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Judgment
,,,,,,
Manmohan Singh, J",,,,,,
FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 & 1491/MUM/2016",,,,,,
By this common order, I propose to decide all pending appeals and cross-appeals filed by the above-mentioned parties. The details of parties/titles",,,,,,
are mentioned in FPA-PMLA no. 1407 of 2016 printed above for noticing the array of parties before this Appellate Tribunal as also before the,,,,,,
Adjudicating Authority PMLA.,,,,,,
The Respondents nos. 2, 3, 4 & 5 are the accused in the proceedings adopted by the Anti Corruption Bureau under Section 13(1)( e) of the",,,,,,
Prevention of Corruption Act, 1988.",,,,,,
Respondent No. 3 (Nilesh J. Thakur) is the Promoter / Director of the Firms / Companies which are arrayed to the Appeal bearing No. FPA-,,,,,,
PMLA 1407 of 2016 as Respondent Nos. 6 to 25 above.,,,,,,
The array of parties of FPA-PMLA No. 1407 of 2016 is shown above Includes all the Firms / Companies / entities comprising the Nilesh Thakur,,,,,,
Group mentioned hereinafter of which Respondent No. 3 is the Promoter/ Director.,,,,,,
The Annexures and page numbers of Annexures and Exhibits who would be referred in the later part of my order are referred to the Annexures,,,,,,
and Exhibits of FPA-PMLA No. 1104 of 2015 (hereinafter for convenience sake referred to as “the 1104 Appealâ€) and reference to the,,,,,,
Annexures and page nos. at serial Nos. 23 to 27 below is of Appeal No. FPA-PMLA 1407 of 2016 the title whereof has been reproduced above.,,,,,,
The brief facts as per appellant in appeal no. 1104/2016 and 1107/2016 are:-,,,,,,
a) The Appellant Company [hereinafter referred to as “SPCLâ€], was incorporated on 23.1.1943 under the Companies Act 1913.",,,,,,
b) SPCL is a part of the well known Shapoorji Pallonji Group of Companies which is a well known and reputed corporate group of India.,,,,,,
c) One of the specific objects of SPCL is to purchase, for investment or resale and to trade in land and to do various activities in relation to land.",,,,,,
d) SPCL is a profit making Company and its turnover and profits have been increasing every year. For F.Y. 2008-09, SPCLâ€s turnover was Rs.",,,,,,
3197.10 Crores, the Profit Before Tax was Rs. 183 Crores and Tax paid was Rs. 75 Crores. All the receipts, revenue / income of SPCL are purely",,,,,,
from legitimate sources. The Annual Accounts of SPCL for F.Y. 2006-2007, 2007-08, 2008-09, 2009-10 and 2010-11 are filed in the above appeal.",,,,,,
e) SPCL and Respondent No. 3 [Nilesh Thakur] entered into an agreement which is recorded in SPCLâ€s letter dated 16.7.2007 addressed to,,,,,,
Respondent No. 6 [M/s. PRS Enterprises] which is a proprietary concern of Nilesh Thakur. By the said letter dated 16.7.2007, SPCL awarded to",,,,,,
Nilesh Thakur/ M/s. PRS Enterprises the task of acquisition of 900 acres of land at the maximum price of Rs. 30 lacs per acre within a period not,,,,,,
exceeding five years.,,,,,,
f) By his letter dated 19.07.2007, Respondent No. 3 duly accepted the agreement recorded in SPCLâ€s letter dated 16.07.2007 mentioned above.",,,,,,
Thus the letters dated 16.7.2007 and 19.7.2007 together constitute the agreement / contract between SPCL and Respondent No. 3 and is hereinafter,,,,,,
called “the subject Agreementâ€. The said letters dated 16.7.2007 and 19.7.2007 are filed in the appeal.,,,,,,
g) During the years 2007 and 2008, pursuant to the subject agreement mentioned above, SPCL advanced amounts aggregating to Rs. 84.50 Crores to",,,,,,
