Jagdishbhai Ishwarbhai Patel Huf & Ors vs Deputy Director Directorate Of Enforcement, Ahmedabad

Sr. No.,Unit no.,Sq. Ft.,Owner/ Seller

1.,B/ 01,670,JMD Media Pvt. Ltd.

2.,B/ 02,400,JMD Media Pvt. Ltd

3.,G/ 01,418,JMD Media Pvt. Ltd

4.,G/ 02,418,JMD Media Pvt. Ltd

5.,G/ 03,418,JMD Media Pvt. Ltd

6,F/ 01,500,JMD Media Pvt. Ltd

7.,F/ 02,500,JMD Media Pvt. Ltd

8.,F/ 03,409,JMD Media Pvt. Ltd

9.,S/ 01,500,JMD Media Pvt. Ltd

10.,S/ 02,500,JMD Media Pvt. Ltd

11.,S/ 03,409,JMD Media Pvt. Ltd

12.,T/ 01 PAIKI,500,JMD Media Pvt. Ltd

13.,T/ 01 PAIKI,700,JMD Medi a Pvt. Ltd

14.,T/ 02,250,JMD Media Pvt. Ltd

15.,T/ 03,250,JMD Media Pvt. Ltd

16.,T/ 04,250,JMD Media Pvt. Ltd

17.,T/ 05,500,Darshitkumar D. Mehta

18.,FF/ 01,500,Jaykumar D. Mehta

19.,FF/ 02,500,Vishalkumar P. Mehta

2.4 Since the offer made by one M/s JMD Media Pvt. Ltd. was the highest, the same was ratified by the authorized officer and accordingly on",,,

making payment of the required amount, the sale of the aforesaid units at Sr. Nos. 1 to 16 was confirmed and a sale certificate dated 5.9.2009 and the",,,

original title deeds of the aforesaid units at Sr. Nos. 1 to 16 were handed over to M/s. JMD Media Pvt. Ltd. At the same time, the vacant and",,,

peaceful possession thereof was also given to M/s JMD Media Pvt. Ltd.,,,

2.5 Thereafter, on 28.3.2011, the sale deed pertaining to the aforesaid units at Sr. Nos. 1 to 16 was done and on the very date was registered in the",,,

office of concerned Registrar at Ahmedabad (Respondent no. 3). Accordingly, the said property was owned and was in possession of M/s JMD",,,

Media Pvt. Ltd.,,,

2.6 In the meantime, the appellants came to know from a broker that the owners of the aforesaid property called Vishal House were inclined to sell",,,

the said property, in the month of October, 2010 and accordingly, the appellant approached the concerned persons. The sale price of the said property",,,

was fixed at Rs. 2,25,00,000/- and in this regard, an amount of Rs. 6,00,000/- was initially paid to M/s JMD Media Pvt. Ltd. vide a cheque dated",,,

13.12.2010. Subsequently thereto, cheques of different amounts were given on different dates to M/s JMD Media Pvt. Ltd.",,,

2.7 The appellants, in the month of April, 2011, had advertised in the newspaper calling for objections from any person regarding the sale of the said",,,

property. Coupled with that the appellants also got a search pertaining to the title of the said property conduced through solicitors, who conveyed that,",,,

there was no objection as regards the sale of the said property bearing a clear title.,,,

2.8 The appellant no.1 and other joint owners proceeded to make the aforesaid payments and entered into an agreement to sale with M/s JMD Pvt.,,,

Ltd., Mr. Darshitkumar Mehta, Mr. Jaykumar Dipakbhai Mehta and Mr. Vishalkumar Pradipbhai Mehta on 24.10.2011 which was registered by",,,

respondent no. 3 dated on the said no objection whatsoever was raised by respondent no. 3 pertaining to the said property at the time of registering the,,,

aforesaid agreement to sale.,,,

2.9 On 24.10.2011, a possession note pertaining to the possession of the entire property was also prepared on the basis of which the possession of the",,,

same was given to the appellant.,,,

2.10 Thereafter, a sale deed dated 10.12.2011 pertaining to the said property was prepared between the parties i.e. the appellant as well as Anand",,,

Owners Assocation being the owner of the land and M/s. JMD Media Pvt. Ltd. Mr. Darshitkumar Dipakbhai Mehta, Mr. Jaykumar Dipakbhai Mehta",,,

and Mr. Vishalkumar Pradipbhai Mehta being the owners of the super structure thereof.,,,

2.11 On. 12.12.2011, the appellants approached the Joint Sub Registrar, SRO, Ahmedbad-3 for the purpose of the registration of the aforesaid sale",,,

deed dated 10.12.2011, but the appellants were informed by the concerned Registrar at Ahmedabad (Respondent no. 3) that the said sale deed could",,,

not be registered as vide notice dated 21.7.2011, he was prohibited by respondent no. 2 (Enforcement Directorate) from doing so informing that",,,

investigations were carried out against Vishal Exports and its Director Shri Pradip Mehta under the said PML Act, 2002 and, therefore, the officer",,,

could not allow transfer/sale of the said property to any person/party without prior approval of his office.,,,

2.12 The Joint Sub-Registrar refused to register the said sale deed dated 10.12.2011. The appellants made a representation dated 4.1.2012 to the Joint,,,

Sub-Registrar, a copy whereof was marked to Assistant Director, Enforcement Directorate. In the said representation explained the factual position in",,,

detail and requested that since the appellants are bonafide purchasers of the said property, the sale deed be registered.",,,

3 Thereafter, a summon dated 16.1.2012 was issued by the Enforcement Directorate to Shri Jagdishbhai Ishwarbhai Patel, Karta of Shri Jagdisbhai",,,

Ishwarbhai Patel HUF, under provisions of section 50(2) of the said Act for remaining present on 19.01.2012. However, since Shri Jadishbhai",,,

Ishwarbhai Patel was unwell on the said date, he could not remain present and sough for an extension.",,,

4 The appellants thereafter on 20.01.2012 received a copy of the letter dated 10.1.2012 addressed to the Assistant Directorate, Enforecement",,,

Directorate by the Joint Sub-Registrar requesting him for making appropriate orders regarding registration of the sale deed pertaining to the said,,,

property.,,,

5 In the letter dated 21.7.2011, a Circular no. IGR/ADM/113/2010/9658 to 9724 dated 30.6.2010 issued by the Inspector General of Registrar,",,,

Government of Gujarat giving directions to all Sub Registrars was referred. The said circular informed the Sub Registrar that in cases where,,,

attachment orders under Section 5(1) of the said Act were issued attaching properties, deeds pertaining to transfer of such properties should not be",,,

registered without prior approval of the office of the Inspector General of Registration.,,,

6 As the request of the appellants as regards registration of the aforesaid sale deed was not accepted by the Joint Sub-Registrar, the said inaction was",,,

challenged by the appellant by way of a writ petition in the Hon’ble Gujarat High Court being Special Civil Application no. 1059 of 2012 on which,,,

the Hon’ble Court passed an order and issued notice on 30.1.2012.,,,

7 During the pendency of the aforesaid Writ Petition before the Hon’ble Gujarat High Court, the aforesaid property came to be attached vide a",,,

provisional attachment order no. 2/2012 dated 15.3.2012.,,,

8 The aforesaid provisional attachment order was challenged by the appellant in the aforesaid writ peitition pending in the Hon’ble Gujarat High,,,

Court by way of an amendment which challenge is at large before the Hon’ble Gujarat High Court as on date.,,,

9 The Joint Director thereafter filed a complaint dated 11.4.2012 under section 5(5) of the said Act before the Adjudicating Authority which came to,,,

be registered as Original no. 133/2012. In the said complaint, reliance was placed on charge-sheet no. 13/2009 dated 26.11.2009.",,,

10 On receipt of the said complaint, the appellant filed a written statement dated 28.5.2012 dealing in extension as to why the provisional attachment in",,,

property in question was not required to be confirmed. The appellants also filed written submissions raising various contentions as well as relying upon,,,

the provisions of the Transfer of Property Act. The appellant also brought into the notice of the Adjudicating Authority as to how the judgment of the,,,

Hon’ble Supreme Court in the case of Suraj Lamp Industries P. Ltd. Vs. State of Haryana, reported in (2012) 1 SCC 656 was not applicable.",,,

11 The Adjudicating Authority thereafter passed an order dated,,,

7.2012 holding that the properties provisionally attached are involved in money laundering and thereby confirmed the provisional attachment would,,,

continue during the pendency of proceedings relating to any scheduled offence before a court.,,,

12 Being aggrieved with the aforesaid dated 10.7.2012 passed by the Adjudicating Authority in Original Complaint no. 133/2012 that the appellants,,,

challenge the same inter-alia on various following grounds set out there.,,,

Sr.

No.",Date,Events,

1.,11.3.1991,"Anand Owners Association purchased a plot

admeasuring 339 sq.mtsin an auction sale from Income

Tax Department. Conveyance deed is executed in

favour of Anand Owners Association. A building

having 19 units is constructed on that plot.",

2.,5.10.1991,"Share certificates pertaining to 16 units of the said

property were issued to concerned owners of the

property.",

3.,December 1999,"Share certificates pertaining to other 3 units of the said

property were allotted to ShriDarshit Mehta, Shri

Vishal Mehta and Shri Jay Mehta.",

4.,,"M/s. Vishal Exports Overseas Ltd., a company

incorporated with which the appellants have no

connection whatsoever had obtained financial

assistance from consortium of State Bank of India for

which 16 units of the said property were mortgaged to

State Bank of India by depositing title deeds.

