9911796707
TMI Blog2024 (10) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... pective operation thereof may be permitted, the Hon'ble Supreme Court also pointed out that in order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. It was also held that merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyze the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively - In the present case neither the amendment states that it was meant to be clarificatory or declaratory nor any such necessary implication arises considering the text of the amendment. Also, no such difficulty in interpretation or implementation existed vis- -vis the PMLA, 2002 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed accused Shri P.V.R. Murthy. It was alleged that the accused company M/s Birla Power Solutions Ltd., their group entities and their director offered attractive interest on fixed deposits by way of advertisement. Investments to the tune of approximately Rs. 300 to 400 crores were collected from around 100 to 150 companies/persons. As per the charge sheet submitted by the EOW, an amount of Rs 57.04 crore and Rs 214 crores remained unpaid towards Fixed Deposit (FD) and Inter-Corporate Depositors (ICD) respectively. 4. As an offence under Sections 420 and 120-B of the IPC is a scheduled offence under the Prevention of Money Laundering Act, 2002 ( PMLA, 2002 ), the Directorate of Enforcement registered a case vide ECIR/16/MZO/2014 dated 17.01.2014 against M/s Birla Power Solutions Ltd., its Director Shri Yashovardhan Birla, Shri P.V.R. Murthy and others whose names have been mentioned in para 2 above. 5. Investigations conducted by the respondent Directorate revealed that M/s Birla Power Solution Ltd. collected funds in the form of FDs by publishing advertisements in the newspapers promising a high rate of interest. It was further revealed that the company also raised funds in the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient material did not exist to have reason to believe . It is further contended that the document portrayed as 'charge-sheet' is not a charge-sheet within the meaning of Section 173 read with Section 170 of the Cr. P.C.; that Shri Bhavin Suryakant Sheth and other complainants were not examined by the ED and the investigation by the Directorate was confined to recording of statement of three complainants; that all the transactions were accounted for and have been made through legitimate banking channels; that the attached property did not constitute 'proceeds of crime'; that the offences of criminal breach of trust, cheating and the offence under the MPID are not made out and there was no mens rea/dishonest intention in the instant case; that consequently, there was no predicate offence in this case; and that bona fide attempts to repay were made by BPSL. 9. It may, however, be pointed out categorically at this stage that none of the above grounds have been pressed before us by the appellant at the stage of the final hearing of the case. The only issue raised and arguments presented before us by way of the Written Synopsis of arguments filed by the appellant on 13.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 8(3)(a) of the PMLA, 2002. The Respondent (ED) did not file the prosecution complaint within the stipulated period of 90 days from the date of confirmation by the Ld. Adjudicating Authority and still enjoys the attachment of the said property in the teeth of the provisions of section 8(3)(a) of PMLA. 12. It is further contended that when the law provides for a thing to be done in a particular manner, then the same should be done in that manner only and not in any other manner. Once the attachment of properties under the Act is done, ED was bound to file its prosecution complaint within the stipulated period of 90 days. Hence the attached properties of the appellant were liable to be released. The amendment of 2018 does not empower ED to file the prosecution complaint even for cases where the confirmation of attachment happened years back. Rather it restricts such power. The count of 90 days for filing the prosecution complaint would start from the date of confirmation. The decision of the Hon'ble Supreme Court in Sree Sankaracharya University of Sanskrit v. Dr Manu , 2023 SCC online SC 640 (order dated 16-05-2023) is relied upon wherein it was held that if a statute is cura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, whereas law relating to right of action and right of appeal even though remedial is substantive in nature Every litigant has a vested right in substantive law but no such right exists in procedural law A procedural statute should not, generally speaking, be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication. (iv) Memon Abdul Karim Haji Tayab v. Dy. Custodian-General AIR 1964 SC 1256 - It is well settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date (v) Trilok Chand v. State of Himachal Pradesh [Criminal Appeal No.1831 of 2010, dated 1-10-2019] - If an amendment is beneficial to the accused, then it will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for the intended purpose and were routed to various companies of their own group and ultimately transferred to Madan Diwan and were finally utilized for Birla Surya Ltd. project which was subsequently abandoned due to adverse