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TMI Blog2018 (6) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2016. Shri Shankar Kollur was the accused in the FIR No. 20/2009dated 22.09.2009. The other appellants are the family members of Shri Shankar Kollur. 2. The complainant has submitted the facts leading to the Provisional Attachment of the said immovable properties as detailed below : (i) Karnataka Lokayukta, Raichur has registered FIR in Crime No.20/2009 dated 22.09.2009 under Section 13(1) (e ) and 13(2) of the Prevention of Corruption Act,1988 against Shri Shankar Kollur, then working as Deputy Revenue Officer, Gulbarga City Corporation and thereafter conducted searches on 23.09.2009 on the residential premises of Shri Shankar Kollur at Gulbarga and other related premises in Gulbarga. During the search conducted on the residence of Shri Shankar Kollur at Gulbarga, the Lokayuktya Authorities recovered incriminating documents pertaining to the properties registered in the names of (i) Shri Shankar Kollur (2) Smt. Parvati KollurW/o Shri Shankar Kollur (3) Shri AvinashKollur S/o Shri Shankar Kollur (4) Shri Rakesh Kollur S/o Shri Shankar Kollur (5) Smt. Chandrakala W/o Shri AvinashKollur (6) Smt. Apeksha W/o Shri Rakesh Kollur. Thereafter, on completion of the investigation, Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Timmapuri Chowk, Bus Stand Road, Gulbarga Shri Rakesh, S/o Shri Shankar Kollur 574 Dt. 25.02.2001 1,65,932/- F Plot along with house constructed at Survey No.8,House No. 11- 1791/4A, Vidyanagar, Gulbarga Shri Avinash, S/o Shankar Kollur 749 Dt.19.04.2003 12,07,339/- G Agricultural land of 5 acres at Survey No.132 situated at Hadgil Village, Haruti Taluk, Gulbarga District Ashwajeet Education Society, Gulbarga 2634 Dt.19.06.2007 1,50,000/- TOTAL 36,24,077/- 4. The following pleas were taken by the appellants before the Adjudicating Authority, the details are as below:- i. a) The learned counsel did not consider rental income/agriculture income/business income from tailoring of the spouse Smt.Parvati Kollur declared in the returns of income filed to the IT department. b) The learned Authority did not consider the income from profession and business income of son Sri Rakesh Kollur and AvinashKollur which has been disclosed and returned in the return of income filed to Income Tax department. c) The order of provisional attachment passed by learned Authority is against the law of land pronounced by Hon'ble Apex court in 'N' number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cost of Rs. 3,68,987/-. The learned Authority has considered salary drawn of Rs. 66,686/- during 1997-98 and Rs. 71,425/- during 1998-99 but did not consider the brought forward savings of about Rs. 2,77,124/- out of salary income. iv. I had borrowed loan of Rs. 1,25,000/- from City Corporation Gulbargaduring 1999-2000.To substantiate the fact of borrowing, I am herewith enclosing copy of sanction letter and also it can be perused from receipt and payment account that department has deducted Rs. 12000/- from the salary every year towards loan till during the period 2000-01 to 2008-09. v. Tailoring / agriculture /rental income of Rs. 5,66,490/- contributed by my spouse towards house construction jointly with me. In this regard, I would like to bring to honors kind notice thefollowing facts: 1) My spouse has been the only child to her parents Mr. Mareppa and Mrs. Iravva and grand daughter of Mr. Bailappa who was also corporation employee. Mr. Mareppa was the only son to Mr. Bailappa. 2) Mother in law (Iravva) was a class-3 employee of City Corporatio Gulbarga during 1968-69 to 2007-08. 3) On 27.02.1976, grand father Mr. Bailappa gifted house to my spouse Smt. Parvati Kollu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come filed every year. 8) As on 01.04.1997,my spouse had brought forward savings in the form of cash of about Rs. 2,85,390/- and income of about Rs. 69,100/- during 1997-98 and Rs. 84,860/- during 1998-99. Further, my spouse received Rs. 1,25,000/- as gift from her mother Smt. Iravva towards house construction. 5. The Provisional Attachment Order dated 24.03.2016 has been confirmed by the Impugned Order dated 26.07.2016. The said Impugned Order was challenged by the appellants mainly on the same grounds which are mentioned in the reply to the Notice under Section 8(1) of the Act. In the grounds of appeal, the appellants have tried to demonstrate that none of the properties purchased by them from the proceeds of crime. The reply to the appeal has been filed by the respondent. The appellants have also filed the applications for taking the additional. After hearing, the Interim Order was also passed in favour of the appellants on 24.8.2017 when the notice under section 8(4) of the Act was issued. 