Punjab National Bank which was a part of consortium

of Banks, also sanctioned funds to M/s Vishal Exports

Overseas Limited.",

5.,---,"Due to default in repayment of finance obtained, the

borrower was classified as Non Performing Assets",

6.,18.9.2008,"State Bank of India took over possession of the

aforesaid mortgaged property i.e., 16 units in Vishal

House under SARFAESI Act",

7.,27.8.2009,"The said property was put to auction / sale under

SARFAESI Act which was purchased by one M/s.

JMD Media Pvt. Ltd.(Appellant in FPA-

PMLA/387/AHD/2012.",

8.,4.9.2009,"After receipt of entire auction amount, State Bank of

India confirmed the sale in favour of M/s. JMD Media

Pvt. Ltd. and issued Sale Certificate in its favour.

Sale Certificate and Original Title Deeds as well as

peaceful possession were handed over to JMD Media

Pvt. Ltd.",

9.,2010,"Appellant and two other appellants Ankit J Patel HUF

and Krushabh J Patel HUF came to know of inclination

of JMD Media Pvt. Ltd. (16 units) as well as owners

of remaining 3 units of the said property of selling the

same.",

10.,13.12.2010,"Being desirous of buying the said property, a sum of

Rs.6 lakh was paid initially to M/s. JMD Media Pvt.

Ltd. by M/s. Liberty Publications of which kartaof the

appellant ShriJagdishbhai I. Patel is a Sole Proprietor,

from his account.

M/s. Liberty Publications is a publishing house

publishing books and magazines for students aspiring to

appear in Competitive Exams, such as UPSC, GPSC,

SSC, etc. since last 35 years.",

11.,8.4.2011,"Appellant through its Advocate gavepublic notice in

newspaper inviting objections, if any, to the sale of the

said property.",

12.,9.6.2011,"A further sum of Rs.25 lakh was paid to JMD Media

Pvt. Ltd. vide Cheque No.592156 of Rs.12,50,000/-

drawn on Bank of Baroda, Navrangpura Branch from

Account of ShriJagdishbhai I. Patel, kartaof the

appellant and Cheque No.592778 of Rs.12,50,000/-

drawn on Bank of Baroda, Navrangpura Branch from

Account of Nilaben J. Patel, wife ofkartaof the

appellant.",

13.,22.9.2011,"Not having received any objection, the Advocate

certified vide Certificate dated 22.9.2011 that he had

not received any claim or objection in response to the

public notice",

14.,24.10.2011,"Subsequent to the said certificate, appellant and other

prospective buyers proceeded to make payment to

JMD Media Pvt. Ltd., owner of 16 units as well as

owners of other 3 units being Rs.1,54,00,000/-.",

15.,24.10.2011,"Appellant and other 2 HUFs entered into Agreement to

Sell which was registered by Sub Registrar at

S.No.12069/2011 and then a Possession Note

pertaining to the entire property along with physical

possession thereof was given to the appellant and the

other 2 purchasers (HUFs).",

16.,5.11.2011,"An amount of Rs.15 lakh vide three different cheques

of Rs.5 lakh each was paid to JMD Media Pvt. Ltd.",

17.,1.12.2011,"6 cheques totaling to Rs.25 lakh were issued, out of

which 3 cheques of Rs.2 lakh each were given to Shri

Jay D. Mehta, ShriDarshit D. Mehta and Shri Vishal P.

Mehta, whereas 2 different cheques of Rs.6 lakh and 1

cheque Rs.7 lakh were given to M/s. JMD Media Pvt.

Ltd.",

18.,10.12.2011,"Sale Deed was drawn on the requisite stamp papersand

was signed by the appellant along with 2 other

purchasers and M/s. JMD Media Pvt. Ltd., Shri Jay

Dipak Mehta, ShriDarshitDipak Mehta and Shri Vishal

Pradip Mehta.",

19.,12.12.2011,"Requisite registration charges were paid and the

partiespresented the duly executed sale deed to the Sub

Registrar for registration. The duly executed sale deed

was accepted by the Sub Registrar and receipt

acknowledging receipt of the sale deed was given. An

entry was also made in Book No.1 maintained by the

Sub Registrar for the purpose. However, the Sub

registrar refused to register the sale deed contending

that vide notice dated 21.7.2011, the Assistant Director,

ED had restrained it from doing so as certain

investigations were under Prevention of Money

Laundering Act against M/s. Vishal Exports Overseas

Ltd., etc. were on. Except this, no other objection was

raised by the Sub Registrar. The duly executed sale

deed was however retained by the Sub Registrar.",

20.,30.1.2012,"As the sale deed was not being registered by the Sub-

registrar, the appellant and other co- owners filed a writ

petition being SCA No.1059 of 2012 in the Hon’ble

Gujarat High Court praying for various reliefs including

quashing of notice dated 21.7.2011 of the ED as well

as direction for registration of sale deed dated

10.12.2011",

21.,,"Enforcement Directorate filed detailed affidavit- in-

reply in the said writ petition wherein in para-6, it was

stated by the Enforcement Directoratethat money

received against sale of property be directed to be

returned to the appellant. This averment clearly shows

that the money of the appellant was clean, was not

derived by any criminal activity and that the appellant

was in no way connected with alleged irregularities.",

22.,15.3.2012,"During the pendency of the Writ Petition before the

Hon’ble Gujarat High Court, Provisional

Attachment Order No.02/2012 was passed by

Enforcement Directorate under section 5(1) of the

PML Act provisionally attaching the property in

question. This was done to cover up the illegality

committed by the ED in issuance of directions to the

Sub registrar not to register any sale deed, though no

provisional attachment order had been passed till then.",

23.,11.4.2012,"Enforcement Directorate filed a complaint

under section 5(5) of PML Act being OC No.133 of

2012 seeking confirmation of provisional attachment

order",

24.,28.5.2012,"Appellant filed written statement and written

submissions in response to the said original complaint.",

25.,10.7.2012,"Without waiting for the outcome of the pending writ

petition of the appellant, the Adjudicating Authority is a

haste passed order confirming the provisional

attachment order.",

26.,"August, 2012","Considering the provisions of limitation stipulated under

PML Act, appellant filed captioned appeal in this

Hon’ble Tribunal

challenging the aforesaid order dated 10.7.2012.",

27.,9.10.2012,"Enforcement Directorate issued notice to the appellant

for vacating the property and handing over possession

thereof within 10 days from the date of receipt of

notice. The possession was however not taken as

stipulated in the notice.",

28.,12.10.2012,"Appellant filed additional affidavit and sought

amendment in its writ petition being SCA No.1059 of

2012 for placing subsequent facts on record.",

29.,31.7.2013,"Hon’ble Gujarat High Court disposed of

appellant’s writ petition being SCA No.1059 of

2012 relegating the appellant and the co- owners to

alternate remedy. However, status quo regarding

possession of property was

directed to be maintained till final disposal of

appeals by the Tribunal.",

30.,,"Appellant’s challenged the said judgment to the

extent it was against the appellant beforethe Division

Bench of Gujarat High Court by way of an LPA being

No.1038 of 2013",

31.,21.2.2014,"The said appeal was dismissed by the Division

Bench and the order of the Single Bench was upheld.",

32.,2.9.2014,"Appellant challenged the said judgment of 21.2.2014 in

the Supreme Court vide petition being SLP (C)

No.10714/2014. The said petition was dismissed on the

ground that petitioners had already adopted alternative

remedy. It was, however, clarified as follows in the

said order:

“….

All the issues raised in these Special Leave Petitions

are kept on and Tribunal may decide them

independently and in accordance with law.â€​

The issues raised by the appellant before the

Hon’ble Supreme Court were as follows:

a. Whether a person who is not charged with the

scheduled offence can be proceeded under the

provisions of Prevention of Money Laundering Act,

2002?

b. Whether a person who purchases property (may

be derived out of commission of a scheduled

offence by the other accused) out of his legitimate

income/sources could be saddled with a

confiscation/ attachment under Prevention of

Money Laundering Act, 2002?

c. What is the true interpretation of section 2(u)

which defines “proceeds of crimeâ€​ or value

thereof?

d. Whether once proceeds of crime undergo

conversion, could the PML Act authorities proceed

against the original property which is subjected to

conversion or the proceeds which are in the hands

of accused, as a result of such conversion?

e. Whether the Hon’ble Gujarat high Court had

erred in relegating petitioners to remedy of appeal

before the Appellate Tribunal even though the said

Tribunal does not have jurisdiction to grant any

relief as regards registration of sale deed relating

to property in question?",

33.,,"ED filed PMLA Complaint Case No. 6/2014before the

Designated Special Court under PMLA,2002against the

Karta of the appellant but no specific allegations and/or

offences have been alleged against him.",

have no relation/business relation of any nature with Pradeep S. Mehta who is allegedly involved in relation to the forgery to the tune of Rs. 212,,,

crores who alongwith Deepak Mehta of Vishal House by duping various banks. The appellants in facts are innocent purchasers of the property.,,,

Before it purchased the property, the appellants had given the public notice in the newspaper seeking objection to the sale of subject property. No",,,

objections were received. Thereafter, an agreement to sell was entered into between the parties and was registered with the Sub-Registrar on",,,

24.10.2011. Physical possession was given to the appellant.,,,

Requisite stamp papers were then obtained and a sale deed was drawn thereon. It was signed by the parties on 10.12.2011. The duly signed and,,,

executed sale deed was then presented by the parties in the office of the Sub- Registrar on 12.12.2011. The instrument as was presented was,,,

accepted by the Sub- Registrar and the requisite registration fee was also paid. An entry was made in Additional Book 1 by the Sub- Registrar in,,,

terms of the requirement of the Registration Act, 1908. All the procedures required to be followed and the steps to be taken as stipulated in the",,,

