Dismissed

FPA-PMLA-2610/PTN/2018 of Bibha Devi v. The Deputy Director Directorate of Enforcement, Patna

ATFP26 Nov 2024FPA-PMLA-2610/PTN/2018

Case brief

AI extract

What is this about?

The Appellate Tribunal upheld an order confirming the provisional attachment of immovable and movable properties under the PMLA. The court rejected the appeal despite the main accused's acquittal in several cases, finding sufficient grounds in unexplained cash deposits and failure to disclose income sources.

What did the court decide?

Provisional attachment and confirmation order dismissed, appealing acknowledgment upheld.

FPA-PMLA-2610/PTN/2018 of Bibha Devi Vs. The Deputy Director… — Money Laundering | ATFP (2024)

¶1

APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

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1. MP-PMLA-6927/PTN/2020 (Misc.) MP-PMLA-5090/PTN/2018 (Stay) FPA-PMLA-2610/PTN/2018

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Bibha Devi

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… Appellant

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2. MP-PMLA-5172/PTN/2018 (Stay) MP-PMLA-5171/PTN/2018 (Exem.) FPA-PMLA-2648/PTN/2018

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Ahilya Devi … Appellant

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3. MP-PMLA-5168/PTN/2018 (Stay) FPA-PMLA-2651/PTN/2018

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Ashok Yadav @ Ashok Kumar

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… Appellant Versus

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The Deputy Director Directorate of Enforcement, Patna

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… Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Mr. Naveen Malhotra, Mr. Ritvik Malhotra, Advs. (For Serial No. 1) & Mr. Anand Nandan, Mr. Hassan Zubair Waris, Advs. (For Serial Nos. 2&3) For the respondent : Mr. Priyank Khattar, Adv.

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CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN SHRI BALESH KUMAR : MEMBER SHRI V. ANANDARAJAN : MEMBER

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FINAL ORDER 26.11.2024

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FPA-PMLA-2610,2648&2651/PTN/2018

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By this appeal under Section 26 of the Prevention of Money Laundering Act, 2002 (in short `the Act of 2002’), a challenge has

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 1 of 22

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been made to the order dated 18.09.2018 passed by the Adjudicating Authority confirming the Provisional Attachment Order dated 31.03.2018.

¶21

The movable and immovable properties of different appellants attached by the respondent are as under:

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A. Immovable Property:-

¶23

Sl.No.	Name Purcha	of the ser	Deed No. & Date	Details of Property	Value Including Reg. fee (in Rs.)
1.	Ashok Yadav	Kr.	7020 dt. 05.07.12	Bithan, Samastipur 07 kattha 11 dhoorThana No. 362, Khata No. 149-Old, 490-new Khesra No. 1133- old, 2061-New	1,62,561/-
2.	Bibha W/o Yadav	Devi Ashok	1711 dt. 27.02.08.	Rosera, Samastipur 06 kattha 11 dhoor, Thana No- 74/2 Khata No. – 96, Khesra No. 34-old, 43-new, 32-old, 51-new	2,70,836/-
3.	Bibha W/o Yadav	Devi Ashok	9741 dt. 10.11.2009.	Bithan, Rosera, Samastipur 12 katha 07 dhoor 54 Decmil Thana No. 343 Khata No. 165- old 553-new, 298- old, 897- new Khesra No. 1658 old, 3638- new, 3632-new, 2658- old 2680-old, 3634-new	3,48,521/-
4.	Bibha W/o Yadav	Devi Ashok	8943 dt. 08.11.2020	Bithan, Rosera, Samastipur 11 dhoor Thana No. 343 Khata No.298-old, 897-new, Khesra No. 2658-old 2680- old, 3634 new	56546/-
5.	Bibha W/o Yadav	Devi Ashok	8942 dt. 08.11.2020	Bithan, Rosera, Samastipur 15 Dhoor (3.25 Decimal) Thana No.343, Khata No.- Survey-285,783,1247-new, Khesra No. 1660-old 3633- new	72771/-
6.	Bibha W/o Yadav	Devi Ashok	8944 dt. 08.11.2020	Bithan, Rosera, Samastipur 02 Ksttha, 14 Dhoor, Thana No.343, Khata No. 285-old, 783-old,1244-new, Khesra No. 1660-old 3633- new	2,65,361/-
7.	Bibha W/o Yadav	Devi Ashok	3340 dt. 20.03.2014	Bithan, Samastipur6 Ksttha, 4 Dhoor, Thana No.343, Khata No. 190-old, 122-new, Khesra No. 1757- old 3360-new	2,21,500/-
8.	Bibha W/o Yadav	Devi Ashok	3284 dt. 19.03.2014	Bithan, Samastipur 12 Dismil, Thana No.-Khata No. 172-old, 414-new, Khesra No. 1723-old, 3366- new	4,37,775/-

