Dismissed

FPA-PMLA-2547/PTN/2018 of Shyamal Chakravarty v. The Deputy Director, Directorate of Enforcement, Patna

ATFP6 Aug 2024FPA-PMLA-2547/PTN/2018

Case brief

AI extract

What is this about?

The Appellate Tribunal dismissed an appeal against the confirmation of attachment of properties under the Prevention of Money Laundering Act. The court upheld the Adjudicating Authority's order, finding the appellant knowingly involved in laundering proceeds of crime generated by a public servant, noting contradictory statements and lack of genuine income sources.

What did the court decide?

The impugned order dated 03.08.2013 passed by the Adjudicating Authority confirming the attachment of properties was upheld.

FPA-PMLA-2547/PTN/2018 of Shyamal Chakravarty Vs. The Deputy… — Money Laundering | ATFP (2024)

¶1

APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

¶2

FPA-PMLA-2547/PTN/2018

¶3

Shyamal Chakravarty … Appellant Versus The Deputy Director, Directorate of Enforcement, Patna … Respondent

¶4

Advocates/Authorized Representatives who Argued

¶5

For the Appellant : Shri Rajeev Awasthi, Advocate, For the Respondent : Ms. Natasha Garg, Advocate.

¶6

CORAM

¶7

SHRI V. ANANDARAJAN : MEMBER SHRI RAJESH MALHOTRA : MEMBER

¶8

FINAL ORDER

¶9

06.08.2024

¶10

Dictated By: Rajesh Malhotra

¶11

Present appeal u/s 26 of the Prevention of Money Laundering

¶12

Act, 2002 is filed by the appellant Shyamal Chakravarty against the impugned order dated 03.08.2013 passed by the Adjudicating Authority in OC No. 172 of 2012, confirming the attachment of the following properties of the appellant:

¶13

Sl. No.	Sale Deed and Date	Purchaser	Details of Immovable properties	Area	Consideration (in Rs.)
1.	9786 dated 31.08.2009	Shyamal Chakravarty (D-4) & M/s Nand Lal (HUF) (D-3)	Flat No. 1A, 1^st Floor, Sugam Hemant Apartment, 75 Bondel Road, Kolkata – 700 019;	1569 sq. ft.	Value 38,58,700/- Stamp Duty 3,19,729/-, Registration 50,335/- Total 42,28,764/-
2.	9793 dated 11.09.2009		Car parking space no. 12 in Apartment, 75 Bondel Road, Kolkata – 700 019	Parking Space No. 12	Value 50,000/- Stamp Duty 17,309/- Registration3,266/- Total 70,575/-

¶14

FPA-PMLA-2547/PTN/2018

¶15

Shyamal Chakravarty v. E.D., Patna

¶16

¶17

As per the facts of the case, charge-sheet No. 05/2011 dated 10.08.2011 of Central Bureau of Investigation, SPE, AHD, Ranchi was filed u/s 173 of the Cr.P.C., before the Hon‟ble Special Judge, CBI, Ranchi for commission of offences punishable u/s 120B, 420, 467, 468, 471 of the IPC, 1860 and section 13(1)(c), 13(1)(d) r.w. 13(2) of the Prevention of Corruption Act, 1988;

¶18

Charge-sheet No. 06/2011 dated 05.09.2011 of Central Bureau of Investigation, SPE, AHD, Ranchi is filed u/s 173 of the Cr.P.C. before the Hon‟ble Special Judge, CBI, Ranchi, for commission of offences punishable u/s 120B, 420, 477A of the IPC, 1860 and section 13(2), r.w. 13(1)(d) of the Prevention of Corruption Act, 1988;

¶19

Charge-sheet No.12/2013 dated 31.08.2013 of Central Bureau of Investigation, ACB, Ranchi is filedu/s 173 of the Cr.P.C. before the Hon‟ble Special Judge, CBI, Ranchi, for commission of offences punishable U/s 13(2) r.w. 13(1)(e) of the Prevention of Corruption Act, 1988 and also r.w.s. 109 of the IPC, 1860.

¶20

On the basis of the above FIRs/charge-sheets and other documents, ECIR, bearing No. ECIR/12/PAT/2012 & ECIR/13/PAT/2012 dated 18.05.2012 were recorded by Enforcement Directorate, Patna Zonal Office against Dr. Pradeep Kumar & others, as the offences u/s 420/467/471/120B of Indian Penal Code, 1860 and section 13 of Prevention of Corruption Act, 1988 are scheduled offences under the schedule to the PMLA Act, 2002.

¶21

Perusal of the above FIRs/Charge-sheets reveal that Dr. Pradeep Kumar & others have been charged forindulging in criminal conspiracy, cheating, dishonestly inducing delivery of property,

¶22

FPA-PMLA-2547/PTN/2018

¶23

Shyamal Chakravarty v. E.D., Patna

¶24

¶25

forgery of valuable security, will etc., using as genuine a forged document, or electronic record and criminal misconduct by a public servant and thereby causing loss to the government exchequer.

¶26

Vide charge-sheet No. 05/2011 dated 10.08.2011, it has been alleged by the CBI, Ranchi that Rs.31.68 crores were squandered out of NRHM funds by the public servants, namely, Shri Bhanu Pratap Sahi, Dr. Pradeep Kumar, Dr. Vijay Shankar Narayan Singh, Shri Madan Mohan Prasad, Shri Pradyut Mukherjee & others in collusion with private persons, namely, Shri Nand Kishore Fogla, Shri Rajesh Fogla, Shri Shyamal Chakravarty & others. Dr. Pradeep Kumar, being the Mission Director functioned as Chief Executive Officer, Jharkhand Rural Health Mission Society during the period from 20.06.2008 to 03.08.2009 and while functioning as such, he was directly responsible for any omission and commission. CBI Investigation of the case has established that Shri Bhanu Pratap Shahi entered into criminal conspiracy with Dr. Pradeep Kumar, Dr. Vijay Shankar Narayan Singh, Shri Madan Mohan Prasad, Shri Pradyut Mukherjee, Shri Riyaz Khan Faridi and Shri Rajesh Kumar Fogla. These persons entered into criminal conspiracy and dishonestly and fraudulently cheated the Government of India as well as the State Government of Jharkhand by awarding the tender for purchase of 5000 litres of disinfectant, 300 pieces of fogger machines and 1000 pieces of dispenser at exorbitant rates in favour of M/s Nand Kishore Fogla. The omission and commission on the part of above officials caused wrongful loss to the tune of Rs.13,62,13,600/- and corresponding wrongful gain to themselves and others.

¶27

FPA-PMLA-2547/PTN/2018

¶28

Shyamal Chakravarty v. E.D., Patna

¶29

¶30

Investigation of the case has established that Dr. Pradeep Kumar entered into criminal conspiracy with Dr. Vijay Shankar Narayan Singh, Shri Madan Mohan Prasad, Shri Pradyut Mukherjee and also with Shri Rajesh Kumar Fogla and in pursuance of the conspiracy, they, by abusing their respective official positions, dishonestly and fraudulently cheated the Government of India and State Government by awarding the tender for purchase of sanitary napkins at exorbitant rates in favour of M/s Nand Kishore Fogla. The omission and commission on the part of the above officials caused wrongful loss to the tune of Rs. 2,88,52,506.25/- and corresponding wrongful gain to themselves and others.