Registration Act for registration of the sale deed were duly followed and taken by the parties. Nothing more was required to be done by the parties,,,

and only a ministerial job was required to be done by the Sub- Registrar of putting it's stamp and appending signatures thereon. As per the Gujarat,,,

Registration Rules, 1970, the Sub- Registrar was merely required to ensure: â€"",,,

i. That appropriate stamp has been affixed on the instrument;,,,

ii. that the instrument has been presented within the given time and at the proper office;,,,

iii. that the instrument has been presented by the proper person;,,,

iv. in case the instrument is with respect to an immovable property, the registration is not objectionable under sections 21 or 22 there;",,,

v. section 19 of the Act has been complied with;,,,

vi. in case of overwriting etcetera signatures of the persons are done as per section 20 of the Act;,,,

vii. there is no violation of the provisions of FERA;,,,

It is argued that the Registering Authority is not required to go into the question of legality of the instrument but is only required to ensure that the,,,

registration rules have been duly complied with and there is no deficiency. Once it is found that there is no deficiency in the document and that all the,,,

requirements of the rule have been duly complied with, the Registering Authority has no option but to register the document.",,,

The learned senior counsel for the appellant has referred the judgment of the full the bench of Andhra Pradesh High Court in the matter of,,,

YanalaMalleshwari Vs. AnanthulaSayamma, AIR 2007 Andhra Pradesh 57 ,wherein it had been observed that the registering officer can reject",,,

registration under specific conditions only. The registering officer can refuse registration only on the grounds contemplated under the law. Provisions,,,

of Registration Act and Registration Rules elaborately deal with the circumstances and situations when the registering officer has to accept and,,,

register the documents and/or as to when the registering officer has to reject the document for registration.,,,

In the matter Satya Pal Anand Vs. State of M P, AIR 2016 SC 499,5 the Supreme Court affirming the above referred judgement of Andhra Pradesh",,,

High Court in the case of YanalaMaleshwari held that the Andhra Pradesh High Court, was called upon to consider whether a person can nullify the",,,

sale by executing and registering a cancellation deed with the registering authority like the District Registrar and/or Sub- Registrar appointed by the,,,

State Government is bound to refuse registration when the cancellation deed is presented. The fact remains that if the stipulations contained in section,,,

17 and 18 of the Act of 1908 are fulfilled, the registering officer is bound to the documentâ€​",,,

In the light of the above, the submission of the appellant is that it had followed the entire procedure as stipulated in the Act and the Rules framed there",,,

under and being the bona fide purchaser, the registering authority could not have refused to register the instrument. It ought to have registered it.",,,

The Registering Officer being a creature of the statute cannot go beyond the statute and therefore registering officer was under an obligation to,,,

register the documents when presented to it on 12.12.2011 for registration. The registering officer neither registered the document nor rejected the,,,

document submitted for registration but merely kept the same with himself. This act of registering officer in doing so was beyond the purview of the,,,

Registration Act.,,,

The act of not registering the sale deed is illegal. Once the sale deed is registered, the same would relate back to the date of execution which is",,,

10.12.2011 in this case and is much prior to the date of POA.,,,

Hamada Ammal Vs. AviappapPathar and 3 ors, (1991) 1 SCC 715 is on this point.",,,

As far as transfer of property in question is concerned, the ownership thereof stands transferred in favour of the appellant as is apparent from",,,

communication dated 18.12.2015 received from Income Tax Office whereby certain details have been called for by the Income Tax Department from,,,

the appellant. A Misc. Application bringing the same on record has been preferred by the appellant.,,,

Without prejudice to the aforesaid, appellant submits that section 53A of the Transfer of Property Act pertains to part performance of contract and",,,

the rights of the transferee qua the property. The said section provides that where any person contracts to transfer an immoveable property for a,,,

consideration in writing signed by him or on his behalf from which terms necessary to constitute transfer can be ascertained with reasonable certainty,,,

and the transferee has in part performance of the contract taken possession of the property or any part thereof or if in possession the transferee,,,

continues in possession in part performance and has done some act in furtherance of contract as well as the transferee has performance or is willing,,,

to perform his part of contract then notwithstanding where there is an instrument of transfer but the transfer has not been completed in the manner,,,

prescribed by law, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and any person claiming",,,

under him any right in respect of the property of which the transferee has taken or continued in possession, other than the right expressly provided by",,,

the terms of contract.,,,

It is submitted on behalf of the appellants that no adverse inference can be drawn on the basis of statements of Shri Ankit J. Patel that he had met,,,

Shri Pradeep S Mehta, because the appellant along with co-purchasers had purchased the entire ‘Vishal House’ having 19 units. Out of the said",,,

19 units, 16 were owned by M/s. JMD Media Pvt. Ltd. whereas 3 others were owned by S/Shri Darshitkumar Deepakbhai Mehta, Jaykumar",,,

Deepakbhai Mehta and Vishalkumar Pradeep S Mehta. ShriDarshitkumar and Shri Jaykumar are the nephews of ShriPradeep S Mehta and Shri,,,

Vishal kumar the son of Shri Pradeep S Mehta. Ankit J Patel the appellant herein had met the owners of the 3 units to discuss and finalise the deal.,,,

Pradip S Mehta being the uncle/father of the sellers was also present. His presence during such discussions could not be considered as,,,

‘unusual’ when property of his nephews and son was the subject matter of sale. No adverse inference could be drawn on this basis.,,,

During the course of hearing, the appellants placing reliance on the said sequence of events /facts â€" vehemently pleaded that no allegation had been",,,

made against the appellant/defendant no. 4 i.e. JMD Media Pvt. Ltd on 10.12.2011. Mentioning further that the sub-registrar informed the appellant,,,

that the sale deed cannot be registered in view of notice dated 21.07.2011 issued by the Enforcement Directorate, attention was drawn to the fact that",,,

he was not in any way connected with M/s Vishal Exports Ltd. and further argued that even if the sale deed had not been registered, the mere",,,

execution of the sale deed was sufficient to establish the ownership of the property, in view of the decision of the Apex Court in the case of the Suraj",,,

Lamp Case.,,,

The above contentions of the appellants were strongly refuted by the respondent. As regards the appellants’ contention that for issuing the show,,,

cause notice, there must be “reasons to believe†which were absent in the instant case, the respondent stated that the show cause notice itself",,,

contains the reasons of forming such a believe as sufficient material do exist in form of the CBI charge sheets along with accompanying documents as,,,

well as the materials gathered by the Joint Director through his own investigation including the statement of Directors of various companies involved in,,,

alleged transfer of money, which formed the basis of “reason to believe†as in section 5(1) of the Act. It was reiterated by the counsel for the",,,

respondent that the fact that the designated court had taken cognizance of the charge sheets filed lends further credence to the said belief.,,,

As per the objection of the respondent for non registering the agreement of sell in the month of October, 2011 when the agreement was executed",,,

which is unregistered document, it is argued on behalf of the appellant that the legal position at that point was different in facts and situation in which",,,

the judgment was delivered by the Hon’ble Supreme Court in the case of Suraj Lamps & Industries (P) Co. Ltd. Vs. State of Haryana and others,,,

reported in (2012)1 SCC 656 in as much as the said judgment pertains to properties being sold under special or general power of attorneys which is,,,

not the situation in the present case. In view thereof the reliance placed by the complainant of the said complaint and the adjudicating authority for,,,

passing the impugned order is totally erroneous. Even in the said judgment the Hon’ble Supreme Court has observed as follows:-,,,

3.These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of attorney in favour,,,

of a family member or frends to manager or sell his property, as he is not able to manage the property or execute the sale , personally. These are",,,

transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets an SA/GPA/will as a mode of transfer, either at",,,

the instance of the vendor or at his own instance.â€​,,,

Thus, the aforesaid portion of the said judgment cannot be over looked which would apply to the present situation also under the circumstances, the",,,

impugned order dated 10.7.2012 is unsustainable and deserves to be quashed.,,,

It is also submission of the appellant is that section 5(1) of the PML Act provides that the authorities mentioned therein, on the basis of material in",,,

its possession, has the reason to believe that any person is in possession of any proceeds of crime and that such person has been charged of having",,,

committed a scheduled offence and that such proceeds of crime are likely to be concealed, transferred, dealt with in any manner which may result in",,,

frustrating any proceedings relating to confiscation of proceeds of crime, may by a written order provisionally attach the property. Section 5(2)",,,

provides that the authority mentioned therein shall immediately after provisional attachment forward a copy of the order along with the material in,,,

possession to the Adjudicating Authority in the manner prescribed therein. The provisions of section 5 therefore contemplate provisional attachment of,,,

property in situations mentioned therein. Section 8 of the PML Act contains provisions pertaining to adjudication of a complaint or applications,,,

mentioned therein. The scheme of the Act therefore envisages attachment of property and confirmation thereof or otherwise after adjudication. The,,,

scheme of the Act does not empower the authority to issue instructions to an other authority to refuse registration of a document inasmuch as the,,,

authority which is a creature of statute has no legal competence to issue directions for the purpose of bye-passing relevant provisions contained in the,,,

Registration Act as well as Rules framed thereunder. Any direction of such a nature is, therefore, is illegal.",,,

A similar situation arose in a dispute before the Madras High Court in the case of Padmakan Singh v/s Third Joint Sub-registrar, Coimbatore",,,

wherein registering officer refused to register a document because of letters of Income Tax Officer warning him from registering the same.,,,