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 2 of 22

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9.	Birendra Yadav	7314 dt. 15.07.2014	Mohuddin Nagar @ Rosera 01 Dhoor, Thana No. 69, Khata No. 1130-old, 2543- new, Khesra No. 1789-old, 2041-new	27,225/-
10.	Birendra Yadav	5395 dt. 04.06.2014	Bithan, Samastipur 10 Dhoor, Thana No.343, Khata No. 298-old, 897- new, Khesra No. 2680-old, 3634-new	1,08,350/-
11.	Ahilya Devi	6576 dt. 05.08.2008	Rosera, Samastipur 03 Kattha, 06 Dhoor (14.5D), Thana No.69,Khata No. 909-old, 586-new, Khesra No1789-old2040-new	2,81,561/-
12.	Ahilya Devi	7460 dt. 10.08.2011	., Bithan, Samastipur 01 Kattha, Thana No.343, Khata No. 783-old, 1247- new, Khesra No. 1660-old, 3633-new	1,43,071/-
13.	Ahilya Devi	796 dt. 31.01.2012	Phulwari, Patna, 2120.5 Sq. ft. Thana No.17, Khata No.238Khesra No. 735.	9,43,520/-
14.	Rajendra Yadav	6290 dt. 02.07.2005	, Hasanpur Rosera, Samastipur 01 Kattha, 6.5 Dhoor, Mauza-Rampur Rajwa, Thana No.294,Khata No.54-old, 59 old, 271-new, 272-new, Khesra No. 151-old, 152 old 181-new,182-new,183- new184-new	52,571/-
15.	Rajendra Yadav	6291 dt. 02.07.2005	, Hasanpur Rosera, Samastipur 01 Kattha, 6.75 Dhoor, Mauza-Rampur Rajwa, Thana No.294,Khata No.54-old, 59-old, 271-new, 272-new, Khesra No. 151-old, 152- old,181-new,182-new,183- new184-new	52,571/-
16.	Rajendra Yadav	6292 dt. 02.07.2005	, Hasanpur Rosera, Samastipur01 Kattha, 6.75 Dhoor, Mauza Rampur Rajwa, Thana No.294,Khata No.54-old, 59-old,271-new, 272-new, Khesra No. 151-old, 152- old, 181-new, 182-new 183-new184-new	52,571/-
17.	Rajendra Yadav	6303 dt. 05.07.2005	, Hasanpur, Rosera, Samastipur Mauza-Rampur Rajwa, 5 Dhoor, Thana No.294 (Hasanpur),Khata No.58-old, 47-old, 44 old, 49 old, 261-new,Khesra No. 195-old, 199-old, 200-old, 233	52,571/-
18.	Rajendra Yadav	4647 dt. 11.09.2006	-new Phulwari, Patna 01 Katha, Thana No.20, Khata No. 493, Khesra No.516.	1,71,054/-
19.	Rajendra Yadav	9366 dt. 14.12.2007	Bithan, Samastipur Mauza- Chhechhni, 01 Kattha, 01 dhoor (4.6 Dec) Thana	27261/-

