Allowed

FPA-PMLA-2424/CHD/2018 of Shamsher Singh v. The Joint Director, Directorate of Enforcement, Chandigarh

ATFP12 Jun 2024FPA-PMLA-2424/CHD/2018

Case brief

AI extract

What is this about?

The Appellate Tribunal allowed the appeal filed against an order of the Adjudicating Authority that confirmed the attachment of a 3rd floor property in a cooperative housing society. The court held that the appellant, who purchased the floor via a registered sale deed for adequate consideration before the provisional attachment order, was a bona fide purchaser entitled to the relief under the Prev

What did the court decide?

The respondent-ED is directed to release the 3rd floor of property bearing Flat No. 4, Block A, The Janta Co-operative House Building Society Ltd., known as Meera Bagh, Paschim Vihar, New Delhi, and t

FPA-PMLA-2424/CHD/2018 of Shamsher Singh Vs. The Joint Director… — Cheque Dishonour | ATFP (2024)

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APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

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FPA-PMLA-2424/CHD/2018

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Shamsher Singh … Appellant

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Versus

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The Joint Director, Directorate of Enforcement, Chandigarh … Respondent

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Advocates/Authorized Representatives who appeared

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For the Appellant : Anjna Masih, Advocate

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For the Respondent : Mr. Mrinal Kumar, Advocate

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CORAM SHRI V. ANANDARAJAN : MEMBER SHRI RAJESH MALHOTRA : MEMBER

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FINAL ORDER 12.06.2024

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Dictated by: SHRI RAESH MALHOTRA

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Present appeal is filed against the impugned order dated 11.06.2018 passed by the Adjudicating Authority vide which it confirmed PAO No. 02/2017 dated 29.12.2017 for attachment of properties in Original Complaint No. 884/2018.

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As per the facts of the case, M/s.Unipay2U Marketing Private Ltd. through its office bearers, representatives and agents duped several hundreds of investors of several crores of rupees, by floating a ponzi scheme and promising high returns. During the year 2011, many writ petitions, including CWPs No. 11094/2011 & CWP-14795-2011, No. 22530/2011 & 20726/2011 were filed by more than five hundred aggrieved victims/investors before the Hon’ble Punjab and Haryana High Court at Chandigarh, against several persons including Shri Arvind Kumar Singh, seeking issuance of directions to the respondent government authorities to take action with regard to multi-crore cyber fraud against the companies/persons who defrauded thousands of people. From time to time several directions were passed in these writ petitions, including directions in CWP-14795 of 2011. During pendency of the said writ petitions Directorate of Enforcement took up the

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Rajesh Malhotra Member

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V. Anandarajan Member

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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investigation by way of recording a case No. ECIR/01/CHD/2012 dated 07.03.2012, since the below mentioned FIRs registered in the matter disclosed offences under Sections 120B, 420, 467, 471 Indian Penal Code, 1860 which are scheduled offences under the Prevention of Money Laundering Act, 2002.

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The offences of cheating criminal conspiracy/fraud etc, were committed at various places in India and the investigation in respect of the same are continuing and under progress. Apart from the above FIRs, several FIRs were also registered in similar matters where investors had been duped. In connection with the above matter police had registered two FIRs, as under:

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a) FIR No. 652 dated 16.05.2011, u/s 420, 406, 467, 468, 471& 506of IPC, by Police Station Panipat City, Distt. Panipat, Haryana, against Shri Sachin Mittal, Ashish Mittal S/o Shri Suresh Mittal, R/o H. No. 1749, Housing Board Colony, Panipat and one Dimple of Panipat, upon allegation of cheating/forgery in connection with the afore-stated ponzi Scheme. The allegation in the FIR in this case was that in the ponzi Scheme floated by Unipay2U Marketing Private Ltd. sister concern Visarev, the complainant was allured to invest monies and the unsuspecting complainant was made to invest Rs.14,50,000/-.