Considering the provisions of Registration Act as well as Payment of Taxes (Transfer of property) Act, 1949, the Hon’ble Madras High Court in",,,

its judgment reported in AIR 1967 SC 432 held such an action to be illegal and allowed the writ petition and the Registring Authority was directed to,,,

do its statutory duty. Further in another judgment in the case of Pandurangan v/s Sub-Registrar ReddirPalayam Pondicherry and Ors.,AIR 2007",,,

Madras 159 it was held by the Hon’ble Madras High Court that with-holding of registration of a document is not permissible based on executive,,,

instructions in absence of any statutory rule and that registering authority has no power to make any enquiry relating to title. Reliance is also placed on,,,

a judgment of Hon’ble Punjab & Haryana High Court in the case of Krishna Gopal Kataria & Anr v/s State of Punjab &Ors.,AIR 1986 P&H 328",,,

wherein it has been held that powers of Registrar are clearly defined and demarcated and any instructions by the State Government to the Registrar,,,

and in turn to the Sub-registrar not to register sale deeds or lease deed in respect of properties belonging to religious/charitable institutions in absence,,,

of statutory provisions, was held to be illegal. It was further held that the Act of 1908 is a complete code of deeds.",,,

As far as these arguments about the registration of sale deed is concerned, there is a force in the arguments of the appellant. However, this is not",,,

the entire case of the parties. It is merely one issue involved in the matter. Its impact thereof would be considered at the later part of our Judgment.,,,

Even assuming for the sake of argument the signed sale-deed is to be treated as valid sale-deed, it would have no bearing if ultimately come to",,,

conclusion after trial that the appellant on the date of agreement to sell was aware that appellants were purchasing the tainted property which was,,,

acquired from the amount of proceeds of crime, then it is immaterial, even if the sale-deed is to be taken as valid documents. It is also a matter of fact",,,

that before confirmation of attachment, the appellant were duly heard by the Adjudicating Authority.",,,

The second submission of the appellant is that in the present case, provision of section 5 of the PML Act and the scheme of the Act as a whole,",,,

there are no powers vested in the authorities under PML Act to direct any other authority to refuse registration. However, the respondent",,,

Enforcement Directorate vide letter dated 21.7.2011 illegally and beyond the scope of its authority directed the Sub-Registrar not to register the sale,,,

deed pertaining to the property in question referring to section 3 of PML Act and conveying that in case the sale or transfer was allowed despite,,,

instructions and order of statutory authority, it would compel the Enforcement Directorate to conclude that by allowing registration of property by way",,,

of sale/transfer/ alienation/ modification assistance has been given to activities connected with offence of money laundering rendering the Sub-,,,

Registrar liable to penal action under PML Act. This notice was issued without any powers in that regard. The Enforcement Directorate is taking an,,,

advantage of the said situation by contending that the aforesaid sale deed has not been registered. In fact such a direction vide aforesaid letter dated,,,

21.7.2011 are not only wrongful and bad in law but voidabinitio. It is settled legal position that any person cannot be permitted to advantage of his own,,,

wrong. In this regard reliance is placed on a judgments of Hon’ble Supreme Court in the cases of Oil & Natural Gas Corporation Limited v/s,,,

Modern Construction & Company(2014) 1 SCC 648 and Bhartiya Seva Samaj Trust v/s. Yogeshbhai Ambalal Patel &Anr.(2012) 9 SCC 310.,,,

Reliance is also placed on a judgment of Hon’ble Supreme Court in the case of Priyanka Overseas Private Limited v/s Union of IndiaAIR 1991,,,

SC 583 wherein it has been held as follows:,,,

“36. …..The question is whether the appellant is liable to pay duty on the balance quantity of 6746.468 MT of Palm Kernel and if so, what should",,,

be the rate of duty. In determining this question it must be borne in mind the statutory principle that if a party discharges its liability by complying with,,,

the requirement of law, and presents papers for clearance of goods, it is obligatory on the Revenue authorities to pass the order immediately thereon.",,,

If the Revenue authorities either refuse to pass the order on some erroneous or imaginary grounds or on account of any misconception of law, the",,,

department cannot take advantage of its own wrong in demanding higher rate of duty from the importer. Under Secs. 68 and 71 of the Act, goods",,,

placed in a warehouse can be taken out only after clearance for home consumption. Admittedly, the appellant had done its part of legal duty by",,,

presenting bills of entry and complying with Section 68(a) of the Act on 28-1-1988. But the Customs Officer refused to release the goods on an,,,

erroneous assumption that the appellant was liable to pay redemption fine and since it had not paid the said amount, the goods were not liable to be",,,

released. The High Court held that the imposition of redemption fine was non est and the petitioner was within its right to claim release of goods,,,

without paying any redemption fine, on the day it complied with the formalities under Sec. 68 of the Act. Section 68(c) of the Act prescribes an",,,

official function which was not performed by the Customs authorities due to entertainment of a wrong and illegal notion regarding the payment of,,,

redemption fine which resulted into a wrong order by the department. In the circumstances the department cannot be allowed to take advantage of its,,,

own wrongful and illegal act. In moulding relief, this Court has always applied principles of equity in order to do complete justice between the",,,

parties.â€​,,,

In support of his submission, it is submitted by the appellant that there is no allegation against the appellant in the charge-sheet No.13 of 26-11-",,,

2009. The allegation is that a conspiracy to cheat Punjab National Bank, International Branch , Ahmedabad was hatched during 2005-06 in the",,,

borrowal account of Vishal Export Overseas Offences Ltd. through its Director Pradip Mehta, Deepak Mehta, Subhashchandra Mehta,",,,

R.N.Savarkar, the then Chief Manager and L V Raghvan, the then Senior Manager. It has been alleged that the facts disclose commission of",,,

offences under sections 120B, 420, 468, 471 and 477A of Indian Penal Code and section 13 of Prevention of Corruption Act. The appellant is no",,,

where connected with the commission of the alleged offences. Be that as it may, sections 120B, 420, 468, 471 and 477A of Indian Penal Code and",,,

section 13 of Prevention of Corruption Act were not scheduled offences prior to 1.6.2009. It is only with effect from 1.6.2009 that sections 120B, 420",,,

and 471 of the IPC were incorporated in the schedule of the Act. The provisions of the PML Act cannot be made applicable to the offences allegedly,,,

committed prior to the incorporation of those offence in the Schedule. Otherwise also the provisions have not been given any retrospective effect by,,,

the legislature and could not have been made applicable with retrospective effect. A Division Bench of Karnataka High Court in the matter of,,,

Obulapuram Mining Co. Pvt. Ltd. Vs. Joint Director [WP No.5962/2016 decided on 13-03-2017] has authoritatively held that the petitioner can not be,,,

tried and punished for offences under PML Act when the offences were not inserted in the schedule of offences under the PML Act. Article 20(1) of,,,

the Constitution of India prohibits the conviction of a person or his being subjected to penalty for ex-post facto laws. For this reason the confirmation,,,

of the provisional attachment order â€" the impugned order is liable to be set aside.,,,

It is submitted that the scheme of PML Act provides for provisional attachment of property in circumstances mentioned therein and thereafter,,,

adjudication of the complaint, etc. The Act does not empower the ED to issue any restraint order prior to the passing of the provisional attachment",,,

order under section 5 of the PMLA. The authorities functioning under the Act are required to function in the manner prescribed in the PML Act. It is,,,

a settled legal position that if law requires that a particular thing should be done in a particular manner, it must be done in that way and none other.",,,

Reliance in this regard is placed on a judgments of Hon’ble Supreme Court in the cases of Dipak Babaria and another v/s. State of Gujarat and,,,

(2014) 3 SCC502 and J. Jayalalithaa & Anr. v/s. State of Karnataka &Ors.(2014) 2 SCC 401. In the present case, since the directions given in the",,,

aforesaid letter dated 21.7.2011 is an action beyond the purview other PML Act and is void abinitio, no benefit there under can be countenanced.",,,

As far as the argument of the appellant that no PMLA proceedings are pending against the appellant is concerned, the respondent disputes the",,,

same. Learned counsel for the respondent submits that the complaint of the PMLA be read as whole. Counsel for the respondent has referred the,,,

pleadings. It is stated that the appellant is merely taking technical objection, otherwise the PMLA proceedings are pending against all the alleged joint",,,

owners of the property purchased. It is denied by the respondent that the complaint is only pending against two co-joint owners. We do not find any,,,

force in the arguments of the appellant as in this context we have refer to the following observations of Hon’ble Bombay High Court in the case,,,

of Radha Mohan Lakhotia first appeal no. 527of 2010 judgment dated 05.08.2010, [2010(5) BOM Cr 625] (MANU/MH/1011/2010) with reference to",,,

section 5(1) of the PMLA.,,,

“The appellants however, have placed emphasis on the expression “such person†used in Clause (b) of Section 5(1) of the Act.",,,

According to them, the word “such person†is prefix to the word “person†In Clause (b). That is not superfluous, but to ascribable",,,

to the person referred to in Clause (a). Which means that even Clause (a) deals with person who has been charged of having committed a,,,

scheduled offence. It is not possible to countenance this submission. We are conscious of the fact that penal provisions should be strictly,,,

constituted. At the same time, we cannot overlook the language of section 5 as applicable at the relevant time. In our Opinion, clause (a)",,,

refers to “any personâ€- whether he has been charged of having committed a scheduled offence “or otherwise.†The only,,,

requirement is that that person should be in possession of any proceeds of crime. The governing factor is possession of ay proceeds of,,,

crime by a person. Taking any other view may defeat the legislative intent. In as much as, a person who has been charged of having",,,

committed a Scheduled Offence can successfully defeat the object of the enactment of attachment and confiscation of proceeds of crime by,,,

transferring it to some other person who is not so involved with him in commission of stated scheduled offence. In our opinion, on fair",,,

reading of section 5(1) read with section 8 of the Act, it postulates two categories of persons against whom action of attachment of property",,,

can be proceeded with. The first category is any person who is in possession of any proceeds of crime. A person falling in this category,,,

need not be a person, charged of having committed a scheduled offence. The second category is of a person who has been charged of",,,

having committed a scheduled offence , that person is found to be in possession of any proceeds of crime. In either case, it is open to take",,,

recourse to section 5 of the Act if the specified Authority has reason to believe and reason for such belief is recorded in writing 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.â€​,,,

