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TMI Blog2024 (6) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... y) FPA-PMLA-2516/DLI/2018 - - - PMLA - Money Laundering - provisional attachment order - making illegal foreign remittances to Hong Kong through banking channels by submitting fake import documents to the banks - HELD THAT:- The prosecution complaints under PMLA, 2002 have been filed and proceedings arising out of the same are pending against all the appellants involved in these appeals. Evidence exists in the form of statements of witnesses, including that of the main accused and other accused persons apart from other evidence, which incriminate the appellants. On the other hand, other than bare denials, the appellants have not presented any credible evidence to discharge their burden of proof under section 24 of the Act. It is by now well-settled that under PMLA, 2002 provisional attachment of property is an emergent measure to be taken by the designated authority upon being satisfied and having reason to believe that the proceeds of crime are likely to be concealed, transferred or dealt with in any manner, which may result in frustrating any proceedings relating to confiscation of such proceeds of crime. The purpose of such attachment is to protect and preserve the proceeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from India during the period 2007-2011 in the garb of payment for import of computer parts and accessories. Investigations by the DRI further revealed that from 2012 to 2014, the above persons had remitted foreign exchange to the tune of over Rs. 100 crores to Hong Kong through bogus entities, namely, M/s Suntek Computers and M/s Shyam Trading Company which were controlled by Shri Manish Jain. 3. During the investigations, the DRI searched the residential and business premises of Shri Manish Jain and his associates on 07.08.2014 and seized certain incriminating documents including a large number of blank postal wrappers of Hong Kong Post, about 150 bogus PAN cards and about 100 voter identity cards with fictitious identities. In order to run the above-mentioned illicit operation of remitting foreign exchange out of India, Shri Manish Kumar Jain had also opened a firm, namely, Pacific Technology in Hong Kong, besides other entities. 4 . On the basis of the above FIR and the information received from the DRI, an ECIR dated 10.08.2015 was registered by the Directorate of Enforcement ( ED ), Lucknow, which was further transferred to Delhi Zonal Office on 01.12.2015 for further investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned PAO . Aggrieved by the said confirmation order of the Ld. AA, the appellants have filed the present appeals before this Appellate Tribunal. FPA-PMLA-2476/DLI/2018 8 . It is contended on behalf of the appellant Shri Rajeev Wadhwa that he is not named in the FIR filed by the Directorate of Revenue Intelligence (DRI). Only Manish Jain and his brother Rakesh Jain have been named in the said FIR. It is further contended that Shri Manish Jain, in his statements, had stated that he carried out the transactions under the directions of one Ravinder Jolly. He also disclosed the contact numbers of around 25 associates of Ravinder Jolly. However, no investigations appear to have been made by the respondent Directorate against the said Ravinder Jolly and his associates. Further, the DRI had issued Show Cause Notices (SCNs) for violation of the provisions of the Customs Act, 1962 and the appellant was not one of the noticees. The appellant is not named in the ECIR registered by ED. Shri Manish Jain did not name the appellant in his statement on 12.08.2015. He was arrested by ED on 14.10.2015 and in his statement recorded on that day, he made allegations against the appellant and several oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Directorate. 12 . It is contended that the appellant, Kamakhya Forex Pvt. Ltd. was engaged in forex business and was duly authorized by the RBI through a valid license. It is also stated that the license has since been surrendered to the RBI on 10.10.2017 because of continuous harassment. Shri Sunil Lamba looked after the day-to-day affairs of the company. Shri Sanjeev Wadhwa is in no way connected with the affairs of M/s Kamakhya Forex Pvt. Ltd. It is also contended that on 04.02.2016 Ms. Bhawna Wadhwa received a telephone call from the complainant department directing her to come to their office immediately. There, she was humiliated and treated in a very high-handed manner and was made to sign various printed and written papers of which she was not provided copies. She was surrounded by eight officers of the Directorate and was made to write under tremendous stress and strain. Sri Sunil Lamba was subsequently telephonically directed to attend office on 05.02.2016. He did not receive any notice. He also was made to write a dictated statement. It is contended that Shri Sanjeev Wadhwa has nothing to do with the activities of Kamakhya Forex Pvt. Ltd. and has never been a director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order has been passed mechanically without due application of mind. The appellant has prayed that the impugned order be set aside. 