¶31

Dr. Pradeep received illegal gratification amount to Rs. 4,85,00,000/- from M/s. Nand Kishore Fogla in five instalments. This is proved by the confessional statements of Rajesh Kumar Fogla ,S/o Shri Nand Kishore Fogla, the proprietor of M/s Nand Kishore Fogla, recorded as an accused u/s 164 Cr.P.C. by the Magistrate I-Class. The amount of pay off was routed through Shyamal Chakraborty . The confessional statement of Shri Rajesh Kumar Fogla stands corroborated by Shri Vikash Khetan (who too made his statement u/s 164 Cr.P.C.) as an accused.

¶32

Vide charge-sheet No. 12/2013 dated 31.08.2013, it has been alleged by the CBI, Ranchi that Dr. Pradeep Kumar, held sensitive and important post during the period November, 2000 to August, 2009 and was found in possession of pecuniary resources, or property, disproportionate to his known source of income. He had acquired assets either in his own name or in the name of his dependent family

¶33

FPA-PMLA-2547/PTN/2018

¶34

Shyamal Chakravarty v. E.D., Patna

¶35

¶36

members. Dr. Pradeep Kumar formed Pradeep Kumar HUF & Nand Lal HUF and started filing separate IT returns for the HUFs from the FY 2004-05. Further, Dr. Pradeep Kumar vide sale deed No. 2668 dated 31.01.2005 sold a Flat at Rajouri Garden, Delhi for Rs.17 lacs, and subsequently opened a Capital Gain account showing sale proceeds to be Rs. 20.20 lacs.

¶37

Assets in possession of Dr. Pradeep Kumar is only the tip of the iceberg and actual disproportionate part was found in benami name of his brother Rajendra Kumar and a new entity Nand Lal HUF. Rajendra Kumar, the only brother of accused is unmarried, and he, though tried number of different businesses during the check period, but could not do any business successfully and finally left all the work. He was used as a tool by the accused Dr. Pradeep Kumar and his brother Rajendra Kumar deliberately supported the criminal design of the accused. The assets of Rajendra Kumar are not explained by the IT returns of accused. The immovable assets purchased in the name of Rajendra Kumar during the check period were purchased through his bank account opened at Ranchi, which were funded by close friends/associates of Dr. Pradeep Kumar. Rajendra Kumar was further, made Karta of Nand Lal HUF, created for adjusting some of the ill-gotten income of Dr. Pradeep Kumar.

¶38

Investigation revealed that the attached immovable properties were purchased by Dr. Pradeep Kumar in his own name, in the name of Nand Lal HUF (Karta Rajendra Kumar), in the name of his brother Rajendra Kumar and Shyamal Chakravarty from the proceeds of crime which source of acquisition is not substantiated by them.

¶39

FPA-PMLA-2547/PTN/2018

¶40

Shyamal Chakravarty v. E.D., Patna

¶41

¶42

Investigation revealed that both the DDs dated 26.12.2007 for Rs. 5 lacs and dated 8.01.2008 for Rs. 4 lacs, were created by way of debit from the account no. 4910100007052 in the name of Rajendra Kumar (D-3) held with Bank of India, Shyamali Branch, Ranchi. Scrutiny of the account no. 4910100007052 in the name of Rajendra Kumar revealed that the credit was built up as mentioned in following para:-

¶43

From the Audit Report and ITR submitted by Shyamal Chakravarty, it can be seen that sale of flats by M/s Essar Enterprises was done and profit made only in the FY 2009-10. Hence, there was no income to this firm prior to FY 2009-10. Against no profit prior to FY 2009-10, both the partners Rajendra Kumar and Shyamal Chakravarty were withdrawing money from the partnership business. From the Audit Report for the FY 2009-10, it is also apparent that their initial invested Capital remained intact, till the dissolution of the partnership firm in September, 2010. This leads to the conclusion that amount credited from M/s Essar Enterprises is unaccounted and from the illicit sources, as the amount was generated without any actual investment and/or earning by said partnership firm in the business of construction.Investigation revealed that in the sale deed No. 9786 dated 31.08.2009 vide which the property has been purchased, Shri Arun Kumar Agarwal is the seller.Rajendra Kumar, vide his letter dated Nil, which has been received by ED on 13.10.2015, he has himself declared that following loans were taken by Nand Lal HUF for purchase of this Flat: i) Loan taken from M/s Pathak Telecon Co. (P) Ltd – Rs. 20,00,000/-

¶44

FPA-PMLA-2547/PTN/2018

¶45

Shyamal Chakravarty v. E.D., Patna

¶46

¶47

i) Loan taken from M/s Hindustan Credit Corporation- Rs. 5,95,000/-

¶48

Thus, it is apparent that the above money received from the M/s Pathak Telecom and M/s Hindustan Credit Corporation was not for the purpose of purchase of flat, as the payment against purchase had already been completed in the year 2007. This fact is further established by the fact that Rs. 4 lakhs received from the account of Hindustan Credit Corporation were utilized for preparing of FD on the very same date, which is still invested in that FD. This shows that payment was made out of some other sources, which in absence of any proper explanation from Rajendra Kumar, as well as Shyamal Chakravarty, appears to be proceeds of crime generated by Dr. Pradeep Kumar. Further, as stated by Rajendra Kumar the purchase of property was arranged by Naresh Kejriwal, Chartered Accountant of Dr. Pradeep Kumar.The property,Flat No. 1A, 1^st Floor, Sugam Hemant Apartment, 75 Bondel Road, Kolkata – 700 019; (along with covered car parking space)was purchased jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF where Rajendra Kumar is the Karta. In course of his statement dated 29.01.2018, recorded u/s 50 of PMLA, Rajendra Kumar has stated that he did not know the beneficiary of Nand Lal HUF. He is unaware of basic details regarding this HUF so that proceeds of crime could be laundered through this HUF and projected as untainted. Further, Rajendra Kumar, during statement u/s 50 of PMLA, stated that he is not aware of the details of property in Kolkata, its price and the exact source of its acquisition. He stated that a loan of approx. Rs.20 lakhs were taken in from Pathak & Co. about which he did not know much. The details of loan and its repayment status is not known to him. He stated that money

¶49

FPA-PMLA-2547/PTN/2018

¶50

Shyamal Chakravarty v. E.D., Patna

¶51

¶52

was arranged by his brother Dr. Pradeep Kumar‟s Chartered Accountant Shri Naresh Kejriwal. Further, this loan has not been reflected in the ITR of Nand Lal HUF.

¶53

It is also pertinent to note here that both the abovementioned properties were purchased jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF, but the payments were arranged by only Nand Lal HUF and Rajendra Kumar.

¶54

Rajendra Kumar in his statement recorded u/s 50 of PMLA stated that as far as he remembers, there is no immovable property in the name of M/s Nand Lal HUF;

¶55

Whereas as immovable property in the name of M/s Nand Lal in partnership with Shri Shyamal Chakravarty was purchased in FY 2009-10 for about 43 lakhs in Kolkata.