As regards other arguments addressed by the appellant in second submission, there is no force as during the investigation, the Authority has power",,,

to direct to other Authority to maintain the status-quo and not to register the sale deed as it would create title in favour of a party who ultimately may,,,

be involved in due course after the investigation.,,,

The Hon’ble High Court of Gujarat at Ahmedabad in Special Criminal Application (Quashing ) no. 150 of 2015 in the case of Paresha G. Shah,,,

versus State of Gujarat has dealt with the similar issue, who after hearing both parties has held under:-",,,

In light of the aforementioned scheme of several provisions of P.M.L. Act, the question as to whether the proceedings under Sections 5,",,,

8 and 17 are civil proceedings or criminal is required to be addressed. The argument is that unless a report or the complaint as,,,

contemplated under first proviso to Section 5 and also as contemplated in the proviso to sub-section (1) of Section 17 is made, the",,,

proceedings are not sustainable. As noticed in greater detail, the ultimate object of Section 5 is provisional attachment of the property. The",,,

object appears to prevent destruction of the evidence which may be produced in the proposed criminal proceedings or to take in possession,,,

the property involved in the money-laundering, though the proceedings can be initiated on the basis of the reports or complaint, etc., as",,,

contemplated in the first proviso to Section 5. In view of second proviso, proceedings can be initiated under Section 5 even in absence of",,,

compliance of first proviso. Various safeguards impose fetters upon the attaching officer obliging him to immediately send the order made,,,

by him and the factum of attachment of the property made by him within the prescribed period to the Adjudicating Authority to enable it to,,,

adjudicate upon such attachment. It is pertinent to note that the legislative intent in so far as powers of the Adjudicating Authority are,,,

concerned, is made clear under Section 6(15) by clarifying that it is not bound by the procedure laid down by the Code of Civil Procedure.",,,

Thus, if the Adjudicating Authority was intended to be an authority dealing with the criminal acts, the proviso dispensing with Code of Civil",,,

Procedure would not have been made. Instead proviso dispensing with Cr.P.C. would have been made. These facts thus sindicate that the,,,

Adjudicating Authority under Section 8 is authorized to undertake civil proceedings and adjudicate thereupon as rightly argued by the,,,

learned counsel for the respondents.,,,

True that the first proviso to Section 5(1) and Section 17(1) requiring the compliance of the aforementioned provisions before,,,

embarking upon the exercise under Section 5 of P.M.L. Act but that would be the basis for proceedings to make attachment or passing of,,,

various other orders as contemplated under the Act particularly Section 5 so far as present case is concerned.,,,

The contention of the respondents is that the respondents have not reached the stage of Sections 5 and 17 and the proceedings are at a,,,

very preliminary stage. It thus appears that the summons are issued to the petitioners at a preliminary stage on the basis of the facts detected,,,

by the respondents in pursuant to the lodgment of two FIRs, it appears that the respondents intend to inquire into the fact as to whether",,,

properties in question or the petitioners herein are involved in either offence of money-laundering or are connected with such an offence or,,,

proceeds of crime or are in possession of such proceeds. Pertinently, in view of Section 65 of P.M.L. Act, the powers to search, seizure,",,,

attach, confiscate, investigate and all other proceedings under the Act can be performed with the assistance of the provisions made in the",,,

Cr.P.C. The respondents have frozen the accounts of the petitioners. Considering the fact that the Cr.P.C. is applicable as above at this,,,

stage, it cannot be said that an act of freezing the account is illegal. As noticed hereinabove, proviso to Section 17(1) indicates that the",,,

report under Section 157 of Cr.P.C. may not be necessary and therefore, freezing of accounts under Section 17(1-A) without such report is",,,

prima facie permissible. However, in view of the preliminary stage of the proceedings initiated against the petitioners, no final verdict can",,,

be pronounced on that aspect. However, in this context, FFR Software Private Limited (supra) explains in detail the authority vested in the",,,

Directorate of Enforcement to freeze the properties preceding the provisional attachment under Section 5 of P.M.L. Act. Paragraphs-5 and,,,

6 of the said case can be quoted herein for convenience:,,,

Having heard learned counsels for the parties and on perusal of the record of the case, I find substance in the contention of the",,,

respondents that the given statutory mandate under the PML Act makes it imperative for the authorities in the course of investigation i.e.,,,

collection of facts to establish specific details of the suspected properties from the concerned authorities prior to issuance of the provisional,,,

attachment order under section 5 of the Act. As such, it has to be issued with abundant caution. It is therefore necessary that the requisite",,,

information/details are ascertained from the repositories of such information. Such repositories may be required during preliminary,,,

enquiry/investigation under the Act to be restrained from allowing normal operations in respect of a property suspected to be involved in,,,

the offence of money laundering. It is therefore, crucial to achieve the objectives of the Act that the authorities under PML Act are",,,

empowered to collect and if need be, compel disclosure of relevant facts including specific details of the suspected properties, movable or",,,

immovable, liable to be attached in the course of investigation. The challenge mounted by the petitioners on such powers of the authorities is",,,

therefore, erroneous. The term investigation as defined in section 2 (na) of PML Act has to be read in consonance with the provisions of",,,

section 65 which empowers the authorities under PML Act to issue such directions/prohibitory orders. Therefore, any such direction issued",,,

in the course of investigation is within the four walls of law and in consonance with the object and reasons of the Act to ensure that the,,,

proceed of crime do not change hands making it impossible for authorities to trace and recover such proceeds of crime.,,,

The provisional order of attachment of a property suspected to be proceeds of crime in terms of section 2(u) of the Act and prima-facie,,,

involved in money laundering and confirmation thereof in terms of section 8 of the Act by the Adjudicating Authority do not violate the,,,

provisions of Articles 14, 19(1)(g) and 300A of the Constitution of India. Moreover, in the given circumstances when directions are issued",,,

to the concerned authorities viz. the letter dated 12.07.2011 issued by the respondent No.2 to respondent No.3 in the instant case, the",,,

rationale behind such orders being the property would otherwise might change hands frustrating the objectives of the Act. I also find force,,,

in the averments of the respondents that the power of the authorities under PMLA to issue such directions is ingrained in the powers of,,,

conducting investigation as defined in the PMLA which includes all proceedings under the Act. On the contrary, if the plea of the petitioners",,,

in regard to the statutory scheme under the PMLA is accepted, it will cause violence to the spirit and the objects of the Act.",,,

Assuming that Sections 5 and 17 can be interpreted as canvassed by the learned counsel for the petitioners, pertinent observations made",,,

in FFR Software Private Limited (supra) in Paragraphs-8 & 9 are thus:,,,

It is trite that Article 226 is not meant to short circuit or circumvent statutory procedures. The court must have good and sufficient,,,

reasons to bypass the alternative remedies provided by the statute. In the case of Asstt. Collector of Central Excise, Chandan Nagar, West",,,

Bengal Vs. Dunlop India Ltd. and others (1985 SCC(1) 260,) the Apex court has held that where the statute itself provided the petitioners",,,

with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the tribunal and thereafter to",,,

have the cases stated to the High Court, it was not for the High Court to exercise its extra ordinary jurisdiction under Art. 226 of the",,,

Constitution ignoring as it were, the complete statutory machinery.",,,

In yet another case of Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement & Another Civil Appeal No. 3221 of 2010",,,

Date of judgment 12.04.2010 the Honble Supreme Court has observed that :,,,

.... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does",,,

not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open,,,

to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a",,,

statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under",,,

the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.",,,

True that the said FFR Software Private Limited (supra) deals with the case pursuant to registration of the FIR. In the instant case also,",,,

two FIRs though not naming the petitioners but on the same subject have been lodged and thus legal proposition as discussed in the,,,

aforementioned authority can as well be applied to the facts of the present case. The contention of the learned counsel for the petitioners to,,,

the contrary thus cannot be accepted.,,,

As noticed above, inquiry, investigation, etc., are permissible under Cr.P.C. by the authorities or officers exercising the jurisdiction",,,

under P.M.L. Act. It therefore goes without saying that on noticing an offence under P.M.L. Act against the offenders, the case can be tried",,,

as provided in Chapter VII of P.M.L.A. Act. Thus, a separate machinery for trial of the offences under P.M.L. Act is provided under Chapter",,,

