Allowed

FPA-PMLA-1748/DLI/2017 of Mridula Kapur v/s The Deputy Director Directorate of Enforcement, Delhi

ATFP13 Apr 2018FPA-PMLA-1748/DLI/2017

Case brief

AI extract

What is this about?

The Appellate Tribunal quashed the confirmed provisional attachment order and released the appellant's properties. The court held that since the trial court acquitted the appellant of all scheduled offence charges, she could not be treated as possessing proceeds of crime under PMLA despite assets exceeding her known sources of income.

What did the court decide?

The impugned order of 17.03.2017 and the provisional attachment order of 04.11.2016 regarding the appellant were set-aside, and her properties were ordered to be released from attachment.

FPA-PMLA-1748/DLI/2017 of Mridula Kapur v/s The Deputy Director… — Money Laundering | ATFP (2018)

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APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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Decision Dated: 13^th April, 2018.

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MP-PMLA-3971/DLI/2017 (Stay) MP-PMLA-3869/DLI/2017 (Misc.) MP-PMLA-3870/DLI/2017 (Misc.) &

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FPA-PMLA-1748/DLI/2017

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Mridula Kapur … Appellant Versus The Deputy Director Directorate of Enforcement, Delhi … Respondent

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Advocates/Authorized Representatives who appeared

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For the Appellant	: Mr. Vivek Kohli, Advocate Mr. Mudit Gupta, Advocate
For the Respondent	: Mr. Vikas Garg, Advocate
CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SMT. ANANYA RAY	: MEMBER

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JUDGMENT

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FPA-PMLA-1748/DLI/2017

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By this order, we propose to decide the present appeal which has been filed by the appellant, inter-alia , seeking to quash the Provisional Attachment Order, dated 04.11.2016 as well as the Impugned Order dated 17.03.2017, passed by the Adjudicating Authority, PMLA, New Delhi.

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In the Impugned Order dated 17.03.2017, the following immovable properties of the Appellant provisionally attached by the Enforcement

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Directorate, were inter-alia confirmed.

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FPA-PMLA-1748/DLI/2017

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Page 1 of 5

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S.No.	Particulars	Value
1.	Office Space bearing No. 408A, Vatika Towers, Gurgaon.	9,32,125/-
2.	Plot No. 264, Sector-52, Gurgaon.	13,46,294/-
3.	Cottage NO. 10, Devine Golf, Village Sadhora, Mashobra, Shimla, Himachal Pradesh.	38,81,357/-

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Brief facts, are that CBI, ACU II, New Delhi had filed a charge sheet no. 03, dated 26.10.2009 under section 173 of CrPC 1973 in the Court of Hon‟ble Special Judge, Patiala Court, New Delhi. It has been alleged in the FIR that Major General Anand Kumar Kapur while working as a public servant, in different capacities in Indian Army, during the period 14.11.1971 to 31.05.2006 has amassed huge assets by corrupt/illegal means either in his own name or in the name of members of his family which were substantially disproportionate to his known sources of income. Smt. Mridula Kapur(the appellant) actively abetted her husband Major General Anand Kumar in acquisition of huge assets.

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By order dated 22.02.2016, charges were framed against the Appellant and her husband by the Learned Trial Court.

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After leading evidence and arguments, the trial court/special CBI court by order dated 27.09.2016, acquitted the Appellant from all the charges framed. The operative part of the order reads as under:-

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(a) A-1/Maj. Gen. (Retd.) Anand Kumar Kapur has been unable to satisfactorily account of the pecuniary sources or the property disproportionate to the tune of Rs. 2, 22, 04, 290/-.

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(b) So far as, A-2 is concerned, she is the wife of A-1 and it is argued on her behalf that there is no evidence that she abetted A-1 in amassing the said properties. It is true that there cannot be any direct evidence, but the manner in which properties have been purchased and jewellery was found in her lockers, there may appear to be reasons to believe that she abetted this crime. However, the court cannot be oblivious of the social realities. In this

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FPA-PMLA-1748/DLI/2017

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Page 2 of 5

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unequal society wife has to stand with her husband and she might even not know as to what is being got done through her. Therefore, I gave benefit of doubt to A-2 and acquit her.

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CBI has not challenged the Order of Acquittal. The period of limitation of Ninety (90) days for filing an appeal has also lapsed. The order of Acquittal has attained finality as no appeal is filed or pending pertaining to the appellant. An appeal has been filed by her husband in Delhi High Court which is pending for disposal.

