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Judgment
MP-PMLA-10786/AHD/2023 IN FPA-PMLA-663/AHD/2014
The present application has been filed seeking following reliefs:-
A. To allow this Misc. Civil Application and modify the order dated 20.02.2017 at Annexure -A to this application passed by this Hon’ble Tribunal and hold that henceforth, the applicant is not required to deposit Rs. 30,000/- per month.
B. To direct the opponents to refund the amount deposited by the applicant beyond Rs. 16,05,540/- under the order at Annexure -A to this application.
C. Pending admission, final hearing and disposal of this application, pass an interim order to the effect that the applicant is not required to deposit Rs. 30,000/- per month henceforth.
D. To pass such other and further orders as may be deemed fit and proper.
E. To provide for cost of this Application. On the grounds stated in the application.
During the course of hearing the learned counsel for the appellant restricted his argument particularly for stopping of deposit of Rs.30,000/- per month, as directed vide order dated 20.02.2017 and that to refund the amount deposited by the applicant beyond Rs. 16,05,540/- under the aforesaid order dated 20.02.2017.
It is contended by the learned counsel for the appellant that an order dated 20.02.2017 has been passed fixing Rs. 30,000/- per month, without prejudice, to be paid towards monthly rent received from three shops. It is further argued that as per the allegation of the respondent (E.D.) the total amounts of proceeds of crime stated to have been received from his father by the present appellant/applicant is Rs. 16,05,540/-which alleged to have been used for purchasing the three shops and the total amount of deposit of the rent of the three shops @ Rs. 30,000/- per month from 30.03.2017 to 08.07.2021 is 16,05,540/-. It is further argued that till the date of filing of the application the applicant has already deposited Rs. 20,85,540/-, which is more than alleged proceeds of crime and that since the appellant has already deposited more than the amount of proceeds of crime, so the order dated 20.02.2017 may be modified by stopping further payment of rent received from the three shops and refund of the amount which is in excess of Rs. 16,05,540/-.
On the other hand, the learned counsel for the respondent, referring to the order dated 20.02.2017 and the grounds pleaded in the reply of the respondents, submitted that the appellant/applicant has failed to make out a ground for stopping of payment of Rs. 30,000/-received as rent from the three shops even though the rental value of the three shops assessed as Rs. 73,684/-. It is further submitted by him that proceeds of crime has been received by the appellant/applicant and that the rental income received by the appellant/applicant is fruits of the proceeds of crime (PoC), which has accrued, is nothing else but a part of PoC and the rental income will continue to be the proceeds of crime, till it is enjoyed by the accused and that the same cannot be treated as the payment received towards the proceeds of crime for the purpose of set off. It is also argued that this Tribunal, vide order dated 20.02.2017 had directed to keep depositing the rent till the disposal of the appeal and that the appellant/applicant has failed to abide by the same and has thereby committed the contempt of the order dated 20.02.2017. It is further submitted that the application is devoid of any merit and not maintainable, hence liable to be dismissed.
During the course of hearing the learned counsel for the respondent has referred to the provision of Section 2(1)(u) and Section 2(1)(v) and also relied on the judgment passed in the matter of Sankar Dastidar v. Banjula Dastidar, (2006) 13 SCC 470 passed by Hon’ble Supreme Court.
Heard both parties and gone through the application filed by the appellant, the reply filed by the respondent and other materials available on record concerning the present application.
As stated above the applicant has confined his prayer with regards to the reliefs sought in the aforesaid application i.e. stopping of further payment of Rs. 30,000/- as directed in the order dated 20.02.2017 and refund of the excess amount of rent deposited by the applicant with the respondent in excess of Rs. 16,05,540/- by modifying the aforesaid order dated 20.02.2017.
Though the appellant/applicant has taken several grounds in the application, but he has confined his argument to the relief as stated in the preceding sub-para, so we have confined our findings on the same.
This Tribunal after hearing the applications of the appellant/applicant in MP-PMLA-3213/AHD/2017 (A.D.) and MP-PMLA-3215/AHD/2017 (Stay) has passed the order on 20.02.2017, which are reproduced below:-
Order
20.02.2017
FPA-PMLA-663/AHD/2014
Pleadings are complete. List for argument on 12th July, 2017. MP-PMLA-3213/AHD/2017 (A.D.) and MP-PMLA-3215/AHD/2017 (Stay)
“After filing the appeal the above said two applications for stay have been filed. Mr. N. K. Matta, learned counsel for the respondent seeks time to file replies. Let the replies be filed within four weeks with an advance copy to the learned counsel for the appellant who may file the rejoinders on or before the next date.
The learned counsel for the appellant is pressing for interim order in view of the eviction notice issued by the respondent on 2nd February, 2017. According to him, the rental value of three shops attached (which are subject matter of the appeal) is about 45,000/-, however, without prejudice the appellant is prepared to deposit Rs. 30,000/- per month within two weeks from today. Till the next date, we feel that the said offer is reasonable, thus we accept the same for the time being. The said amount shall be paid from the date of issuance of the notice. The deposit be made with the respondent within two weeks from today. The appellant undertakes to keep on depositing the said amount till the disposal of the appeal. In the meanwhile, the respondent will also verify on the site and in case the rental value of the said shops is more than 45,000/-, the respondent will move the application for modification of the order. Liberty sought by the appellant is granted. List these applications also on 12th July, 2017. We may clarify that on the next date of hearing, the appellant will place all the rent agreements of three shops, which are occupied by the tenants of the appellant. Subject to the above terms and condition, the operation of the notice under Section 8(4) dated 2nd February, 2017 shall remain stayed. However, the appellant shall not sell or create any third party interest in the said three shops till further orders.
Copy of the order be given “dasti” to the parties”.
On perusal of the said order, it is seen that the deposit of Rs. 30,000/- was directed to be made to the appellant/applicant till the disposal of the appeal. No where in the order it is reflected that any prayer/submission has been made by the applicant/appellant that the rental income so fixed would be treated as payment towards the PoC, nor any such order has been passed.
It is alleged that a sum of Rs. 16,05,540/-, which is allegedly illegal income of the father of the appellant, has been received by the appellant and used for acquiring the three shops which are subject properties of the present appeal. The rental income, so accrued from these three shops are income from the alleged PoC, so such income cannot be treated and converted as payment towards PoC at this stage. Therefore, appellant is hereby directed to continue with the compliance of the order of this Appellant Tribunal dated 20.02.2017, till the disposal of this appeal, with further direction to deposit arrears of rental income of the intervening period, if not deposited.
In the light of above discussion, the present miscellaneous application is hereby dismissed being devoid of any merit. List the appeal for final hearing.
Application Dismissed.