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 3 of 22

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			No.327, Khata No. 48-old, 72-new, Khesra No. 388- old, 576-new
20	Rajendra Yadav	9449 dt. 18.12.2007	Bithan, Rosera, Samastipur Mauza-Bithan, Thana- Bithan 04 kattha, 16 dhoor (21 Dec) Thana No. 343, Khata No.313-old, 409- new, Khesra No.929-old, 1769new	97,561/-
21.	Rajendra Yadav	6702 dt. 09.08.2008	Bithan, Samastipur Mauza Chechni, 01 Katttha, 04 Dhoor, (5.25 Dec.), Thana No.327, Khata No. 48-old, 72-new, Khesra No. 388- old, 576-new	27241/-
22.	Rajendra Yadav	7207 dt. 25.08.2008	Bithan, Samastipur Mauza Chechni, 01 Katttha, 04 Dhoor, (5.25 Dec.), Thana No.327, Khata No. 48-old, 72-new, Khesra No. 388- old, 576-new	27241/-
23.	Rajendra Yadav	8656 dt. 20.10.2008	Bithan, Samastipur Mauza Chechni, 01 Katttha, 10 Dhoor, Thana No.327, Khata No. 48-old, 72-new, Khesra No. 388-old, 576- new	32,661/-
24.	Rajendra Yadav	8599 dt. 09.08.2012	Bithan, Samastipur Mauza Bithan, 06 Katttha, 15.75 Dhoor, Thana No.343, Khata No. 65-old, 238-old, 1266-new, Khesra No. 2599-old, 2598-old, 4732- new	3,05,346/-
25.	Rajendra Yadav	8617 dt. 11.08.2012	Bithan, Rosera, Samastipur Mauza Chechni, 12 Katttha, 17 Dhoor, (56 Dec.), Thana No.327, Khata No. 155-new, Khesra No. 189-old, 254-new	2,42,706/-
26.	Bibha Devi W/o Ashok Yadav	3126 dt. 10.02.2011	Rukanpura, Patna, 2100 Sq.ft, Thana No.18, Khata No.195,Khesra No.281 Total	27,20,279/- 72,01,232/-

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B. Movable Property:-

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Available closing balance in the following bank accounts held in the name of Ashok Yadav and his family members: -

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Sl.No.	Bank account no.	Bank details	Account Holder	Available balance as on
1.	32770894515	State Bank of India, Bithan, Samastipur	Ashok Yadav	97964/-
2.	30958895103	State Bank of India, Bithan, Samastipur	Bibha Devi w/o Ashok Yadav	286579/-
3.	32771947434	State Bank of India, Bithan, Samastipur	Rajender Yadav father of Ashok Yadav	1899/-
Total				386442/-

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 4 of 22

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The statement quoted above shows that the properties attached by the respondent are largely belonging to Bibha Devi and Rajendra Yadav leaving few properties in the name of Ashok Yadav, Birendra Yadav and Ahilya Devi.

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The properties were attached after recording the ECIR pursuant to the FIRs registered against the main accused Ashok Yadav. In all, 26 FIRs were registered against the accused Ashok Yadav wherein he is said to have been acquitted in majority of cases leaving two cases pending against him and out of which one is largely for commission of crime under the Arms Act.

¶37

The impugned order records facts about the death of Shri Birendra Yadav. No appeal has been preferred through the legal heirs who could have been Ahilya Devi despite the fact that Ahilya Devi has preferred separate appeal as she was also served with Show Cause Notice by the Adjudicating Authority. So far as Rajendra Yadav is concerned, he has also died but no application has been filed to bring his legal heirs on record in the appeal preferred by him within the stipulated time. The appeal was thus abated and accordingly it was dismissed by this Tribunal on 24.07.2024.

¶38

The total value of the properties taken by the respondent was of Rs.75,87,674/-. It is said to have been acquired by Ashok Yadav in his own name as well as in the name of his wife Bibha Devi,father Rajendra Yadav, brother Birendra Yadav and sisterin-law Ahilya Devi.

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 5 of 22

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A challenge to the order of attachment and its confirmation has been made by the appellants mainly on the ground that accused Ashok Yadav has already been acquitted in 20 cases and he was not an accused in 4 cases leaving only two cases out of which one case is mainly for commission of crime under the Arms Act. In the light of the acquittal of the main accused, properties attached by the respondent could not have been taken to be the `proceeds of crime’. The challenge to Provisional Attachment Order and its confirmation has been made mainly on the aforesaid grounds.

¶42

The counsel for the appellantsfurther admitted that ECIR was separately recorded and the cognizance of offence has been taken but the charges have not been framed till date. TheECIR recorded by the respondent would have no consequence on the main accused Ashok Yadav after his acquittal in majority of the cases. However, it was admitted by the counsel that the cognizance order has been challenged but we do not find any order favourable to the appellant thus, it is a fact that not only the ECIR remains but cognizance of offence has been taken against the appellant.

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Further submission of the counsel for the appellants was that the `reasons to believe’ was not served on the appellants thereby Section 8 of the Act of 2002 was not followed by the Adjudicating Authority for passing the order to confirm the Provisional Attachment Order. A reference of the judgment of the

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 6 of 22

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Delhi High Court in the case of J. Sekar Vs. Union of Inia reported inMANU/DE/0075/2018has been given.

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The counsel for the appellants did not raise any other argument than referred above and accordingly the rival arguments were made by the respondent limited to the issue referred to above.

