Disposed

FPA-PMLA-1597/DLI/2017 of Mr. Deepak Goyal v. The Deputy Director, Directorate of Enforcement, Delhi

ATFP15 Apr 2024FPA-PMLA-1597/DLI/2017

Case brief

AI extract

What is this about?

The Appellate Tribunal upheld the retention of 32 documents seized from the appellant under PMLA, ruling that an FIR suffices for permit retention without a charge sheet. However, directed the Enforcement Directorate to return non-incriminating items once international reports are received.

What did the court decide?

The appeal is disposed of by sustaining the retention of incriminating materials while directing the return of non-incriminating seized articles upon receipt of foreign reports.

FPA-PMLA-1597/DLI/2017 of Mr. Deepak Goyal Vs. The Deputy Director… — Corruption | ATFP (2024)

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APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

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MP-PMLA-3053/DLI/2017 Stay FPA-PMLA-1597/DLI/2017

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Mr. Deepak Goyal … Appellant

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Versus The Deputy Director, Directorate of Enforcement, Delhi … Respondent Advocates/Authorized Representatives who appeared For the Appellant : Mr. A.T. Patra, Adv. Mr. Shubham Jindal, Adv. For the Respondent : Ms. Nidhi Raman, for E.D. Mr. Akash Mishra

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CORAM SHRI RAJESH MALHOTRA : MEMBER

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FINAL ORDER 15.04.2024

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Present appeal is filed by the appellant against the impugned order dated 22.11.2016 in Original Application No. 59/2016 vide which Respondent-ED was permitted to retain 32 documents / articles seized from his premises as mentioned at page 16 to 19 of the impugned order.

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2. As per the facts of the case, Ministry of Defence filed a written complaint dated 12.02.2013 to CBI, New Delhi for registration of FIR against M/s Finmeccania, Italy in the matter of procurement of 12 VVIPs Helicopters from M/s Augusta Westland, UK, a subsidiary of M/s. Finmeccanica, Italy u/s 120(B), 420 IPC r.w.s. 7, 8, 9, 12, 13(2) r.w. 13(1)(d) of Prevention of Corruption Act, 1988. CBI registered FIR for commission of offences u/s 120B IPCr.w.s. 420 IPC, r.w.s. 7, 8, 9, 12, 13(2) r.w. 13(1)(d) of PC Act, against the accused persons. On the basis of the said FIR, ECIR was registered on 03.07.2013 against the suspected / accused persons. As per the allegation, in order to get the contract, kickbacks amounting to Euro 30 million were paid to Mr. Christian Michel James and his companies M/s. Global Services, FZE, Dubai and

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Rajesh Malhotra Member

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FPA-PMLA-1597/DLI/2017

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Mr. Deepak Goyal Vs. The Deputy Director of Enforcement, Delhi

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Global Trade and Commerce Limited, UK. For facilitating transfer of kickbacks, Shri Gautam Khaitan, Legal advisor of M/s. IDS Infotech, India introduced Mr. Guido Ralph Haschke and Mr. Carlo Gerosa to Shri Satish Bagrodia and Shri Pratap K Aggarwal, Chairman and Managing Director respectively of M/s IDS Infotech Ltd. India. During investigation, it was revealed that IDS Tunisia was incorporated as 100% subsidiary of M/s. IDS Infotech India, however, the Indian company sold M/s. IDS Tunisia to M/s. Euromed owned by Mr. Hschke and Mr. Gerosa after a few months of its incorporation.

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Another firm, namely, M/s. Aeromatrix was also incorporated with registered office at Delhi and the business of IDS Infotech, India was transferred to M/s. Aeromatrix through a Business Transfer Agreement.

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It is seen that M/s. IDS, Tunisia raised bills amounting to Euro 24.37 million on M/s. Agusta Westland. However, the money transferred to M/s. IDS Infotech, India and M/s. Aeromatrix was 1.88 million and 3.8 million respectively, for the same work for which IDS Tunisai got Euro 24.37 million.

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M/s. IDS, Tunisia inflated the invoice value by resorting to charging higher rates and showing extra man hours to M/s. Agusta Westland SpA and generated illegal funds. After generating money using inflated invoices, some of it was eventually brought to India using Mauritus route by Shri Gautam Khaitan in the garb of FDI.

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Out of 24.6 million Euro received by M/s. IDS, Runisia from M/s. Agusta Westland SpA through the inflated / increased invoices Euro 12.4 million were transferred to M/s Intersteller Technologies, Mauritus which was controlled by Mr. Gautam Khaitan through M/s. M L Administrators, Mauritus and owned by Mr. Rajiv Saxena.

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Rajesh Malhotra

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Member

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FPA-PMLA-1597/DLI/2017

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Mr. Deepak Goyal Vs. The Deputy Director of Enforcement, Delhi

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Numerous mails have also been recovered from the laptop in which Gautam Khaitan and Mr. Deepak Goyal are sending instructions to M/s. M L Administrator as well as various other concerns and persons for routing of funds through M/s Intersteller, Mauritus. Upon investigation, he has not yet disclosed the material facts relating to these e-mails and documents sent from his e-mail address.