¶56

Shri Shyamal Chakravarty during his statement recorded u/s 50 of PMLA on 21.08.2015, 25.08.2015 & 11.01.2018, stated that-

¶57

(a) He was associated with Rhea Enterprises, Rhea Marketing Pvt. Ltd. & Essar Enterprises. In Essar Enterprises, Rajendra Kumar, brother of Dr. Pradeep Kumar is the partner;

¶58

(b) He knew Rajendra Kumar (main accused) as brother of Dr. Pradeep Kumar. During his visits to the residence of Dr. Pradeep Kumar, he got acquainted with Rajendra Kumar;

¶59

(c) Dr. Pradeep Kumar is known to him because of official dealings. He had done various contract work, when he was D.C. Ranchi and posted as Secretary, Health. Being a contractor, he often visits his residence.

¶60

Dr. Pradeep Kumar, in his statement dated 30.05.2016, stated that he knows Shri Shyamal Chakravarty as friend of his brother, Rajendra Kumar and on the advice of his brother, the power of

¶61

FPA-PMLA-2547/PTN/2018

¶62

Shyamal Chakravarty v. E.D., Patna

¶63

¶64

attorney was given to Shyamal Chakravarty. It is apparent that statement of Dr. Pradeep Kumar and Shri Shyamal Chakravarty are contradictory. Both have close nexus in transactions of immovable properties.

¶65

Shri Shyamal Chakravarty is associated with almost every major financial dealing related to Dr. Pradeep Kumar and his family members. As per statements of Rajesh Kumar Fogla u/s 164Cr.PC by the Magistrate I-Class which was also corroborated by Shri Vikash Khetan (who too made his statement u/s 164 of Cr.PC) as an accused, wherein he stated that Shyamal Chakravarty used to receive the bribe money for Dr. Pradeep Kumar.

¶66

On the basis of above investigation, respondent ED attached the immoveable properties vide PAO No. 04/2018 dated 20.02.2018 and thereafter, filed Original Complaint No. 901/2018 before the Adjudicating Authority.

¶67

After going through the complaint and the documents annexed therewith, the Adjudicating Authority issued show cause notice dated 28.03.2018 to all the noticee(s) no. 1 to 4. Thereafter, after considering the replies and the evidence on record, Ld. Adjudicating Authority concluded that Shyamal Chakravarty knowingly involved in transfer and concealment of the proceeds of crime generated by Dr. Pradeep Kumar. Accordingly, vide order dated 03.08.2018, Ld. Adjudicating Authority confirmed the attachment of properties.

¶68

Aggrieved by the said order, appellant filed the present appeal.

¶69

Ld. Counsel for the appellant submitted that the appellant Shyamal Chakravarty is a reputed Govt. Class-I(A) Contractor,

¶70

FPA-PMLA-2547/PTN/2018

¶71

Shyamal Chakravarty v. E.D., Patna

¶72

¶73

running business in the name of his Proprietorship concern M/s Rhea Enterprises, since year 2001.The said concern is also authorized retailer of some reputed companies. The Books of Accounts are being audited by a Chartered Accountant as per Income Tax Law for the last fourteen years. The payments are mostly received by the firm after deduction of income tax at source (TDS). He pointed out the turnover and profit of M/s Rhea Enterprises for F.Y. 2006-07 to 2010-11, detailed as under:

¶74

F.Y	Turnover	Book Profit
2006-07	93,25,482.00	5,65,169.00
2007-08	2,36,71,356.00	12,81,662.50
2008-09	7,56,92,424.51	72,60,544.53
2009-10	3,78,30,271.04	55,42,472.87
2010-11	5,20,14,527.27	76,67,472.87

¶75

He submitted that the appellant entered into a partnership with one Mr. Rajendra Kumar and opened a firm namely M/s Essar Enterprises for doing construction work on the land, which was purchased by appellant for sum of Rs. 15 lacs. Mr. Rajendra Kumar invested Rs. 14.90 lacs in the aforesaid firm for which he had taken loan from Dharmendra Kumar Dheeraj. Eight flats were constructed in the name of Shailja Apartment. The partnership was dissolved in the year 2010 in accordance with the dissolution deed.

¶76

In order to prove the source of purchase of property under attachment, he submitted that the said property was purchased vide two demand drafts viz. Demand Draft dated 13^th July, 2009 for Rs.8,50,000 and Rs. 9,00,000. The DDs were created by way of debit from bank account number 30167253801 (Current Account) in the

¶77

FPA-PMLA-2547/PTN/2018

¶78

Shyamal Chakravarty v. E.D., Patna

¶79

¶80

name of M/s Rhea Enterprises held with SBI, Harmu Housing Colony Branch, Ranchi. At that time, Shyamal Chakravarty was the sole proprietor of Rhea Enterprises. Total funds received from Govt. Department in the period 03.07.2009 to 10.07.2009 in account number 0167253801 (Current Account) in the name of M/s Rhea Enterprises held with SBI, Harmu Housing Colony Branch is Rs. 75,97,784/. Out of which Rs.66,73,542.00 was from the Govt Civil Work. From the above funds Two Demand Draft of Rs.8,50,000 and Rs. 9,00,000 dtd. 13.07.2009 were made.

¶81

He further submitted that DD no. 071167 dated 29.08.2009 of Rs. 3,19,729/-, was created by way of debit from bank account number 30167253801 of SBI Harmu Housing Colony Branch issued from SBI La Martiniera Branch, Kolkata Branch code 03681 in the name of Registrar of Assurance, Kolkata for paying stamp duty.

¶82

He pointed out that apart from that in the FY 2008-2009 AY 2009-2010, the answering defendant has received Rs. 4,51,19,984/from Govt. Contract only. He also had income from private contract.In the FY 2009-2010 net income of Shyamal Chakravarty was Rs. 54,98,150/- against which he had paid income tax of 16,59,788/even his cash in hand was Rs. 1,45,439.86 (can be verified from the audited balance sheet of the FY 2008-2009). Out of this amount, he paid registration charges of Rs. 50,335/-.

¶83

In order to explain the transactions with Rajendra Kumar & Nand Lal HUF, Ld. Counsel for appellant pointed out that appellant Shyamal Chakravarty and Rajendra Kumar entered into a partnership agreement on 22.12.2004 for forming a partnership firm M/s Essar Enterprises having equal shares.Payments against remunerations out

¶84

FPA-PMLA-2547/PTN/2018

¶85

Shyamal Chakravarty v. E.D., Patna

¶86

¶87

of profit and as per need, were made by cheques to Rajendra Kumar, details of which are given below:-

¶88

ChequeNo.	Date	Amount (Rs.)	Purpose
422295	29.01.2007	75000	Withdrawal
032508	17.03.2007	45000	Withdrawal
032559	05.12.2007	1,20,000	Withdrawal
Total		2,40,000

¶89

He argued that this fact can be verified from the bank statements having account number:- 490120100300167 in the name of Essar Enterprises held with Extension Counter of Bank of India Vikash, Ratu Road branch.The partnership carried out only one project of construction of Shailaja Apartment at Kanke Road, Ranchi. The project started in2006-2007and was completed in the financial year 2009-2010. Thereafter, no further business was carried on by partnership firm of Essar Enterprises.After completion of the project Shailja Apartment in 2009-2010, partnership was dissolved by execution of Deed of Dissolution dated 23.09.2010. As per clause 7 of Deed of Dissolution dated 23.09.2010, Appellant had taken over the residual assets and liabilities of the dissolved firm. Assets and liabilities of M/s Essar Enterprises were merged in the existing proprietorship firm, M/s Rhea Enterprises.Capital plus profit of Rajendra Kumar amounted to Rs. 32,50,038/- and interest of Rs1,36,851/-, Total Rs 33,86,889/-. The said amount was paid to Rajendra Kumar from the bank account of M/s Rhea Enterprises in the following manner:

