Pandari & Ors vs Deputy Director Directorate Of Enforcement, Bangalore

1,"Value of Assets of the accused at the commencement

of Check period 21-10- 1985 to 22-09-2009",Nil,

2,"Value of Assets required by the accused during Check

Period","Rs. 1,14,58,544/-",

3,Total,"Rs. 1,14,58,544/-",

,Net Value of Assets,"Rs. 1,14,58,544/-",

3,"Amount of Expenses incurred by the accused during

Check Period","Rs. 53,08,325/-",

,"Total Value of Assets earned + Expenses during

Check Period","Rs. 1,67,66,869",

4,"Justifiable Income earned by the accused during Check

Period","Rs.81,26,654/-",

5,"Total value of Disproportionate Assets earned by the

accused during Check Period (Value of Assets during

check period+Amount on expenses incurred during

check period-Justifiable income

earned during check period)=(2+3-4)","Rs. 86,40,215",

6,"Percentage Value of Disproportionate Assets earned

11458544=5308325- 8126654=8640215x100

8126654",106.31,

from her parents or brothers in the form of agricultural land or any plot or vacant site or constructed at the time of marriage.,,,

(c) He purchased agricultural land (1) in sy. No 62A and 62B of Nagareddy pally Kodangal Taluk, Mahaboobnagar, Andhra Pradesh, measuring 2",,,

acres 27 guntas in his name from Krishnanchari 372/1997 dated 17-02-1997 registered in SRO-Kodangal Rs 32,500 (Rs 36,040 including registration",,,

charges) by cash (2) in sy. No 62A and 62AA of Nagareddy pally Kodangal Taluk, Mahaboobnagar, Andhra Pradesh, measuring 35 guntas from",,,

Ashok 424/2007 dated 13/02/2007 registered in SRO-Kodangal Rs 42,000 (Rs 48,550 including registration charges) by cash (3) in sy. No 63AA of",,,

Nagareddy pally Kodangal Taluk, Mahaboobnagar, Andhra Pradesh, measuring 20 guntas from china reddy 53/2002 dated 17-01-2002 registered in",,,

SRO-Kodangal Rs 9,000 (Rs 10,450 including registration charges) by cash. He stated that the source for the purchase of these properties were out",,,

of income earned in agriculture and savings from salary and have no details of the amount spent from salary and agricultural income separately. The,,,

details of land holding from which the agricultural products raised are made. Receipt for the sale of agricultural products and the statement of,,,

Agriculture income is made and submitted. From the statement of agricultural income it has come to notice that agriculture income was shown without,,,

expenditure on agriculture. The agricultural income was not declared to the Income tax authorities. The agricultural income derived was not co-related,,,

to the agricultural land in his name. Thus his claim of agricultural income merits rejection.,,,

(d) He purchased a vacant site bearing No 10 measuring 3875 sq. Feet in sy. No 65 of Jayanagar Colony, Badepur Village, Kalburgi vide document",,,

No 2071 /1999-2000 dated 02-07-1999 from Dr. Asha Gangani for Rs 1,52,000 and paid by cash and after constructed a residential house at the cost",,,

of Rs.7,75,000 in the plot bytaking a Housing loan of Rs.7,00,000 from State Bank of Hyderabad, Sangameswhar branch, Kalburgi on 10-06-2004 and",,,

repaid the loan amount from his agricultural income and salary savings and further gifted this property to his second wife Smt. Arathi who in turn sold,,,

the property to Sri Somasehekar, Gulbarga vide document No 4607/2007-08 dated 21-08-2007 for Rs 9,02,000. The cost of the house was estimated at",,,

Rs 13, 91,235/- as per the Evaluation Report dated 01/02/2013 of A.E.E, PWD Port & Inland Water Transport Department, Kalburgi. Thus there was",,,

suppression of the facts regarding the cost construction. He also stated that source for purchase, construction and repayment of loan was from salary",,,

savings and agricultural Income and have no details of the amount spent from salary and agricultural income separately. The details of land holding,,,

from which the agricultural products raised are made. Receipt for the sale of agricultural products and the statement of Agriculture income is made,,,

and submitted. From the statement of agricultural income it has come to notice that agriculture income was shown without expenditure on agriculture.,,,