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Thereafter, search was conducted u/s 17(1) PMLA, 2002 at the residential premises of Deepak Goyal situated at UG-2, Building No. 160, Shalimar Garden Extn-I, Sahibabad, UP on 15.06.2016 and seized 32 items / articles as mentioned in the Panchnama as well as page no. 16 to 19 of the impugned order. Thereafter, Original Application No. 92/2016 was moved before Adjudicating Authority for permission to retain the said articles till conclusion of investigation. The said application was allowed by Learned Adjudicating Authority vide impugned order dated 22.11.2016. Aggrieved by the said order, appellant filed the present appeal.

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3. During the arguments, Learned Counsel for the Appellant submitted that there was ‘no reason to believe’ by the Adjudicating Authority u/s 8(1) of PMLA that appellant has committed an offence u/s 3 of PMLA or he is in possession of any proceeds of crime, before issuing the notice, in absence of any police report u/s 173 Cr.P.C. He argued that in absence of police report, there is no ground to presume ‘reason to believe’ for commission of scheduled offence and thus, there is no question of proceeds of crime. He further contended that Adjudicating Authority can confirm retention only if an order of retention has been passed u/s 20(1) of PMLA. There is no question of confirmation of retention u/s 8(3) in absence of order of retention u/s 20(1). He further stressed that scheduled offences came into effect w.e.f. 01.07.2005,

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Rajesh Malhotra

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Member

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FPA-PMLA-1597/DLI/2017

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Mr. Deepak Goyal Vs. The Deputy Director of Enforcement, Delhi

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whereas, the alleged instance was committed on 07.03.2005. He further submitted that seized properties are not recovered within the definition of proceeds of crime and thus, there is no question of retaining the same. He further argued that retention can continue u/s 8(3) of PMLA for period not later than 365 days. He pointed out that Respondent-ED has not filed any complaint on the PMLA against the present appellant, but against accused person. Prayer is accordingly made to set aside the impugned order and thereby release the seized articles in favor of the appellant.

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4. On the other hand, Learned Counsel for the Respondent strongly opposed the contention of Learned Counsel for the Appellant on the ground that after the registration of FIR and investigation, it was revealed that there are numerous mails retrieved from the laptop which reflects that Gautam Khaitan and Mr. Deepak Goyal were used to send instructions to M/s. M L Administrator as well as various other concerns and persons for routing of funds though M/s. Intersteller, Mauritus. Accordingly, she submitted that these e-mails clearly show that appellant is part and parcel of the conspiracy with accused persons in commission of crime. She further pointed out that complaint case is already filed against the main accused persons and most of the seized articles are cited as relevant material in the said case. She further stressed that e- mails retrieved from the laptop is secondary evidence and the primary source of the said printout needs to be retained for proving the prosecution case against the accused persons. She further argued that many Letters of Rogatoryare still pending with various countries and after receiving the report on the said Letters of Rogatorythe role of present appellant will become more specific and he is also likely to be impleaded as accused along with other co-accused persons in

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Rajesh Malhotra

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Member

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FPA-PMLA-1597/DLI/2017

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Mr. Deepak Goyal Vs. The Deputy Director of Enforcement, Delhi

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supplementary complaint. Prayer was accordingly made to dismiss the present appeal being devoid of any merits.

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5. After hearing the rival submissions, I have given my thoughtful consideration to the same.Para 10 of the Original Application No. 59 of 2016 clearly reflects the role of Deepak Goyal and the purpose for retaining the seized material recovered from his premises which formed the basis for issuing notice to show cause u/s 8(1) of PMLA Act against appellant Deepak Goyal. Filing of charge-sheet u/s 173 Cr.P.C. is not mandatory before allowing the application for retention of seized documents. FIR is sufficient for the same. Retention of seized material can be pressed for purpose of investigation under PMLA. The plea of prospective application of amended provision is also not sustainable in view of judgment of Hon’ble Supreme Court of India in case Vijay Mandanlal Chaudhary Vs. U.O.I. The relied upon and incriminating material seized from the possession of present appellant cannot be returned to him at this stage, as the same will be required during recording of prosecution evidence as primary evidence in the criminal trial to prove the allegations and retrieved printout from the same. Moreover, report onLetters of Rogatoryis yet to be received by the Respondent-ED and after receiving the said report, appellant is likely to be arrayed as an accused person in supplementary complaint as pointed out by Learned Counsel for the Respondent-ED. Hence, question of returning the relied upon and incriminating record at this stage does not arise.

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6. However, Respondent-ED is hereby advised to return all un-relied and non-incriminating seized articles, if any, to the present appellant as soon as report from the various countries is received, if the same are not required for any purpose, instead of dumping in its yard. The appeal is disposed of accordingly.

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Rajesh Malhotra

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Member

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FPA-PMLA-1597/DLI/2017

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Mr. Deepak Goyal Vs. The Deputy Director of Enforcement, Delhi

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Appeal disposed of . Pronounced in Open Court on this 15^th day of April, 2024.

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