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TMI Blog2016 (1) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion the Adjudicating Authority has not proceeded fairly by not affording any opportunity to the appellants on receipt of rejoinder dated 4-8-2014 making factual averments as well as raising legal pleas some of which appears to have been raised only in the rejoinder. It would be a futile exercise to speculate what could have been the consequences or change in the final outcome if the appellants were granted an opportunity to respond to the rejoinder. There is an infraction of principles of natural justice on the part of Adjudicating Authority as argued on behalf of the appellants. Consequently, the impugned order dated 29-8-2014 to the extent of confirming provisional attachment of the appellants’ properties is set aside and remanded to the Adjudicating Authority for re-adjudication within 180 days from the date of this order. The Adjudicating Authority shall give a fair opportunity to the parties to present their case. The appellants shall file their reply to the rejoinder dated 4-8-2014 within 30 days from the date of this order or on a date as may be fixed by the Adjudicating Authority and shall also supply a copy of same to the respondent. This Tribunal has not expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, BS FC, Kolkata. As offences under Sections 120B, 420 467 of IPC and Section 13 of Prevention of Corruption Act are scheduled offences under PMLA, the respondent registered an ECIR bearing No. KLZO/05/2009, dated 16-11-2009 against the said persons and commenced investigation under PMLA, 2002. The respondent examined various persons including accused persons u/s 50 of PMLA during investigation. 3. It is alleged by the respondent that statement of Shri Iltush Ahammed (appellant in FPA 657) was recorded u/s 50 of PMLA on 25-2-2011, 21-7-2011, 11-8-2011, 18-10-2011 and 12-3-2012. In his statement Shri Ahammed inter alia stated that he obtained various loans from Indian Overseas Bank and did not utilize them for the purpose the loans were sanctioned to him; that he purchased various properties either in his name or in the name of his wife Smt. Taijunnehar Bibi (appellant in FPA 692) out of cash credit accounts held in his name, his cousin brother Shri Noor Jamal and brother-in-law Shri Aynal Haque and also in the name of M/s. Dona Automobiles, jointly held by him and his wife Smt. Taijunnehar Bibi and out of loans sanctioned to him; that he had taken a number of loans under di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was withdrawn in cash and out of that ₹ 70 lakhs was diverted to Shri Atanu Kumar Mitra and ₹ 5 lakhs was withdrawn in cash from one of the current accounts of Shri Iltush Ahammed and was also diverted to Shri Atanu Kumar Mitra; that diversion of term loans granted in the name of Shri Iltush Ahammed, Smt. Taijunnehar Bibi, Shri Noor Jamal, Shri Aynal Haque, total amounting to ₹ 1,52,17,400/- in the Current Account No. 4466002100001660 in the name of non-existing dealer M/s. Raunak Motors was revealed during investigation, in which ₹ 1,02,12,400/- was withdrawn in cash by self-drawn cheques and ₹ 50.05 lakhs was transferred to the credit of SB A/c No. 4466000100003540 and Current Account No. 4466002100001244 maintained by Shri Iltush Ahammed in Punjab National Bank, Berhampore Branch. 5. In compliance of summons, Shri Atanu Kumar Mitra appeared before respondent on 4-10-2010, 28-10-2010 and 29-9-2011 and his statements were recorded under the provisions of PMLA. In his statements, Shri Mitra inter alia stated that he was Senior Manager of Indian Overseas Bank, Regional Office till 15-7-2008; that thereafter he was dismissed from service by the Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sham company, namely, M/s. Raunak Motors in the name of his cousin brother Shri Noor Jamal, which existed only on papers and opened various bank accounts in Punjab National Bank, Berhampore Branch and Axis Bank, Berhampore Branch, which were used as conduits for siphoning of funds which he obtained as term loans from Indian Overseas Bank, Berhampore; that term loans obtained through banker cheque in the name of Shri Iltush Ahammed, his wife Smt. Taijunnehai Bibi, his cousin brother Shri Noor Jamal and brother-in-law Shri Aynal Haque totalling to ₹ 1,52,17,400/- were deposited in the current account maintained in Punjab National Bank, Berhampore Branch wherefrom ₹ 1,02,17,400/- was withdrawn in cash and ₹ 50.05 lakhs were transferred to savings and current accounts maintained by Shri Iltush Ahammed in Punjab National Bank, Berhampore Branch. 7. It is alleged that by means of criminal conspiracy, forgery and using as genuine forged documents, Shri Iltush Ahammed, his wife Smt. Taijunnehar Bibi and his associates had, with criminal intention, availed various loans with support of forged signatures and with the active connivance of Shri Atanu Kumar Mitra and have e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attached properties are acquired out of proceeds of crime or value thereof and are involved in money laundering and also submitted that the appellants have not committed any offence. 9. The learned counsel submitted that on 10-7-2014, Adjudicating Authority directed the respondent/complainant to file rejoinder to the written objections filed by the appellants and next date of hearing was fixed for 22-7-2014. He submitted that as the respondent did not file rejoinder on 22-7-2014, the oral hearing of the complaint was concluded on that day and the Adjudicating Authority reserved the order. 10. The learned counsel for appellants submitted that after the hearing was concluded by the Adjudicating Authority on 22-7-2014, the appellants were served copy of written submission/Rejoinder dated 4-8-2014 filed before the Adjudicating Authority on behalf of the respondent/Complainant through Speed Post whereby they have made various fresh averments on fact and law. He submitted that the respondent has made new allegation in the rejoinder which needed to be countered by the appellants. He drew our attention to copy of rejoinder dated 4-8-2014 and pointed out the following paragraphs wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified under Part B of the schedule if the total value involved in such offences is Thirty Lakhs Rupees or more. In this regard it is submitted that in terms of Prevention of Money-laundering Amendment Act, 2012 (2 of 2013), all offences of Part B of the Schedule have now been placed in Part A of the schedule w.e.f. 15-2-2013. Consequently, there is no monetary threshold to initiate investigations under PMLA. G. The defendants in para 3 has further averred that proceeds of crime (if any) is related to the period from 13-6-2005 to 16-6-2007 but in clause 5 of Sl. No. 7 of the list of immovable properties which has been provisionally attached, it appears that said landed property