¶48

The counsel for the respondent made elaborate arguments in reference to each issue and submitted that not only ECIR was recorded against the accused but cognizance of offence has also been taken by the Special Court thus in the light of the aforesaid, the argument that the appellant having been acquitted in majority of cases thus the attachment would not be justified, is not tenable.

¶49

The counsel for the respondent submitted that the appellants are having 26 immovable properties apart from movable properties under attachment. They were served with the Show Cause Notice by the Adjudicating Authority to call upon to disclose the source to acquire the properties. In absence of any material to disclose the source, justification remains for attachment of the properties. The counsel for the respondent further made submission in reference to the judgment of J. Sekar (supra) and all those arguments would be referred while dealing with the arguments of the appellants.

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We have considered the rival submissions and perused the records carefully.

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 7 of 22

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The facts on record reveals that Ashok Yadav was a reckoned criminal against whom as many as 26 cases were registered out of which he has been acquitted in majority of the cases. The orders of acquittal have been submitted but it is not in all the cases. The fact, however, remains that ECIR was recorded against the accused followed by cognizance of offence which has not been set aside by the court thus not only ECIR remains against the accused but cognizance of offence has also been taken. The aforesaid is relevant and reflects that even after the acquittal, the ECIR records a case of money laundering in the hands of the appellant. To come out with the allegation of money laundering, the appellants were having opportunity to disclose the source for acquisition of the properties. The perusal of Section 8(1) of the Act of 2002 would reveal that Adjudicating Authority give notice to call upon the parties to disclose source for acquisition of the properties. For ready reference, Section 8(1) of the Act of 2002 is quoted hereunder:

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“8. (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under subsection (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized [or frozen] under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government:

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 8 of 22

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Provided that where a notice under this subsection specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person:

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Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property”.

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Section 8(1) provides issuance of noticeto call upon the parties to disclose the source for acquisition of the properties under attachment. The appellants were thus required to disclose source for acquisition of the properties. The appellant Ashok Yadav submitted that he was having retail business and earned out of it to acquire the properties. We find that no document was produced to prove the income out of retail business which may justify acquisition of the properties worth of more than Rs.75 lakhs.

¶60

Rajendra Yadav pleaded about his agriculture income before the Adjudicating Authority. Although he preferred an appeal before the Tribunal but after his demise, no application was filed to bring his legal heirs on record thus his appeal got abated and was dismissed by this Tribunal on 24.07.2024. Thus, we are not referring the facts pertaining to his case.

¶61

Appellant Bibha Devi stated about her separation with main accused Ashok Yadav. No document in the form of a divorce decree has been submitted and otherwise narration of facts in this regard are in contradiction. The appellant Bibha Devi submitted about her separation in the year 1998 and again in the year 2018. Two separations have been referred without placing a

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 9 of 22

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copy of the divorce decree and how there can be two separations. The purpose to show separation seems to be to disassociate herself from Ashok Yadav. However, the pleadings remain for the sake of it in absence of the divorce decree. It is coupled with the fact that Bibha Devi failed to disclose the source of income while representing her case before the Adjudicating Authority and even at the time of filing the appeal. The documents for it were submitted along with the rejoinder having no opportunity to the respondent to rebut because there is no provision to file reply to the rejoinder. The additional documents at the appellate stage cannot be filed as a course. It can be filed along with an application to accept the additional evidence at the stage of the appeal after giving reasons. The appellant did not file any such application; thus documents cannot be taken into consideration having no opportunity of rebuttal by the respondents.

¶65

In the PMLA investigation, it was revealed that cash was utilized for purchase of all the properties though deposited in the bank first but source to acquire the cash to deposit in the bank has not been disclosed. The source disclosed by the appellants and its critical analysis would be as under.

¶66

The total cash deposit in the three bank accounts of Ashok Yadav is Rs. 26,34,600/- during the period 2005 to 2014. It has been found that no ITR has been filed for the Financial Year 2005-06, however, during the same period, Rs 1,69,000/- was deposited in the bank account no. 01190011624 (SBI Rosera) of Ashok Yadav.

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 10 of 22

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From perusal of statement of SBI bank account no. 11461408694 for the financial year 2008-09, it was found that a total of Rs. 5,80,000/- was deposited in this account whereas during the said period net income shown in his IT Return is Rs. 1,91,761/-only. Further, perusal of statement of SBI bank account no. 11461408694 for the financial year 2009-10 reveals that a total of Rs. 10,00,000/- was deposited in thisaccount, whereas during the said period net income shown in his IT Return is Rs. 2,06,300/-only.