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b) FIR No. 234 dated 16.06.2011 u/s 420, 465, 468, 471 & 120B of IPC by Police Station, Panipat Sadar, Distt. Panipat, Haryana, against Bodh Raj Gandhi, Arun Gandhi S/o Shri Bodh Raj Gandhi, Smt. Raj Rani W/o Bodh Raj Gandhi,(All Resident of Panipat) and James, CEO cum Director of M/s Unipay2U Marketing Pvt. Ltd., Bangalore, upon allegation of cheating/forgery in connection with the afore-stated ponzi

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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scheme. The allegation in the FIR in this case was that the in theponzi scheme floated by Unipay 2U Marketing Private Ltd. and its sister concern Visarev, the complainant was allured to invest monies and the unsuspecting complainant and his relatives were made to invest Rs.22,62,000/- and Rs.5,70,220/was paid back in order to solicit more investment.

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The aforesaid FIRs disclosed offences under Sections 120B, 420, 467, 471 Indian Penal Code, 1860 (IPC), which are the scheduled offences under PMLA, 2002 and are covered under Part A, Paragraph I of the Scheduled of Offences under the Prevention of Money Laundering Act, 2002.

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On the basis of the said FIRs respondent-ED registered ECIR/01/CHD/2012 and thereafter, conducted investigation under PMLA. During Investigation by respondent-ED it transpired that several other FIRs were also registered in different parts of the country in connection with similar offences having been committed against the various victim investors. It was also learnt that an FIR No. 202 dated 12.07.2012 under Section 406/420/120B of IPC and 66-A IT Act, was registered at the Police Station, Sec 36, Chandigarh, wherein chargesheet No. 2523/2014, 15/11/2014, under Section 406, 420 & 66-A IT Act, 2000 against Ram Krishnamoorthi Vetrichelvan and SellathuraiBaskar, Directors of the Unipay2U Marketing Pvt. Ltd. Chelladurai Amalraj, Director of Unigateway 2U Trading Pvt. Ltd. Anupreet Kaur (Associate of Kamal K Bakshi) and Kamal K Bakshi and others, has been filed before the Ld. Trial Court (Judicial Magistrate 1^st Class), on the allegation of cheating, criminal breach of trust in connection with the investment of Rs.30,02,500. All the accused absconded and have been declared proclaimed offenders. In this case

Rajesh Malhotra

V. Anandarajan

Member Member

FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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thousands of investors were cheated on account of large scale cyber fraud committed by the company in the name and style of M/s Unipay2U Marketing Pvt. Ltd. (At Flat No. G1, Door No. 5/1, Plot no. 101, Kumaran Colony 3^rd Street, Vadapalani, Chennai, Tamilnadu-600026 and G-3 Palace Heights Apartments 19, Palace, Cross Road, Vasanth Nagar, BLR560020 and Corporate office- Best Genius SDN BHD 98A & 100A, Jalan SS21/39 (778327-A) Damansara Ulama, 47400, Petaling Jaya, Selangor, Malaysia) and M/s Unigateway 2U Trading Pvt. Ltd. (At No. 223, 5^th Main, 5^th Cross, Ganga Nagar, Bangalore-560032 and Best Genius SDN BHD 98A & 100A, Jalan SS21/39 (778327-A) Damansara Ulama, 47400, Petaling Jaya, Selangor, Malaysia), through its Agents. In the process, said companies siphoned out crores of Indian Rupees by executing a Ponzi/Pyramid scheme where investors were allured by false and dishonest assurances of exorbitant returns. Initially the exorbitant returns were paid out in order to win over the confidence of greater number of people. However, subsequently, when thousands of people across the country invested crores of rupees in the said ponzi schemes, the companies stopped the pay outs/monthly returns, since October, 2010 and gradually siphoned off crores of rupees of investors.