The agricultural income was not declared to the Income tax authorities. The agricultural income derived was not corelated to the agricultural land in,,,

his name. Thus his claim of agricultural income merit rejection.,,,

(e) He purchased (1) agricultural land in Sy. No 109, Hosur, Chittapurtaluk, Gulbarga District measuring 9 acres and 28 guntas in the name of his first",,,

son Sri Mallikarjun from Sri Mallareddy vide document No 1098/2003-04 dated 20-06-2003 registered in SRO-Chitapur for Rs. 2,46,000 (Rs. 2,69,865",,,

including registration charges) by cash. The above property was sold to Anantha Kumar s/o Bheemanna siba vide document No 28/2010-11 dated 05-,,,

04-2010 for Rs 3, 88,000 registered in SRO Chitapur (2) Agricultural land in sy. No 77 Hosur, Chittapur taluk, Gulbarga District measuring 8 acres and",,,

11 guntas in the name of his first son Sri Mallikarjun from Sri Abdual sattar vide document No. 4041/2005-06 dated 17-03-2006 registered in SRO-,,,

Chitapurfor Rs 2,10,000/- (Rs 2,31,445/- including registration charges) by cash. The above property was sold to Rajasekar, S/o Bheemanna siba vide",,,

document No 27/2010-11 dated 05-04-2010 for Rs. 5,14,000/-registered in SRO Chitapur. (3) Agricultural land in sy. No 219 near Nalacherru,",,,

Gurmitkal measuring 16 acres and 12 guntas in the name of his first son Sri Mallikarjun from Sri Chandulal vide document No 688/2007-08 registered,,,

in SRO-Yadgir, dated 29-05-2007 for Rs 5,71,000 (Rs 626075 including registration charges) by cash. (4) Agricultural land in sy. No 21/D/l/ and",,,

47A/3/A of Nagareddy pally Kodangal Taluk, Mahaboobnagar, Andhra Pradesh , measuring 2 acres 20 guntas in his first son Sri. Mallikarjun name",,,

from Balaigoud 252/2001 02-02-2001 registered in SRO-Kodangal Rs 23,500 (Rs 29,350 including registration charges) by cash. (5) Agricultural land",,,

in sy. No 108, Hosur, Chittapur Taluk, Gulbarga District measuring 2 acres in the name of his first son Sri Mallikarjun from Sri Mallareddy vide",,,

document No 988/2006-07 dated 02-06-2006 registered in SRO-Chitapur for Rs 51,000 (Rs 56,215 including registration charges) by cash. He stated",,,

that source for purchase, was from salary savings and agricultural Income and have no details of the amount spent from salary and agricultural",,,

income separately. The details of land holding from which the agricultural products raised are made. Receipt for the sale of agricultural products and,,,

the statement of Agriculture income was made and submitted. From the statement of agricultural income it has come to notice that agriculture income,,,

was shown without expenditure on agriculture. The agricultural income was not declared to the Income tax authorities. The agricultural income,,,

derived was not co-related to the agricultural land in his name. There was no proof made available for earning agricultural income for the years 1988-,,,

89 to 1995-96 as the official claimed. Thus his claim of agricultural income merits rejection.,,,

(f) He purchased three piece of agricultural land in the name of his second wife Smt. Arati (a) vide Registration Sale Deed bearing No. 2369/2002-,,,

2003 dated 28/03/2003 measuring 1 acre 38 guntas in Sy. No. 100 from Sri Sharannappa for Rs 50,000 (b) vides Registration Sale Deed bearing No.",,,

2378/2003-04 dated 03-01-2004 measuring 1 acre 39 guntas in Sy. No. 100/1 from Sri Sabanna S/o Ningappa for Rs. 50,500 paid by cash (c) vide Sale",,,