6. I have gone through the reply filed by the respondent and the respondent has taken the same stand which was taken before the Adjudicating Authority who had discussed the same in the Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that net salary of the accused to the tune of Rs. 16,39,987/- was not taken into consideration by the Investigating Officer. As per the statements submitted by the accused and also the documents produced in this case clearly indicates that net salary received by the accused was Rs. 19,38,283/-.When such is the case, the difference amount of Rs. 2,98,296/- is liable to be added to the income account of the accused." "62. Admittedly, in this case the check period was between 02.01.1976 to 22.09.2009 i.e. about 33 years. The accused was not involved in any corrupt practice and he has not faced any inquiry or any disciplinary proceeding pending against him. PWs.O and 12 viz. Maheshwargouda and Vinayak B.Badiger are the Investigating Officers who prepared the crucial documents about fixing the value of the assets and expenditure of the accused have clearly admitted in their evidence that accused possessing the ancestral properties through which he has received agricultural income. The income received from the agriculture and other sources have been clearly reflected in his assets and liability statements and also Income Tax Returns submitted to the Government." "63. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viz. Avinash along with others Rs.8,01,450/- g) The valuation of vehicle bearing No.KA-32- 6996 purchased by Rakesh by raising loan from Indian Bank Rs.7,80,188/- h) Bajaj Pulsar Motorcycle purchased by the son of accused viz. Avinash out of his business income Rs.47,700/- i) The vehicle bearing No. KA-32-7888 purchased by the son of accused viz. Kirankumar by raising loan from Crestar Global Finance Rs.35,788/- TOTAL Rs.45,56,117/- Grand Total i.e.Rs.72,35,197/- (-) Rs. 45,56,117/- Rs.26,79,080/- ANNEXURE-B Expenditure incurred by the accused during check period as per the charge sheet and items of expenditure ordered tobe deleted as determined by the Court. Expenditure incurred by the accused during the check period as per the charge sheet Rs.46,00,099/- The items of expenditure ordered to be deleted 1) Electricity bills paid by the tenants residing in the houses situated at Ashok Nagar and Vidya Nagar Rs.1,45,736/- 2) Difference amount of digging of Borewell and installation of submersible pump etc. Rs.22,500/- 3) Difference amount of Family Expenditure Rs.6,83,081/- TOTAL Rs.8,51,317/- Grand Total i.e. Rs. 46,00,099/- (-) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA Act with effect from 15.02.2013 are as under:- Prior to 15.02.2013 "The following clause substituted by the Prevention of Money - laundering (Amendment) Act,2002 (2 of 2013), which came into effect from 15 February, 2013." (b) "become final after the guilt of the person is proved in the trial court and order of such trial court becomes final." After 15.02.2013 (b) "becomes final after an order of confiscation is passed under sub section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section60 by the Adjudicating Authority." 12. It is argued that the provisions of section 8(3)(b) of PMLA Act, 2002 are existed and prevailing as on the date of FIR/ date of search were of the year 2009. The amended provisions of PMLA Act, 2002 are only applicable to cases which are registered/ initiated/ booked on or after 15.02.2013. The said amended provisions to section 8(3)(b) are prospective in nature. 13. It is stated that even otherwise the appellant is entitled for relief as per amended provisions when it was mandated by the law that once the accused is acquitted in schedule offence and the judgement is become final, then the attachment shall cease t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused/appellant had not any savings despite of submitting the material and documents and also from his spouse, son Rakesh and Avinash. 19. Even in the impugned order, the plea raised by the appellants were neither discussed nor decided, merely vague approach was taken by the officer who is not even judicial member. It is informed that the officer is even not a member(law).He has simply passed the order in mechanical manner. 20. The Adjudicating Authority ought to have complied with all the principles of duly conducting a judicial proceeding where rights of the parties are to be based on the cogent findings based on the evidence led in the case, as every proceedings under the PMLA 2002 is a judicial proceeding within the meaning of section 50 of PMLA Act 2002. 21. Sri Shankar Kollurhas already been acquitted in the offence on the basis of allegation made. On the basis of same allegation, prosecution complaint under section 45 of the Act is pending. The attached immovable properties were purchased during the period 1982 to 2007. Section13 of PC Act was added as schedule offence in PMLA, 2002 w.e.f. 1.6.2009. When the acquittal order was passed, the impugned order and prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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