Allowed

FPA-PMLA-429/HYD/2012 of G. Ashwini Raja v/s The Deputy Director Directorate of Enforcement, Hyderabad

ATFP28 Nov 2017FPA-PMLA-429/HYD/2012

Case brief

AI extract

What is this about?

The Tribunal allowed appeals and quashed a provisional attachment order under the PMLA. Relying on a High Court decision that quashed underlying money laundering charges as unsustainable due to retrospective application, the Tribunal held the attachment was contrary to law and ordered immediate release of properties.

What did the court decide?

Impugned order set aside; attachment order passed under Section 5 held contrary to law; attached properties to be released forthwith.

FPA-PMLA-429/HYD/2012 of G. Ashwini Raja v/s The Deputy Director… — Money Laundering | ATFP (2017)

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APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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DATE OF JUDGEMENT: 28.11.2017

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FPA-PMLA-428/HYD/2012 Shri Gadi Nagavekata Satyanarayana … Appellant Versus The Deputy Director Directorate of Enforcement, Hyderabad … Respondent FPA-PMLA-429/HYD/2012 G. Ashwini Raja … Appellant Versus The Deputy Director Directorate of Enforcement, Hyderabad … Respondent FPA-PMLA-430/HYD/2012 N. Rajkumar … Appellant Versus The Deputy Director Directorate of Enforcement, Hyderabad … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Shri Shishir Mathur, Advocate Shri Brijesh Kumar Tamber, Advocate For the respondent : Shri S.A. Saud, Advocate CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN SHRI ANAND KISHORE : MEMBER

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JUDGEMENT

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FPA-PMLA-428/HYD/2012, FPA-PMLA-429/HYD/2012 & FPA-PMLA430/HYD/2012

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FPA-PMLA-428-429-430/HYD/2012 Page 1 of 14

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By this order, we propose to decide the above-mentioned appeals filed against the impugned order dated 19.11.2012 by which the provisional attachment order dated 26.07.2012 was confirmed.

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The brief facts are that the CBI, ACB, Hyderabad registered a case RC No. 01(A)/2009 on 29.06.2010 against appellant herein and Smt. S. Indira, Hyderabad on the allegation that appellant who joined Electronic corporation of India Ltd. (ECIL) as a Technical Trainee Officer on 23.03.1971 and retired on 30.08.2007 in the capacity of Director Technical amassed assets disproportionate to his known source of income in his name and in the name of his wife Smt. S. Indira by indulging in corrupt practices during the intervening period. Smt. G. Indira was alleged to have abetted appellant in the matter of acquiring of disproportionate assets out of his illegal earnings.

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As per the charge-sheet filed by the CBI before the Special Judge for CBI cases, it was alleged therein that the investigation established that the appellant was in possession of assets to the tune of Rs. 65,639.93/at the beginning of check period i.e. as on 01.01.1995 and Rs. 73,98,628.36 at the end of check period i.e. as on 31.08.2007. Income and other receipts received by appellant is Rs. 102,98,744.2/- and the expenditure incurred is Rs. 75,60,545.61/- during the check period. In this way appellant herein acquired disproportionate asserts to his known source of income to the tune of Rs. 45,94,764.84/- for which he could not satisfactorily account for.

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In this way CBI charge-sheeted Shri G.N.V. Satyanarayana for the alleged possession of disproportionate assets to his known source of

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FPA-PMLA-428-429-430/HYD/2012 Page 2 of 14

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income computed to the tune of Rs. 45,94,764.83/- which is punishable under section 13(2) read with section 13(1) (e) of the Prevention of Corruption Act, 1988. Since the offence punishable under section 13(2) read with 13(1) (e) of the Prevention of Corruption Act, 1988 is a scheduled offence under section 2 (1) (y) read with Paragraph 5 of Part B of the schedule under Prevention of Money-Laundering Act, 2002 the Enforcement Department, Hyderabad registered ECIR No. 03/HZO/2011 and initiated investigation under the above Act. The statement of S/Shri appellant, Y. Venkat Rao, Branch Manager, the Laxmi Vilas Bank Ltd. Hyderabad Shri K. Jaiveer Naidu, Shri Narender Kumar, Managing Director of M/s V.R. Electronics, Hyderabad, Shri N. Rajkumar, Shri S. Ashwini Raja, S/o Shri G.N.V. Satyanarayana were recorded by the investigation officer under section 50 of the Prevention of Money Laundering Act, 2002.