Deed bearing No. 885/2006-07 dated 27-05-2006 measuring 1 acre 39 guntas in Sy. No. 100/1 from Sri Tippana s/o Ningappa for Rs 55,000 all",,,

situated at Sathnoor Village Chitapur, Taluk Gilburga District paid by cash. Later vide Registration Sale Deed vide document No 1970/2007-08 dated",,,

13/08/2007 registered in SRO-Chitapur purchased these agricultural land in sy. No 100/1 Sathnoor village, Chittapur taluk, Gulbarga District measuring",,,

5 acres and 36 guntas from his wife Smt. Arati for Rs 1,52,500/- paid by cash due to divorce. He also stated that source for purchase, was from",,,

salary savings and agricultural Income and have no details of the amount spent from salary and agricultural income separately. The details of land,,,

holding from which the agricultural products raised are made. Receipt for the sale of agricultural products and the statement of Agriculture income is,,,

made and submitted. From the statement of agricultural income it has come to notice that agriculture income was shown without expenditure on,,,

agriculture. The agricultural income was not declared to the Income tax authorities. The agricultural income derived was not co-related to the,,,

agricultural land in his name.,,,

(a) Smt. Nirmala wife of Sri Pandari in her statement dated 18-02-2016 stated that she purchased (1) Agricultural land measuring 4 acres 37 guntas,,,

in sy. No.333/2, Gurmitkal vide Document No. 1833/2003-04 dated 08-10-2003 in the name her son Sri Mallikarjun for Rs 1,28,000 from P.",,,

Venkatappa paid by cash (2) Agricultural land measuring 4 acres 37 guntas in sy. No 333/3, Gurmitkal vide Document No 1832/2003-04 dated 08-10-",,,

2003 in the name of her son Sri. Mallikarjun for Rs 1,58,000 from Narashappa paid by cash (3) Agricultural land measuring 4 acres in sy. No 114/1,",,,

Hosur Village, Chittapur taluk, Gulbarga District vide Document No 772/2004-05 dated 08-06-2004 in her name for Rs 2,96,000 from Rudramuni paid",,,

by cash (4) Agricultural land measuring 4 acres in sy. No 100/A, Hosur Village, Chittapur taluk, Gulbarga District 1 vide Document No 732/2004-05",,,

dated 08-06-2004 in her name for Rs 1,04,000 from Sabanna paid by cash (5) Agricultural land measuring 2 acres and 2 guntas in sy. No 341 K.",,,

Chitapur Village, Chittapur taluk, Gulbarga District vide Document No 2510/2004-05 dated 03-01-2005 in the name of her son Sri. Mallikarjun for Rs.",,,

02,500 from Chandrasekhar Deshmuk paid by cash (6) Agricultural land measuring 4 acres and 36 guntas in sy. No 623, Khatha No 1779 situated",,,

in Srinivasa Saradagi Village, Chittapur taluk, Gulbarga District vide Document No 3010/2005-06 dated 03-08-2005 for Rs 66500 from (a) Subbash (b)",,,

Gurnath and (c) Ravi paid by cash and She also stated that out of 4 acres and 36 guntas she sold 1 acre and 38 guntas for Rs 66,500 to Gulam rasool",,,

registered in Sub-Registrar, Gulbarga vide Registration sale deed bearing No 9139/2006-07 dated 19-01-2007.(7) Agricultural land measuring 6 acres",,,

19 guntas in sy. No 15 Hosur Village, Chittapur taluk, Gulbarga District vide Document No 953/2006-07 dated 02-06-2006 in her name for Rs 164000",,,

from Kareppa paid by cash. (8) A Plot No 103, 104, and 105 (Vacant sites) behind Pattana Panchyat Office in her in Sy. No 122/A Gurmitkal vide",,,

document No 3008/2006-07 dated 19/12/2006, registered in Sub-Registrar, Yadgir from Doda malla reddy for Rs 2,10,000 by cash. (9) Agricultural",,,

land measuring 2 acres in sy. No 114/3 Hosur Village, Chittapur taluk, Gulbarga District vide Document No 2310/2009-2010 dated 05-08-2009 in her",,,

name for Rs 80,000 from Devanna paid by cash (10) Agricultural land measuring 19 guntas in sy. No 13/1 Hosur Village, Chittapur taluk, Gulbarga",,,

