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Judgment
FPA-PMLA-821/AHD/2015 & FPA-PMLA-1048/AHD/2015
The allegations against the appellants mentioned in para no. 25 and 26 at page no. 19 & 20 of the impugned order are re-produced hereinbelow:-
Shri Jafar Mohamed Hasanfatta, the elder of the three brothers, has been found to have an account bearing number
364101010020083 with the Union Bank of India, Nanpura, Surat. The said account reflects transactions:
a. He received Rs. 1,00,00,000/- from M/s. Natural Trading Co. on 06/01/2014 and transfers the amounts of Rs. 35,00,000/- on 08/01/2014
to his wife and a big chunk to his youngest brother Shri Ahmed Mohamed Hasanfatta. He was also found to have invested with M/s. Angel
Broking.
b. He received Rs. 2,00,00,000/- from Natural Trading Co. on 31/01/2014 and transfers Rs. 20,00,000/- to Shri Afroz Mohamed Hasanfatta.
He also made investment amounting to Rs. 42,00,000/- with M/s. Angel Broking on 01/02/2014 and Rs. 55,68,750/-each on 05/02/2014 and
06/02/2014 with M/s. Aalay Developers, Mumbai. Further amounts were found to have been transferred to Shri Ahmed Mohamed
Hasanfatta on 12/02/2014 and 14/02/2014 and to M/s. Angel Broking on 21.02.2014.
c. With the funds received from his two younger brothers, Shri Afroz Mohamed Hasanfatta and Shri Ahmed Mohamed Hasanfatta, Shri
Jafar Mohamed Hasanfatta has parked the funds with M/s. Angel Broking and M/s. Aalay Developers, Mumbai. He was also found to have
transferred Rs. 30,00,000/-to Shri Abdul Karim Jaka on 24.03.2014.
Shri Ahmed Mohamed Hasanfatta, the younger of the three brothers has been found to have an account bearing number
364101010011162 with the Union Bank of India, Nanpura, Surat. The following is the transactions made from his account, date wise:
a. He was found to have received funds from his two elder brothers Shri Jafar Mohamed Hasanfatta and Shri Afroz Mohamed Hasanfatta
and made investments with M/s. Muskan Realities on 15/01/2014.
b. On 05/03/2014, he received Rs. 50,00,000/- from Shri Jafar Mohamed Hasanfatta and transferred Rs. 25,00,000/- to M/s. Fancy
Builders Pvt. Ltd. Mumbai. He has also received Rs. 2,25,00,000/- from various accounts on 05/03/2014 and made an investment worth Rs.
2,00,00,000/- with M/s. Fancy Builders Pvt. Ltd., Mumbai. The break up for Rs. 2,25,00,000/- as noticed from the account statement of his
brothers is as follows:
c. Rs. 1,00,00,000/- from Shri Afroz Mohamed Hasanfatta and Rs. 1,25,00,000/-from Shri Jafra Mohamed Hasanfatta on 05/03/2014. He
was also found to have made investment amounting to Rs. 31,00,000/- with Shri Abdul Karim Jaka on 24/03/2014.
Case of the appellant in appeal no. FPA-PMLA-1048/AHD/2015
(a) The appellant purchased the land admeasuring 3445 Sq.Mtrs at the old survey no 595 and after the revision new survey no 391,T.P Scheme No.29
being T.P. Scheme No. 29, ( Vesu â€" Rundh â€" Magdalla) O.P.No.86/Paiki Sub-Plot No 2, Dist. Surat by registered sale deed dated 05/07/2008.
(b) The appellant had paid Rs. 1,01,22,325/- to the Surat Municipal Corporation towards land development charges. This amount of Rs. 1,01,22,325/- is
alleged Proceeds of Crime.
(c ) In fact on 14/02/2014, the appellant had received Rs. 80 Lacs from his mother whereas Rs. 20 Lacs from his elder brother Jafar Mohammad
Hasanfatta by bank transfer. Out of which the appellant had paid Rs. 94,55,800/- by Demand Draft to the Surat Municipal Corporation and Rs.
6,66,525/- was paid in cash to the Surat Municipal Corporation i.e. total Rs. 1,01,22,325/- as shown in paragraph 26 of Original Complaint No. 488 of
2015.
(d) Therefore, the alleged Proceeds of Crime was used for making payment to the Surat Municipal Corporation towards land development charges. In
other words, alleged Proceeds of Crime is in possession of Surat Municipal Corporation. It is alleged on behalf of the appellant that the appellant did
not receive Proceeds of Crime or paid to the Surat Municipal Corporation and the amount was received from his mother and elder brother.
