Allowed

FPA-PMLA-2153/KOL/2018 of Debasish Mitra v. The Joint Director, Directorate of Enforcement, Kolkata

ATFP9 Apr 2025FPA-PMLA-2153/KOL/2018

Case brief

AI extract

What is this about?

The Appellant challenged a provisional attachment order regarding land jointly owned with the son of the main accused in a corruption case. The Tribunal relied on the Appellant's discharge in the scheduled offence and Supreme Court precedent to allow the appeal, setting aside the order for the Appellant's share.

What did the court decide?

The impugned order confirming attachment of the Appellant's share in the immovable property was set aside.

FPA-PMLA-2153/KOL/2018 of Debasish Mitra Vs. The Joint Director… — Money Laundering | ATFP (2025)

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APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

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MP-PMLA-4925/KOL/2024 (Impleadment) MP-PMLA-12939/KOL/2023 (Misc.) MP-PMLA-6256/KOL/2019 (Misc.) MP-PMLA-4219/KOL/2018 (A.D.) MP-PMLA-4220/KOL/2018 (Stay) MP-PMLA-4222/KOL/2018 (Exemp.) FPA-PMLA-2153/KOL/2018

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Debasish Mitra … Appellant

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Versus

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The Joint Director, Directorate of Enforcement, Kolkata … Respondent

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Advocates/Authorized Representatives who appeared

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For the Appellant	:	Mr. Anirban Sen, Adv. Mr. Sudipta Sarkar, Adv.
For the Respondent (ED)	:	Ms. Ankita Gautam, Adv.
CORAM
SHRI G. C. MISHRA	:	MEMBER
SHRI BALESH KUMAR	:	MEMBER

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FINAL ORDER 09.04.2025

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This Order disposes of the Appeal No. FPA-PMLA-2153/KOL/2018 filed by Sh. Debasish Mitra against the Order dated 15.11.2017 (Impugned Order) in Original Complaint No. 789/2018 (OC) passed by the Ld. Adjudicating Authority, under the Prevention of Money Laundering Act, 2002 (PMLA). Among other properties, the Provisional Attachment Order (PAO) dated 09.06.2017 for the immovable property comprising of a land measuring 5.248 cottahs under Mouza-Rahana, Dag No. 221, JI No. 47, PS Amdanga, North 24 Parganas, was confirmed vide the impugned order. The

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FPA-PMLA-2153/KOL/2018

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impugned property is jointly owned by the Appellant with Sh. Debmalya Dey who is the son of Sh. Dilip Kumar Dey, a State Excise Officer against whom case was registered under Prevention of Corruption Act r/w Provisions of IPC, by the Anti-Corruption Bureau, West Bengal.

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2. Ld. Counsel for the Appellant pleaded that the Appeal has been filed to set aside the impugned order to the extent of the Appellant’s undivided share, right, title and interest in the impugned property and to annul the remarks against the Appellant of having been found guilty in the offence of money laundering. Ld. Counsel argued that the Appellant is a Restaurantcum-Bar owner. He had known Sh. Dilip Kumar Dey and his family. His acquaintanceship had become stronger after Sh. Dilip Kumar Dey had become Deputy Excise Collector in Barasat and later in Barrackpore. The Appellant had stated that he was approached by Sh. Dilip Kumar Dey for purchase of the impugned property in Amdanga as joint owner with Sh. Debmalya Dey, son of Sh. Dilip Kumar Dey. Ld. Counsel stated that the Appellant had paid Rs. 4 lakhs in cash taken out from cash reserve of his business. Moreover, the Appellant had stated that he had declared purchase of the said land in his Income Tax Return (ITR). Ld. Counsel further stated that the Appellant had not purchased any other property with Sh. Dey. The Appellant dose not have any criminal past and had fully cooperated during the course of investigation.

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3. Ld. Counsel for the Appellant stated that the Appellant had meticulously kept records of all transactions regarding his business which could bring out that the Appellant had funded Rs. 4 Lakhs from his business income. Ld. Counsel stated that the business firm known as Disha is single proprietorship firm. He drew attention to the Intimation u/s 143(1) of the Income Tax Act, 1961 (ITA) of the Appellant bearing date 24.07.2014 for the Assessment Year (AY) 2013-14 wherein the income from business

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was shown as Rs. 13,08,887/-. Further the Balance Sheet dated 31.03.2013 of firm Disha showed Rs. 13,08,887/- as net profit to be added to the capital account of the Appellant Sh. Debasish Mitra. The Trading, Profit & Loss A/c for the year ended 31.03.2013 showed net profit as Rs. 13,08,887.04. The details of fixed assets schedule as on 31.03.2013 showed addition of Rs. 4 lakhs under land and building. The three documents mentioned afore have been duly authenticated by the Chartered Accountant. Ld. Counsel argued that these authenticated documents are based upon Cash in Hand Book of Disha for the Financial Year 2012-13 which for the date 02.07.2012 shows payment of Rs. 4 lakhs as amount paid for purchase of land. Ld. Counsel for the Appellant drew attention to the certificate dated 30.12.2017 filed with the Appeal, of the Chartered Accountant T Banerjee & Company. The certificate states that for the Financial Year 2012-13 the income earned from the proprietary business of M/s Disha was Rs. 13,08,888/- and addition in the business assets included cost of the land purchased jointly with another person namely Sh. Debmalya Dey, son of Sh. Dilip Kumar Dey. Ld. Counsel contended that the said documents clearly bring out that the Appellant had withdrawn cash from his business to jointly purchase the impugned property and in no manner did he indulge in transferring proceeds of crime for the purchase of the impugned land. Thus, the Appellant was in no way involved in money laundering.

