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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 ..... ment, file a complaint stating the facts of such attachment before the Adjudicating Authority. 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. The present case is not a case of patent lack of jurisdiction. The Adjudicating Authority has the power to look into the facts of the case of the Petitioner before coming to a conclusion as to whether the properties in question are proceeds of crime or not. It has been contended by the Petitioner that one accused has been discharged and proceedings against one accused has been abated because of his death. It is pertinent to mention that apart from individuals, even companies have been made accused. Merely because proceedings have been dropped against some individuals does not mean that the proceedings against the Petitioner should or will be dropped. The offences under the PMLA Act are distinct from offences under the IPC. The companies can still be convicted for the predicate off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Jewels Pvt. Ltd. etc. It is stated that some persons who were lured with money, were called to the office of the accused located at Office No. 416- 417, Opera House, Panchratna Building, Mumbai. Bank employees were present at the location with documents required to open new bank accounts and such forms were filled and signatures were taken. It is mentioned that at places signatures of the witnesses were forged and false KYC documents were presented for opening accounts in ICICI Bank. After the accounts were opened, the amounts were credited on different occasions with the help of one Prafulbhai Mohanbhai Patel in Axis Bank accounts of M/s Aarzoo Enterprise, M/s G.T. Traders, M/s Vandana Co. etc., through RTGS/NEFT and thereafter, the said amount deposited in Axis Bank were transferred to the accounts in ICICI Bank, Ring Road Branch, Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the said amount was also further transferred from bank account No. 913020025830735 of M/s Maruti Trading to UAE and Hong Kong based entities on the strength of forged bills of entry and documents. 9. The investigation further reveals that a Letter of Request dated 20.01.2015 was sent by Ld. Special Court, PMLA, Ahmedabad to UAE authorities to obtain the detail of UAE based entities to which funds were illegally remitted from India on the basis of forged bills of entry and ultimate beneficiaries of proceeds of crime. In response to that, a part reply was received from UAE authorities and the scrutiny of documents received from UAE authorities in response to Letter of Request revealed that Mr. Pankaj Kapur (husband of the Petitioner herein) was the owner, sole shareholder and Managing Director of M/s Oracle Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Is; 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 Softech Pvt. Ltd., M/s Brij Bala Softech Pvt. Ltd.; she was made director of these companies by her husband and son and all the decisions were taken by them; she never attended any meeting of these companies and signed all the papers of companies as per say of her husband; she doesn't know anything about the business activities carried out by these companies; she is shareholder in M/s C P Vaults Pvt. Ltd., M/s Kross Diamonds Pvt. Ltd., M/s Kapur Softech Pvt. Ltd., M/s Brijbala Softech Limited; Sh. Subhash Chander and Sh. Krishan Lal Arora were the director of M/s Kross Diamonds in F. Y. 2013-14; both were the employees of M/s Kross Diamonds Pvt. Ltd. and they were appointed directors by her husband and her son; her husband and son used to handle all the day to day affairs and business activities of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 attachment before the Adjudicating Authority. 19. Section 8(1) and 8(2) of the PMLA, 2002 reads as under: 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], it 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 assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized 2 [or frozen] under section 17 or section 18, the evidence on which he relies and other relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 thereafter in the event the petitioners get no relief, to have the case stated to the High Court under Section 24 of the Act 14. The Hon'ble Supreme Court in Assi stant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd.,, (1985) 1 SCC 260, by placing reliance on Titaghur Paper Mills (supra) has, inter alia, held as under: 3. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433 : 1983 SCC (Tax) 131 : 1983 Tax LR 2905 : (1983) 142 ITR 663 : (1983) 53 STC 315] A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act. 16. The Hon'ble Supreme Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement,, (2010) 4 SCC 772 , has observed as under: 39 If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount of penalty or fulfilment of some other conditions for entertaining the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase [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 forum is created 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. 50. In Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed : (SCC p. 570, paras 5-6) 5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate 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 the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order of the Appellate Tribunal to him on any question of law or fact arising out of such order. 9. In view of the availability of alternative remedies available to the petitioner under the this Act, I am not inclined to entertain this writ petition under Article 226 of the Constitution of India at this nascent stage, more so when complete mechanism has been provided under the Act to safeguard the interest of aggrieved person. The petitioner has effective and efficacious statutory remedies to prove the nature of acquisition of assets and to ventilate their grievances. Furthermore, at the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, 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 to the High Court. Thus, even accepting the version of the petitioner that the impugned order is a non-reasoned order and the Appellate Court would not have the benefit of reasoning before it however such order is also an appealable order and wherein the Appellate Court on appreciation of facts and law can form its opinion. There is no denial that giving reasons is one of the fundamentals of good administration and failure to give reasons amounts to denial of justice. However, it is not a principle of law that if an order of a competent authority is bereft of reasons, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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