(e ) The Deputy Director, Directorate of Enforcement Ahmedabad by an order dated 31/03/2015 by Provisional Attachment Order No. 4 of 2015
attached the entire land instead of attaching alleged Proceeds of Crime from the Surat Municipal Corporation.
(f) The Deputy Director filed Original Complaint No. 488 of 2015 for confirmation of Provisional Attachment Order No. 4 of 2015. The Original
Complaint No. 488 of 2015 was allowed by an order dated 21/07/2015 by the Adjudicating Authority, New Delhi.
(g) The appellant was shown as an Accused No. 5 in PMLA Complaint No. 3 of 2014 pending before the Honâ€ble Designated Special Court under
PMLA at Ahmedabad in connection with an ECIR No. ECIR/01/SRT/2014 dated 17/04/2014 registered with Sub Zonal Unit, Surat of Directorate of
Enforcement.
Case of the appellant in appeal no. FPA-PMLA-821/AHD/2015 is that:-
(i) The appellant purchased the Flat being 1101, Hicon Flat, 11th Floor, “Hicons Grandeâ€, Bandra, Mumbai admeasuring 1133 Sq. Ft. Carpet Area
along with Car Parking of 450 Sq. ft. on the same floor by registered sale deed dated 13/03/2014.
(ii) The appellant had paid Rs. 2,00,00,000/- to its owner Fancy Builders Pvt. Ltd. of Mumbai towards consideration. This amount of Rs. 2,00,00,000/-
is alleged Proceeds of Crime.
(iii) The alleged Proceeds of Crime was used for making payment to the Fancy Builders Pvt. Ltd, Mumbai towards the sale consideration. In other
words alleged Proceeds of Crime is in possession of Fancy Builders Pvt. Ltd. The submissions of the appellant is that the appellant did not receive
Proceeds of Crime or paid to the Fancy Builders Pvt. Ltd. and the amount was received from his elder brother.
(iv) The Deputy Director, Directorate of Enforcement Ahmedabad by an order dated 17/07/2014 by Provisional Attachment Order No. 1 of 2014
attached the entire flat instead of attaching alleged Proceeds of Crime from the Fancy Builders Pvt. Ltd.
(v) The Deputy Director filed Original Complaint No. 343 of 2014 for confirmation of Provisional Attachment Order No. 1 of 2014. The Original
Complaint No. 343 of 2014 was allowed by an order dated 07/11/2014 by the Adjudicating Authority, New Delhi.
(vi) The appellant was shown as an Accused No. 5 in PMLA Complaint No. 3 of 2014 pending before the Honâ€ble Designated Special Court under
PMLA at Ahmedabad in connection with an ECIR No. ECIR/01/SRT/2014 dated 17/04/2014 registered with Sub Zonal Unit, Surat of Directorate of
Enforcement.
The appellant is neither shown as accused in FIR being I-CR No. 16 of 2014 and FIR being I-CR No. 17 of 2014 registered with DCB Crime
Branch, Surat i.e. the Schedule Offence.
The appellant is not even shown as an accused in the Police Report (Charge sheet) filed by the investigation Officer under section 173 of the Code
of Criminal Procedure 1973 in connection with the above-mentioned FIR.
The Honâ€ble High Court of Gujarat by judgement and order dated 16/02/2017 passed in Criminal Revision Application No. 926 of 2016, discharged
the appellant from the PMLA Case No. 3 of 2014.
The Enforcement Directorate has preferred Special Leave Petition (Criminal) No. 9427 of 2018. The Honâ€ble Supreme Court has issued notice,
however did not stay the order passed by the Honâ€ble High Court of Gujarat passed in Criminal Revision Application No. 926 of 2016.
The Aim and Object of the Prevention of Money Laundering Act, 2002 is to find out property derived or obtained by any person as a result of
criminal activity relating to a scheduled offence and to attach, freeze and confiscate the same subject to the trial under the Prevention of Money
Laundering Act, 2002, so that the property cannot be laundered further, which is derived or obtained as a result of criminal activity. In other words, to
recover the Proceeds of Crime from the person alleged to have holding the same.
Without prejudice to the rights and contention of the appellant, the appellant is ready and willing to secure the interest of Enforcement Directorate
by “Fixed Deposit Receipt†of any Nationalized Bank equivalent to an amount with the respondent by way of F.D.
No doubt, this tribunal has allowed the similar prayer in number of appeals and even in few appeals, the respondent has given his consent.
Since the Special Leave Petition (Criminal) No.9427 of 2018 filed by Enforcement Directorate is pending, thus, it would be appropriate to await
the outcome of the order of the Honâ€ble Apex Court. The above-mentioned appeals are sine-die adjourned, till the time order is passed by the Apex
Court.
Liberty is granted to the appellant to move the application once the order is passed by the Honâ€ble Supreme Court.