Total assets held by the accused and his family

members as per prosecution",,"Rs. 1,14,58,544/-",

The items liable to be deleted,,,

a.,"Difference in valuation of the shopping complex

at Gurumitkal",,"Rs.5,00,000/-

b.,"The properties acquired by the first wife Nirmala after divorce in her name and

in the name of her children out of her own earnings, which are reported in the

I.T. returns",,

i).,Plot No.103 to 105 in Sy. No. 122/A of Gurumitkal,"Rs.2,10,000/-",

ii).,"House No. 4/601/43/4/5/13 constructed in plot

No. 13 at Azad Colony","Rs.5,86,373/-",

iii).,Plot No. 11 formed in Sy. No. 43/4-5 at Badepur,"Rs. 20,000/-",

iv).,"Land bearing Sy. No. 333 measuring 4 acres 37 guntas

purchased in the name of her son

Mallikarjun","Rs.1,28,000/-",

v).,"Sy. No. 333 measuring 4 acres 37 guntas of Gurumitkal

purchased by Nirmala in the name of

her son Mallikarjun","Rs.6,578/-",

vi).,"Sy. No. 526 measuring 16 acres 13 guntas situated at

Chandraki purchased by Nirmala on 17.03.2007 later

exchanged the same with Sy.No. 504/A belonging to

Ramachandra and

Prasanna Kumar.","Rs. 3,87,000/-",

vii).,"Sy. No. 15 measuring 6 acres 19 guntas situated

at Hosur purchased by Nirmala on 2.6.2006","Rs. 1,64,000/-",

viii).,"Sy. No. 114/3 measuring 2 acres situated at

Hosur purchased by Nirmala on 5.8.2009","Rs. 80,000/-",

ix).,"Sy. No. 13/1 of Hosur measuring 19 guntas

purchased in the name of her son Mallikarjun of

31.05.2007.","Rs. 12,500/-",

x).,"Sy. No. 341 measuring 2 acres 2 guntas of Chittapur

purchased in the name of Mallikarjun

son of Nirmala","Rs. 1,02,500/-",

xi).,"Amount held in S/B A/c at Bank of India,

Kalaburgi.","Rs. 1,012/-",

xii).,"Maruti Swift car bearing no. KA-32-7147

purchased by Nirmala","Rs. 5,88,701/-",

xiii).,"Scooty pep bearing No. KA-32-S-1747 purchased

by Nirmala in the name of her daughter Anita.","Rs. 31,970/-",

xiv).,"Nirmala purchased Mahindra Jeep bearing No.

KA-32-M-2546","Rs. 2,50,000/-",

xv).,"Difference of valuation of the house bearing No.

2/909/65/10 situated at Jayanagar sold by

second wife Arati to Tengli Jewelers.","Rs. 4,89,235/-",

xvi).,"Bullet motorcycle standing in the name of

Rajendra Handral (not a family member)","Rs. 15,000/-",

,Total,"Rs. 37,24,291/-",

,"(Rs. 1,14,58,544/-(-)Rs. 37,24,291/-)=","Rs. 77,34,253/-",

d),"Total registration charges paid by Nirmala for

purchasing sites at Badepur in her name,

lands at Gurumitkal, Chandraki in her name

and in the

name of her son","Rs. 1,69,506/-",

e),"Registration charges and insurance paid for

vehicles bearing No. KA-32-7147, KA-32-S-

1747,

KA-32-M-2546","Rs. 92,348/-",

f),"Fuel expenses, service charges, repairs

incurred by Kum. Anita and Nirmala for the

above said

vehicles.","Rs 1,16,084/-",

g),"Electricity bill paid by Nirmala for meter no.

