the

¶170

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¶172

respondent to supply the copies of statement(s) of witnesses recorded by the investigation and pertaining to the attachment of certain properties under the present P.A.O. and relied on in the present original complaint which are in its possession, and the documents shown/tendered during such statement(s) to the appellants within a period of 10 days from today. It is agreed by the learned counsels for the appellants that they will file the reply within 10 days thereafter and would not seek any adjournment in the matter before the Adjudicating Authority so that the Adjudicating Authority would be at liberty to decide the show-cause notice issued within the time prescribed under the Act.

¶173

The present appeals are accordingly disposed of with these directions. The affidavit filed by Mr. Munjaal Bhatt, Advocate is taken on the record wherein he has clarified his position about the mentioning of the matters on 30^th September, 2016.

¶174

(Justice Manmohan Singh) Chairman

¶175

(Kaushal Srivastava)

¶176

Member

¶177

(Anand Kishore) Member

¶178

New Delhi, 14^th October, 2016

¶179

„d‟