VII as distinguished from adjudication under Section 8 of the Act. To enable such trial, the investigation and inquiry with the assistance of",,,

the provisions of Cr.P.C. is permissible. Looking to the fact that the petitioners are not arrayed as accused, it appears that they are sought",,,

to be interrogated to ascertain their complicity in the offence if any. Such action cannot be thwarted at a preliminary stage where only,,,

summons have been issued after freezing the accounts of the petitioners. Even if the argument of the petitioners that freezing of the accounts,,,

was not permissible that Sections 5 and 17 of P.M.L.A. Act were applicable at this stage is accepted, as noticed in a greater detail, acts",,,

under Sections 5 and 17 are only provisional and subject to confirmation by the Adjudicating Authority. Before such adjudication, a notice",,,

to the interested person is contemplated under Section 8 of P.M.L. Act and therefore, by convincing the Adjudicating Authority that no",,,

offence under Section 3 is committed by the petitioners, the orders de-freezing their accounts can be obtained from the such authority. In",,,

the facts and circumstances discussed hereinabove, it is difficult to accept the contention that initiation of the proceedings against the",,,

petitioners are illegal..â€​,,,

I am also not impressed by the submission of the learned counsel appearing for the petitioner regarding the noncompliance of the,,,

provisions of Section 102(3) of the Code. I may only say that the procedure that has been followed by the authority under the PML is one,,,

under the provisions of the PMLA. When seizure or any search or any attachment is by officers under the PMLA other than the police, non-",,,

compliance with Section 102(3) would not vitiate the proceedings.,,,

However, at the same time, I am of the view that an order or instructions of attachment/freezing of bank account passed or issued by the",,,

authority under the PMLA in exercise of his powers under Section 102 of the Code read with Section 65 of the PMLA should not continue,,,

or remain in operation for an indefinite period of time.,,,

Section 5(4) of the PMLA provides for the enjoyment of the immovable property. Section 5(4) reads as under :,,,

“5. Attachment of property involved in money laundering.- (1) to (3)xxx xxx xxx (4) Nothing in this section shall prevent the person,,,

interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.- For the purposes,,,

of this sub-section, ‘person interested’ in relation to any immovable property, includes all persons claiming or entitled to claim any",,,

interest in the property.â€​,,,

Sub-section (4) of Section 5 provides that passing of the order of the provisional attachment under the Section shall not prevent the person,,,

interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. The term ‘person,,,

interested’ in relation to any immovable property is explained to include all persons claiming or entitled to claim any interest in the,,,

property. The Section intends that merely because the immovable property is provisionally attached, the person interested in the enjoyment",,,

of the immovable property should not be prevented from such enjoyment. By virtue of this provision, the immovable property would continue",,,

to remain in the possession of the person interested in the enjoyment. However, once the provisional order of attachment made under sub-",,,

section (1) of Section 5 of the PMLA is confirmed under sub-section (3) of Section 8, the authority authorized in that behalf will take over",,,

the possession of the attached property as provided in sub-section 4 of Section 8 of the PMLA.,,,

I have made a reference of Section 5(4) to fortify my view that the order or instructions of attachment/freezing of the bank account should,,,

not remain for an indefinite period of time like in the present case.,,,

In the present case, the instructions were issued to the Page 41 of 43 HC-NIC Page 41 of 43 Created On Tue Jun 13 15:50:56 IST 2017",,,

R/SCR.A/150/2015 CAV JUDGMENT bank to freeze the account of the petitioner way back in the month of August 2014. Indisputably, till",,,

this date, the authority has not been able to pass any order of provisional attachment under Section 5 of the Act. This would suggest two",,,

things : (i) there is no sufficient material collected by the authority so that the authority can record its reasons to believe that if the account,,,

is not freezed, then the non freezing of the property would frustrate the proceeding under the PMLA, and (ii) the authority does not intend",,,

to file any complaint against such person whose account has been ordered to be freezed. For the aforesaid reasons, although the judgment",,,

was reserved CAV, this matter was once again notified on 8th June 2015 only with a view to ascertain from the learned Assistant Solicitor",,,

General of India, whether in the mean time the authority had passed any order of provisional attachment under Section 5 of the Act or",,,

whether it intended to pass such order in the near future if adequate material has been collected during the course of the investigation,,,

carried out so far. The learned Assistant Solicitor General of India, after taking instructions from the officer of the Department present in",,,

the Court, made a statement that the authority has been able to collect sufficient material on the basis of which the authority now intends to",,,

pass an appropriate order of provisional attachment under Section 5 of the PMLA.,,,

On one hand if an order of provisional attachment is passed under Section 5 of the PMLA, the life of it is 150 days subject to the further",,,

orders that may be passed by the adjudicating authority, whereas if an order of attachment is passed under Section 102 of the Code read",,,

with Section 65 of the PMLA, then there is no time period prescribed so far as its Page 42 of 43 HC-NIC Page 42 of 43 Created On Tue Jun",,,

13 15:50:56 IST 2017 R/SCR.A/150/2015 CAV JUDGMENT operation is concerned. Such a situation should not crop up.,,,

In light of the statement made by the learned Assistant Solicitor General of India, I do not want to go further into the matter. However, I",,,

make it clear that if the provisional order of attachment under Section 5 of the PMLA is not passed within a period of one week from today,",,,

then the instructions given by the Department to the bank for freezing of the account shall automatically come to an end and the bank shall,,,

permit the petitioner thereafter to operate her account.,,,

The final conclusions in the matter are as under :,,,

(i) The question no.1 is answered in the affirmative.,,,

(ii) The question no.2 is answered in the affirmative.,,,

(iii) The question no.3 is answered in the negative.,,,

(iv) The question no.4 is answered in the affirmative.,,,

(iv) The order of attachment of a bank account in exercise of the powers under Section 102 of the Code read with Section 65 of the PMLA,,,

cannot continue for an indefinite period of time, more particularly, when the life of an order of the provisional attachment under Section 5",,,

of the PMLA is maximum upto 150 days.,,,

For the foregoing reasons, the petition is partly allowed to the aforesaid extent.",,,

Thus, the arguments of the appellants is rejected in view of the reasons mentioned above.",,,

It is also submitted by the appellant that Section 5(1) of PML Act, 2002 specifically stipulates that for the purpose of provisional attachment there",,,

under, there must be a reason to believe (the reason for such belief are to be recorded in writing) on the part of the authority on the basis of material",,,

in his possession that (a) any person is in possession of proceeds of crime, (b) such person is charged of having committed a scheduled offence and",,,

(c) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating",,,

to its confiscation.,,,

27.1 It is submitted that, no application of mind on the part of the authority has been shown for formation of any such reasonable belief therefore the",,,

requisites under section 5(1) of the Act are not fulfilled. The factum of absence of such reasonable belief becomes apparent from a perusal of,,,

provisional attachment order No.2/2012 wherein no reasons have been recorded for believing that the appellant was in possession of proceeds of,,,

crime and that the appellant was charged of having committed a scheduled offence. It appears from the said order that the respondent was under the,,,

impression that the possession of the alleged proceeds of crime. ‘Vishal House’ was with M/s JMD Media Private Limited. However, it is an",,,

admitted and undisputed position of the fact that from 24.10.2011 onwards the appellant was in peaceful possession of the said property. This,,,

evidently shows non-application of mind on the part of respondent qua the first requirement of section 5(1). Even assuming without admitting that the,,,

appellant was in possession of the said property, alleged proceeds of crime, then in that case also the second requirement i.e. such person having been",,,

charged of committing a scheduled offence is not fulfilled inasmuch as admittedly and undisputedly the appellant was not charged of having committed,,,

any scheduled offence. Therefore, the basic requirements for invoking the said section 5(1) have not been fulfilled. In such a situation, the provisional",,,

attachment order was bad in law and unsustainable.,,,

27.2. It is also submitted that similarly, the Adjudicating Authority grossly erred in not appreciating that the term “proceeds of crime†covers not",,,

only the property derived. Under the circumstances, when the definition of the term “proceeds of crime†covers the value of such property and",,,

other attaching such proceeds which are lying with the bank could have been attached whereby the interests of bonafide purchaser like the appellant,,,

could not have been prejudiced or put to stage. The appellant in such a situation is nothing but a victim or crime, if at all committed by some other",,,

person. Under such situation, the attachment of property itself ought not to have been ordered by the Adjudicating Authority. In this regard, reliance is",,,

placed on a recent judgment of the Hon’ble Madras High Court in the case of M/s Indian Bank (WP No. 4696/2012) wherein, the Hon’ble",,,

Madras High Court, after considering the entire scheme of the said Act, in a similar situation, has set aside the provisional attachment order in the said",,,

case. The law laid down therein in the said judgment is squarely applicable to the facts of the present case whereby the impugned order dated,,,

10.7.2012 deserves to be quashed.,,,

27.3. The appellants in support of their submission, if is also alleged that even the second proviso to section 5(1) specifically stipulates that there must",,,

be reason to believe (to be recorded in writing)on the part of the concerned authority on the basis of material in his possession, for attachment of the",,,

property, to the effect that if the property, if not attached immediately, is likely to frustrate proceedings under the Act. The said proviso therefore",,,

stipulates that only when there is a recorded reason to believe based on the material in possession that the property is “involved in money,,,

laundering†and the non-attachment thereof is likely to frustrate the proceedings can such a provisional attachment take place. The term ‘money,,,

laundering’ has been defined in section 2(p) as having the meaning attached to it in section 3. Section 3 stipulates that for the purpose of,,,

determining whether a property is involved in money laundering, the definition of the term “proceeds of crimeâ€​ has to be considered.",,,

The appellant relies upon the following judgments:,,,

(2008) 14 SCC 186,,,

(1993) 203 ITR 456,,,

AIR 1961 SC 372,,,

27.4. It is stated by the counsel that however, in the present case, the respondent in para 6 of the said order has merely stated that in case no",,,

provisional attachment order is passed against the proceeds of crime mentioned therein at this crucial stage, then the same are likely to be concealed,",,,

transferred or dealt with in such a manner, which may result in frustrating further proceedings, without giving any reasons whatsoever. Considering all",,,

aspects the property or value thereof could not be termed as “proceeds of crimeâ€. Under the circumstances, the provisional attachment order",,,

could not have been passed. This apart, in the present case, as aforesaid, the appellant was not charged of committing any scheduled offence whereby",,,

the requirement under the said proviso was also not fulfilled. Accordingly, the provisional attachment was without jurisdiction.",,,