¶90

Cheque No.	Date	Amount (Rs.)	Debited accountNo.
884602	09.03.2011	15,00,000.00	31649126039 (current account)
348928	17.03.2011	18,73,204.00	31114155978

¶91

FPA-PMLA-2547/PTN/2018

¶92

Shyamal Chakravarty v. E.D., Patna

¶93

¶94

		C.C A/c
	13,685	TDS
Total	33,86,889.00

¶95

In order to explain the source for making payments of Rs.2.40 lakhs to Rajendra Kumar, Ld. Counsel for appellant submitted that Shailaja Apartment was launched in the year 2006-07. Thereafter, advance for booking of flats were received by prospective buyers by cheques.The said cheques, received against advance booking of flats, were credited in the bank account number 490120100300167 in the name of Essar Enterprises held with Extension Counter of Bank of India Vikash Bhawan, Ratu Road branch Ranchi.Credits received in bank account number 49012000300167 of M/s Essar enterprises were utilized to make credit of Rs.2.40 lakhs to Rajendra Kumar.

¶96

In order to explain the source for making payments of Rs. 33.73 lakhs to Rajendra Kumar, Ld. Counsel for appellant pointed out that only project and business of Essar Enterprises was developmentand sale of flats of M/s Shailaja Apartment, which was completed by March, 2010. After completion of construction of flats, deeds of conveyancewere executed in favor of agreement holders, particulars ofbuyers are as under:

¶97

Flat No.	Name of Buyer	PAN	Consideration (in Rs.Lakhs)
101	RajKishore	ADPPK4019K	14.00
102	Pratima Singh	CFVPS0725L	21.75
103	Rekha Verma	AEIPS9599C	21.50
201	Saras Kumar Jain	ADIPJ1795Q	14.00
202	Pushpa Singh	BULPS2322B	16.75
203	Balmukund Jha	AFOPJ7224A	23.35
301	Swati	BIQPS3786E	23.50

¶98

FPA-PMLA-2547/PTN/2018

¶99

Shyamal Chakravarty v. E.D., Patna

¶100

¶101

Parmar
302 Vijay Kr. Singh	AGIPS8976N	26.50
401 Satyabrat Bhatta	AJEPB6016G	23.60

¶102

Against execution of the sale deeds, consideration amount was received by cheques. The said cheques were credited in the bank account number 49012000300167 in the name of Essar Enterprises held with Extension Counter of Bank of India Vikash Bhawan, Ratu Road branch Ranchi.After completion of the single project, partners have decided to dissolve the firm, therefore, Essar Enterprises was dissolved on 23rd of September 2010. All the asset and liabilities of the firm was taken over by Partner Shyamal Chakarvarty through its firm i.e M/s Rhea Enterprises. Total payment was made to Mr. Rajendra Kumar, of Rs.33,86,889 including interest due to delay payment for his share in Essar Enterprises and TDS of Rs. 13685 was deducted on interest paid to Rajendra Kumar, from the account of M/s Rhea Enterprises which are detailed below:

¶103

Cheque No.	Date	Amount (Rs.)	Debited account No.
884602	09.03.2 011	15,00,000.00	31649126039(curr ent a/c)
348928	17.03.2 011	18,73,204.00	31114155978 C.C A/c
		13685.00	TDS
Total		33,86,889.00

¶104

Ld. Counsel for appellant tried to explain the sources of payment made by M/s Rhea Enterprises. He submitted that the nature of Business of M/s Rhea Enterprises is Govt Civil Contractor and supplier. The above payment was made by M/s Rhea Enterprises out of accumulated profit of M/s Rhea Enterprises. The turnover and

¶105

FPA-PMLA-2547/PTN/2018

¶106

Shyamal Chakravarty v. E.D., Patna

¶107

¶108

profit of M/s Rhea Enterprises for F.Y 2006-07 to 2010-11 is detailed in the above sub-paras.

¶109

He argued that the major part of turnover is receipt from Govt departments which is also supported by 26AS (Statement in which TDS deducted by which Govt. department is shown). Being himself an Income Tax Officer, the IO of the case was duty bound to go through the documents filed by the appellant. He contended that the appellant has produced his audited balance sheet of income tax for the relevant period, but neither the IO, nor the Ld. Adjudicating Officer, or any other officer of the department for that matter, bothered to look into the said document, which are self-speaking and could have provided all the answers of the questions which are subject matter before this Appellate Tribunal.

¶110

He submitted that the monies advanced by M/s Rhea Enterprises a firm of appellant involved in Govt. Civil Construction and supply of goods who is not proceeded against in the attachment order or in the OC, hence it could not be imagined that the monies given by such entity to any person including Appellant Shyamal Chakravarty or Shri Rajendra Kumar are emanating from any activity relating to any "scheduled offence", hence such monies could not be "proceed of crime" and therefore, the instant proceedings under PMLA are void ab initio. Accordingly, he contended that the impugned order is liable to be set aside on this ground. He further argued that the genuineness of the source of payments received by the M/s Rhea Enterprises owned by the applicant received from various Govt. departments against construction work done by the firm may be verified from TDS

¶111

FPA-PMLA-2547/PTN/2018

¶112

Shyamal Chakravarty v. E.D., Patna

¶113

¶114

Certificate received by the firm against various works or Form 26AS of the Income Tax Department.

¶115

In support of his contention, he relied upon the judgment of this Appellate Tribunal in case Kalyani Education Pvt. Ltd. vs. Deputy Director, Directorateof Enforcement, MANU/ML/0013/2019, wherein in Para 18, it is held that: “ The appellants are running educational institutions and the Respondent has issued the impugned attachment order and complaint on the erroneous premise of "any property" of "any person" without focusing its attention as to first prerequisites in law of existence of any "proceeds of crime" and availability of "material" to lead to "reasons to believe" as required under Section 5 of PMLA ."

¶116

Further in Para 19 of the judgment it has been held that any order/confirmation of attachment made in the absence of presence of any 'proceeds of crime' amounts to miscarriage of the law itself and the very exercise of powers by the Respondents under PMLA, in such absence is beyond jurisdiction . Further, the Hon'ble Appellate Tribunal has held in Para 20 of the judgment that monies shown or proved to be untainted cannot be held to be proceeds of crime or involved in money laundering .

¶117

He further relied upon the judgment of Hon'ble High of Gujarat at Ahmadabad in the case of Santosh Naik VS. Deputy Director , MANU/GJ/0506/2018 wherein it is held that there is nothing to raise a presumption of fact or law that any of the petitioner was aware that the monies received in their bank accounts through banking channel were proceeds of crime derived from any scheduled offence . The

¶118

FPA-PMLA-2547/PTN/2018

¶119

Shyamal Chakravarty v. E.D., Patna

¶120

¶121

Hon'ble Court, while deciding the issue of involvement of the applicant in money laundering in Para 39 of the judgment has held that there is no tangible evidence or circumstantial material impute culpable knowledge to the applicants and to prima facie conclude that they were either aware of the commission of a scheduled offence or the generation of the alleged proceeds of crime . The court further held that the prerequisite for trying any person on allegation of money laundering i.e. mens rea or culpable knowledge of the scheduled offence and proceeds of crime derived therefrom and projection of such proceeds of crime as untainted .