M/s PRS Enterprises by way of cheques drawn on Standard Chartered Bank and Deutsche Bank. The details of the payments made by SPCL to,,,,,,
PRS Enterprises given in paragraph No. 3.8 of the 1104 Appeal along with copies of Bank Statements of SPCLâ€s Accounts with Standard,,,,,,
Chartered Bank and Deutsche Bank are filed respectively in appeal.,,,,,,
h) The payment of Rs. 84.50 Crores as aforesaid were deposited by Respondent No. 3 (Nilesh Thakur) into the Bank Account of M/s. PRS,,,,,,
Enterprises (Respondent No. 6) with the Greater Bombay Co-operative Bank, Andheri, Mumbai (â€GBCBâ€)",,,,,,
i) Pursuant to the subject Agreement, as per the instructions of the Respondent No. 3, SPCL also made payments aggregating to Rs. 57 Crores to",,,,,,
Respondent No. 9 (i.e. M/s AcecardInfrasolPvt. Ltd.) [hereinafter referred to as “AIPLâ€] by way of cheques drawn by SPCL on Standard,,,,,,
Chartered Bank and Deutsche Bank.The details of the payments made by SPCL to AIPL have been mentioned in paragraph 3.10 of the above,,,,,,
Appeal. The same is also reflected in the Bank Statements of the Appellantâ€s Bank Accounts.,,,,,,
j) The payments of Rs. 57 Crores as aforesaid were deposited into the Bank Account of AIPL (Respondent No. 9) in its Bank Account with the,,,,,,
GBCB.,,,,,,
k) The aforesaid monies paid by SPCL to M/s. PRS Enterprises [Proprietor Nilesh Thakur] (Rs. 84.50 Crores) and to AIPL [Rs. 57 Crores] were,,,,,,
paid for the specific purpose of purchase of properties for SPCL, under the subject Agreement. These monies which had been paid as aforesaid had",,,,,,
been earned by SPCL from legitimate business activities.,,,,,,
l) All the payments made by the Appellant to M/s. PRS Enterprises and to AIPL have been duly reflected in the Annual Accounts of the Appellant,,,,,,
[which have been duly audited and filed before the Registrar of Companies]Under the Sub Head “Loan and Advances†appearing under the,,,,,,
Head of Current Assets, Loans and Advances. The Appellants†Annual Accounts for F.Y. 2006-07, 2008-09, 2009-10 and 2010-11 are produced",,,,,,
along with the 1104 Appeal and referred to above.,,,,,,
m) In the year 2008-2010, Respondent No. 3 [Nilesh Thakur] used and utilized the aforesaid sum of Rs. 141.50 Crores:",,,,,,
(i) For purchase of various immovable properties including landed propertiesat Panvel, Raigad District and also ownership Flats at Mumbai,",,,,,,
(ii)Some amounts were used for purchase of vehicles,",,,,,,
(iii) Some monies were invested in Fixed Deposits in the names various entities / Companies of the Nilesh Thakur mentioned hereinafter, of Group",,,,,,
(iv) Some monies were retained in the Bank Accounts of the various entities/ Companies of the Nilesh Thakur Group mentioned hereinafter.,,,,,,
It became known to the Appellant during the course of various Original Complaint proceedings filed by Respondent No. 1 with the Adjudicating,,,,,,
Authority that some part of the monies advanced by SPCL were also utilized by Respondent No. 3 to make advances to Kalyani Group (Rs. 61.42,,,,,,
crores) as a loan and to M/s. SRB Enterprises (Rs. 1.15 Crores) towards advance for purchase of a ownership Flat,,,,,,
n) Respondent No. 3 [Nilesh Thakur] is the Sole Proprietor of Respondent No. 6 [M/s. PRS Enterprises], Respondent No. 7 [M/s. PRS Developers],",,,,,,
Respondent No. 25 [M/s. Siddhivinayak Enterprises]. Respondent No. 3 is also the Promoter / Director of Respondent Nos. 6 to 19, 21 to 25",,,,,,
Companies and is also Trustee of Respondent No. 20 Trust [Thakur Family Trust] and all the said entities/ Firms/ Companies/ Trust were/are in the,,,,,,