13 . The respondents have submitted that during the course of the investigation, a third supplementary prosecution complaint dated 06.10.2018 has been filed in the instant case and fresh evidence in respect of the involvement of Mrs. Bhawna Wadhwa, Director or M/s Kamakhya Forex Pvt. Ltd., in the offence of money laundering gathered during the investigation has been submitted before the learned Special Court. It is also contended that remittances abroad were made by Sh. Manish Jain on the directions of Sanjeev Wadhwa who controlled the appellant company. Huge cash used to be deposited in the accounts of the appellant, among others, which was received from importers and subsequently remitted abroad to Hong Kong using accounts of companies operated by Sh. Manish Kumar Jain. The statement of Sh. Rakesh Jain recorded on 27.01.2016 and Sh. Manish Kumar Jain recorded on 07.08 2014, 13.10.2014 and 03.12.2015 are relied upon. 14 . It is also pointed out that the appellant company is one of the accused in the second Supplementary prosecution complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gitimate income recorded in the books of accounts. 19 . The contentions on behalf of the respondent are identical to those against P.R. Forex Pvt. Ltd. and the evidence of the statements of Rakesh Jain and Manish Kumar Jain on various dates are relied upon. It is submitted that Parvesh Kumar Gujral was one of the directors of PR Forex who earned a commission on the foreign exchange remitted abroad through fraudulent means. Apart from Rajeev and Sanjeev Wadhwa, maximum remittances were sent out of India from accounts operated in the name of Parvesh Kumar Gujral. 20. It is also pointed out that the appellant is one of the accused in the Second Supplementary prosecution complaint filed on 06.10.2018. FPA-PMLA-2486/DLI/2018 21 . The submissions made on behalf of the appellant Shri Subhash Arora are mutatis mutandis the same as those made on behalf of Rajeev Wadhwa. For the sake of brevity, the same are not being repeated here. It is contended that the source of purchase of properties has been duly explained and it is evident from the income tax returns copies of which have been filed. It is contended that the bank account with a balance of Rs. 30,135 /- is duly accounted for by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution complaint filed on 06.10.2018. FPA-PMLA-2516/DLI/2018 27 . The amounts lying in 3 FDRs of Rs. 93,086/- Rs. 81,896/- and Rs. 81,896/- in the UP Cooperative Bank, Ghaziabad have been attached. It is contended on behalf of the appellant Shri Rakesh Jain that the first FDR had been acquired by the appellant from legitimate sources of income and he has been a regular income-tax payer for the last many years. The appellant is a shareholder as well as a director in the company Swaran Overseas Pvt. Ltd. since its incorporation in the year 1994 and has been drawing a salary from the said company. The appellant owns 25 per cent shareholding in the said company and the said company is in the business of money changing and holds a full- fledged money changers‟ licence. The other two FDRs belong to Mrs. Swaran Lata Jain and not to the appellant. The name of the appellant i.e., second name, was added in the said FDRs only out of love and affection. The FDRs are extremely old being the result of small savings done by the appellant's mother Mrs Swaran Lata Jain. The same were renewed from time to time. 28. The respondents contend that Shri Manish Jain, Sh. Rakesh Jain and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kumar Gujral and Subhash Arora were directors of P.R. Forex and earned a commission on the foreign exchange remitted abroad through fraudulent means; Manish Jain and Rakesh Jain used to get huge amounts deposited in cash and transferred the amounts to other accounts through RTGS etc., and remitted it abroad in foreign exchange, mainly to Hong Kong and were paid a commission on the overall transaction. 32. The web of transactions referred to in brief in the preceding para prima facie proves inter-connected transactions as laid down under section 23 of the Act, which has not been affectively rebutted by the appellants. 33. Insofar as the legal position is concerned, it is by now well-settled that under PMLA, 2002 provisional attachment of property is an emergent measure to be taken by the designated authority upon being satisfied and having reason to believe that the proceeds of crime are likely to be concealed, transferred or dealt with in any manner, which may result in frustrating any proceedings relating to confiscation of such proceeds of crime. The purpose of such attachment is to protect and preserve the proceeds of crime until the guilt or innocence of the person, as the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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