¶122

He also relied upon the judgment of Hon'ble High Court of Delhi in the case of Himachal Emta Power Ltd. VS. Union of India, MANU/DE/ 3183/2018 wherein, it has held that- Investments made by ventures for subscription of shares in other companies cannot by any stretch of imagination be held to be proceeds of crime . The court in Para 18 states that when no material whatsoever can be produced based on which it can be concluded that the investments made are 'derived or obtained' as a result of criminal activity relating to a scheduled offence then the said investment cannot be held to be 'proceeds of crime' . Further, in Para 19 the Hon'ble Court records that the assumption that any amount used in commission of a scheduled offence would fall within the expression 'proceeds of crime' as defined under section 2(1)(u) of PMLA is fundamentally flawed . Further, the court records that in the event that the mining of the coal block never commenced, it cannot be construed that HEPL derived or obtained any benefit from the coal block and accordingly the impugned order allowing the attachment was set aside .

¶123

FPA-PMLA-2547/PTN/2018

¶124

Shyamal Chakravarty v. E.D., Patna

¶125

¶126

He further submitted that paras 74 to 77, the Double Bench of Hon'ble High Court of Delhi in its judgement J. Sekar v. Union of India and Ors. MANU/DE/0075/2018, has held that the Court, therefore, holds as under as regards the submissions of the learned counsel for the Petitioners with regard to the constitutionality of the second proviso to Section 5(1) PMLA:

¶127

i) Although the second proviso to Section 5(1) states that the property has to be 'involved in money-laundering' and section 5(1) states that mere possession of proceeds of crime is sufficient, the Court does not see any conflict in these expressions. When the definition in Section 3 PMLA is read with Section 2(1)(v) and the Explanation thereto, it becomes clear that the property which constitutes 'proceeds of crime' is the property involved in money- laundering.

¶128

ii) The reasons to believe at every stage must be noted down by the officer in the file.

¶129

iii) While the reasons to believe recorded at the stage of passing the order of provisional attachment under Section 5(1) PMLA may not be forthwith at that stage communicated to adversely affected the thereby, the reasons as recorded person in the file have to accompany the complaint filed by such officer within 30 days before the AA under Section 5(5) PMLA.

¶130

iv) A copy of such complaint accompanied by the reasons, as found in the file, must be served by the AA upon the person affected by such attachment after the AA adds its own reasons why he prima facie thinks that the provisional attachment should continue.

¶131

FPA-PMLA-2547/PTN/2018

¶132

Shyamal Chakravarty v. E.D., Patna

¶133

¶134

There are two reasons to believe. One recorded by the officer passing the order under Section 5(1) PMLA and the other recorded by the AA under Section 8(1) PMLA. Both these reasons to believe should be made available to the person to whom notice is issued by the AA under Section 8(1) PMLA. The failure to disclose, right at the beginning. the aforementioned reasons to believe to the noticee under section 8(1) PMLA would not be a mere irregularity but an illegality. A violation thereof would vitiate the entire proceedings and cause the order of provisional attachment to be rendered illegal.

¶135

The Court disagrees with the Ld. Counsel for the Union of Indiathat there is no mandatory requirement, under Section 8(1) PMLA, to communicate to the noticee the reason to believe. On a collective reading of Section 5(1) PMLA Section 8(1) PMLA, such an interpretation and is contraindicated and cannot satisfy the requirement of what the AA is supposed to do under Section 8(2) PMLA, viz. to consider the reply of the noticee, give them and the Director a hearing and 'take into account' all relevant materials placed on record .

¶136

Although at the stage of issuance of notice under Section 8(1) PMLA all the relevant material on record which constituted the basis for reasons to believe may not be made available, if the noticee demands to see those materials on record, the AA is bound to make available all those materials on record to them. It is most likely that without such access to such material on record, the noticee will be unable to file an effective reply. Therefore, there cannot be any denial of access to the noticee of the materials on record. If there is any sensitive material, it can probably be redacted before issuing copies thereof, after noting the

¶137

FPA-PMLA-2547/PTN/2018

¶138

Shyamal Chakravarty v. E.D., Patna

¶139

¶140

reasons for such redaction in writing in the file. But even such redacted material will have to be nevertheless shown to the noticee .

¶141

He pointed out that the appellant Shyamal Chakravarty is not charge sheeted in RC-1/A 2011-R dated3-1-2011 i.e. DA case against Dr Pradeep Kumar. He contended that the appellant is not at all related with the alleged ill-gotten money of Dr. Pradeep Kumar in any way,and he has duly explained all his sources of income. Hence, his Flat being purchased from his legal sources of income needs to be released from attachment. Prayer is accordingly made to allow the present appeal and thereby set aside the impugned order dated 03.08.2018 passed by the Adjudicating Authority along with Provisional Attachment Order dated 20.02.2018

¶142

On the other hand, Ld. Counsel for respondent submitted that three FIRs were registered by CBI against Dr. Pradeep Kumar for commission of offences for ciriminal misconduct u/s 13 of the Prevention of Corruption Act as well as for cheating and forgery u/s 468 & 471 IPC for committing fraud for siphoning of NRHM funds, alongwith the other accused persons in pursuance to conspiracy. After investigation CBI filed charge sheet against Dr. Pradeep Kumar and the other accused persons, including the appellant, Shyamal Chkravarthy. Ld. Counsel for respondent ED submitted that Dr. Pradeep Kumar has laundered the illicit wealth with the help of his brother Rajendra Kumar, present appellant Shyamal Chkravarthy, Davinder Kumar Dheeraj, Naresh Kejriwal, Inderlal Kejriwal and Sita Ram Pathak.Dr. Pradeep Kumar formed Nand Lal HUF, with the help of his brother Rajendra Kumar, on the advice of Naresh Kejriwal to

¶143

FPA-PMLA-2547/PTN/2018

¶144

Shyamal Chakravarty v. E.D., Patna

¶145

¶146

launder the proceeds of crime. Rajendra Kumar, despite being Karta of the Nand Lal HUF is unaware about the beneficiaries. Rajendra Kumar has entered into the transactions of immovable properties without being aware of the details like “location, owner of the property, mode of payment etc”. Further, all his transactions have happened with the help of ShyamalChakravarty who used to conceal proceeds of crime acquired by Dr. Pradeep Kumar. In fact, in all the transactions involved in money laundering, Shyamal Chakravarty has played the central role, at the instance of Dr. Pradeep Kumar. This shows that Shyamal Chakravarty has knowingly concealed and assisted Dr. Pradeep Kumar in laundering the proceeds of crime. He argued that both Dr. Pradeep Kumar and Rajendra Kumar could not submit any evidence regarding source for creation of IVPs and KVPs which formed the basis for formation of Nand Lal HUF. This shows that proceeds of crime generated by Dr. Pradeep Kumar were invested in Nand Lal HUF which was formed on the advice of his Chartered Accountant Naresh Kejriwal for the only purpose of concealment and layering of proceeds of crime, so that tainted property could be projected as untainted. He pointed out that statement of Shri Rajendra Kumar,wherein he stated that he took loan from Sitaram Pathak and Inderlal Kejriwal for acquisition of immovable property, but he could not produce any loan agreement and he does not know these persons individually. Moreover, all the payment for acquisition of this immovable property had already been done much prior to receipt of the loans. These loans have not been reflected in the books of account. Both Sitaram Pathak and Inderlal Kejriwal transferred the amount to the bank account of Rajendra Kumar on the advice of CA