control of Respondent No. 3. The said entities / Firms/ Companies/ Trust controlled by Respondent No. 3 [Nilesh Thakur] are hereinafter collectively,,,,,,
called “Nilesh Thakur Groupâ€.,,,,,,
o) The immovable properties, vehicles Fixed Deposit Receipts [“FDRâ€s] and the monies lying in Bank Accounts mentioned at (a) to (d) above are",,,,,,
clearly of SPCLâ€s ownership having been acquired out of SPCLâ€s funds pursuant to the subject Agreement.The said immovable properties,",,,,,,
Vehicles FDRâ€s, amounts lying in Bank Accounts as also the amounts advanced M/s. SRB Enterprises and Kalyani Group have been subject matter",,,,,,
of various Provisional Attachment Orders issued by Respondent No. 1 [Director of Enforcement] in PMLA proceedings on the allegation that the said,,,,,,
properties constitute proceeds of crime.,,,,,,
p) By his letters (both) dated 22.3.2010 [as Proprietor of M/s. PRS Enterprises and Director (AIPL)], Respondent No. 3 informed SPCL that he",,,,,,
would ensure that the immovable properties and FDRâ€s mentioned above, are transferred to SPCL. The said letters [both] dated 22.3.2010 along",,,,,,
with annexures are file at pg. 480 to 485 of Volume II of the 1104 Appeal.,,,,,,
q) Since 6.9.2011, Respondent No. 3 did not transfer the immovable properties and FDRâ€s to SPCL, SPCL filed a Suit against Respondent No. 3,",,,,,,
Respondent No. 6 [i.e M/s PRS Enterprises], AIPL and Respondent No. 5 [Chayya Thakur] in the Bombay High Court [being Suit No. 2576 of 2011]",,,,,,
for a money Decree against them for Rs. 219.39 Crores along with further interest at the rate of 18% p.a on the principal sum of Rs. 141.50 Crores,,,,,,
and also for transfer of the properties mentioned above which were also mentioned in the Schedule to the Plaint of the above Suit.,,,,,,
r) The Bombay High Court passed Decree on admission/ Consent Decree against the Defendants to the said Suit No. 2576 of 2011 in terms of,,,,,,
Consent Terms dated 6.9.2011. By the said Consent Decree, the Defendants to the said Suit [arrayed as Respondent Nos. 3, 5, 6 and 9 to Appeal No.",,,,,,
1407/06]] submitted to a Decree on admission for Rs. 141.50 Crores with interest and also bound themselves to transfer to SPCL the properties,,,,,,
including immovable properties, FDRâ€s, Vehicles and balances in Bank Accounts which were listed in Exhibits “A†to “D†of the Consent",,,,,,
Terms. Copy of the Consent Decree dated 19.10.2011 is filed of the 1104 Appeal].,,,,,,
s) In assessment proceedings during the period January to March, 2013, under the Income Tax Act concerning SPCL, the Assessing Officer [“the",,,,,,
ITOâ€] had passed Order dated 11.2.2013 wherein the ITO had expressed doubt about the nature of transactions relating to the payments made by,,,,,,
SPCL to Respondent No. 3 / PRS Enterprises for the purpose of acquisition of land under the subject Agreement.,,,,,,
t) In Appeal, the CIT [Appeals] after considering all documents and records including the Consent Decree passed by the Bombay High Court by his",,,,,,
Order dated 17.5.2013 had found the transactions for advances for purchase of land under the subject Agreement were lawful and correct and,,,,,,
allowed SPCLâ€s Appeal for A.Y. 2008-09, 2009-10 and 2010-11.Copies of the Orders of CIT [Appeals] dated 17.5.2013 for Assessment Year",,,,,,
2008-09, Assessment Year 2009-10 and Assessment Year 2010-11 are already filed.",,,,,,
u) SPCL received Summons from Respondent No. 1 / Director of Enforcement requiring SPCL to produce some documents. The said documents,,,,,,
were duly produced by SPCL.,,,,,,