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4. Ld. Counsel for the Appellant pleaded that the certified copy of Order dated 10.04.2019 passed by the Ld. Special Judge CBI, Kolkata was filed with the IA No. 6256 on 17.07.2019 which has been taken on record. The Ld. Special Judge considered and allowed the petition filed for discharge by the Appellant herein. Ld. Counsel therefore pleaded to allow the Appeal.

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5. Ld. Counsel for the Respondent argued that the Appellant was very close associate of the main accused Sh. Dilip Kumar Dey who was trapped while demanding and taking bribe. She argued that the Appellant attempted to conceal the proceeds of crime by showing its origin from his own business and then utilizing it for purchase of land in joint ownership with the son of the main accused. She further argued that the additional documents filed by Appellants are yet to be admitted. She prayed that the Appeal may be dismissed.

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6. We have considered the rival submissions and the documents on record. We note that this Tribunal vide its order dated 08.02.2019 had disposed of the Misc. Petition for additional documents by taking these on record subject to the objection of the Respondent at the final stage. We have considered the objection of the Ld. Counsel for the Respondent. We find that the additional documents comprise of copies of FIR, Charge Sheet in the Scheduled Offence, ECIR, letters & Notice of Respondent Directorate, ITRs, and authenticated accounts. We find that these documents are necessary for proper adjudication of the Appeal and therefore the documents are taken on record and considered for the purpose of adjudication.

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7. On perusal of the Order dated 10.04.2019 of the Ld. Special Judge CBI, Kolkata we find that the Appellant has been discharged in the Scheduled Offence. The relevant portion of the Order is reproduced below:

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“Herein the instant case save and except the statement of the accused, no document has been procured on behalf of the prosecution that the accused Debasish Mitra was involved in the proceeds of crime by using the tainted money collected by the accused Dilip Kr. Dey as untained. So when prima facie case has not been established from the documents so procured by the

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prosecution, in view of the decision of the Hon’ble Apex Court cited above and coupled with the relevant provision, this Court is of view that there is no sufficient ground to go for trial against the accused Debasish Mitra. The provisions of Section 2(u) i.e. proceeds of crime has not been established in respect of accused Debasish Mitra. When the prosecution failed to proof that there is no sufficient ground to presume that the accused Debasish Mitra has committed an offence punishable u/s 4 for the offence committed u/s 3 of M.L. Act, whatever allegation given in the present case against the petitioner Debasish Mitra has not been prima facie proved and as such he deserves discharge.”

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8. The Hon’ble Supreme Court has held in the matter of Vijay Madanlal Choudhary and Ors. vs. Union of India (UOI) and Ors. (27.07.2022 - SC):

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MANU/SC/0924/2022 in paragraphs 52 and 187(d) the following:

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“52. The next question is: whether the offence Under Section 3 is a standalone offence? Indeed, it is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence. Nevertheless, it is concerning the process or activity connected with such property, which constitutes offence of money-laundering. The property must qualify the definition of "proceeds of crime" under Section 2(1)(u) of the 2002 Act. As observed earlier, all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "proceeds of crime" under Section 2(1)(u) will necessarily be crime properties. Indeed, in the event of acquittal of the person concerned or being absolved from allegation of criminal activity relating to scheduled offence, and if it is established in the court of law that the crime property in the concerned

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case has been rightfully owned and possessed by him, such a property by no stretch of imagination can be termed as crime property and exconsequenti proceeds of crime within the meaning of Section 2(1)(u) as it stands today. On the other hand, in the trial in connection with the scheduled offence, the Court would be obliged to direct return of such property as belonging to him. It would be then paradoxical to still regard such property as proceeds of crime despite such adjudication by a Court of competent jurisdiction. It is well within the jurisdiction of the concerned Court trying the scheduled offence to pronounce on that matter.

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187. (d) The offence Under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or anyone claiming such property being the property linked to stated scheduled offence through him.”

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It is therefore obvious that in view of the discharge of the Appellant for the chargesheet filed against him in the Scheduled Offence that the allegation of money laundering against him cannot survive.

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10. Even on merit we find that the Ld. Counsel for the Appellant has explained the source of fund for the purchase of the impugned property jointly with Sh. Debmalya Dey. The funds have been satisfactorily explained as arising from the cash reserve in the sole proprietorship firm Disha of the Appellant. Necessary documentation has been furnished in corroboration. These funds are independent of those from Sh. Debmalya Dey.

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11. In view of the aforementioned discussions and analysis the Appeal is allowed setting aside the impugned order qua the Appellant to the extent of his share in the impugned property.

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12. Appeal is allowed and the Applications are accordingly disposed of.

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(Balesh Kumar) (G. C. Mishra) Member Member

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New Delhi

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09^th April, 2025 ‘AK’

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FPA-PMLA-2153/KOL/2018

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