¶147

FPA-PMLA-2547/PTN/2018

¶148

Shyamal Chakravarty v. E.D., Patna

¶149

¶150

Naresh Kejriwal. This makes evident that Dr. Pradeep Kumar has invested proceeds of crime for acquisition of immovable properties and Sitaram Pathak and Inderlal Kejriwal have entered into mala-fide transactions with Rajendra Kumar without any basis in an attempt to conceal and layer the proceeds of crime so that tainted properties could be projected as untainted. Once the investigation of CBI was initiated, the transferred amount was repaid to these firms to project these transactions as genuine. However, money for repayment came from M/s Rhea Enterprises, a firm controlled by Shyamal Chakravarty. Rajendra Kumar has himselfdenied any financial transaction with Rhea Enterprises. This shows that Dr. Pradeep Kumar and Rajendra Kumar are knowingly trying to hide the origin of tainted property and frustrate the proceedings under PMLA with the connivance of Shyamal Chakravarty, Sitaram Pathak, Naresh Kejriwal and Inderlal Kejriwal.

¶151

He further contended that after the purchase of flat from JasconInterbuild (Prop. Dharmendra Kumar Dhiraj), almost entire sale consideration was paid back to Rajendra Kumar by Dharmendra Kumar Dhiraj. This shows that in reality, the proceeds of crime parked with Dharmendra Kumar Dhiraj were utilised for acquisition of the said flat. This underlines the role of Dharmendra Kumar Dhiraj in concealment of proceeds of crime, so that tainted properties can be projected as untainted.

¶152

He further argued that Dr. Pradeep Kumar has claimed false rental income from Dharmendra Kumar Dhiraj in his ITR from flat at Jascon Plaza. Against his claim of flat being leased or rented, they

¶153

FPA-PMLA-2547/PTN/2018

¶154

Shyamal Chakravarty v. E.D., Patna

¶155

¶156

continue to mentionthe same flat as residential, as well as business address in different documents. Against income from other sources and business income mentioned in the ITRs of Nand Lal HUF, Rajendra Kumar(karta) could not produce any evidence to substantiate this claim. This shows that there is no income from genuine sources and ITRs have been fabricated by Dr. Pradeep Kumar and his brother Rajendra Kumar to conceal the proceeds of crime and to frustrate the proceedings under PMLA. Dharmendra Kumar Dhiraj has knowingly assisted Dr. Pradeep Kumar in making false claim of rental income and thus, has knowingly assisted in concealment of proceeds of crime.

¶157

He further pointed out that huge cash was deposited in the account of AHC Pvt. Ltd. and JasconEnterbuild, Joint Venture, a firm owned by Dharmendra Kumar Dhiraj and the same was used for acquisition of immovable property at Bangalore. Rajendra Kumar could not produce any loan agreement/other documents to justify receipt of huge amount from this firm. Neither Rajendra Kumar, nor Dharmendra KumarDhiraj offered any explanation for this transaction. This makes it evident that proceeds of crime were layered through the bank account of this firm by Dharmendra Kumar Dhiraj for acquisition of immovable property to project the tainted property as untainted.

¶158

He argued that Shyamal Chakravarty was partner of Rajendra Kumar in M/s Essar Enterprises, he was granted General Power of Attorney by Dr. Pradeep Kumar for purchase of property at Udaipur. Shyamal Chakravarty arranged the deal in respect of this transaction.

¶159

FPA-PMLA-2547/PTN/2018

¶160

Shyamal Chakravarty v. E.D., Patna

¶161

¶162

Moreover, for repayment of transferred amount to the firms owned by Sitaram Pathak and Inderlal Kejriwal, the money was credited to the account of Nand Lal HUF from M/s Rhea Enterprises which is controlled by Shyamal Chakravarty. As per statements of Rajesh Kumar Fogla u/s 164 Cr. PC by the Magistrate I- Class, which was also corroborated by Shri Vikash Khetan (who too made his statement u/s 164 of Cr.PC) as an accused, Shyamal Chakravarty used to receive the bribe money for Dr. Pradeep Kumar. Thus, it is evident that Shyamal Chakravarty has knowingly parked and concealed the proceeds of crime acquired by Dr. Pradeep Kumar to project the tainted properties as untainted.

¶163

He stressed that both Dr. Pradeep Kumar and Rajendra Kumar have made contradictory and false submissions before the IO. This shows that they are deliberately trying to frustrate the proceedings under the PMLA. Both Dr. Pradeep Kumar and Rajendra Kumar have entered into suspicious transactions and proceeds of crime have been invested in Nand Lal HUF and routed through several firms for acquisition of immovable and movable properties. This shows a deliberate attempt to project the tainted property as untainted and attempt to frustrate the proceedings under PMLA. He submitted that from these facts, it is evident that Dr. Pradeep Kumar, Rajendra Kumar, Nandlal HUF,Shyamal Chakravarty, Dharmendra Kumar Dhiraj and Naresh Kejriwal are knowingly involved in acquisition, concealment and transfer of proceeds of crime and are knowing involved in projection of tainted properties as untainted.

¶164

FPA-PMLA-2547/PTN/2018

¶165

Shyamal Chakravarty v. E.D., Patna

¶166

¶167

He pointed out that the proceeds of crime in the form of movable/immovable properties acquired/generated by Dr. Pradeep Kumar, Rajendra Kumar, Nandlal HUF and Shyamal Chakravarty were provisionally attached vide Provisional Attachment Order No. 04/2018 dated 20.02.2018. A Complaint u/s 5(5) of PMLA, 2002 vide O.C. No. 901/2018 dated 15.03.2018 was filed before the Ld. Adjudicating Authority under PMLA for confirmation of the said Provisional Attachment Order. The Ld. Adjudicating Authority under PMLA has passed the well-reasoned and detailed order in respect of confirmation of the attached property valued at Rs. 1,76,38,527/(Rupees One Crore Seventy-Six Lakh Thirty Eight thousand five hundred twenty seven only vide order dated 03.08.2018. This property was purchased jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF where Rajendra Kumar is the Karta. In course of his statement dated 29.01.2018, recorded under section 50 of the PMLA, Rajendra Kumar has stated that he did not know the beneficiary of Nand Lal HUF. Ld. Counsel for respondent argued that it is quite surprising that despite being the Karta of Nand Lal HUF, Rajendra Kumar is unaware of basic details regarding this HUF. It is apparent that he has been made a dummy Karta of this HUF so that proceeds of crime generated by Dr. Pradeep Kumar could be laundered through this HUF and projected as untainted. Further, Rajendra Kumar, during statement under section 50 of PMLA, stated that he is not aware of the details of property in Kolkata, its price and the exact source of its acquisition. He stated that aloan of approx. Rs. 20 lakhs were taken from Pathak & Co, about which he did not know much. The details of loan and its repayment status is also not known to him.