v) By way of its letter dated 25.6.2014, SPCL forwarded a copy of the Consent Decree passed by the Bombay High Court to Respondent No. 1 /",,,,,,
Director of Enforcement and requested Respondent No. 1 not to attach the properties under the Consent Decree which belonged to SPCL.,,,,,,
w) In February, 2015, Respondent No. 3 [Nilesh Thakur] informed SPCL that some properties of SPCLâ€s ownership under the Consent Decree had",,,,,,
been attached by the Respondent No. 1 and in respect thereof proceedings were pending before the Adjudicating Authority.,,,,,,
x) In March, 2015, SPCL filed Execution Application in the Bombay High Court being Execution Application No. 1580 of 2015 for enforcement of the",,,,,,
Consent Decree mentioned above. The Honâ€ble High Court has issued Notice under Order XXI Rule 22 of the CPC to the Defendants / Judgement,,,,,,
Debtors therein. The said Notice is pending hearing before the Honâ€ble High Court, Bombay.",,,,,,
y) By its Order dated 10.4.2015, the ITAT dismissed the Appeal of the Income Tax Department against the CIT [Appeals] Order dated 17.5.2013",,,,,,
mentioned above.Copy of the Order dated 10.4.2015 of the ITAT is filed along with Appeal.,,,,,,
The appellant SPCL has also mentioned facts in its pleadings which are mentioned as under:-,,,,,,
7.1 In February, 2011, Crime Branch, CID, registered an FIR on 7.2.2011 against Respondent No. 3 [Nilesh] and his brother Respondent No. 2",,,,,,
[Nitish Thakur] on the complaint of one Mukesh Waghela and Pandurang Thakur under Sections 387, 467, 471, 420 IPC and a Charge Sheet was",,,,,,
subsequently filed. The FIR registered on 7.2.2011 as aforesaid is for convenience sake hereinafter called “the first FIRâ€.,,,,,,
7.2 On 10.5.2011, on the basis of the first FIR, Respondent No. 1 [Director of Enforcement] had also started proceedings under the PML Act 2002",,,,,,
and registered a FIR namely ECIR No. 03/2011 dated 10.05.2011 under Sections 3 and 4 of the PML Act.,,,,,,
7.3 Another FIR dated 14.3.2012 was registered, this time by the Anti-Corruption Bureau [“ACBâ€] under Sections 13 (1)(e) & 13 (2) of the",,,,,,
Prevention of Corruption Act read with Section 109 of the IPC, inter-alia, against Respondent No. 2 [Nitish Thakur] alleging that Respondent No. 2",,,,,,
had disproportionate assets to the tune of Rs. 118.39 Crores. The FIR registered on 14.03.2012 as aforesaid is for convenience sake hereinafter called,,,,,,
“the second FIRâ€.,,,,,,
7.4 On the basis of the second FIR, Respondent No. 1 [Director of Enforcement] had also started proceedings under the PML Act 2002 and",,,,,,
registered an FIR namely ECIR No. 6/M20/2012 dated 18.5.2012 under Sections 3 and 4 of the PML Act.,,,,,,
7.5 The ACB Thane filed Charge Sheet bearing No. 5/2014 on 15.3.2014, inter-alia, against Respondent Nos. 2 and 3 under Sections 13 (1) (e) 13 (2)",,,,,,
of the Prevention of Corruption Act read with Section 109 of the IPC. It appears that by way of the Charge Sheet all properties of SPCL which are,,,,,,
mentioned at 6 (a), (b), (c) and (d) above [having been acquired out of the aggregate sum totalling to Rs. 141.50 Crores advanced to Respondent No.",,,,,,
3 under the subject agreement for land aggregation] were alleged to be disproportionate assets of Respondent No. 2 [Nitish Thakur]. Translated copy,,,,,,
of the ACB Thaneâ€s Charge Sheet is filed in FPA No.1407/2016.,,,,,,
7.6 Respondent No. 1 during the period April, 2012 to January, 2013, issued the following Provisional Attachment Orders on the basis of the first FIR",,,,,,
being:,,,,,,
(i) PAO No. 3 of 2012 dated 17.4.2012,,,,,,