¶70

Perusal of the account statement of Ashok Kumar Yadav, it has been revealed that a total of Rs. 26,34,600/- have been deposited in his three bank accounts and also during the same period he purchased immovable property worth 1,62,561/whereas, the income declared in the ITR during the relevant period is much less. Perusal of account statement shows irregular cash deposits which do not match with profile of any kind of business activity. Further, he did not appear before the investigation and did not produce any evidence in respect of the source of this cash utilized for making cash deposits and for acquisition of properties. Hence, in view of the charge sheet filed by state police, it is logical to conclude that the cash utilized for acquisition of properties and for making deposits in the bank accounts of Ashok Yadav, are proceeds of crime.

¶71

The total cash deposits during the period 2010-11 to 201314 in the bank account of Bibha Devi, W/o Ashok Kumar Yadav is of Rs. 86,67,720/-, the details of which are given as under:

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 11 of 22

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(a) Saving Bank A/C No. 30958895103-SBI, Bithan

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S.No.	Date	Amount
1.	10.04.2010	2,75,000
2.	16.04.2010	78,000
3.	09.06.2010	1,50,000
4.	11.06.2010	2,04,000
5.	19.06.2010	2,00,000
6.	13.07.2010	5,27,500
7.	14.07.2010	1,00,000
8.	06.08.2010	1,00,000
9.	11.08.2010	3,50,000
10.	17.08.2010	1,35,000
11.	03.09.2010	1,00,000
12.	01.11.2010	2,00,500
13.	26.11.2010	3,43,170
14.	27.11.2010	1,65,000
15.	30.11.2010	4,39,100
16.	01.12.2010	3,70,000
17.	15.01.2011	80,000
18.	21.01.2011	9,00,000
19.	06.05.2011	1,01,400
20.	27.08.2011	1,70,000
21.	12.11.2011	1,03,000
22.	29.02.2012	5,00,000
23.	24.03.2012	3,04,600
24.	26.03.2012	3,41,700
25.	07.04.2012	12,63,500
26.	09.04.2012	5,30,250
27.	17.12.12	50,000
28.	19.03.2013	1,86,000
29.	15.06.2013	4,00,000
Total	86,67,720

¶76

It is seen that Bibha Devi did not file ITR for the period for 2010-11, however, from perusal of the statement of the Bank Account No. 30958895103 of SBI, Bithan held in her name, a total of Rs.47,17,270/- were deposited in this account. Further during the same period, three plots of land and one house collectively valued at Rs. 31,14,957/- was purchased by her. This implies that assets worth Rs. 78,32,227/ have been created during the financial year 2010-11 not from the legal source of income but from the proceeds of crime generated from the crime committed by Ashok Kumar Yadav.

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FPA-PMLA-2610,2648&2651/PTN/2018

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Page 12 of 22

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Perusal of the ITR for the financial year 2011-12 reveals that against income of Rs. 5,90,399/-, a total of Rs. 15,20,700/- have been deposited in her bank account no. 30958895103 of SBI, Bithan.Similarly, against the gross income worth Rs. 8,95,341/shown in the ITR for the financial year 2012-13, a total of Rs. 20,29,750/ were deposited during the same period.

¶80

From the above, it can be observed that huge cash has been deposited in the bank accounts of Bibha Devi which is not in line with the income declared in her ITRs. Moreover, no ITR has been filed for the F.Y. 2010-11. This, in light of irregular pattern of deposits and the fact that she has deliberately avoided the summons, leads to the conclusion that Bibha Devi is in possession of proceeds of crime generated by her husband Ashok Yadav. It is further revealed that a sum of Rs. 22,72,000/- has been deposited through transfer/ cheque from various bank accounts. Accordingly, inquiry was caused with the concerned bank which forwarded the details as under:

¶81

S.No.	Transaction Date	Amount Credited (In Rs.)	Cheque No./ Thr. Trans- fer	Debited Account No. and Account holder	Remar	ks
1.	09.05.2011	72,000	TRF	3092198 1629 of Shri Jitendra Kumar	Shri Kumar in his under of PM took Rs.72, Bibha issued the sa	Jitendra submitted statement Section 50 LA that he cash of 000/- from Devi and cheque for meamount.
2.	13.09.2012	3,00,000	473896	1189295 6659 of Shri Kishan Lal Sharaf	Shri Sharaf in his under of PML lakh	Kishan Lal submitted statement Section 50 A that Rs. 3 cash was