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Accordingly, a Provisional Attachment Order No. 03/2012 dated 26.07.2012 in ECIR No. 03/HZO/2011 was passed by Shri N. Sridhar, Joint Director, Directorate of Enforcement, Hyderabad and subsequently the matter was referred for adjudication before the learned Authority under Section 5 of the Prevention of Money Laundering Act and the matter was subsequently disposed of by the impugned order dated 19.11.2012 passed by the learned Adjudicating Authority.

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The allegation against the appellant, Shri GNV Sataynarayan (who was Govt. employee and for short it would be referred as Satyanarayan) were that on 29/05/2007 & 31/05/2007 a total of 49 Dhanchakra Deposits Certificates were made under fictitious names totaling an amount of Rs. 20,00,000/- with Lakshmi Vilas Bank Malkajgiri Branch

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FPA-PMLA-428-429-430/HYD/2012 Page 3 of 14

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with a common nominee as GNV Satyanarayan (father of Appellant). The other appellants are relatives of the Mr. Sataynarayan.

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It is also alleged by the Respondent that a loan of Rs. 17,50,000/was taken by Appellant‟s son, G Ashwinin Raja against the collateral security of above-mentioned 49 Dhanchakra Deposits Certificates. Further that loan was released vide two pay orders dated 29/05/2007 and 01/06/2007 to be paid to M/s Aditya Constructions Company Pvt. Ltd. for purchase of a Flat No. 303 at Aditya Odyssey, Silpa Park, Kondapur Village/Serilingampally Mandal & Municipality. The said property was registered under Sale Deed document No. 49030/08 registered on 05/07/2008. It is also alleged that the said deposits were subsequently liquidated by the Appellant and utilized for the purchase of property bearing No. 101, Jai Residency at Jagir Village, Rajendranagar Mandal, Hyderabad in name of N Raj Kumar, Brother-in-Law of the appellant. The Flat No. 303, Aditya Odyssey was sold in 2012 to Anil Samayam under Sale Deed document no. 3629/12 registered on 29/03/2012 with a market value of Rs. 62,00,000/- and the balance of which has been put as FDR in name of Appellant‟s son i.e. G Ashwini Raja, amounting to Rs. 39 lakhs in HDFC Bank, Kapra Branch, Chanakyapuri, Hyderabad. It has been also alleged that respondent is unable to trace an amount of Rs. 9,04,412/-.

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The following properties were attached by the Respondent which are described as under:

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i. Flat No. 101 in Jai Residency in Manikonda Jagir Village, Rajendranagar Mandal, RR Distt. (near Dargarh)- Panchvati Layout, Plot No. 1 38 & 39, having a registered value of Rs. 26.00 lakhs belonging to Shri N. Raj Kumar.

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FPA-PMLA-428-429-430/HYD/2012 Page 4 of 14

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ii. Fixed deposit at HDFC, Kapra Branch Sainikpur= Rs. 39,00,000/(Maturity Date: 24/06/2012) Account No. 01264470125901 created out of Saving Bank Account No. 05451140099441 held in name of Shri G. Ashwini Raja.

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On merit, it was the case of appellant Satyanarayan that with regard to 49 Dhanchakra Deposits Certificates, the Appellant has absolutely no connection whatsoever with them except that Appellant has been made “Nominee” to all said Dhanchakra Deposits without knowledge or consent of Appellant. With regard to said Dhanchakra Deposits, it was also submitted that account opening forms have no mention of Appellant as deposit holder neither it bears any signature or handwriting of the Appellant. 21 out of 49 account opening Forms do not even contain the details of amount deposited and the father/husband name were not mentioned on these deposit opening forms. With regard to Dhanchakra Deposits, they were prematurely liquidated and transferred and there is not an iota of evidence on record which links appellant to premature liquidation or transfer to said deposits at the behest of appellant. It is also submitted that deposits were neither deposited to appellant‟s account not to G Ashwini Raja‟s account and nor to the account of N. Raj Kumar which are in question and nor at their behest.