PAO 3/12 was confirmed by the Adjudicating Authority by way of Order dated 31.8.2012 passed in Original Complaint No. 140 of 2012.,,,,,,
(ii) PAO No. 7 of 2012 dated 27.11.2012,,,,,,
PAO 7/12 was confirmed by the Adjudicating Authority by way of Order dated 5.4.2013 passed in Original Complaint No. 169 of 2012.,,,,,,
(iii) PAO No. 2 of 2013 dated 24.1.2013,,,,,,
PAO 2/13 was confirmed by the Adjudicating Authority by way of Order dated 21.6.2013 passed in Original Complaint No. 174 of 2013. SPCL was,,,,,,
not made a party Defendant to the Original Complaint Nos. 140 of 2012, 169 of 2012 and 174 of 2013 mentioned at Notes 1 to 3 above and the",,,,,,
decisions on the three Original Complaints confirming the attachment under the PAOâ€s were rendered in SPCLâ€s absence.,,,,,,
7.7 Respondent No. 1 issued the following Provisional Attachment Orders in September, 2014 and March, 2015 on the basis of the second FIR being:",,,,,,
(i) PAO No. 19 of 2014 dated 30.9.2014,,,,,,
PAO 19/14 was confirmed by the Adjudicating Authority by way of Order dated 1.1.2015 passed in Original Complaint No. 370 of 2014.,,,,,,
(ii) PAO No. 23 of 2014 dated 31.12.2014,,,,,,
PAO 23/14 was confirmed by the Adjudicating Authority by way of Order dated 1.4.2015 passed in Original Complaint No. 408 of 2015.,,,,,,
7.8 After becoming aware of the existence of the PAOâ€s listed at serial nos. 21 and 22 above [five in all] and the confirmation of the said PAOâ€s,,,,,,
by Orders passed by the Adjudicating Authority on each of the respective Original Complaints concerning the PAOâ€s, SPCL being the legal and",,,,,,
beneficial Owner of the attached properties and being aggrieved by the respective PAOâ€s and the Orders passed on the corresponding Original,,,,,,
Complaints confirming the PAOâ€s, SPCL filed Appeals with this Authority in connection therewith being the following:",,,,,,
(i) FPA-PMLA 890 of 2015 arising out of O.C. No. 140 of 2012 and PAO 3 of 2012,",,,,,,
(ii) FPA-PMLA 888 of 2015 arising out of O.C. No. 174 of 2013 and PAO 2 of 2013,",,,,,,
(iii) FPA-PMLA 889 of 2015 arising out of O.C. No. 169 of 2012 and PAO 7 of 2012,",,,,,,
(iv) FPA-PMLA 895 of 2015 arising out of O.C. No. 370 of 2014 and PAO 19 of 2014,",,,,,,
(v) FPA-PMLA 896 of 2015 arising out of O.C. No. 408 of 2015 and PAO 23 of 2014.,,,,,,
7.9 By Order dated 17.5.2015 passed in each of the five FPA-PMLA appeals mentioned in the preceding paragraph, in view of the Judgement of this",,,,,,
Honâ€ble Tribunal in the case of Central Bank of India vs R. Mohandoss, this Tribunal permitted SPCL to withdraw the said 5 Appeals with liberty to",,,,,,
file Applications before the Adjudicating Authority under the proviso to Section 8(2) of the PML Act in respect of the Orders passed in the Original,,,,,,
Complaints concerning the PAOâ€s [5 in all] which are listed at Sr. Nos. 21 and 22 above.Copy of the Order dated 17.07.2015 is filed as Annexure -,,,,,,
“3†in Appeal no FPA-PMLA- 1407 of 2016).,,,,,,
7.10 Pursuant to the Order dated 17.7.2015 passed by this Tribunal and mentioned above in the month of August, 2015, SPCL filed the Misc.",,,,,,
Applications with the Adjudicating Authority under the proviso to Section 8(2) of the PML Act, to modify / set aside or recall / vacate the Orders",,,,,,
passed by the Adjudicating Authority in the Original Complaints relating to the PAOâ€s which are mentioned at Serial Nos. 20 and 21 above [5 in all].,,,,,,
The details of the five Misc. Applications referred to above are as under:,,,,,,
(i) M.A 08 of 2015 in FPA-PMLA 890 of 2015 arising out of O.C. No. 140 of 2012 and PAO 3 of 2012,",,,,,,