¶168

FPA-PMLA-2547/PTN/2018

¶169

Shyamal Chakravarty v. E.D., Patna

¶170

¶171

He stated that money was arranged by his brother Dr. Pradeep Kumar's Chartered Accountant Shri Naresh Kejriwal. Further, this loan has not been reflected in the ITR of Nand Lal HUF.He pointed out that both the abovementioned properties were purchased jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF, but the payments were arranged by only Nand Lal HUF and Rajendra Kumar.

¶172

Shri Sitaram Pathak, vide his statement dated 24.04.2015, recorded under section 50 of the PMLA, has stated that he did not even know Dr. Pradeep Kumar and Rajendra Kumar. His Chartered Accountant namely Shri Naresh Kumar Kejriwal asked him to transfer the amount of Rs. 20 lakhs in the name of Nand Lal HUF, which was done without any loan agreement. Thus, huge money was transferred without knowing the lender and without any loan agreement. Further, repayment of loan was done only after the action of CBI, in an attempt to project the transaction as genuine. In view of the fact that full payment for acquisition ofthe said property had been made much, prior to the receipt of this claimed loan, thus, the proceeds of crime were actually utilized to make the payment for acquisition of attached property and Sitaram Pathak has provided an illegal accommodation entry on the advice of Naresh Kejriwal to cover this illegal transaction. Thus, these transactions made by M/s Pathak Telecom Co. (P) Ltd and M/s Hindustan Credit Corporation are involved in money laundering.

¶173

Prayer is accordingly made to dismiss the present appeal being devoid of any merits and thereby uphold the impugned order dated 03.08.2013 passed by the Adjudicating Authority.

¶174

FPA-PMLA-2547/PTN/2018

¶175

Shyamal Chakravarty v. E.D., Patna

¶176

¶177

After hearing the rival submissions, we have given our thoughtful consideration to the same. Perusal of agreement of sale dated 03.08.2009 (Annexure A-8)executed between Sh. Arun Kumar Agarwala (allottee/vendor) and M/s ASHICON Housing Pvt Ltd. (developer), in favour of third-party jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF, with respect to Flat No. 1A, 1^st Floor, Sugam Hemant Apartment, 75 Bondel Road, Kolkata – 700 019, reflects that payment of Rs. 38,58,700/is already tendered/paid to the vendor and developer as under:

¶178

Cheque No.	Bank	Dated	Amount	Drawn by
214741	Union Bank of India	17.11.2006	2,00,000/-	A.K. Agarwala
214758	Union Bank of India	09.01.2007	2,00,000/-	A.K. Agarwala
214755	Union Bank of India	29.12.2006	3,00,000/-	A.K. Agarwala
025169	Union Bank of India	25.01.2007	27,00,000/-	Union Bank of India
025380	Union Bank of India	01.03.2007	3,58,000/-	Union Bank of India
025986	Union Bank of India	26.06.2007	1,00,000/-	Union Bank of India
230582	Union Bank of India	19.09.2007	700/-	A.K. Agarwala
		Total Amount	38,58,700/-

¶179

The Conveyance Deed of the above property was registered in favour of Shyamal Chakravarty and Nand Lal HUF on 29.08.2009, wherein it is specifically mentioned that sale consideration of Rs. 38,58,700/- is already received.The details of payments as reflected in the above table falsify the plea of appellant Shyamal Chakravarty that he paid sum of Rs. 17,50,000/- (being 50% of the sale consideration) vide two demand drafts of Rs. 8,50,000/- and 9,00,000/- dated 13.07.2009 towards sale consideration is contradictory to the facts

¶180

FPA-PMLA-2547/PTN/2018

¶181

Shyamal Chakravarty v. E.D., Patna

¶182

¶183

mentioned in agreement to sale dated 03.08.2009 and the dubious transactions between the parties for layering the laundered proceeds of crime generated by Dr. Pradeep Kumar is not ruled out.

¶184

The investigation conducted by respondent ED revealed that Dr. Pradeep Kumar formed Nand Lal HUF, with the help of his brother Rajendra Kumar, on the advice of Naresh Kejriwal to launder the proceeds of crime. When he was interrogated by ED regarding Nand Lal HUF, then Rajendra Kumar, expressed ignorance about the constitution of said HUF and its beneficiaries. Rajendra Kumar was not aware of the details like “location, owner of the property, mode of payment etc”, which is attached by respondent ED. All these transactions have happened with the help of appellant ShyamalChakravarty who used to layer the proceeds of crime generated by Dr. Pradeep Kumar. Appellant Shyamal Chakravarty has played the central role, at the instance of Dr. Pradeep Kumar, and has knowingly concealed and assisted Dr. Pradeep Kumar in laundering the proceeds of crime. During investigation by ED, both Dr. Pradeep Kumar and Rajendra Kumar could not explain any source for creation of IVPs and KVPs which were used to form Nand Lal HUF. This points towards the direction that proceeds of crime generated by Dr. Pradeep Kumar were invested in Nand Lal HUF which was formed on the advice of his CA Naresh Kejriwal for the only purpose of concealment and layering of proceeds of crime, so that tainted property could be projected as untainted. Shri Rajendra Kumar, stated that he took loan from Sitaram Pathak and Inderlal Kejriwal for acquisition of immovable property, but he could not produce any loan agreement and he does not know the said persons in person. Moreover, all the

¶185

FPA-PMLA-2547/PTN/2018

¶186

Shyamal Chakravarty v. E.D., Patna

¶187

¶188

payment for acquisition of this immovable property had already been done much prior to receipt of the loans, as reflected agreement to sell dated 03.08.2009. Both Sitaram Pathak and Inderlal Kejriwal transferred the amount to the bank account of Rajendra Kumar on the advice of CA Naresh Kejriwal. This proves that Dr. Pradeep Kumar has invested proceeds of crime for acquisition of immovable properties and Sitaram Pathak and Inderlal Kejriwal have entered into mala-fide transactions with Rajendra Kumar without any basis in an attempt to conceal and layer the proceeds of crime so that tainted properties could be projected as untainted. After the initiation of investigation by CBI, the transferred amount was repaid to these firms to project these transactions as genuine. However, money for repayment came from M/s Rhea Enterprises, a firm controlled by Shyamal Chakravarty. Moreover, Rajendra Kumar has himselfdenied any financial transaction with Rhea Enterprises. This reflects that Dr. Pradeep Kumar and Rajendra Kumar intentionally tried to hide the origin of tainted property.

¶189

Investigation by respondent ED further reflected that after the purchase of flat from JasconInterbuild (Prop. Dharmendra Kumar Dhiraj), almost entire sale consideration was paid back to Rajendra Kumar by Dharmendra Kumar Dhiraj. This shows that in reality, the proceeds of crime parked with Dharmendra Kumar Dhiraj were utilised for acquisition of the said flat. This underlines the role of Dharmendra Kumar Dhiraj in concealment of proceeds of crime,at the instance of Dr. Pradeep Kumar, so that tainted properties can be projected as untainted.

