9911796707
TMI Blog2015 (5) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... the right of investigation cannot as such be trampled upon by this Court and the purpose of freezing cannot be ignored regarding the interest of the revenue also so that the proceeds of crime are not frittered away. The parties have to be given a reasonable level playing field. This cannot be achieved by permitting oral applications thus depriving the respondents an opportunity of meeting the petitioner's case in a reasonable manner. Admittedly, under 17(4) of the PMLA, an application has been filed on 11.02.2015 (Annexure R-11) for retention of the records and the property seized by the Deputy Director in which details have been given of 108 bank accounts and various immovable properties owned in Himachal Pardesh owned by Shri Mukesh Mittal and his associates. The said adjudicating authority has issued notice dated 23.02.2015 (Annexure R-12 colly) to the petitioner as to why the said documents seized or frozen should not be retained as involved in money laundering and required for the purpose of investigation. A similar notice had also been issued to the husband of the petitioner to put in appearance apart from 43 other defendants. Normally and in the first instance, it is for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posits and other accounts of the petitioner. More important there are no pleadings in support of the oral application. Even the evidence in respect thereof was only tendered across the bar. Further, still there was not even an application for amending the writ petition. We do not refuse to entertain the oral application for reliefs other than those that form the subject matter of the petition on a mere technicality. The nature of the reliefs sought would require detailed investigation of facts many of which are disputed. To allow such an oral application would be undesirable especially in view of the nature of this case. It would also be unfair to the respondents. They must have an opportunity of dealing with the application and the documents on affidavit. 4. As Mr. Bansal pressed the application strongly, we will refer to the oral application and the facts only to substantiate the above and without expressing a final opinion on the merits in respect thereof. 5. Mr. Bansal suggested that the reliefs can be considered on the basis of the pleadings in the Writ Petition as they are. 6. The first question that arises, therefore, is whether any challenge has been raised in the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iefs of de-freezing the other accounts and FDRs of the petitioner although the reliefs were not sought in respect thereof. He, however, insisted that we ought to consider the application even with respect to such assets. 8. We will refer to a few facts only to indicate the issues involved and the complexity in the matter. The same, in our opinion, would warrant a consideration of the submissions and an application for reliefs to be made by a proper pleading and not orally across the bar. It is essential for this matter that all the facts in relation to the application are introduced in pleadings and not orally across the bar. 9. The pleaded case of the petitioner is that an FIR bearing no. 4 dated 22.07.2009 was registered under Sections 419, 420, 467, 468, 471 and 120-B IPC at P.S. Vigilance, Chandigarh against 4 accused regarding the transfer of shop-cum-flat no. 8, Sector 20-C, Chandigarh in favour of one O.P. Mittal, who was the tenant. In the investigation, a report dated 26.10.2009 had also been filed against her husband namely Sh. Gurvinder Singh Sawhney. It was alleged that on the basis of the said FIR and police report, the respondent-Directorate initiated an investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by Harnek Singh, who was allegedly not having authority to sell the property and the husband of the petitioner had received the amount from Harnek Singh through cheques. The property had further been sold in favour of the tenant on the basis of the said power of attorney. In such circumstances, summons were issued to the husband of the petitioner under the provisions of Section 50 and record was called for to trace "the proceeds of the crime" under the provisions of the PMLA. The son of the tenant had also been summoned but the husband of the petitioner was not cooperating. The details were obtained from the concerned authorities including the charge sheet from the Courts and the record of the Estate Officer was scrutinized and the said ECIR was registered. It was noticed that Harnek Singh, who was working as a Clerk with the husband of the petitioner had received a sum of ₹ 34.50 lacs from the tenant and out of that sum, ₹ 34.46 lacs had been received by the husband of the petitioner through two blank cheques on 22.01.2009 and 28.01.2009 and in such circumstances, summons had been issued to him but he was not appearing and seeking adjournments which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner's husband was not giving the details of the receipt of the payment of ₹ 75 lacs and that he had submitted his reply and on 04.02.2015 and given proof of purchase of flat at Jal Vayu Vihar, Mohali and two documents signed by one Mrs. Manpreet Kaur Chadha and Inderjeet Kaur Narula without mentioning the address of the signatory and without supplying the copy of the income tax returns. The flat at Jal Vayu Vihar, Mohali had been sold and the copy of the sale deed had not been submitted. A reference was made to one deal struck for ₹ 75 lacs and as per the conversation recorded with Sh. Mukesh Mittal, Advocate, who had asked the husband of the petitioner to hand over two cheques of ₹ 35 lacs and ₹ 40 lacs to one Sh. Narinder, who was the aide of said Sh. Mukesh Mittal. The allegation that the amount of money received from O.P. Mittal had been returned in the presence of persons on 15.07.2009 was denied while placing reliance upon the statement of the son of the deceased-tenant. Accordingly, it is submitted that the investigation was continuing and that the petitioner was required to prove that the money lying in her bank account was not sale pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority could be challenged in appeal and, therefore, this Court would not exercise its discretion at this point of time. It was further argued that reasons had been duly recorded before the competent authority had passed the order dated 14.01.2015 and the original record was produced for perusal. 