27.5. It is stated on behalf of the appellant that section 2(u) of the Act defines ‘proceeds of crime’ to mean property derived or obtained,",,,

directly or indirectly, as a result of criminal activity relating to a scheduled offence or the value of any such property. Thus, in terms of the said",,,

section, either the property derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence orthe value of any",,,

such property would be considered as proceeds of crime. Therefore, if any such property is purchased and/or acquired out of lawful earnings or",,,

assets and with a bonafide intention as well as at the fair market value, then, in terms of the said provision the value paid for such acquisition or",,,

purchase of the property would constitute ‘proceeds of crime’ involved in money laundering and not the property purchased out of legitimate,,,

income. Otherwise the words ‘or the value of any such property’ used in the said section would become nugatory.,,,

27.6 It is urged that, the appellants alongwith 2 other co-purchasers had purchased ‘Vishal House’ admittedly out of their legitimate and legal",,,

income and with a bonafide intention. The said fact gets substantiated from the record produced before the Adjudicating Authority as well as this,,,

Tribunal whereby it is evident that there is no flow of income from the alleged offenders to the appellant and other co-purchasers. This apart, the said",,,

property was purchased for an amount of Rs.2,25,00,000/- for which an agreement to sell came to be registered on 24.10.2011 which clearly shows",,,

that the value at which the appellant along with co-purchasers purchased the said property is nothing but a fair market value and that there is no,,,

dispute with regard to the same. The term ‘value’ has been defined in section 2(zb) of the Act to mean fair market value on the date of,,,

acquisition of property and if such date cannot be determined, the date on which it was possessed by the concerned person.",,,

27.7. It is submitted that from a perusal of the relevant material and evidence having a probative value, it can be said that the said property is",,,

purchased at its fair market value with bonafide intention as well as out of their legitimate income. Thus, the Adjudicating Authority erred in not",,,

relieving the said property from attachment. In fact, by attaching the property, alleged offenders who are in possession of the consideration paid by the",,,

appellant would not be affected but bonafide buyers like the appellant would be affected for no fault on its part. The inclusion of the word “or value,,,

of such propertyâ€​ depict that even the law makers intended the value to be considered as proceeds of crime in such cases.,,,

27.8. It was alleged that the appellant being a bonafide buyer is established from the affidavit-in-reply filed by the Enforcement Directorate before,,,

Hon’ble Gujarat High Court in writ petition being Special Civil Application No.1059 of 2012 filed by the appellant, when it has been stated on oath",,,

that the Enforcement Directorate be directed to return the money received against sale of property to the petitioner.,,,

The provisions of Act do not empower the authorities to trace and chase property purchased by bonafide buyers like the appellant in the present case,,,

instead of the consideration thereof which is passed on to the seller of the same i.e. value thereof. By provisionally attaching the property of a,,,

bonafide buyer and its confirmation thereafter, as has been done in the present case, such a buyer, for no fault on his part would be deprived of",,,

possession of property till criminal proceedings against some third party are concluded under section 8(4) and 8(5), which is contrary to provisions of",,,

Article 300A of the Constitution of India.,,,

27.9. It is also submitted that the provisions of section 24 of the Act provide that when a person is accused of having committed the offence under,,,

section 3 of the Act, the burden of proving that the proceeds of crime are untainted property shall be on the accused. In the present case, despite the",,,

fact that the appellant has not been accused of committing any offence under section 3 of the Act, the appellant along with co-purchasers by placing",,,

relevant materials on record has proved beyond doubt that the appellant is in possession of an untainted property i.e. ‘Vishal House’ which is,,,

purchased out of its legitimate and legal income and accordingly burden in that regard has been discharged by the appellant which aspect has not been,,,

appreciated by the Adjudicating Authority. In fact, in the original complaint many tables for transfer of funds between various companies have been",,,

placed. In the said tables also, there is no whisper for sources of funds, flow chart or payment, bank details provided by the appellant, which clearly",,,

proves that the appellant was a bonafide purchaser and the funds utilized for purchase were from its legitimate sources of income. This aspect was,,,

not brought out anywhere in the complaint and has been completely overlooked and brushed aside which cannot be constituted as a biased approach.,,,

An extensive investigation of source of funds of the appellant since year 2008 was done by collecting appellant’s bank statements by directly,,,

instructing the banks for all bank accounts related to purchase of Vishal House. However, when clean and legitimate source of funds, independent and",,,

unrelated to JMD Media Private Limited or Pradeep Mehta was found the same was not discussed and instead extracted statements of individuals,,,

including statements of the constituents of the appellant and other purchasers were harped upon.,,,

27.10. The appellant had purchased the property in question i.e. ‘Vishal House’ out of its own legitimate sources and that it was in no way,,,

connected with alleged offences which is apparent from the fact that the appellant was not charge-sheeted. The said charge-sheet, wherein appellant",,,

was not charge-sheet was filed on 26.11.2009, prior to the appellant’s showing interest in buying the said property. The offences as per the",,,

charge-sheet, on the alleged offenders, were committed in the year 2005-06 i.e. obtaining of loans by Vishal Export Overseas Limited. In the said",,,

charge-sheet provisions of section 120B, 420, 468, 471 and 477A of Indian Penal Code and section 13 of Prevention of Corruption Act were",,,

mentioned. The said provisions were not scheduled offences prior to 1.6.2009. It is only with effect from 1.6.2009 that the provisions of sections 120B,",,,

420 and 471 of the Indian Penal Code were brought in the schedule of the Act. Thus, for any alleged offences prior to the said date, the provisions of",,,

the Act could not have been made applicable in that regard inasmuch as the said provisions have not been given any retrospective effect by the,,,

legislature.A Division Benchin the matter of Obulapuram Mining Co. Pvt. Ltd. Vs. Joint Director [ WP NO.5962/2016 decided on 13-03-2017] has,,,

authoritatively held that the petitioner can not be tried and punished for offences under PML Act when the offences were not inserted in the schedule,,,

of offences under the PML Act. Article 20(1) of the Constitution of India prohibits the conviction of a person or his being subjected to penalty for ex-,,,

post facto laws. For this reason also the confirmation of the provisional attachment order â€" the impugned order is liable to be set aside.,,,

Reliance is placed on following judgments:,,,

(a) Writ Petition No. 5962/2016 decided on 13.03.2017 by Division Bench of Karnataka High Court,,,

(b) 2013 (5) SCC 111,,,

(c) 2009 (7) SCC 404,,,

(d) (2008) 8 SCC 205,,,

(e) AIR 2000 SC 2472,,,

(f) AIR 1999 SC 3601,,,

(g) AIR 1960 SC 936,,,

(h) AIR 1951 SC 124,,,

It is the specific case of the respondent that the present case related to the forgery to the tune of Rs. 212 crores by the Shri Pradeep S. Mehta,,,

and Deepak Mehta of Vishal House by duping various banks. The CBI has registered the case and since there was a commission of scheduled,,,

offence and Enforcement Directorate was also registered an ECIR and after investigation identifying the proceeds of crime and attached the property,,,

of Shri Pradeep S. Mehta and Deepak Mehta that is the Vishal House. the details of the CBI investigation and the ECIR registered against various,,,

persons including Pradeep S. Mehta and Deepak Mehta are mentioned in complaint. Pradeep S. Mehta & Deepak Mehta by the adopting the modus,,,

operandi explained in the complaint. The Property was purchased in auction by the Bank with the collusion of the bank office in the names of various,,,

dummy companies controlled and financed by Mehta. Similarly, the present case, the Vishal House was purchased in auction by one M/s JMD Media",,,

Pvt. Ltd. company owned and controlled by Shri Pradeep S. Mehta and Deepak Mehta as stated by the directors of the said company such as Falguni,,,

Bhatt and Rakesh Y. Bhatt and also stated that they are dummy directors and is controlled by Mr. Pradeep S. Mehta.,,,

Admittedly, the said M/s JMD Media Pvt. Ltd. entered into an agreement of sale with the appellant for purchasing of Vishal House in October,",,,

2011. In spite of the prohibitory order already issued on 21st July, 2011 to the Sub Registrar directing not to allow any transfer of this property, as the",,,

same is under investigation for the offence of Money Laundering, it appears that from the statement of Shri Jagdishbhai Ishwarbhai Patel HUF and",,,

Ankit J. Patel that to overreach the proceedings of money laundering the Pradeep S. Mehta and Deepak Mehta in collusion have entered into an,,,

agreement of sale. From the statement it is clear that it was an understanding between Pradeep S. Mehta and Deepak S. Mehta and appellant. The,,,

details of investigation and transfer of funds are well explained in the complaint.,,,

The entire arguments of the appellant was on the issue whether the respondent are within its power to issue prohibitory order. The appellants on,,,

that basis had approached before the Hon’ble Gujarat High Court and raising the same issue and seeking for quashing the complaint and the,,,

notice issued by the Adjudicating Authority. However, the Hon’ble High Court with detailed judgment more specifically in para 15 & 16 Special",,,

Civil Application No. 4171/2012 and Special Civil Application No. 1059/2012 have held that prohibitory order issued by the respondent are within the,,,

four corners of the provisions of PMLA and the authority have right to issue such prohibitory order.,,,