vide Sale Deed No. 1-9401 was acquired on 21-11-2002 and the amount involved is ₹ 17,17,700/-. However, in this regard it is submitted that in clause 5 (List of Immovable Properties) of the O.C. 320/2014 at Serial No. 7 the listed property vide Sale Deed No. 1-9401 was used by Shri Iltush Ahmad to obtain further loans from the bank and was involved in laundering of money by Sri Iltush Ahmad. Hence the property was included in the tainted list of properties though it was acquired before the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejoinder and the Adjudicating Authority after considering the averments made in the rejoinder confirmed the provisional attachment of properties owned by the appellants. He vehemently contended that the Adjudicating Authority has acted unfairly and in gross violation of principles of natural justice as the appellants were not granted any opportunity to counter the averments made by respondent vide rejoinder after conclusion of hearing. He submitted that if the Adjudicating Authority had provided opportunity, the appellants could have filed their response to averments made in rejoinder which would have positive impact on the final outcome. He contended that the Adjudicating Authority has violated the principles of natural justice by not granting fair opportunity of hearing to the appellants and by considering the averments made by the respondent in the rejoinder at the back of the appellants and therefore the impugned order is vitiated and the same is illegal and void. 12. The learned counsel also argued various factual and legal grounds to contest the impugned order which are not being detailed herein. He submitted that as fair opportunity was not granted to appellants, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 8(2) of PMLA without affording any opportunity of hearing to the appellants to answer/respond the averments made on behalf of the respondent vide rejoinder dated 4-8-2014. After filing of rejoinder dated 4-8-2014 by the respondent before the Adjudicating Authority, though impugned order was passed on 29-8-2014, but admittedly, no opportunity was granted to the appellants to file any reply on factual allegations and legal pleas made in the rejoinder. 16. During arguments, this Tribunal questioned the counsel for respondent whether the averments made in rejoinder dated 4-8-2014 were orally argued during hearing on 22-7-2014 and no new arguments are raised in rejoinder other than those, if any orally argued. The counsel for respondent fairly could not confirm what happened during personal hearing on 10-7-2014 and 22-7-2014 before the Adjudicating Authority. A perusal of rejoinder dated 4-8-2014 does not reveal any averment that the same has been filed only on the basis of oral arguments, if any, made during the hearing of complaint before the Adjudicating Authority on 22-7-2014. 17. It is essential that before taking any adverse action against a person, requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge-made law. Indeed from the legendary days of Adam - and of Kautilya s Arthashastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system. 19. Aristotle, before the era of Christ, spoke of such principles calling it as universal law. Justinian in the fifth and sixth Centuries A.D. called it jura naturalia , i.e. natural law. The principles have sound jurisprudential basis. Since the function of the judicial and quasi-judicial authorities is to secure justice with fairness, these principles provide great humanizing factor intended to invest law with fairness to secure justice and to prevent miscarriage of justice. The principles are extended even to those who have to take administrative decision and who are not necessarily discharging judicial or quasi-judicial functions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh laws, is effectively achieved. 21. Prof. Galligan also takes the idea of fair treatment to a second level of understanding, namely, pursuit of common good involves the distribution of benefits and burdens, advantages and disadvantages to individuals or groups. According to him, principles of justice are the subject matter of fair treatment. However, that aspect need not be dilated. 22. Allan, on the other hand, justifies the procedural fairness by following the aforesaid principles of natural justice as rooted in rule of law leading to good governance. He supports Prof. Galligan in this respect and goes to the extent by saying that it is same as ensuring dignity of individuals, in respect of whom or against whom the decision is taken, in the following words : The instrumental value of procedures should not be underestimated; the accurate application of authoritative standards is, as Galligan clearly explains, an important aspect of treating someone with respect. But procedures also have intrinsic value in acknowledging a person s right to understand his treatment, and thereby to determine his response as a conscientious citizen, willing to make reasonable sacrifices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with the adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. 26. From the aforesaid discussion which has been elaborately reiterated by the Hon ble Supreme Court in the case of Dharampal Satyapal Limited v. Deputy Commissioner of Central Excise, Gauhati and Others - (2015) 8 Supreme Court Cases 519 = 2015 (320) E.L.T. 3 (S.C.), it is clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi-judicial authorities and tribunals. Thus, it is fundamental that before taking any adverse action against a person, requirement of principles of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to the parties to present their case. The appellants shall file their reply to the rejoinder dated 4-8-2014 within 30 days from the date of this order or on a date as may be fixed by the Adjudicating Authority and shall also supply a copy of same to the respondent. This Tribunal has not expressed any opinion on merits of the case. During the pendency of proceedings before the Adjudicating Authority, the Provisional Attachment Order shall continue and all the parties shall maintain status quo in respect of the attached properties. 30. As regards filing of additional documents by the appellants without seeking the leave of this Tribunal and without disclosing in the appeal that such documents were not filed before the Adjudicating Authority, this Tribunal strongly deprecate this practice adopted by the appellants. When appellants are pleading fairness in judicial proceedings, they are also under statutory obligation to act fairly and not to attempt suppression of facts. They are warned to be careful and honest in future. However, in view of the unconditional apology by the counsel on behalf of the appellants, no cost is being imposed. 31. All the pending applications, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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