¶190

FPA-PMLA-2547/PTN/2018

¶191

Shyamal Chakravarty v. E.D., Patna

¶192

¶193

Dr. Pradeep Kumar has claimed false rental income from Dharmendra Kumar Dhiraj in his ITR from flat at Jascon Plaza. Against his claim of flat being leased or rented, they continue to mentionthe same flat as residential, as well as business address in different documents. Against income from other sources and business income mentioned in the ITRs of Nand Lal HUF, Rajendra Kumar(karta) could not produce any evidence to substantiate this claim, but the present appellant tried to explain the income of Rajendra Kumar, which is a calculated move to explain the same and layer the proceeds of crime. Accordingly, we are of the view that there is no income from genuine sources and ITRs have been fabricated by Dr. Pradeep Kumar and his brother Rajendra Kumar to conceal the proceeds of crime and to frustrate the proceedings under PMLA. There is nothing to doubt the contention of respondent ED that Dharmendra Kumar Dhiraj has knowingly assisted Dr. Pradeep Kumar in making false claim of rental income and thus, has knowingly assisted in concealment of proceeds of crime.

¶194

Huge cash was deposited in the account of AHC Pvt. Ltd. and JasconEnterbuild, Joint Venture, a firm owned by Dharmendra Kumar Dhiraj and the same was clearly used for acquisition of immovable property at Bangalore. Rajendra Kumar could not produce any loan agreement/other documents to justify receipt of huge amount from this firm. Neither Rajendra Kumar, nor Dharmendra KumarDhiraj offered any explanation for this transaction. This makes it evident that proceeds of crime were layered through the bank account of this firm by Dharmendra Kumar Dhiraj

¶195

FPA-PMLA-2547/PTN/2018

¶196

Shyamal Chakravarty v. E.D., Patna

¶197

¶198

for acquisition of immovable property to project the tainted property as untainted.

¶199

It is an admitted fact that Shyamal Chakravarty was partner of Rajendra Kumar in M/s Essar Enterprises. However, he was granted General Power of Attorney by Dr. Pradeep Kumar for purchase of property at Udaipur. Shyamal Chakravarty arranged the deal in respect of this transaction. Moreover, for repayment of transferred amount to the firms owned by Sitaram Pathak and Inderlal Kejriwal, the money was credited to the account of Nand Lal HUF from M/s Rhea Enterprises which is controlled by Shyamal Chakravarty. The statements recorded before the Magistrates u/s 164 CrPC by Rajesh Kumar Foglaand Shri Vikash Khetan, reveals thatShyamal Chakravarty used to receive the bribe money for Dr. Pradeep Kumar. Thus, it is evident that Shyamal Chakravarty has knowingly parked and concealed the proceeds of crime acquired by Dr. Pradeep Kumar to project the tainted properties as untainted. During investigation, both Dr. Pradeep Kumar and Rajendra Kumar have made contradictory submissions before the IO, which reflects the conduct of Dr. Pradeep Kumar. This shows that the proceeds of crime have been invested in Nand Lal HUF and routed through several firms for acquisition of immovable and movable properties, and a deliberate attempt was made to project the tainted property.The conspiracy amongst Dr. Pradeep Kumar, Rajendra Kumar, Nandlal HUF,Shyamal Chakravarty, Dharmendra Kumar Dhiraj and Naresh Kejriwal for acquisition, concealment and transfer of proceeds of crime and thereafter, projecting the same as untainted is quite discernible. Moreover, the actual value of this attached property is stated to be at

¶200

FPA-PMLA-2547/PTN/2018

¶201

Shyamal Chakravarty v. E.D., Patna

¶202

¶203

Rs. 1,76,38,527/- (Rupees One Crore Seventy-Six Lakh Thirty-Eight thousand five hundred twenty-seven only), which was purchased jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF, where Rajendra Kumar is the Karta. Rajendra Kumar in his statement,under section 50 of the PMLA dated 29.01.2018, stated that he did not know the beneficiary of Nand Lal HUF. He is unaware of basic details regarding this HUF. This shows that he has been made a dummy Karta of this HUF, so that proceeds of crime generated by Dr. Pradeep Kumar could be laundered through this HUF and projected as untainted. Further, Rajendra Kumar, during statement u/s 50 of PMLA, stated that he is not aware of the details of property in Kolkata, its price and the exact source of its acquisition. As per his version aloan of approx. Rs. 20 lakhs were taken from Pathak & Co, about which he did not know much. The details of loan and its repayment status is also not known to him. The said money was arranged by his brother Dr. Pradeep Kumar's Chartered Accountant Shri Naresh Kejriwal. Further, this loan has not been reflected in the ITR of Nand Lal HUF.

¶204

Shri Sitaram Pathak, in his statement dated 24.04.2015, recorded u/s 50 of the PMLA, has stated that he did not even know Dr. Pradeep Kumar and Rajendra Kumar. Chartered Accountant Shri Naresh Kumar Kejriwal asked him to transfer the amount of Rs. 20 lakhs in the name of Nand Lal HUF, which was done without any loan agreement and without knowing the lender. He admitted that repayment of loan was done only after the action of CBI, in an attempt to project the transaction as genuine.

¶205

FPA-PMLA-2547/PTN/2018

¶206

Shyamal Chakravarty v. E.D., Patna

¶207

¶208

All these facts reflects that the full payment for acquisition ofthe said property had been made much, prior to the receipt of this claimed loan, (as apparent from agreement to sell dated 03.08.2009) thus, the proceeds of crime were actually utilized to make the payment for acquisition of attached property and Sitaram Pathak has provided an illegal accommodation entry on the advice of Naresh Kejriwal to cover this illegal transaction. Thus, these transactions made by M/s Pathak Telecom Co. (P) Ltd and M/s Hindustan Credit Corporation were used to launder the proceeds of crime invested towards the attached property. CBI investigation revealed that Dr. Pradeep Kumar in one charge-sheeted case received illegal gratification to the extent of Rs. 4,85,000/- from Mr. Nand Kishore Fogla in five installments and the same was conduited through appellant Shyamal Chakravarty.

¶209

Simply because M/s Rhea Enterprises is not arrayed as party in Original Complaint No. 172 of 2012 is no ground to allow the present appeal, as a Proprietorship concern is not a legal person in the eyes of law. Moreover, this Appellate Tribunal cannot reappreciate the evidence collected by CBI and respondent ED as the present appellant Shyamal Chakravarty is facing trial along with the other accused persons.

¶210

In the light of above discussion in the preceding para, the present appeal is hereby dismissed being devoid of any merits and thereby the impugned order dated 03.08.2013 passed by the Ld. Adjudicating Authority is hereby upheld.

¶211

FPA-PMLA-2547/PTN/2018

¶212

Shyamal Chakravarty v. E.D., Patna

¶213

¶214

It is made clear that nothing expressed herein will affect the right of any party in criminal trials. Pending miscellaneous applications, if any, stands disposed of accordingly.

¶215

Appeal Dismissed .

¶216

Pronounced on this 6^th Day of August, 2024.

¶217

(Rajesh Malhotra) (V. Anandarajan) Member Member

¶218

„AB‟

FPA-PMLA-2547/PTN/2018 of Shyamal Chakravarty v. The Deputy Director, Directorate of Enforcement, Patna

Case brief

What is this about?

What did the court decide?

FPA-PMLA-2547/PTN/2018 of Shyamal Chakravarty v. The Deputy Director, Directorate of Enforcement, Patna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

All orders in this case

Similar cases