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It was submitted appellant that the natural human reasoning that only suspect of money laundering here is Branch Manager of Laksmi Vilas Bank as he must have had the knowledge of the source of Deposits, whose stamp is affixed on all the 49 Dhanchakra Deposits despite there being no names as to who are deposit holders on most of deposits and despite such grave suspicion.

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FPA-PMLA-428-429-430/HYD/2012 Page 5 of 14

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With regard to alleged loan of Rs. 17,50,000/- taken by G. Ashwini Raja against the collateral security of 49 Dhanchakra Deposits. It was alleged that there was no evidence that the said loan was a secured facility or that a lien was marked upon the 49 Dhanchakra Deposits for the same and in fact the loan was an unsecured facility of temporary nature which was granted when appellant‟s son was in USA and the same was repaid along with interest by cheques bearing no. 029885 dated 12/07/2008 amounting Rs. 19.50 lakhs and cheque no. 0298446 dated 15/07/2008 amounting Rs. 40,000/-, once another loan from HDFC housing was granted to Appellant‟s son i.e. G Ashwini Raja. It is further submitted that loan of Rs. 17,50,000/- was released in two instalments; one of Rs. 13,50,000/- and the other of Rs. 4,05,000/respectively, whereas documents alleging disbursal of said amount reveal that disbursal was made in form of 49 credits which are not reflected anywhere in the account of G. Ashwini Raja. It was stated the manipulation of internal records of account by Laksmi Vilas Bank for reasons best known to them.

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It was submitted that onus of proving that whether the loan was a secured facility or an unsecured facility has to lie with respondent and not the appellants in view of reply given by them.

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It was stated with regard to alleged purchase of schedule of property no. 1 out of proceeds of said 49 Dhanchakra Deposits, the Manager of Dhanlaksmi Vilas Bank, Sh. Y. Venkat Rao, stated in his statement that

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“ xiii) that there was no advice in writing given to bank by the Deposit holders for transferring the amount into the Current account of Shri K. Jaiveer Naidu, as explained to me by my predecessor.

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xiv) that he does not know the reasons for not honouring Shri GNV Satyanarayan, whose name was shown as a “Nominee” on all 49 Dhanchakra Deposits Account opening Form, as a

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FPA-PMLA-428-429-430/HYD/2012 Page 6 of 14

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beneficiary by the bank in the vent of Maturity of the certificates.”

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The statement of Sh. K Jaiveer Naidu wherein he stated as under:

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“that as regards to how maturity amount of all 49 Dhanchakra Deposits got credited into his account in absence of any letter of relinquishment of rights of Shri GNV Satyanarayan, as a “Nominee” for all Dhanchakra Deposits he stated that he failed to check as to whom the “TDRs” belonged when the deposits were made into his account on 27 and 28 of August, 2008 when the narration in his bank account was denoted as “TDR” so it is quite clear that Appellant was not connected with transfer of said amount in the account of Sh. K. Jaiveer Naidu.

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Pertaining to acquiring and disposing of the property bearing address Flat No. 303 at Aditya Odyssey in Silpa ParK, Kondapur Village, Hyderabad by appellant‟s son, G Ashwini Raja, it was alleged that it is not connected to said Dhanchakra Deposits. With regard to selling the property at Rs. 62 lakhs, it was submitted that net gains by selling the flat was just Rs. 9,53,526/- which is explained by G. Ashwini Raja. The remaining amount of Rs. 29 lakhs which is major portion of the FDR (HDFC, Kapra Branch Sainikpur Rs. 39 lakhs, maturity date 24/06/2012) in question, it was stated that it has absolutely no link with the alleged proceeds of crime i.e. sale proceeds of Flat No. 303, Aditya Odyssey. It is also submitted that the HDFC account being attached in connection with FDR is salary account of G Ashwini Raja and said salary is also attached vide the impugned attachment order.