Similarly, Pradeep S. Mehta (Vishal Export) have also challenged the issuance of Such Prohibitory order while in relation to earlier attachment of",,,

the movable assets of his company of FFR Software, the Said Mr. Pradeep S. Mehta has filed the similar plea before the Hon’ble Gujarat High",,,

Court in FFR Software. The hon’ble High Court has held the such issuance of Prohibitory order are within for corner of the provisions of PMLA,,,

and dismissing the said Special Civil Application. This aspect further given is to be examined by Hon’ble Gujarat High Court in Special Criminal,,,

Application no. 150/2015 wherein the similar power to issuance of prohibitory order was challenged including the aspect whether the date of the,,,

provisional order would be considered from the date of Prohibitory Order and the present Judgment i.e. Paresha G. Shah vs State of Gujarat. The,,,

Hon’ble High Court given in detailed judgment and held taking the analogy of the section 102 of CrPC that such order are within for the corner of,,,

the PMLA and also held that the prohibitory order cannot be treated as date of Provisional Attachment Order. In view of this Judgment and finding of,,,

the Hon’ble Gujarat High Court the issue is completely answered.,,,

As far as the present case is concerned, the agreement of sale which was registered in the month of October 2011 is concerned. It is nullity of",,,

law and in view prohibioary order issued by the respondent dated 21.7.2011.,,,

In view of the averments made in the complaint and in view of the judgment of Hon’ble Gujarat more particularly in Paresha G. Shah Vs State,,,

of Gujarat in Special Criminal application no. 150 of 2015 and In view of the another case of Radha Mohan Lakotiya of Bombay High Court and B.,,,

Rama Raju, of Andhra Pradesh High Court these appeals have no merits and the contentions raised by the appellant are contrary to settle the law and",,,

these are liable to be dismissed.,,,

It is submitted that the issue in question in academic in view of the fact that on the basis of investigation and complaint u/s 3 and 4 of PMLA is,,,

filed before the Special Judge of PMLA in Gujarat and the Special Judge was pleased to take cognizance of complaint. In the said complaint there are,,,

21 accused person including the appellant Shri Jagdishbhai Ishwarbhai Patel HUF and Ankit JagdishBhai Patel. Once the cognizance is taken by the,,,

Special Judge and prima facie being satisfied that the appellants are involved in the money laundering no contrary finding could be given by this,,,

authority which amounts to acquittal of the accused person who has yet to be tried for the crime? The Special Court on basis of averments in the,,,

complaint prima facie convinced that the appellants conveyed with the Mehta and therefore should be tried for the offence of money laundering.,,,

As regards the appellant’s other contention that the execution of the sale deed dated 24.10.2011 had resulted in the sale/transfer of the said,,,

property, it was argued by the respondent that the said agreement dated 24.10.2011 was a sham document prepared subsequent to a letter dated",,,

21.7.2011 of the Enforcement Directorate issued to the Joint Sub-Registrar not to allow transfer/sell of any property to any person/party without prior,,,

approval of the Enforcement Directorate. In this background, the following facts emerge:",,,

a) After having paid of sum of Rs. 6 lakhs to M/s JMD Media Pvt. Ltd. on 13.12.10, it was only in April, 2011 that the Respondent through their",,,

advocates had given a notice in the newspaper as regards any persons having objection to the sale of the said property and; implying hereby that the,,,

fact that there was some issue relating to the property in question was in the knowledge of the seller as well as the buyers and;-,,,

b) Though the appellants received a communication from his Advocate that he had not received any claim or objection to the sale of the said property,,,

only on 22nd September, 2011, an amount of Rs. 5 lakhs had been further paid on 9th June, 2011 itself;",,,

c) As per the statement of Shri Ankit Patel on 7.02.2012, 13.02.2012 & 15.02.2012 wherein Shri Ankit Patel had stated that he had received a call",,,

from Shri Pradeep Mehta in August, 2011, wherein Mr. Mehta had insisted for an early finalization of the deal whereby Shri Ankit Patel got to know",,,

that the said property indirectly belonged to Shri Pradeep Mehta and M/s VEOL and had liability of the CBI. In his statement, Shri Ankit J. Patel",,,

stated that he had met with Mr. Pradeep Mehta again and requested him to settle the matter and refund the payment of Rs. 2 crores on which he was,,,

advised by Shri Pradeep Mehta to file a petition before Hon’ble Gujarat High Court and that arrangement of advocate and payment of fees for,,,

handling the matter in the High Court was also to be arranged by Shri Pradeep Mehta.,,,

As would be observed from the above, prima facie that the tainted nature of the property was well known to JMD Media Pvt. Ltd. as well as the",,,

buyers. As stated earlier, the Chief Inspector of Registration, Gujarat State, Gandhinagar has issued a circular conveying that where properties have",,,

been attached under section 5(1) of the Prevention of Money Laundering Act, 2002, the properties mentioned in the attachment order should not be",,,

registered without prior approval of the concerned Department. Having received the initial payment of Rs. 6 Lakhs on 13.12.2010, M/s JMD Media",,,

Pvt. Ltd. thought it prudent to give a notice in the newspaper through their Advocates only on 8.4.2011 as regards any person having objection to the,,,

sale of the said property, Still further, an amount of Rs. 5 lakhs was paid by the appellant to M/s JMD Media Pvt. Ltd. on 9th June, 2011 itself,",,,

whereas a communication from the Advocate stating that no objection had been received from anyone to the proposed sale of the said property has,,,

been received vide certificate dated 22.9.2011 only.,,,

Under section 8(1) of the Act, if the Adjudicating Authority on receipt of complaint under section 5(5) of the Act has reasonable belief that any",,,

person has committed an offence under section 3 of the Act or is in possession of proceeds of crime, a notice is to be served upon that person within",,,

the prescribed time prescribed calling upon him to indicate its source of income, earning or assets, out of which or by a means of which attached",,,

property has been acquired.,,,

Reasonable belief does not mean only conjectures and surmises but has to be based on some concrete facts and evidence in possession of the,,,

concerned authority which must be beyond what is mentioned in the complaint. What was the material before the Adjudicating Authority on the basis,,,

of which reasonable belief could be formed that the appellant was in possession of proceeds of crime?,,,

Rather sufficient material were placed before the Adjudicating Authority to show and prove that there was no flow of income from the alleged,,,

offenders to the appellant or the co-purchasers and that the said property was purchased / acquired out of their legitimate and legal income, earnings",,,

or assets. However, without appreciating the said evidence, the Adjudicating Authority confirmed the attachment order of the property which was",,,

purchased bonafide by the appellant out of its legitimate and legal income. Therefore, the order confirming the provisional attachment order, without",,,

taking into account the material placed on record before him, is also bad in law.",,,

We have considered the written submissions and the oral arguments made by the appellant as well as the respondent. As regards the,,,

appellant’s contentions that “reasons to believe†were absent in the instant case, a perusal of the show cause notice confirmed the arguments",,,

of the respondent that the reasons to forming to such believe was on the basis of sufficient material existing in the form of CBI Chargsheet alongwith,,,

accompanying documents as well as material gathered by the Joint Director through the investigations in the case including the statement of Directors,,,

of various companies involved do find place in the said showcause notice. The other contention of the respondent that the fact that the designated,,,

court had taken cognizance of the charge sheets filed lends further credence to the said “reasons to believe†is also a matter of record. The,,,

attachment order cannot be lifted unconditionally in the peculiar facts of the matter. When the order of reasons to believe was passed, the concerned",,,

officer had all the facts and material before him. It is evident that speaking order in writing has been passed.,,,

We do not agree with the arguments of the appellant as far as the issue of retrospectivity is concerned. In the present case the agreement to sell,,,

was registered in October, 2011, the sale deed was sought to be registered in December, 2011 whereas the scheduled offences in question were",,,

added w.e.f. 1-6-2009. The payments by the appellants were made from time to time, after 1st June, 2009, thus none of the judgment referred by the",,,

appellant is applicable in the facts of the present case. The facts mentioned in the referred judgments are different from the present case.,,,

Prima facie, we find that on the date of execution of first document and advance payment was made, the appellants were aware of the pending",,,

litigation against the directors of the company. However, this is only our prima facie view. The final conclusion in this regard is to be taken once the",,,

trial is over and in case it was decided by the special court that the appellants were innocent party, the advantage would go in their favour.",,,

In view of the facts and circumstance of the case and the discussion hereinabove, we find no force in the arguments of the appellants that the",,,

impugned order dated 10th July, 2012 is arbitrary, unreasonable, high handed without jurisdiction and illegal and void. We therefore uphold the",,,

impugned order.,,,

43.1 At the same time, it is observed that the appellants have already paid an amount of Rs. 1.89 crores to the seller, i.e. JMD Media Pvt. Ltd. â€" for",,,

purchase of the attached property and the property is in the possession with the appellant. During the hearing, the learned counsel of the appellant had",,,

made a prayer as an alternative submission that possession may be allowed to be continued with them. In the facts and circumstances of the case, we",,,

are of the opinion that it would be in all fairness if such permission is allowed subject to the condition that the appellant deposits the sum of Rs. 25,,,

thousand per month for the attached properties to the respondent from the date of this order till the final disposal of the proceedings under the PML,,,

Act-2002, before the Learned Special Court. The said deposit shall be treated as without prejudice and in case it was found after trial and final order",,,

that the appellants were innocent party in purchasing the property, the said amount would be refunded to the appellant by the Respondent without any",,,

delay. In case the result is otherwise, the amount shall be to the account of the respondent. It is further directed that subject to the appellant complying",,,

with the above condition, possession shall not be taken over by the respondent in pursuance of the impugned order. The appeal is allowed in above",,,

terms.,,,

All pending applications also stand disposed of.,,,