9911796707
TMI Blog2014 (6) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... d order and notices quashed upon it creating a charge in favour of this court over the said premises (No.1102, Peninsula Business Park, Lower Parel, Bombay 400 013) over and above the charge of Respondent No.1 and to the extent of Rs. 6.5 crores. The alternative relief cannot even be considered as Respondent No.1 is not agreeable to the same. 2. The main contention is that the show cause notice dated 29.04.2014, issued to the Petitioner does not contain any reason for the Adjudicating Authority to believe that the petitioner has committed an offence under section 3 or is in possession of proceeds of crime as required by section 8 of The Prevention of Money Laundering Act, 2002. Section 8 reads as under : "Section 8 : Adjudication. - (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (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], he 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any scheduled offence, the person concerned is acquitted, the attachment of the property or retention of the seized property or record under sub-section (3) and net income, if any, shall cease to have effect. (6) Where the attachment of any property or retention of the seized property or record becomes final under clause (b) of sub-section (3), the Adjudicating Authority shall, after giving an opportunity of being heard to the person concerned, make an order confiscating such property." 3. The property which is subject matter of this writ petition was initially attached pursuant to the impugned provisional attachment order dated 31.01.2014. The attachment order was addressed to M/s. Aastha Minmet India Pvt. Ltd. (hereinafter referred to as "Aastha") and its director one Mohit Agarwal. The provisional attachment order refers in considerable detail to an FIR which included several offences under sections 120B, 467 and 471 of Indian Penal Code against M/s. National Spot Exchange Ltd., its Directors, key officials and certain defaulters. The FIR was registered on the basis of a complaint filed by certain persons who alleged that they had been cheated by NSEL. On the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revealed that the monies have been transferred and layered and further invested in prime properties. The likelihood of selling and/or disposing of these expensive properties is extremely high. Therefore, I have reason to believe that the properties mentioned in para 5 supra i.e. the proceeds of crime are likely to be concealed, transferred or dealt with in such a manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under Chapter III of the Prevention of Money Laundering Act, 2002 (15 of 2003). 7.2) It is gathered that charge sheet in the matter has been filed by EOW, Mumbai Police on 06.01.2014, a certified copy of which is yet to be received. 8.) In view of above, I have reasons to believe that the properties mentioned at para 5 supra, are likely to be concealed, transferred or dealt with in such a manner that if no Provisional Attachment Order is passed in the case at this crucial stage, it may result in frustrating proceedings relating to confiscation under Chapter III of the Prevention of Money Laundering Act, 2002 (15 of 2003). ORDER 9.) NOW, therefore, I order that the properties mentioned in the enclosed Schedule a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.] (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.- For the purposes of this sub-section "person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the complaint, the impugned notice dated 29.04.2014 was issued. It is contended that the said notice does not furnish any reason to believe that the petitioner has committed an offence under section 3 or is in possession of proceeds of crime. In view of this contention it is necessary to set out the entire notice : "You are called upon to indicate the source of your income, earning or assets out of which or by means of which you have acquired the property attached under sub-section (1) of section 5 of the Prevention of Money Laundering Act, 2002 the evidence on which you rely and other relevant information and particulars and show cause why all or any such property should not be declared to be the properties involved in money-laundering and consequently why the attachment order should not be confirmed. You are called upon to show cause why the provisional attachment order in respect of properties should not be confirmed as representing proceeds of crime being value of properties involved in money laundering [Copy of the complaint and Annexure/relied upon documents thereto enclosed herewith]. You are directed to appear before the Hon'ble Chairman and Member. Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Authority and Others (2008) 14 SCC 186 and in particular paragraphs 50 to 59 thereof. The judgment refers to a case relating to reopening under section 147 and 148 of the Income Tax Act. The judgment does not hold that the reason to believe cannot be incorporated in the notice by reference to another document. The judgment is not an authority for the proposition that the reasons cannot be incorporated in a notice under section 147 in any manner whatsoever. Paragraph 58 indicates that in that case no reason was disclosed by the authority to the appellant. In the present case we have come to the conclusion that the show cause notice contains the reasons. The same have been incorporated in the show cause notice by reference to the the enclosures/annexures thereto. 10. The learned counsel then relied upon the judgment of a Division Bench of this court in a case of Shashank Vyankatesh Manohar Vs. Union of India and Anr. 2013 (5) All MR 551. The case is clearly distinguishable. In the case before us, the reasons were not merely kept on file and not communicated to the Petitioner. In fact, the show cause notice enclosed copies of the complaint and annexures. 11. As far as the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