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In order to cheat, defraud and dupe the unsuspecting investors, 16 Bank Accounts were opened in the name of the accused company and it is disclosed that Rs.651,48,23,382/- (rupees six hundred fifty-one crore forty eight lakhs twenty three thousand three hundred and eighty two only) was received into these bank accounts from unsuspecting investors.

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The investigation has revealed that Shri Arvind Kumar Singh, S/o Shri Parasnath Singh R/o Flat No. 18, GH-5&7 Block, Near St. Marks School, Paschim Vihar, New Delhi-110087 was an agent of Unipay2U

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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group companies and between April 2009 to January 2011, he was involved into collecting of amounts from investors in the ponzi scheme floated by Unipay2U Marketing Private Ltd. For the purpose of collecting investment amounts, Shri Arvind Kumar Singh along-with his brother Shri Yogendra Pratap Singh was operating a firm ‘Secured Life’ (Partnership firm having Arvind Singh and Yogendra Singh as partners). ICICI Bank A/c No. 028805000138, Paschim Vihar, New Delhi, was opened by these persons in the name of the said firm ‘Secured Life’.

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During investigation, analysis of the aforesaid statement of account of the ICICI bank account No. 028805000138 in the name of ‘Secured Life’ disclosed that between 02.04.2009 and 22.01.2012 amounts totaling to Rs.32,17,65,373/- has been credited by way of Cash/RTGS/Transfer and then have been siphoned off by way of cash withdrawals and transferred to various bank accounts in the names of Shri Arvind Kumar Singh, Yogendra Pratap Singh and the family members of Shri Arvind Kumar Singh (Rita Singh-wife of Arvind Kumar Singh, Parasnath Singh-father of Arvind Kumar Singh, Nikhil Singh-son of Arvind Kumar Singh, Ashrita Singh- daughter of Arvind Kumar Singh).

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Further investigation revealed that Shri Arvind Kumar Singh and Shri Yogendra Singh have been actively involved in large scale money laundering where they have siphoned monies belonging to investors. Total funds collected in ‘Secured Life’ (a partnership firm having Arvind Singh and Yogendra Singh as partners), detected so far to Rs.32,17,65,373/- which were systematically laundered by them by cheating the investors. During search of the premises of Arvind Singh and Yogendra Pratap Singh on 28.07.2017, documents of properties were seized including the property bearing No. 4, Block A, The Janta Cooperative House Building Society Ltd., known as Meera Bagh, Paschim

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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Vihar, New Delhi. As per the document, Rita Singh has signed an agreement with Anuj Gulyani for construction building on the said plot comprising of basement, ground floor, upper ground floor, 1^st floor, 2^nd floor and 3^rd floor wherein the second party Shri Anuj Gulyani will construct the entire building out of his own funds, cost and expenses in lieu of entire housing project and Rita Singh will bethe owner of 2^nd Floor and 3^rd Floor with roof and terrace rights.

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Respondent-ED attached the number of properties, including property 2^nd and 3^rd floor with terrace right of freehold property bearing No. 4 Block-A shown in the layout plan of The Janta Co-operative House Building Society Ltd., Colony known as Meera Bagh, Paschim Vihar, New Delhi Area Measuring 334.4 sq mts. vide PAO No. 02/2017 dated 29.12.2017. Thereafter, respondent-ED filed Original Complaint No. 884/2018 before the Adjudicating Authority for confirmation of the said properties. Adjudicating Authority vide impugned order dated 11.06.2018 confirmed the attachment. Aggrieved by the same the appellant ShamsherSingh filed the present appeal.