(ii) M.A 05 of 2015 in FPA-PMLA 888 of 2015 arising out of O.C. No. 174 of 2013 and PAO 2 of 2013,",,,,,,
(iii) M.A 04 of 2015 in FPA-PMLA 889 of 2015 arising out of O.C. No. 169 of 2012 and PAO 7 of 2012,",,,,,,
(iv) M.A 07 of 2015 in FPA-PMLA 895 of 2015 arising out of O.C. No. 370 of 2014 and PAO 19 of 2014,",,,,,,
(v) M.A 06 of 2015 in FPA-PMLA 896 of 2015 arising out of O.C. No. 408 of 2015 and PAO 23 of 2014.,,,,,,
Copy of Misc. Application No. 07 of 2015 isfiled as Annexure â€" “4†in Appeal no. FPA-PMLA- 1407 of 2016).,,,,,,
7.11 During the period 2015 to January, 2016, Respondent No. 1 [Director of Enforcement] through Counsel filed preliminary submission in each of",,,,,,
the five 2015 M.A.â€s, whereby it was submitted, inter-alia, as under:",,,,,,
(i) that the Judgment of this Tribunal in the case of Central Bank of India Vs. R. Mohandoss was not binding precedent for the Adjudicating,,,,,,
Authority.,,,,,,
(ii) that the Adjudicating Authority has no power to modify, recall or review any Order passed by him.",,,,,,
(iii) the entire exercise being carried out by way of the 2015 M.A.â€s was misplaced and is beyond jurisdiction created by statute and hence the notice,,,,,,
issued by the Adjudicating Authority to the Respondent No.1 is liable to be recalled and proceedings closed. Copy of Respondent No. 1â€s preliminary,,,,,,
submissions is filed as Annexure â€" “5†in Appeal no. FPA-PMLA- 1407 of 2016 ),,,,,,
7.12 SPCL filed its further Affidavit dated 12.1.2016 in the proceedings of the five 2015 M.A.â€s bringing on record certain facts of which it became,,,,,,
aware only recently. By this Affidavit, it was brought on record that Respondent No. 2 [Nitish Thakur] had been absent from duties right from",,,,,,
December 2002 and that Respondent No. 2 did not discharge any official function from December 2002 onwards. SPCL advanced monies to Nilesh,,,,,,
Thakur Group for acquisition of land under the subject Agreement only during the period 2007 to 2009. Therefore, the advances made by SPCL to",,,,,,
Respondent No. 3 could not have had any nexus with the discharge of duties by the public servant Respondent No. 2 [being Nitish Thakur].Copy of,,,,,,
the Affidavit dated 12.01.2016 is filed as Annexure â€" “6†in Appeal no. FPA-PMLA- 1407 of 2016.,,,,,,
7.13 SPCL also filed Written Submissions dated15.1.2016 in response to the preliminary submissions submitted by the Respondent No.1/ Director of,,,,,,
Enforcement. By these Written Submissions, SPCL pointed out, inter-alia, that Respondent No. 1 had not filed any Reply Statement to the 2015",,,,,,
M.A.â€s and therefore the case and contentions of SPCL in the 2015 M.A.â€s remained uncontroverted and therefore admitted and therefore the,,,,,,
2015 M.A.â€s ought to be allowed. It was also pointed out that Respondent No. 1 had not challenged in any manner this Tribunalâ€s Order dated,,,,,,
17.7.2015 passed in the five Appeals mentioned at Sr. No. 23 above and therefore it was not open to Respondent No. 1 from taking up the pleas,,,,,,
which had been taken by Respondent No. 1 by way of the preliminary submissions, in the proceedings of the 2015 M.A.â€s.",,,,,,
7.14 The Appellant also filed an Addl. Affidavit before the Adjudicating Authority on 12.01.2016 by which the Appellant inter- alia analyzed the Bank,,,,,,
Statement of M/s. PRS Enterprises to show that the properties purchased by M/s. PRS Enterprises were purchased out of the funds of the Appellant.,,,,,,
( Copy of Addl. Affidavit filed by the Appellant before the Adjudicating Authority dated 12.01.2016 is filed in FPA No.1407 of 2016.,,,,,,