market conditions for their products. It was an act of dishonesty committed by the appellant on the investors to hide the true purpose of raising the funds. It is mentioned that Madan Diwan and his companies received a total of Rs. 234.43 crore from Birla Group of Companies and out of this, Madan Diwan and his companies retained Rs. 136.43 crore with them and transferred back Rs. 98 crore to Birla group companies. It was further revealed that Madan Diwan and his company entered into contract with Birla group of companies, namely, Godavari, Nirved, Shearson and Birla Power Solution Ltd. etc., for executing various works such as transfer of technology (complete power plant with latest technology valued at Rs.186 crore), and against the said contract, Madan Diwan and his companies made advance payment of Rs. 98 crore to the above Birla group companies. Madan Diwan, in his statement, admitted that the fund so transferred by him to Birla Group of companies for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Money Laundering Act (PMLA), 2002 and the above said immovable property valued at Rs. 30,22,90,468/- presently under order of provisional attachment are involved in money laundering and thereby rendering the same liable for confirmation of attachment under Section 8(3) of the said Act. The investigation under PMLA, 2002 is in progress. The present complaint is filed without prejudice to the provisional attachment of other properties likely to be made outcome of the ongoing investigation Under the circumstances mentioned herein above, it is prayed that this complaint may be taken on record or the purpose of Adjudication under Section 8 of the said Act and the Provisional Attachment Order No.21/2015 dated 08.12.2015 may be confirmed under Section 8(3) of the said Act. 18. It is further pointed out that the impugned order, at pages 24-25, gives the summary of the findings under the heading 'Discussions . There is no finding therein in respect of the present appellants. At page 27, the impugned order concludes as follows: 26. On a thorough perusal of the PAO complaint, relied upon documents, the investigations conducted by the ED and the statements recorded under Section 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned that no specific arguments have been presented from the respondents' side on the issue of limitation which is the only issue raised before us from the appellants' side at the stage of final hearing. ANALYSIS AND FINDINGS 22. We have given careful consideration to the rival contentions of the parties and perused the material on record. As already stated in para-10 above, at the stage of final hearing, no arguments on the merits of the case have been presented before us by the appellant. The case was argued solely on grounds of limitation period for filing of prosecution complaint. Accordingly, while taking note of the submissions made by the respondents which have been summarised in the preceding paragraph, we do not express any view on the rival contentions made on the merits of the alleged money-laundering transactions. 23. Insofar as the issue of limitation period for filing of prosecution complaint u/s 8(3)(a) is concerned, we find the legal position to be as follows: Upto 18.04.2018 No time limit 19.04.2018 to 19.03.2019 90 days from the date of Adjudicating Authority's order W.e.f. 20.03.2019 365 days from the date of Adjudicating Authority's order 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or merely clarificatory of the previous law, retrospective operation thereof may be permitted, the Hon'ble Supreme Court also pointed out that in order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. It was also held that merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyze the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively. In the present case neither the amendment states that it was meant to be clarificatory or declaratory nor any such necessary implication arises considering the text of the amendment. Also, no such difficulty in interpretation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct properties which were provisionally attached were liable to be released on account of the respondent Directorate's failure to file a prosecution complaint within 90 days of the order of the Ld. AA dated 19.01.2015. The period of 90 days would commence from the date the amendment came into force, i.e., 19.04.2018. The respondent's having complied with the requirement of filing the prosecution complaint within 90 days of 19.04.2018, there is no illegality in the continued attachment of the properties during the pendency of proceedings arising from the prosecution complaint which has been filed by the respondents. 30. Next, we shall deal with the issue raised by the respondents regarding the locus standi of the appellants herein to file the present appeals. In this regard, at the outset, we find that the respondents themselves had listed the appellants as defendants in the OC filed before the Ld. AA. If none of the properties of any of the appellants were proposed to be attached, it was open to the respondents not to list them as defendants in the OC. Having done so, and the Ld. AA having recorded adverse findings against them, it is not open now for the respondents to ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