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During the arguments Ld. Counsel for the appellant submitted that he is bona-fide purchaser of 3^rd floor of property mentioned in para no. 1 above. The appellant was carrying on the business of sourcing and logistics under the name and style of Sino Exports Hongkong Ltd. The appellant was NRI since 2007 and his business is mainly based in Hongkong, however, after pandemic his business in Hongkong suffered losses and he is now in India residing in Delhi. Appellant purchased the entire 3^rd floor with roof rights with separate demarked 20% share/rights in the stilt parking area and right to use common lift, in built up property bearing No. 4 Block-A, in The Janta Co-operative House Building Society Ltd. also known as Meera Bagh situated at Paschim

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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Vihar, New Delhi- 110087 from its erstwhile owner Smt. Rita Singh wife of Sh. Arvind Kumar Singh resident of GH-5 & 7, Near Meera Bagh, Paschim Vihar, New Delhi-110087 for sale consideration of Rs.1,11,00,000/- (rupees one crore eleven lakh only) vide registered Sale Deed dated 30.12.2016 duly registered with the Sub Registrar SR IIAPunjabi Bagh, New Delhi, Registration No. 6107 in Book No. 1, Vol No. 2958 on page No. 70-81.

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Ld. Counsel for the appellant pointed out copy of the sale deed Annexure-D annexed with the appeal. She further argued that the entire sale consideration amount of Rs.1,11,00,000/- (rupees one crore eleven lakh only) was paid by the appellant to Smt. Rita Singh the erstwhile owner through Cheques and DD/Pay order. The details of which is already given on page no. 6 &7 of the Registered Sale Deed dated 30.12.2016. The details of the said payment made by the appellant to Smt. Rita Singh is reproduced herein: -

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a) Rs. 8,00,000/- (Rupees Eight Lakhs Only) vide Pay Order No. 019044 dated 15.06.2016 drawn on HDFC Bank, Meera Bagh Paschim Vihar, Delhi

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b) Rs. 8,00,000/- (Rupees Eight Lakhs Only) vide Pay Order No. 019045 dated 15.06.2016 drawn on HDFC Bank, Meera Bagh Paschim Vihar, Delhi.

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c) Rs. 4,00,000/- (Rupees Four Lakhs Only) vide Pay Order No. 019046 dated 15.06.2016 drawn on HDFC Bank, Meera Bagh Paschim Vihar, Delhi.

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d) Rs. 7,00,000/- (Rupees Seven Lakhs Only) vide Cheque No. 017128 dated 22.06.2016 drawn on The Hongkong and Shanghai Bank Corp. Ltd., Punjabi Bagh, New Delhi.

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e) Rs. 3,00,000/- (Rupees Three Lakhs Only) vide Cheque No. 017129 dated 22.06.2016 drawn on The Hongkong and Shanghai Bank Corp. Ltd., Punjabi Bagh, New Delhi.

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f) Rs. 18,00,000/- (Rupees Eighteen Lakhs Only) vide Cheque No. 000005 dated 29.12.2016 drawn on HDFC Bank, Meera Bagh, Paschim Vihar, Delhi

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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g) Rs. 25,89,000/- (Rupees Twenty-FiveLakhsEighty-Nine Thousand Only) vide Pay Order No. 019634 dated 29.12.2016 drawn on HDFC Bank, Meera Bagh Paschim Vihar, Delhi.

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h) Rs. 7,00,000/- (Rupees Seven Lakhs Only) vide Pay Order No. 019633 dated 29.12.2016 drawn on HDFC Bank, Meera Bagh Paschim Vihar, Delhi.

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i) Rs. 29,00,000/- (Rupees Twenty-Nine Lakhs Only) vide Pay Order No. 019624 dated 28.12.2016 drawn on HDFC Bank, Meera Bagh Paschim Vihar, Delhi.

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In order to substantiate her contention, she pointed out the copies of bank statements, Pay Orders & Cheques which are annexed as Annexure-E with the appeal. She pointed that apart from above payment of Rs.1,11,00,000/- (Rupees One Crore Eleven Lakh Only) as sale consideration, the appellant also paid Rs.1,11,000/- (Rupees One Lakh Eleven Thousand Only) as 1% TDS and deposited directly to Income Tax Department. She pointed out Tax Payers Counterfoil and Form 26QB which are Annexure F & G annexed with the appeal.