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It is the case of Satyanarayan that with respect to tracing the amount of approx. Rs. 9 lakhs, that there is no inconsistency in the account of appellant and it is respondent who has failed to trace the said amount because they failed to notice and understand as cheque no. 83790 (correct no. 837490) is of Rs. 10,00,000/- and not Rs. 1,00,000/as alleged. This accounts for difference of Rs. 9,00,000/- as alleged by respondent. The impugned attachment order has been passed by

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ignoring the facts on record. The Adjudicating Authority has even FPA-PMLA-428-429-430/HYD/2012 Page 7 of 14

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incorrectly interpreted the statement of appellant as confession that he has generated the said deposits himself. The statements relied upon by the Respondent cannot be taken as a gospel truth by the Adjudicating Authority while confirmation of order. It was submitted that there has to be some corroboration with the independent material on record and the statements made by the Appellant before Respondent cannot be used against him as the same is in contrary to provisions of Indian Evidence Act.

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The respondent subsequently had also filed complaint before the Learned Special Judge (PMLA), the proceedings were challenged by the Appellants. Issuance was notice was challenged by the appellants.

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In the said petition for discharge wherein the court has issued summons to the Appellants and subsequently on their appearance applicants who moved discharge application before the court, however, the same was dismissed.

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The appellants challenged the order of dismissing discharge application in a criminal revision case no. 1770/2015 before the Hon‟ble High Court at Hyderabad. By judgment dated 14.09.2017, the Hon‟ble High Court has allowed the petition and consequently discharged the Applicant and others from the complaint case filed by Respondent.

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During the pendency of appeals, the appellants have filed an application for placing on record judgment dated 14.09.2017 passed in Crl. Rev. case no. 1770/2015 by High Court at Hyderabad.

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In the said judgment passed by the Hon‟ble High Court who has discharged the appellants after hearing both parties from the allegations of money laundering leveled in complaint case filed by Respondent. In

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FPA-PMLA-428-429-430/HYD/2012 Page 8 of 14

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the said judgment, many aspects have been dealt by the High Court which are also raised in the present appeal.

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Para 4 to 12 of the said judgment is reproduced here under:

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“4. The Learned Standing Counsel appearing for the respondent submitted that the trial Court has rightly dismissed the petition filed by the petitioners and that the order of the trial Court does not suffer from any irregularity warranting interference of this Court.

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5. It is pertinent to note that the CBI has initiated Criminal proceedings against the 1^st petitioners/A1 on the file of the 1^st Additional Special Judge for CBI Cases. Hyderabad for the offence punishable under Sections 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 in C.C.No.16 of 2010 alleging that he has acquired assets worth Rs.45,94,764.83 ps., disproportionate to his source of income, during the “check period” of his service in ECIL as a Public Servant. The material gathered from the above pleadings, discloses that the alleged bank transactions took place in the year 2008 i.e., prior to 2009. Section 3 of the Prevention of Money Laundering Act mandates that the act of money laundering should be intentional and it has to be traced to the point of time when the actual transaction took place. The allegations that have been made by the C.B.I. in the charge sheet in C.C. No:16/2010 on the file of the 1^st Additional Special Judge for C.B.I. Cases, Hyderabad and in the Money Laundering case initiated by the Directorate of Enforcement in C.C. No:3/2010 on the file of the Metropolitan Sessions Judge for the offences under sections 3 and 4 of the Act are one and the same.

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6. Be that as it may. Now coming to the facts of the case on hand, the offence was alleged to have been committed during the check period of service of the 1^st petitioner and the C.B.I. filed the charge sheet in C.C. No:16/2010 for the offence punishable under Sections 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 against the 1^st petitioner. Subsequently, the Directorate of Enforcement filed the charge sheet in C.C. No.3 of 2014 for the offence under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 against Petitioners-1 to 3. There is no explanation for the delay of 3 to 4 years in invoking the provisions of sections 3 and 4 of the Prevention of Money Laundering Act, 2002 against petitioner Nos. 1 to 3.