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					given to hi Bibha Devi the same is corroborated the statement.	m by and also from bank
3.	08.01.2013	1,00,000	771961	1183016 9018	Shri Chandr Prasad	a Deo
4.	15.01.2013	5,00,000	725029	1189295 2043 of Shri Sunil Yadav	Rs. 5 lakh has deposited 12.01.2013 account 1189295204 thereafter th amount transferred cheque.	cash been on in No. 3 and e said was by
5.	16.01.2013	4,00,000	286812	3057511 2435 of Shri Jay Kumar Mukhia	Rs.4 lakh has deposited ac no. 305751 and thereaft said amoun transferred cheque to Devi.	cash been count 12435 er the t was by Bibha
6.	17.01.2013	4,00,000	568462	1189297 4099 (Gopal Rai)	Rs.4 lakh has deposited ac no. 118929 on 17.01 and thereaft said amoun transferred cheque to Devi.	cash been count 74099 .2013 er the t was by Bibha
7.	17.01.2013	5,00,000	289421	1189295 2281 (Pramod Kumar)	Rs.5 lakh has deposited ac no. 118929 and thereaft said amoun transferred cheque to Devi.	cash been count 52281 er the t was by Bibha
		22,72,000/-

¶85

It is seen that account statements of the aforesaid bank accounts were obtained from the concerned banks, scrutiny of which revealed that the named persons had issued cheques for credit into the account no. 30958895103 of Bibha Devi after getting a sum of equal amount in cash from Bibha Devi.

¶86

The statement of facts pertaining to sources referred to above was analyzed even in reference to the statements recorded under

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¶89

Section 50 of the Act of 2002. Jitender Kumar in his statement recorded on 18.07.2014 stated that bank transfer of the amount of Rs.72000/- in the account of Bibha Devi was after taking equal amount in cash from her thus the cash was routed by Bibha Devi first giving it to Jitender Kumar who deposited the amount in his bank and thereupon given to Bibha Devi. Shri Kishan Lal Saraft in his statement on 19.08.2014 stated that Bibha Devi had given him Rs.3,00,000/-cash for depositing the same in his bank account and on the same date she compelled him to issue cheque in her favour and, therefore he deposited the cash amounting to Rs.3,00,000/- in his bank account and issued cheque of the same amount in her favour.

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In the same manner, Shri Jay Kumar Mukhiya in his statement under Section 50 recorded on 11.09.2014 stated that he was working with Bibha Devi on a monthly salary of Rs.7000/- till May 2014. He stated that a cash of Rs.4,00,000/- was deposited in his account by Bibha Devi and taken cheque in her favour on 12.01.2014. The statement of Shri Gopal recorded on 22.07.2014 is also relevant who stated that he was working as a Shiksha Mitraon a monthly salary of Rs.9700/-. Bibha Devi deposited cash of Rs. 4,00,000/- in her bank account and she took cheque of equivalent amount from him for depositing in her account. Shri Pramod Kumar in his statement recorded on 22.07.2014 refers to the same modus operandi by which a sum of Rs.5,00,000/- was routed to ultimately transfer it in the account of Bibha Devi.

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From the above, it is gathered that Bibha Devi had given cash to many persons who in turn issued cheques in her favour of equal amount. The modus operandi of Bibha Devi to deposit the cash in the account of named persons and got transfer of the amount or otherwise deposited directly in her account was just to make it through the banking channel to purchase the properties. It may have been disclosed as income in her ITRs for assessment as per the provisions of the Act of 1961 which contain different provision and even the object and the Act of 1961 is different than the Act of 2002. We find that even the ITRs of the Bibha Devi were also scrutinized by the Adjudicating Authority for showing her total income of Rs. 29,01,938/- from the year 2006-07 till 2013-14 while she had acquired the property of greater amount and furthermore income was shown by routing the amount through the persons whose statements were recorded under the Act of 2002 and, therefore, not only the appellants have failed to submit any document to prove their income. It could have been to prove the transaction.

