Archana Gupta vs Deputy Director Directorate Of Enforcement, Delhi

Manmohan Singh, J

MP-PMLA-5245/DLI/2018 (U.H), MP-PMLA-5237/DLI/2018 (Misc.) & FPA-PMLA-482/DLI/2013

The present application has been filed to pass the order to release the sum of Rs. 29,96,055.65 to the appellant confiscated on 05-07-2013 by the

Enforcement Directorate.

Reply despite of opportunity granted not filed the ED.

Few factual position is that the appellant has filed the above mentioned appeal against the order dated 20-03-2013 passed by Adjudicating Authority

in OC-163-12-PMLA which is pending before this tribunal and is now fixed for hearing for 22-04-2019.

The appellant had admittedly filed an application dt. 23.04.2010 before the trial court at Gurugram in criminal case No: 341 titled as State Vs.

Shivraj Puri & Ors for defreezing the account of the appellant in Axis Bank account number 910010013974898, Barakhamba Road, New Delhi.

By an order dated 05-08-2013 the court of Judicial Magistrate first Class (JMIC), Gurugram the said account was defreezed but the appellant could

not furnish surety.

In this account as mentioned above in para 4 the rent of Property No. D-128 Sector 49 Noida was deposited. The appellant has been receiving the

rent for this property since 2005 and the same was being deposited in ICICI Bank jointly held with Mr. Sanjay Gupta.

For the purpose of the keeping entries in relation to the of rent clearly identifiable, separate bank account in Axis Bank in the name of appellant was

opened.

Till October 2010 no amount other than rent was received and deposited in this bank account. However, in the month of November 2010 one

cheque of Rs. 12,50,000 Ch No. 904568 date of clearing 08.11.2010 and in the month of December 2010 one cheque of Rs. 10,50,000 Ch No. 905173

date of clearing 03.12.2010 were received. The total of these cheques is Rs. 23 Lacs (Rupees Twenty Three Lacs).

The Enforcement Directorate attached a sum of Rs. 23 Lacs (Rupees Twenty Three Lacs) as proceeds of crime and provisionally attached this

bank account and the Adjudicating Authority confirmed the attachment against which the appellant has preferred an appeal before this Tribunal

without waiting for the disposal of the appeal on 5th July, 2013 without informing the appellant transferred Rs. 29,96,055 which was lying to the credit

of the appellant.

The actual controversy revolved around a sum of Rs. 23 Lacs (Rupees Twenty Three Lacs) which is alleged to be the proceed of crime in the

said account of appellant.

The appellant has admittedly has now furnished surety in the court, therefore, the surety being in excess to the controversial amount of Rs.

Twenty Three Lacs pertaining to this account, the appellant seeks suitable directions for release of Rs. 29,96,055. 65 furnish. Certified copy of the

order and bank statement are attached as Annexure-A. The contents are reproduced below:-

“Today the case was fixed for furnishing surety bonds in proper format along with signature of applicant. Fresh surety bonds furnished

in proper format. Applicant Mrs. Archana Gupta appeared in person before the court and her signature is also obtained on the surety

bond. The surety Anil Verma has been identified by Raju son of Mavsi Ram. Attested copy of Aadhar card of applicant, surety and identifier

kept on file. The aforesaid surety bond furnished in accordance with order dated 5-8-2013 is accepted and attested. Consequently, the

account no. 910010013974898 maintained with Axis Bank, Barakhamba Road, Delhi and account no. 000101504254 maintained with

ICICI Bank are hereby de-frozen with immediate effect. Necessary intimation be sent to the concerned Banks. Papers be tagged with the

main case file and thereafter, be sent back to the record room.â€​

 12. It is contention of appellant that since furnished surety in the court, therefore, the surety being in excess to the controversial amount of Rs.

Twenty Three Lacs pertaining to this account, thus the appellant seeks suitable directions for release of Rs. 29,96,055.65.

Counsel for the appellant submits that the said amount may be deposited by the ED in the same account as Rs. 23 lakhs have already been

secured as per order passed by the Special Court and without prejudice same be treated as alleged proceed of crime. The appellant undertakes that

the appellant shall not withdraw the said surety even if the special court would decide the matter in favour of appellant until the appeal is finally

decided by this Tribunal.

The appellant also undertakes that once the ED deposit the amount of Rs. 29,96,055.65/- in the same account, the appellant shall convert a sum of

Rs. 23 Lakh in FDR in the appellant for five years and photocopy of the same shall be deposited with ED and the said FDR shall not be encashed

unless the PMLA proceedings are decided in favour of appellant.

In a way, ED wants to secure double the amount, one a surety given by the appellant as per order of Special Court and secondly on deposit, the

FDR shall be prepared and shall not be encashed till the final order of PMLA complaint is decided. The contention of ED cannot be accepted on

double attachment without prejudice. The surety given by the appellant may be treated as alleged proceed of crime.

ED is directed to deposit a sum of Rs. 29,96,055.65/- in the same account within one week from today. In failure to so the attachment shall be

treated as released without any further notice with regard to the said amount. The suggestion given on behalf of applicant is allowed. The applicant

shall not deal with the said amount till further order of this Tribunal.

The prayer is allowed. The application is disposed of.