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7. In support of his contention that the offence in question is alleged to have been committed in the year 2008 whereas the amendment Act came into force from 1.6.2009. in which Section 7 to 13 of the P.C. Act were inserted in the Schedule, and the application of the said Act cannot be retrospective, but it is prospective in nature and that prior to amendment Act, 2009, none of the provisions which are

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FPA-PMLA-428-429-430/HYD/2012 Page 9 of 14

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now invoked by the Enforcement Directorate were on the statue book except Section 467 IPC, and as such, the charge sheet in C.C. No:3/2014 is liable to be quashed, the learned Counsel for the petitioners relied upon an unreported judgment of this in W.P. No:17525/2014 wherein this Court held that the alleged incidents occurred prior to June, 2009, and prior to 2009, the relevant provisions of Indian Penal Code were not included in the schedule appended to the Act 2002 and the filing of the complaint and taking cognizance thereof is unsustainable. He further relied upon the judgment of Delhi High Court in Crl.M.C.No:5581/2014 and also on Tech Mahindra’s case, wherein it was observed as under:

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“It is settled principle of law that no person can be prosecuted on the allegation which occurred earlier by applying the provision of law which has come into the force after the alleged incident. In other words, there can be no retrospective application of criminal liability for the incident occurred prior to introduction of such liability in the Statue Book.

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Admittedly, prior to Amendment Act 2009, none of the provisions which are now invoked by the Enforcement Directorate were on the statue book except Section 467 I.P.C. Thus, the petitioner cannot be prosecuted by invoking those provisions.”

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In the above judgment of Delhi High Court also, the C.B.I. filed the charge sheet for the offences under sections 13 (2) read with 13 (1) (d) of the P.C. Act and sections 120B, 420, 471 read with 468, 409 and 477A I.P.C. alleged to have been committed during 2005-2006.

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8. It is also pertinent to note that Article 20 (1) of the Constitution postulates that a person cannot be prosecuted for the offence alleged to have been committed prior to the introduction of the Act and it cannot have the retrospective effect.

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9. It is also pertinent to note that the C.B.I. already filed the charge sheet against the 1^st petitioner, who was the public servant, under the provisions of Section 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988. The provisions under Section 7, 8, 9, 10 and 13 of the Prevention of Corruption Act, 1988 were inserted in paragraph 8 of Schedule A, under the amendment Act of Money Laundering 2009 with effect from 1.6.2009 whereas the Directorate of Enforcement has laid the charge sheet in C.C. No:3/2014 against the petitioners-1 to 3 for the offences alleged to have been committed prior to 2009. This charge sheet has been filed only after the introduction of the amendment Act 2009, which came into effect from 1.6.2009. Prior to Amendment Act, 2009, none of the provisions which are now invoked by the Enforcement Directorate were on the statue book except Section 467 IPC. Therefore, the petitioners cannot be prosecuted by invoking the provisions of Sections 3 and have been committed prior to 2009. This charge

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FPA-PMLA-428-429-430/HYD/2012 Page 10 of 14

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sheet has been filed only after the introduction of the amendment Act 2009, which came into effect from 1.6.2009. Prior to Amendment Act, 2009, none of the provisions which are now invoked by the Enforcement Directorate were on the statue book except Section 467 IPC. Therefore, the petitioners cannot be prosecuted by invoking the provisions of Sections 3 and 4 of the Money Laundering Act.

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10. In support of his contention, the learned Counsel for the petitioners relied upon an unreported judgment of this Court in W.P. No: 17525/2014, dated 22.12.2014 wherein it was held thus:

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“In the instant case, the alleged incidents occurred prior to June, 2009. Prior to June, 2009, the relevant provisions of Indian Penal Code were not included in schedule appended to the Act 2002. These provisions were not listed as offences under the Act admittedly when the alleged incidents have taken place. The only provision that is invoked which was in the schedule to the Act is section 467. The illegal activities committed by the persons in the helm of affairs cannot be attributed to the petitioner company, more particularly the allegation of forgery as all those illegalities were committed by them behind the back and without the involvement of the back and without the involvement of the petitioner company. Thus, if the allegations made are taken at their face value and accepted in their entirety, they do not prima facie constitute any offence or make out a case against the petitioner company. In accordance with the principles laid down by the Supreme Court in Bajan Lal case, the petitioner company cannot be proceeded against under section 3 of the Act 2002. Thus, filing of complaint and taking cognizance thereof is unsustainable.”

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11. In the light of the observations made by this Court in the above judgment coupled with the judgment of the Delhi High Court, this Court is of the view that the petitioners cannot be proceeded against under sections 3 and 4 of the Act 2002. The trial Court has failed to consider all these legal aspects and therefore, the order impugned is liable to be set aside.