KUS

21751 of house at Ganesh Nagar","Rs. 14,590/-",

h),"H.D.F.C. Bank loan repayment made by

Nirmala

disclosed in her IT returns for the year 2009-

10.","Rs. 5,84,104/-",

i),Vehicle expenses of Rajendra Handral,"Rs. 47,246/-",

j),Family expenditure difference,"Rs. 2,78,646/-",

,Total,,

,"Less: Rs. 15,43,329/- in the total expenditure

of the accused shown in the charge sheet i.e.

Rs. 53,08,325/-.

Rs. 53,08,325/- (-) Rs. 15,43,320/-=Rs.

37,64,996)","Rs. 37,64,996",

prosecution is insufficient to hold hat the accused has committed the offence punishable under section 13(1) (e ) R/w section 13(2) of the,,,

Prevention of Corruption Act. Accordingly, I answer the above point No. 2 in the negative. In the result, I proceed to pass the following",,,

final order:,,,

ORDER,,,

Accused â€" Pandari S/o Mallappa Dodla is found not guilty of the offence under section 13(1) (e) read with Section 13(2) of the,,,

Prevention of Corruption Act, 1988. Accordingly, exercising the power under Section 235(1) of Cr.P.C. accused is acquitted for the offence",,,

under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988.â€​",,,

By the said Order dated 27.04.2017 passed by the Special Court, the charge sheet in the case of appellant struck down and set aside by the",,,

Special Court (Trial Court), the order passed by the Adjudicating Authority confirming the Provisional Attachment Order has no any validity/legal",,,

support in eyes of law and void ab initio.,,,

This fact was brought to the notice of this Tribunal. Copy of the Judgement was also filed. It was argued that once the appellant was acquitted,,,

from the schedule offence and no appeal was filed, the attached properties are liable to be released.",,,

It is argued on behalf of the appellants that one of the reason for quashing the PMLA complaint is that the amendment to the provisions of section,,,

8(3)(b) of PMLA Act with effect from 15.02.2013 are as under:-,,,

Prior to 15.02.2013,,,

“The following clause substituted by the Prevention of Money â€" laundering (Amendment) Act,2002 (2 of 2013), which came into effect",,,

from 15 February, 2013.â€​",,,

(b) “become final after the guilt of the person is proved in the trial court and order of such trial court becomes final.â€​,,,

After 15.02.2013,,,

(b) “becomes final after an order of confiscation is passed under sub section (5) or sub-section (7) of section 8 or section 58B or sub-,,,

section (2A) of section60 by the Adjudicating Authority.â€​,,,

It is argued that the provisions of section 8(3)(b) of PMLA Act, 2002 are existed and prevailing as on the date of FIR/ date of search were of the",,,

year 2010. The amended provisions of PMLA Act, 2002 are only applicable to cases which are registered/ initiated/ booked on or after 15.02.2013.",,,

The said amended provisions to section 8(3)(b) are prospective in nature.,,,

It is stated that even otherwise the appellant is entitled for relief as per amended provisions when it was mandated by the law that once the,,,

accused is acquitted in schedule offence and the judgement is become final, then the attachment shall cease to exist.",,,

It is also submitted that the applicant has already been acquitted in the offence on the basis of allegation made. On the basis of same allegation,,,

prosecution complaint under section 45 of the Act is pending and once the appellant has been acquitted in the schedule offence, the prosecution",,,

complaint would not lie as any accused cannot be tried twice for the same offence. It is submitted that after recording the evidence of the prosecution,,,

witnesses for the offence, the appellant/alleged accused was acquitted by the Special Court. No appeal has been filed as informed by the parties.",,,

When the judgement was passed in favour of the appellant in 2017 by the Court, the prosecution complaint under Section 45 of PMLA for the same",,,

allegations was already filed in 2016. In the prosecution complaint, there is neither fresh allegations nor additional evidence under the PMLA.",,,