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In the present appeal, we are only concerned with the appeal filed by the present appellant and her properties. The conduct of the appellant as well as her representative properties have already been dealt in the judgment rendered by the CBI Court where she was acquitted. We are not concerned with regard to the merit of the case of her husband.

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In the eyes of law no FIR or charge-sheet exists against her once the acquittal order has been passed and judgment has attained finality.

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After passing the acquittal order, the Enforcement Directorate on the basis of the same FIR, Charge Sheet and allegations filed by CBI, filed a PMLA Case No. ECIR/320/DZ/2009, against the Appellant. The Deputy Director, ED vide Order dated 04.11.2016, passed a provisional attachment order against the Appellant.

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The operational parts read as under:-

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“ Therefore, in view of the aforesaid facts and circumstances, I have reasons to believe that Major General Shri Anand Kumar Kapur (Retd.) and his wife Smt. Mridula Kapur could not reasonably explain the sources of the assets at the end of check period and expenditure incurred during the check period and expenditure incurred during the check period vis-à-vis, their assets at the beginning of check period and income during the check period as per the charge sheet of CBI. And whereas, in this matter, CBI has filed a charge sheet dated 26.10.2009, alleging Shri Kapur to possess assets to the tune of Rs. 3,37,02,592/- disproportionate to his known sources income.

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FPA-PMLA-1748/DLI/2017

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Page 3 of 5

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Now therefore, as the assets mentioned in the charge sheet have been acquired by utilizing money which are proceeds of crime and are likely to be concealed, transferred or dealt with in any manner, which may result in frustrating any manner, which may result in frustrating any proceedings relating to confiscation of such proceeds of crime, I hereby order Provisional Attachment of the following order properties and bank account owned by Major General Anand Kumar Kapur, his wife Smt. Mridula Kapur, and further order that the same shall not be transferred, disposed, parted with or otherwise dealt with in any manner, whatsoever, until or unless specially permitted to do so by the undersigned.”

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It is the case of the appellant that despite explaining the position of the acquittal, the adjudicating authority, PMLA, New Delhi, confirmed the provisional attachment order and attached the properties of the appellant, vide OC/668/2016 dated 17.03.2017.

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It is matter of fact that in the order dated 27.09.2016, the learned Special Judge, Patiala House District Courts, after taking into consideration all the facts and evidences, acquitted the appellant of all the charges against her. Further vide order dated 29.09.2016 the trial court ordered confiscation of properties worth Rs. 2,24,04,290/- .

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It therefore now needs to be seen that the properties that stands in the name of the appellant can be treated as “proceeds of crime” and therefore can be attached under PMLA.

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“Proceeds of Crime” under Section 2(1)(u) of the PML Act is a property which is “derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence”. Scheduled Offence is a predicate offence and the occurrence of the same is a prerequisite for initiating investigation into the offence of money laundering.

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The Trial Court has already acquitted the appellant of any offence which can be termed as scheduled offence under the PMLA. The respondent has also fairly agreed to this point.

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FPA-PMLA-1748/DLI/2017

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Page 4 of 5

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In the circumstances, the following three properties standing in the name of the appellant and which do not from a part of the confiscated properties vide the Trial Court order dated 29.09.2016 and 07.10.2016 are ordered to be released from the attachments, attached by

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the ED vide the impugned order dated 17.03.2017

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S.No.	Particulars	Owner Name	Value
1.	Office No. 408A, Vatika Towers, Gurgaon.	Mridula Kapur	9,32,125/-
2.	Plot No. 264, Sector-52, Gurgaon.	Mridula Kapur	13,46,294/-
3.	Cottage NO. 10, Devine Golf, Village Sadhora, Mashobra, Shimla, Himachal Pradesh.	Mridula Kapur	38,81,357/-

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The appeal is allowed. The impugned order and provisional attachment order in relation to appellant herein set-aside. The order passed in the present appeal shall have no bearing in the appeal filed by the husband of the appellant which would be decided as per its own merit. All pending MPs are also disposed of.

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No costs.

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(Justice Manmohan Singh) Chairman

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(Ananya Ray) Member

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New Delhi, 13^th April, 2018.

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„K‟

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FPA-PMLA-1748/DLI/2017

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Page 5 of 5

FPA-PMLA-1748/DLI/2017 of Mridula Kapur v/s The Deputy Director Directorate of Enforcement, Delhi

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FPA-PMLA-1748/DLI/2017 of Mridula Kapur v/s The Deputy Director Directorate of Enforcement, Delhi

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