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Ld. Counsel for the appellant submitted that before purchasing property in question from its erstwhile owner Smt. Rita Singh Wife of Sh. Arvind Kumar Singh, he took the entire chain of previous Sale Deed of previous owner in respect of the property in question to ensure the aforesaid property was free from prior sale, gift, stay order, court case, litigation, attachment, surety and/or security, injunction, legal flaw, exchange, title defect or any other registered or unregistered encumbrances and there is no dispute litigation etc. and the vendor/erstwhile owner has full and unrestricted right to sell and transfer the scheduled free hold property to the vendee. It is submitted that had the aforesaid property had been under any encumbrances, attachment etc., the appellant would have not purchased the same.

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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Before the purchase of property and after taking its possession and executing sale deed on 30.12.2016, the Appellant did not receive any notice or summons from respondent-ED under the PMLA Act 2002, and no proceedings of any kind were there against the property in question. Only in January 2018, for the first-time father of appellant received information from respondent-ED about PAO in 02/2017 dated 29.12.2017. Thereafter, summons was received by them for OC No. 884/2018. The appellant filed his detailed reply to same. After recording statement of appellant under Section 50 of the Act on 09.05.2018, respondent filed their rejoinder thereto.

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The entire sale consideration paid by the appellant to the previous owner Smt. Rita Singh wife of Sh. Arvind Kumar Singh is the hardearned money of the appellant and he has the proper account of the amount paid by him towards sale consideration for purchasing the property in question. The appellant had already disclosed the sale transaction for the income tax purposes.

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The respondent also recorded statement of appellant under Section 50 of the Act and the appellant submitted to the respondent all the money transaction and his source of income. The appellant has produced all relevant documents to substantiate his stand that the entire sale transaction regarding the property in question is valid and legal.

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The appellant and his father Sh. Dilbag Singh has given statement to the respondent regarding purchase of property in question by appellant and has filed the concerned documents regarding the payment of sale considerations to the previous owners.

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She further argued that the Adjudicating Authority passed the impugned order without considering the reply filed by the appellant along with supporting documents to show that he is a bona-fide purchaser of

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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the same. He pointed out that appellant is not an accused in any criminal activities, nor he received any proceeds of crime. At the time of purchase, appellant was not aware about the alleged fraud committed by Arvind Kumar Singh and his family and being a bona-fide purchaser for valuable consideration as explained above, the present appeal needs to be allowed. She further contended that even if it is presumed that Rita Singh purchased the plot from the proceeds of crime obtained from her husband Arvind Kumar Singh, even then after the development of said plot and selling the floors in lieu of sale consideration, the alleged proceeds of crime, if any stands transferred to Smt. Rita Singh after the sale of floors and accordingly, nothing remains invested in the developed housing project for the purpose of attachment.She further stressed that even otherwise, there is nothing on record that present appellant is part & parcel of any conspiracy with Smt. Rita Singh or he is not a bona-fide purchaser or that the said 3^rd floor was transferred to him without any sale consideration, in view of the documents tendered by appellant coupled with his bank statements to show that he is a bona-fide purchaser against sale consideration. Prayer is accordingly made to allow the present appeal.

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On the other hand, Ld. Counsel for the respondent-ED submitted that Smt. Rita Singh purchased the plot at Meera Bagh, out of proceeds of crime accumulatedby her husband Arvind Kumar Singh. He further submitted that appellant is not entitled to any relief by taking the plea that she is a bona-fide purchaser, as the said plot was constructed by the developer on the piece of plot purchased out of proceeds of crime. Prayer is accordingly, made to dismiss the present appeal.