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The analysis of income by the Income Tax Department would be for charging the tax. They would not analyze as to whether the amount deposited is a `proceeds of crime’. Thus, the ITR submitted under the Income-Tax Act is for different purpose than to be analyzed under the Act of 2002 to find out whether rightful source of income has been disclosed to acquire the property. It is no doubt true that the source has been disclosed but the minute scrutiny revealed that it was after utilizing cash with deposit of the amount

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directly in the bank account of Bibha Devi or routing through many persons without giving justification as to why the amount was routed through other persons. No document has been submitted to prove the income which could have been receipt of money out of the business alleged to have been transacted or any other document to prove the business and income out of it. We further find that Adjudicating Authority has even made reference of the LPG Dealership in the name of Bibha Devi and even acquisition of benami liquor shop.

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During investigation, it was also revealed that Bibha Devi is having a LPG dealership in the name of M/s Sapna Bharat Gas GraminVitrak at Bithan, Distt.- Samastipur, Bihar. The details of the said dealership were called for from M/s Bharat Petroleum Corporation Ltd., Patna Territory (LPG), Fatuha, Patna (BPCL). Scrutiny of the documents forwarded by BPCL, vide letter dated 30.07.2013 revealed that Bibha Devi had applied for the dealership under Rajiv Gandhi Gramin LPG Scheme, vide application dated 20.11.2009. It was further revealed that as proof of ownership of land premises of shop and godown, she had submitted a copy of Sale Deed. No. 9741 dated 10.11.2009 purchased at a total consideration of Rs. 3,22,000/-. It is further revealed that Bibha Devi had submitted a copy of bank pass book pertaining to the bank account No. 30958895103 (SBI, Bithan) held in her name. Scrutiny of the entries in the pass book revealed that the said account was opened on 16.11.2009 with a cash deposit of Rs. 2,000/- and a sum of Rs. 12,00,000/- was transferred to this

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account from a bank account No. 011461408694 on 18.11.2009. The account no. 011461408694is held in the name of Ashok Kumar Yadav. perusal of account statement of account no. 011461408694, revealed that a sum of Rs. 10,00,000/- in cash was deposited by Bibha Devi on 18.11.2009 and on the same day a sum of Rs. 12,00,000/- was transferred to the bank account No. 30958895103 of Bibha Devi ostensibly, to facilitate her to get dealership of LPG from BPCL. The sequence of events leading to establishment of M/s Sapna Bharat Gas GraminVitrak, Bithan, Distt.-Samastipur, Bihar having Bibha Devi as its proprietor is, thus, as under:

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“(i) 10.11.2009: Purchase of land vide sale deed No. 9741 dated 10.11.2009

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(ii) 16.11.2009: Opening of bank account No. 30958895103 at State Bank of India, Bithan in the name of Bibha Devi

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(iii) 18.11.2009: Deposit of Rs. 10,00,000/- in cash by Bibha Devi in her husband's (Ashok Kumar Yadav) bank account No. 011461408694 at State Bank of India, Rosara,

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(iv) 18.11.2009: Transfer of Rs. 12,00,000/- by Ashok Yadav from his bank account No. 011461408694 at State Bank of India. Rosara to his wife's (Smt. Bibha Devi) bank account No. 30958895103 at State Bank of India, Bithan.

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(v) 20.11.2009: Submission of application to BPCL

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(vi) 19.11.2010: Appointed as distributor”

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It, thus, appears that Rs. 12,00,000/- earned out of crimes committed under various sections of the IPC by Ashok Yadav was infused in the bank account of Bibha Devi so as to reflect her sound economic base without which she could not have got the dealership of LPG from BPCL which is evident from the fact that firstRs. 10,00,000/-, in cash was deposited by Bibha Devi in the account of FPA-PMLA-2610,2648&2651/PTN/2018 Page 18 of 22

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her husband and thereafter, her husband transferred Rs. 12,00,000/- in her account. Further, Bibha Devi has disclosed income of only Rs. 3,98,582/-for the financial Year 2009-10 in her ITR. Bibha Devi, as discussedearlier, has no independent source of income and hence it appears that proceeds generated out of crime committed by Ashok Kumar Yadav was infused in the bank account of Bibha Devi in order to project tainted money as untainted.