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12. In the result, this Criminal Revision Case is allowed setting aside the order of the Metropolitan Sessions Judge, Cyberabad in Crl.M.P.No:418/2014 in C.C.No:3/2014, dated 1.7.2015. Consequently, Crl.M.P.No:418/2014 in C.C.No:3/2014 for the offence under sections 3 and 4 of the Prevention of Money Laundering Act, 2002.

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The said judgement has not been challenged by the respondent upto the date of hearing of the appeals.

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As far as merit of the case registered against him is concerned, under FIR dated 06.01.2009 we do not wish to express any opinion on merit. The said allegations against him would have to be determined by the Special Court after the trial conducted in the matter as per allegation under the P.C. Act.

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At present, our only concerned is as to whether the order of attachment of the properties passed u/s 5 of the Act is still sustainable once the quashing order of all proceeding under the Act has been passed. There is iota of doubt that the PML Act trial for alleged offences u/s 13(2) r/w section 13(1)(e) of Prevention of Corruption Act has to be continued, at present the impact of the judgment passed by the Andhra High Court in favour of the appellants is to examined. It is not denied that the relevant/check period of time, no such provisions of the Act were added as schedule offence. In the present case, the check-period as admitted by CBI is from 1.1.1995 to 31.08.2007. The appellant Satyanarayana retired before 1.6.2009.

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It is not denied by the respondent that as far as all proceedings in relation to the PML Act, 2002, the said proceedings have been quashed by the judgement dated 14^th September, 2017.

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On the similar issue another judgement has been delivered on 13^th July, 2017 in High Court of Judicature of Madras in the matter of Shri Ajay Kumar Gupta Vs. Adjudicating Authority (PMLA) where the similar issue has been dealt with. In para 12 and 15 of the said judgement reads as under:-

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12. From the above judgments and also the fact that the offences allegedly committed by the first and second petitioners prior to 1.7.2005, the Prevention of Money Laundering Act was not in force. Even after 1.7.2005, the offences were not included in the scheduled offences till 1.6.2009. Since the charge sheet dated 13.1.2009, even on

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that date, Prevention of Corruption Act has not included in the scheduled list of offences. Therefore, this court is of the view that if retrospective effect is given to any statute of any penal nature, it will be directly in conflict with the fundamental rights of the citizen enshrined in Article 20(1) of the Constitution of India. Admittedly, 2^nd respondent filed the case only based on the charge sheet of the CBI, who have not conducted any enquiry on their own. In fact, all the documents are original documents of the alleged proceeds of crime, which are in the custody of the CBI Court. When the entire documents are in the custody of the Court, there cannot be any reason to believe that the properties will be dealt with in any other manner. The impugned order was as if 1st petitioner not able to offer any satisfactory explanation during examination. Therefore, the attachment officer has passed an order without a reason to believe that the proceeds of crime are likely to be transferred or disposal. In the absence of any sufficient reason, arriving to such conclusion by mere reproducing the words “reason to believe”, it cannot be stated that the order has been passed! After considering the entire gamut of materials. Admittedly, in this case, entire documents are available and the properties are in the custody of the court. Therefore, the order of attachment is not maintainable.

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15. In view of the above, the Provisional Attachment Order No. 09/2017 dated 07.04.2017 in ECIR/CEZO/08/2015 and the Original Complain in O.C. NO. 855 of 2017 are quashed. The point is answered accordingly.”

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In the present case that the Hon‟ble High Court has dealt with the issue of retrospective effect, the said judgment has binding effect upon us. This Tribunal cannot take the different view as the judgment has been passed between the parties under the PML Act. Full respect has to be given to the said Judgement.

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In view of aforesaid reasons, the impugned order is set-aside. The appeals are allowed. The attachment order passed u/s 5 was contrary to law. The attached properties shall stand released forthwith. The appellants may take necessary steps to take the possession as per the law.

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As far as the criminal complaint pending against the appellant, Mr. Satyanarayana, for offence before the Special Court is concerned, the same would be decided as per its own merit and without any influence of the judgement passed by me today. My respected brother who is a FPA-PMLA-428-429-430/HYD/2012 Page 13 of 14

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member and heard the matter with me though agreed that the appeals are liable to be allowed but he has given his own independent reasons.

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