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TMI Blog2024 (2) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... red 17 fake bills of entry and presented the same before the ICICI Bank for making foreign outward remittances. Another FIR No. 1/17/2014 dated 13.04.2014 was also registered by the Detection of Crime Branch, Surat Police against M/s Harmony Diamonds Pvt. Ltd., M/s Agni Gems Pvt. Ltd. and their Directors for similar offences. The PAO further indicates that the chargesheets have been filed. The chargesheet names the following: S.No Date of Chargesheet FIR No Name of Accused 1. 19.08.2014 I/16/2014 Sunil Agarwal Ratan Agarwal 2. 30.09.2014 I/16/2014 Madan Lal Jain 3. 04.11.2014 I/16/2014 Afroz Mohd Hasanfatta Bilal Haroon Gilani 4. 26.10.2017 I/17/2014 Pankaj S Jain Deepak Mahadev Patil Kishanlal Bholuram Kumbhar 3. The allegations against the accused are that they hatched a well-planned conspiracy by forming different companies /partnership/ proprietorship firms and lured people by offering them side income of Rs. 10,000-12,000 just to obtained their photos, ID proofs and residence proofs and enlist them as Directors of M/s RA. Distributors Pvt. Ltd, M/s Riddhi Exim Pvt. Ltd., M/s M.B. Offshore Distributors Pvt. Ltd., M/s Maa Mumba Devi Gems Pvt. Ltd., M/s Hem J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed that total funds of Rs. 254 crores approximately were received in these bank accounts from bank account No. 588011036547 (held with Kotak Mahindra Bank) and bank account No. 0032649804054 (held with SBI Bank) and bank account No. 04622431121980 (held with DCB Bank) of M/s Kross Diamonds Pvt. Ltd. 7. It is pertinent to mention here that the Petitioner's husband Mr. Pankaj Kapur and the Petitioner's son Mr. Satchit Kapur are directors and shareholders of M/s Kross Diamonds Pvt. Ltd. The Petitioner is only a housewife. The PAO gives details of various amounts received in the bank account No. 85005500829 of M/s Riddhi Exim Pvt. Ltd. from the bank account of M/s Kross Diamond Pvt. Ltd. during October, 2013 to March, 2014 to the tune of Rs.1,69,39,00,000.00/- and the said amount was further transferred from bank account No. 8500550829 of M/s Riddhi Exim Pvt. Ltd. to UAE and Hong Kong based entities on the strength of forged bills of entry and documents. 8. Similarly, the PAO also gives details of amounts to the tune of Rs. 84,48,00,000/- received in bank account No. 913020025830735 of M/s Maruti Trading from M/s Kross Diamond Pvt. Ltd. during October, 2013 to March, 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.5 crores from M/s Indiabulls Housing and M/s Reliance Fincorp; the property situated at 1F, Northern Road, Civil Lines, New Delhi was ancestral property which was purchased by her father-in-law in 1985 and gifted to her and her husband Sh. Pankaj Kapur; the EMI of the home loan was paid by M/s Kapur Gems Pvt. Ltd., M/s Kross Diamonds Pvt. Ltd. and M/s Radhika Gems Pvt. Ltd. during the period from 2011 to 2021 and that the loan accounts have been closed in 2021 after full repayment of loan; EMI are paid on her behalf by M/s Kapur Gems Pvt. Ltd., M/s Kross Diamonds Pvt. and M/s Radhika Gems Pvt and that the funds taken from these companies and utilized for the repayment of loan are shown as loan in books of accounts; she will submit the details of outstanding loan taken from these 3 companies for repayment of EMIs; she was Director in M/s C P Vaults Pvt. Ltd., M/s Kapur Gems Pvt. Ltd., M/s Kapur Softech Pvt. Ltd., M/s Brij Bala Softech Pvt. Ltd.; these all companies are floated controlled and managed by her husband Sh. Pankaj Kapur and her son Sh. Satchit Kapur; she has no role in the day to day business activities of M/s C P Vaults Pvt. Ltd., M/s Kapur Gems Pvt. Ltd., M/s Kapur S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been attached by the Respondent. 16. Heard learned Counsel appearing for the Parties and perused the material on record. 17. The statement of the Petitioner recorded under Section 50 of the PMLA, 2002 indicates that the property situated at Civil Lines was sold for Rs. 3 crores and a loan of Rs. 5 crores was taken for purchasing the premises bearing No. B-64, Greater Kailash-I, New Delhi-110048. 18. Section 5 of the PMLA postulates that where the Director or any other officer not below the rank of Deputy Director authorised by the Director, on the basis of material on possession has reason to believe, which has to be recorded in writing, that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings, he may, by order in writing, provisionally attach such property for a period not exceeding 180 days from the date of the order. The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal constituted under Section 25 of the PMLA, 2002. 21. It is well settled that where any Statute provides a procedure to deal with the issues which arises under the Statute, the High Court while exercising its jurisdiction under Article 226 of the Constitution of India ordinarily must not interfere with the scheme unless there is a patent lack of jurisdiction. 22. The argument of the Petitioner is primarily on facts which can be dealt with by the Adjudicating Authority under Section 8 of the PMLA, 2002 and further by the Appellate Tribunal under Section 25 of the PMLA, 2002. 23. The Apex Court in Directorate of Enforcement vs. PC Financial Services Private Limited and Another, 2022 SCC OnLine Del 3582 has held as under: "13. The Hon'ble Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433, has, inter alia, held as under: "6. We are constrained to dismiss these petitions on the short ground that the petitioners have an equally efficacious alternative remedy by way of an appeal to the Prescribed Authority under sub-section (1) of Section 23 of the Act, then a second appeal to the Tribunal under sub-section (3)(a) thereof, and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort "the Act"). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131], Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499]) x x x x x x x x x 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419], Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 52, it was observed and held as under: "49. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 were echoed in CCE v. Dunlop India Ltd., (1985) 1 SCC 260 in the following words : (SCC p. 264, para 3) "3. ... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy. 52. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under : (SCC pp. 175-76) "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 15. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, bypassing the statutory remedies." 20. This Court in Rai Foundation Through Its Trustee Mr. Suresh Sachdev v. The Director, Directorate of Enforcement, 2015 SCC OnLine Del 7626 - wherein the writ petition had been filed for quashing of provisional attachment orders under the PMLA, has held as under: "8. Section 26 of the Act provides remedy of appeal before the Appellate Tribunal to any person aggrieved by the order made by the Adjudicating Authority. Section 42 of the Act further envisages that 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power vested in it under Article 226 of the Constitution, this High Court entertain a writ petition against any order passed by or action taken by the State and/or its agency or any public authority or order passed by quasi-judicial authority and it is altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." 24. This Court in Rose Valley Hotels and Entertainment Limited v. The Secretary, Department of Revenue, Ministry of Finance, (2015) 221 DLT 335 has held as under: "5. Heard learned counsel for the parties. Section 26 of the PML Act provides for appeals to the Appellate Tribunal by any person aggrieved by an order made by the adjudicating authority under the Act. Even aggrieved by the order of the Appellate Tribunal the Statute under Section 42 of the PML Act provides for an appeal on any question of law or fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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