As far as the above arguments addressed on the aspect of Double Jeopardy are concerned, the prosecution complaint under section 45 of the Act",,,

is already pending before the Special Court. All these arguments can be taken by the appellant, if so required before the appropriate court.",,,

However, I am of the considered view that once the main appellant has been acquitted by the Special Court under the Schedule Offence after the",,,

trial and no appeal has been filed by the State against the said Judgement (as informed by the parties), the appeal is liable to be allowed. The complaint",,,

under schedule offence was decided on merit after recording the evidence. The FIR was filed in 2009 as well as charge sheet have been quashed by,,,

the Special Court.,,,

It has also been seen from the Impugned Order that the reply/documents/materials and evidence filed by the appellant have not been considered,,,

nor the statement made by the appellants under section 50 of the Act.,,,

The Provisional Attachment Order has not discussed the source of funds available with the accused. It was merely assumed that the,,,

accused/appellant had not any savings despite of submitting the material and documents and also from his spouse, son Rakesh and Avinash.",,,

The Adjudicating Authority ought to have complied with all the principles of duly conducting a judicial proceeding where rights of the parties are to,,,

be based on the cogent findings based on the evidence led in the case, as every proceedings under the PMLA 2002 is a judicial proceeding within the",,,

meaning of section 50 of PMLA Act 2002.,,,

Sri Pandari has already been acquitted in the offence on the basis of allegation made. On the basis of same allegation, prosecution complaint under",,,

section 45 of the Act is pending. Except one property i.e. agricultural land which was purchased on 5th August, 2009, all other immovable properties",,,

were purchased/acquired during the period 1995 to 2007 in the name of Sri Pandari and his family members. Section13 of PC Act was added as,,,

schedule offence in PMLA, 2002 w.e.f. 1.6.2009. When the acquittal order was passed, the impugned order and prosecution complaint were already",,,

available with the respondent.,,,

No appeal has been filed against the acquittal order and quashing of charge sheet ( as informed by the parties). The complaint was decided on,,,

merit. The respondent was aware about the said trial. No steps were taken to have the consolidated-trial under schedule offence and prosecution,,,

complaint.,,,

In the Judgement, it was recorded that the prosecution has examined large number of witnesses and documents were marked. The statement of",,,

the accused u/s 313 of Cr.P.C. was also recorded. The case of the accused is of total denial.,,,

The respondent is now pressing for another/second trial under PMLA for the same offence/allegations against the appellant. It is not alleged by,,,

the respondent that the investigation carried out by the respondent under PMLA disclosed additional materials which may require independent trial,",,,

rather it is found that the investigation and allegation remain the same as conducted by the Police under the schedule offence.,,,

I am of the considered view that once the main appellant has been acquitted by the Special Court under the Schedule Offence after the trial and,,,

no appeal has been filed by the State against the said Judgement (as informed by the parties), the appeal is liable to be allowed. The complaint under",,,

schedule offence was decided on merit after recording the evidence whereby FIR and charge sheet have been quashed by the Special Court.,,,

Once the acquittal order is passed against the appellant holding that he was not involved in the Prevention of Corruption Act and he has,,,

purchased/ acquired the properties in legal resources, the question of money laundering does not arise. The allegations are same and ECIR was",,,

registered on the basis of charge sheet. There were only two options left after acquittal, either to file the appeal against the judgement and the trial",,,

under PMLA ought to have been conducted along with the trial with the case registered under schedule offence. The respondent apparently did not,,,

make efforts in this regard.,,,

Thus, the present appeal is allowed. Both the orders dated 19.08.2016 (provisional attachment order) and impugned order dated 31.3.2016 are set-",,,

aside. The appeal is allowed. All pending applications stand disposed of.,,,

As far as the attachment of properties under the provisional order is concerned, the same are liable to be released to the appellant.",,,

No costs.,,,