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After hearing the rival submissions, we have given our thoughtful consideration to the same. The said plot might have been purchased by

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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Smt. Rita Singh out of the proceeds of the crime, as apparent from record. However, we cannot ignore the fact that the present appellant is a bona-fide purchaser, as he has purchased the 3^rd floor vide Sale Deed dated 20.12.2016 which is at page No. 429 in present case. As an admitted fact, Shri Anuj Gulyani developed the said plot and retained upper ground and 1^st floor, whereas, 3^rd floor was sold by Rita Singh to appellant Shamsher Singh. After the purchase of said floor by appellant ShamsherSingh, the Adjudicating Authority attached the same vide order passed in PAO dated 29.12.2017, which was later-on confirmed by Adjudicating Authority vide impugned order. Appellant duly provided the details of payment of sale consideration from his own sources, as apparent from his statement of account along with copies of Pay Ordersand Cheques which are Annexure-6. The fact that appellant ShamsherSingh purchased the 3^rd floor against sale consideration of Rs. 1,11,00,000/- taken from his bank account, there is nothing on record to presume that he is not a bona-fide purchaser or he colluded with Smt. Rita Singh or the property was got transferred in appellant’s name without any sale consideration. Even otherwise, after the sale of the floor in favor of appellant ShamsherSingh, the proceeds of crime invested for purchasing plot, stands re-transferred to Smt. Rita Singh as sale consideration. There is nothing on record to show that Sale Deed in favor of appellant ShamsherSingh is a false or sham transaction.On the contrary, the learned Adjudicating Authority on page 76 of the impugned order has categorically observed that D-7 (the appellant herein) has sufficiently adduced details of having acquired the property at 3^rd floor with roof rights purchased by him by registered sale deed dated 30.12.2016 from D-2 (Ms. Rita Singh). It is also noted by the learned Adjudicating Authority that several payments aggregating to Rs. 1,11,00,000/- (less payment of TDS deposited with the IT Department)

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Rajesh Malhotra V. Anandarajan Member Member

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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have been shown to be made to D-2, the earlier owner of the property. However, having noted these facts categorically, the learned Adjudicating Authority was of the view that as none of the bank accounts to D-2 have substantial balance, the property could be attached in the hands of the D-7 (the present appellant Shamsher Singh) as proceeds of crime stood transferred from D-2 to D-7. The learned Adjudicating Authority was of the view that though D-7 has a legitimate interest in the property and can be said to have suffered a quantifiable loss on account of having paid the full consideration, it was for D-7 (herein appellant) to invoke the provision of Section 8(8) before the learned Special Court.Having considered the matter carefully, we do not agree with the observation of the learned Adjudicating Authority.In the present case Provisional Attachment Order was passed on 29.12.2017 i.e. much after the execution of Sale Deed in favor of appellant Shamsher Singh on 20.12.2016, and accordingly, the said attachment needs to be set aside as appellant is clearly a bona-fide purchaser of 3^rd floor against sale consideration of Rs. 1,11,00,000/-Thus, the present appeal needs to be allowed.

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In sequel to our observations in the preceding para, the present appeal is hereby allowed and thereby, respondent-ED is directed to release the 3^rd floor of property bearing Flat No. 4, Block A, The Janta Co-operative House Building Society Ltd., known as Meera Bagh, Paschim Vihar, New Delhi, and thereby, the impugned order passed by the Adjudicating Authority is hereby, set aside to the said extent.

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Appeal Allowed .

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Pronounced on this 12^th Day of June, 2024.

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Rajesh Malhotra Member

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V. Anandarajan Member

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Rajesh Malhotra

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V. Anandarajan

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FPA-PMLA-2424/CHD/2018Shamsher Singh v. The Joint Director, ED, Chandigarh

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‘PS’

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Rajesh Malhotra Member Member

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V. Anandarajan

FPA-PMLA-2424/CHD/2018 of Shamsher Singh v. The Joint Director, Directorate of Enforcement, Chandigarh

Case brief

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FPA-PMLA-2424/CHD/2018 of Shamsher Singh v. The Joint Director, Directorate of Enforcement, Chandigarh

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