18. The second issue which arises for consideration on Mr. Bansal's oral application is whether the concerned accounts were frozen vide order dated 12.09.2014 (Annexure P-4) or 15.09.2014 (Annexure R-7) or 04.12.2014 (Annexure R-10) or by the order dated 14.01.2015 (Annexure P-8) and whether it was done by the competent authority namely the Deputy Director or the Director and whether there were any reasons recorded by the authorities while issuing the order of freezing of accounts. The third question which also arises on Mr. Bansal's oral application is whether the appropriate proceedings had been initiated under Section 17(4) of the PMLA before the adjudicating authority within the prescribed period who would then decide on the factum whether the attachment is to continue or not. 19. It is important to note that since all relevant documents were not appende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Prevention of Money Laundering Act, 2002 (15 of 2003) by this Directorate in the subject case, it is required that the following documents/information in respect of the under noted accounts being maintained in your bank may please be provide on top priority basis, latest by 19.09.2014 positively: S. No. Name of the Account Holder Account Number 1 Mr. Gurwinder Singh Sawhney & Sudeep Kaur Sawhney 1956922067 2 Shri G.S. Sawhney 1370 02. Please furnish certified copies of Account opening forms together with the documents tendered while opening the account. Transcript/statement of each of the above mentioned accounts from 01.07.2005 to till date. All bank account's statement should be certified by the authorized person and a soft copy of the same may also be provided. Similarly information/documents in respect of any other account(s) of/connected with the subject persons, being maintained in your bank, be also provided. Kindly inform/share all suspicious transactions with your bank by the above suspected persons. 03. Detail of all FDRs, Locker/s etc. held by the above mentioned persons may please be provided. 04. Since, the amount/balances as may be av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to mention that not a whisper was made in the writ petition that apart from this account, the petitioner had other accounts with the bank including one joint account mentioned in the table set out above in which a sum of ₹ 1,61,380/- was there along with her husband. Similarly, six FDRs in which various amounts varying from a sum of ₹ 2,00,000/- to more than ₹ 8,00,000/- had been lying with the bank had never been mentioned and neither any averment had been made that the said amounts which are more than ₹ 32 lacs were lying deposited with the bank. The petitioner though aware of such a huge amount lying with the bank in various FDRs and accounts made no averment regarding the said accounts and referred only to and sought reliefs only in respect of one account. In the absence of any specific pleadings, we are not inclined to go into the said issues on the basis of the oral submissions as the Directorate has been precluded from giving a reply to the same. It is also apparent that the writ petition regarding the Account No. 1956915673 has already become infructuous in view of the letter dated 04.12.2014 and the petitioner chose not to amend her writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted proceedings. 27. The matter was processed by the authority as per the detailed reasons recorded, which go on to show that there is a clear cut reasoning given that apart from the amount of "Rs.35 lacs" which has changed hands, another deal of "Rs.40 lacs" was made of this property which was paid in cash. Whether the same had been returned or not and how many people were involved in the said case and in similar cases of cheating has still to be gone into. In the reasons recorded, details of 12 companies have been mentioned which are allegedly controlled by Sh. Mukesh Mittal and his associates and on the basis of the said investigation, the Deputy Director concluded that there were reasons to believe that various persons were indulging in the act of money laundering and granted permission to search the premises of the petitioner's husband apart from 4 other persons mentioned. Thereafter, on account of the search conducted on 13.01.2015 and seizure of the documents which included blank, signed/unsigned cheques of accounts of various companies an opinion was recorded by the competent authority i.e. the Deputy Director that there was sufficient reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 [Provided that no search shall be conducted unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 157 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification, for this purpose.] 1 [(1A) Where it is not practicable to seize such record or property, the officer authorised under sub- section (1), may make an order to freeze such property whereupon the property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of investigation cannot as such be trampled upon by this Court and the purpose of freezing cannot be ignored regarding the interest of the revenue also so that the proceeds of crime are not frittered away. The parties have to be given a reasonable level playing field. This cannot be achieved by permitting oral applications thus depriving the respondents an opportunity of meeting the petitioner's case in a reasonable manner. 30. Lastly, question arises whether this Court is to scrutinize the source of the funds and whether the action of the authorities is justified. Admittedly, under 17(4) of the PMLA, an application has been filed on 11.02.2015 (Annexure R-11) for retention of the records and the property seized by the Deputy Director in which details have been given of 108 bank accounts and various immovable properties owned in Himachal Pardesh owned by Shri Mukesh Mittal and his associates. The said adjudicating authority has issued notice dated 23.02.2015 (Annexure R-12 colly) to the petitioner as to why the said documents seized or frozen should not be retained as involved in money laundering and required for the purpose of investigation. A similar notice had also bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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