9911796707
TMI Blog2018 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... 63381 & 63382/2016 are that, the first petitioner is the holder of B.E. Degree in Civil Engineering and was initially appointed as Task Force Commander on 20.7.1984 in the Karnataka Infrastructure Rural Infrastructure Development Limited. Subsequently, he was promoted as Assistant Director in KRIDL. Presently, he is working as an Executive Engineer. On 15.11.2000, Superintendent of Police submitted a source report on the basis of the investigation conducted regarding amassing of wealth by the petitioners. Based on the said report, a case was registered in crime No.10/2010 in Dharwad Lokayuktha police station for the offences punishable under Section 13(a)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988, on 16.11.2010 against the 1st petitioner. After search and seizure mahazar reports were submitted by the Lokayuktha police, based on which, a charge sheet was filed on 1.4.2014. Para No.8 of the schedule to the provisions of Prevention of Money Laundering Act, 2002 was amended and section 13 of the provisions of the Prevention of Corruption Act, 1988 was included in para 8 of Schedule-2 of Act, 2002. The amended Act 2012 was gazetted on 3.1.2013. The Rule making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the only residential house owned by them. The petitioners apprehend that the respondent may take physical possession of the schedule property. Hence, the petitioners have preferred these writ petitions challenging the action of the respondents-authorities on the grounds as mentioned at ground Nos.13 to 17 of writ petition Nos.63381-63382/2016. 3. Writ Petition Nos.48517-48518/2016 are filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. seeking to call for records relating to issue of impugned summons bearing No.ECIR/78/BZ/2010/EO-NKS/1053 dated 8.8.2016(vide Annexure G and G1) and the second impugned summons bearing No.ECIR/78/BZ/2010/EO-NKS/1053 dated 22.8.2016 issued by the 3rd respondent directing the petitioners to appear before him for investigation on 14.9.2016 (Annexure J and J1) and after perusal set aside the same. 4. Brief facts of the case as pleaded by the petitioners in W.P.Nos.48517-48518/2016 are that, first petitioner is working as a Executive Engineer in the Karnataka Rural Infrastructure Development Corporation, Bellary which is a State Government Undertaking. Second petitioner is the wife of first petitioner. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the petitioners are before this Court by filing the above writ petitions. 5. Heard the arguments of the learned counsel appearing for petitioners and the learned Additional Solicitor General representing the respondents in both the petitions. 6. Learned counsel appearing for the petitioners has submitted that the respondent/authority-the Deputy Director, Directorate of Enforcement, Bengaluru passed the Provisional Attachment Order under Section 5(1) of the Prevention of Money Laundering Act, 2002. Further, on the complaint filed by the Joint Director, Enforcement Directorate in original complaint No.575/2016 before the Adjudicating Authority under Section 8 of the Prevention of Money Laundering Act, 2002, after considering the detailed objection statement, the Adjudicating Authority has passed the order dated 14.9.2016 confirming the Provisional Attachment Order. It is his submission that the FIR in the case came to be registered in the year 2010 and the Prevention of Money-Laundering (Amendment) Act 2012 was gazetted on 3.1.2013. Therefore, when the properties mentioned in the writ petitions were purchased much prior to the coming into force of Amendment Act, the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of law prior to 15.2.2013 having not been framed, could not have formed basis for taking action against the petitioners. Hence, it is submitted that the proceedings initiated for taking possession of the properties in which the petitioners are staying is not in accordance with the provisions of the Prevention of Money Laundering Act, 2002. Accordingly, submitted to allow the petitions and to grant the relief as prayed for in the petitions. In support of his contention, learned counsel for the petitioners has relied upon the following decisions filed along with synopsis of arguments dated 3.1.2018, which are as under: 1. Commissioner of Income Tax & Others V/s Chhabil Dass Agarwal reported in (2014) 1 SCC 603 2. Pepsi Foods Ltd. and another -vs- Special Judicial Magistrate and others reported in (1998) 5 SCC 749 3. International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others -vs- NIMRA Cerglass Technics Private Limited reported in (2016) 1 SCC 348 4. P S Meherhomji -vs- K T Vijay Kumar and