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During investigation, it has also been revealed that Ashok Kumar Yadav and his wife Bibha Devi are holding benami liquor shops. It was revealed that Ashok Kumar Yadav and his wife Bibha Devi had employed one Shri Ajit Kumar Yadav, S/o Mahendra Yadav on a monthly salary of Rs. 3000/-. The name of Ajit has been Kumar Yadav in the lottery for allotment of wine shop. Kumar was selected and he was allotted Group No. 12 which consisted of three liquor shops out of which Shop No. 81 located at Narhan, Samastipur and Shop No. 42 located at BambaiyaUjnail, Samastipur were Composite Shops (where country liquor as well as India Made Foreign Liquor (IMFL) are sold) and the third Shop No. 04 was located at Gudri Bazar, Dalsinghsarai, Samastipur where only country liquor was sold. Ashok Kumar Yadav and his wife Bibha Devi deposited Rs. 4,68,100/- in cash as Reserved Fee to the Govt. of Bihar in respectof the above allotted group 12. This shows laundering of illicit wealth through business of wine.

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It was found that information relating to ownership of the wine shop have never been disclosed either in ITRs filed by Ashok Yadav or his wife Bibha Devi or any other members of their family. Thus, it

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appears that proceeds of the crime generated by Ashok Kumar Yadav was infused in the business of wine to hide the origin of tainted property. Thus, the commission earned out of sale of the wine from Shop No. 81, Shop No. 42 & Shop No. 04 is the fruits of the proceeds generated out of crime. During the course of investigation statement of Shri Ajit Kumar Yadav, S/o Shri Mahendra Yadav was recorded under Section 50 of the PMLA on 11.09.2014 wherein he inter alia stated that:

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“Bibha Devi put his name for the lottery in the Excise Department to get the contract of liquor shops and did all the documentary work relating to lottery of the Excise Department. His name came out in the lottery for Group

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No. 12 which consisted of three liquor shops out of which Shop No. 81 located at Narhan, Samastipur and Shop No. 42 located at BambaiyaUjnail, Samastipur were Composite Shops (where country liquor as well as India Made Foreign Liquor (IMFL) are sold) and the third Shop No. 04 was located at Gudri Bazar, Dalsinghsarai, Samastipur where only country liquor was sold. He further stated that all the expenses pertaining to allotment of said three liquor shops were borne by Bibha Devi.

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*All the formalities were completed by

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*Bibha Devi Rs. 4,68,100/- was also paid in cash by her as Reserved Fee to the Govt. of Bihar.

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*Bibha Devi is the actual owner of the shops.

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*He also stated that as per the said register, stock of liquor collectively valued at Rs. 39,87,180/- was purchased for the liquor shop No. 81 after depositing 83 Demand Drafts. He further averred that all the said Demand Drafts were provided to him by Bibha Devi.

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*Ajit Kumar Yadav further stated that though three ee liquor shops were allotted to him in the lottery of the Excise Department, he used to look after the work of Shop No.-81 only for which he was paid Rs. 3,000/- as monthly salary. Shri Yadav added that like him, Shop No. 42 and Shop No. 04 were run by other employees of Bibha Devi though on paper, he (Ajit Kumar yadav) was the owner of all the three liquor shops, But the fact was that Bibha Devi is the actual owner of all the shops”.

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From the facts given above, it comes out that the appellant tried to disclose the source of income but the way income was generated itself is sufficient to prove the case against them. The cash deposited in bank without disclosure of source would indicate it to be tainted money otherwise no one prevented the appellants to produce

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documents to show the business transaction coupled with the receipt of payment towards it. It is more so when they produced certain documents along with the rejoinder but failed to produce any document to prove the business transactions in the relevant years to generate sufficient funds which was used for the purchase of the property In the background aforesaid, we find no reason to cause interference in the order.

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The argument raised by the counsel for the appellants that the`reasons to believe’ was not conveyed to the appellants while issuing Show Cause Notice by the Adjudicating Authority. A reference of the judgment of Delhi High Court in the case of J. Sekar (supra) was given. We find that the operation of the judgment of the Delhi High Court has been stayed by the Supreme Court where the matter is still pending. The Apex Court has not passed a simple interim order but the stay is to the effect of staying the operation of the order and thereby we are unable to accept the arguments in reference to the judgment of the Delhi High Court in the case of J. Sekar (supra) . In the light of the discussion made above, we do not find any case to cause interference in the order. The appeals fail and are dismissed other than the property at item No. 17 of statement given in Para 2 of this order.

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In reference to the property at Item No. 17 referred in the statement of Immovable Properties i.e. land bearing Khata No.58-old, 47-old, 44-old, 49-old, 261-new,Khesra No. 195-old, 199-old, 200-old, 233-new, a separate order has been passed in the appeal of Rina Kumari (FPA-PMLA-2922/PTN/2019). It would be governed by the said order.

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(Justice Munishwar Nath Bhandari) Chairman

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