others reported in (2015) 1 SCC 788 5. Writ Petition Nos. 57334-338/2014 (GM-RES) C/W Writ Petition Nos. 6123/2014, 56157/2014, 56158/2014, 89 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch property is being processed for projecting it as untainted. He submitted that in view of catena of decisions of the different High Courts and also of the Hon'ble Apex Court, the contention of the petitioners that the offence under Section 13 of the Prevention of Corruption Act, 1988 was included in the schedule to the Prevention of Money Laundering Act, 2002 by way of amendment only in the year 2013 and hence, the proceedings are liable to be set aside, is not sustainable. In support of his contention, learned Additional Solicitor General has also relied upon the relevant paragraphs of the following decisions: 1. B.Rama Raju -vs- Union of India reported in LAWS(APH) 2011-3-76 2. Hari Narayan Rai -vs- Union of India & ors in W.P. No (Cr) 325/2010 3. Narendra Mohan Singh and another -vs- Directorate of Enforcement in Cr.M.P.No.2683/2013 4. Alive Hospitality and Food Private Limited -vs- Union of India in Special Civil Application No.4171/2012 5. Om Prakash Daulat Ram Nogaja -vs- Shri Atul Varma, Deputy Director and another in First Appeal No.967/2010 6. Mr. Radha Mohan Lakhotia -vs- The Deputy Director, in First Appeal No.527/2010 7. M.Saraswathy and another -vs- Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tribunal under sub-section (1) or sub- section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of filing of the appeal". 42. Appeal to High Court.- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law or fact arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation - For the purposes of this section "High Court" means - (i) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (ii) Where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. -vs- State of Haryana, this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility". submitted that even according to the said decision, petitioners cannot maintain these petitions. Further, referring to the Division Bench decision of this Court rendered in W.P.No.5962/2016(GM-MM- C);W.P.No.11442/2016(GM-MM-C) and W.P.Nos.11440-11441 of 2016 (GM-MM-C), by order dated 13.3.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent- authorities is without the authority of law. 11. Learned Additional Solicitor General appearing for respondents/authorities relied upon the decision of the High Court of Andhra Pradesh dated 4.3.2011 reported in LAWS(APH)2011-3-76 in the case of B.Rama Raju Vs. Union of India, wherein their Lordships' have laid down the following prepositions: (i) that property owned or in possession of a person, other than a person charged of having committed a scheduled offence is equally liable to attachment and confiscation proceedings under Chapter-III and Section 2(l)(u) which defines the expression "Proceeds of Crime" is not invalid; (ii) that the provisions of the second proviso to Section 5 are applicable to property acquired even prior to coming into force of this provision (vide the second amendment Act with effect from 6.3.2009); and even so is not invalid for retrospective penalisation; (iii) that the provisions of Section 8 are not invalid for vagueness; incoherence as to the onus and standard of proof; ambiguity as regards criteria for determination of the nexus between a property targeted for attachment/confirmation and the offence of money- laundering; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of violation of principles of natural justice. In view of these factual matrix in the case, the decisions relied upon by the writ petitioners will not come into the aid and assistance of the petitioners. However, the said Provisional Attachment Order passed by the respondents/authorities and also the confirmation order passed by the Adjudicating Authority are said to have been already challenged before the appellate Tribunal and the proceedings are still pending. 13. As regards the notice dated 5.10.2016 issued to the petitioners for taking possession of the property, the writ petitioners have to challenge the same by preferring an appeal before the appellate Tribunal and they cannot directly approach this Court by filing the writ petitions invoking the extra-ordinary jurisdiction of this Court. When the provisions of the statute itself i.e., The Prevention of Money-Laundering Act, 2002 itself provides for challenging the said orders by preferring an appeal before the appellate Tribunal, as it is rightly submitted by the learned Additional Solicitor General appearing for the respondents/authorities, the writ petitions are not maintainable, since as per Section 42 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