7.15 By his common Order dated 16.6.2016 passed in the five 2015 M.A.â€s, the Adjudicating Authority directed that considering that no factual",,,,,,
submission was made by Respondent No. 1 / Director of Enforcement and that in the PAOâ€s / O.C.â€s in question, SPCL was not made party, it is",,,,,,
considered fair and proper that Respondent No. 1 shall consider SPCLâ€s claims under the proviso to Section 8 (2) of the PMLA and Respondent,,,,,,
No. 1 shall give opportunity of hearing to SPCL. Respondent No. 1 was directed to decide the matter after proper examination and investigation.,,,,,,
However, by the Order, the Adjudicating Authority directed that the confirmed PAOâ€s [being the five PAOâ€s referred to at Sr. Nos. 21 and 22",,,,,,
above] shall remain in force.Copy of the impugned Order dated 16.6.2016 is filed in Appeal no. FPA-PMLA- 1407 of 2016.),,,,,,
7.16 Aggrieved by the common Order dated 16.6.2016 passed in the five 2015 M.A.â€s, SPCL filed Appeals in connection therewith [five Appeals in",,,,,,
all] before this Honâ€ble Tribunal being Appeal Nos.,,,,,,
(i) FPA-PMLA Appeal Nos. 1406 of 2016,",,,,,,
(ii) FPA-PMLA Appeal Nos. 1407 of 2016,",,,,,,
(iii) FPA-PMLA Appeal Nos. 1408 of 2016,",,,,,,
(iv) FPA-PMLA Appeal Nos. 1409 of 2016,",,,,,,
(v) FPA-PMLA Appeal Nos. 1410 of 2016,",,,,,,
The said five Appeals arising out of the common Order dated 16.6.2016 passed in the 2015 M.A.â€s are for convenience sake collectively called,,,,,,
[“the five M.A. Appealsâ€].,,,,,,
7.17 In each of the five M.A. Appeals of July 2016, SPCL filed Stay Applications, inter-alia, for stay of the impugned Order of the Adjudicating",,,,,,
Authority dated 16.6.2016 passed in the five 2015 M.A.â€s and mentioned above. The Stay Applications have been numbered as,,,,,,
(i) MP-PMLA-2638/MUM/2015,,,,,,
(ii) MP-PMLA-2639/MUM/2015,,,,,,
(iii) MP-PMLA-2640/MUM/2015,,,,,,
(iv) MP-PMLA-2641/MUM/2015,,,,,,
(v) MP-PMLA-2642/MUM/2015,,,,,,
Respondent No. 1 did not file any Reply Statement to oppose the Stay Applications.,,,,,,
7.18 This Tribunal passed Order dated 19.10.2016 on the Stay Applications [five in all] mentioned above whereby the operation of the impugned,,,,,,
Order dated 16.6.2016 was stayed till the next date of hearing which is fixed for 14.2.2017.,,,,,,
The narration of facts below concerns PAO Nos. 13 of 2015, 16 of 2015, 18 of 2015 and 3 of 2016 which came to be issued by Respondent No. 1",,,,,,
only noticed by the appellant after March, 2015 as per its case. The Original Complaints filed by Respondent No. 1 in connection therewith as also the",,,,,,
steps and proceedings taken by SPCL in relation thereto.,,,,,,
8.1 Respondent No. 1 (Director of Enforcement) issued the following further four Provisional Attachment Orders [“PAOâ€sâ€] on the basis of the,,,,,,
second FIR being:,,,,,,
(i) PAO No. 13 of 2015 dated 26.3.2015,,,,,,
(In respect of PAO 13/15, Respondent No. 1 filed Original Complaint No. 465 of 2015 [“the O.C. 465/15â€] with the Adjudicating Authority.",,,,,,
(ii) PAO No. 16 of 2015 dated 31.3.2015,,,,,,
(In respect of PAO 16/ 15, Respondent No. 1 filed Original Complaint No. 495 of 2015 [“the O.C. 495/15â€] with the Adjudicating Authority.)",,,,,,
(iii) PAO No. 18 of 2015 dated 21.7.2015,,,,,,
Sr. No.,Particulars,"Consideration mentioned
in the
Documents",,,,
1,"Ro House/ Bunglow No.62/65, Road No.RSC-
13, MHADA Layout, Gorai, Borivali West,
Mumbai-92 [103 .70 sq. mtrs]","74,00,000",,,,
2,"Shop No.9, Shri Complex, B-Wing, Ground
Floor, LT Road, Borivali (W), Mumbai-91 [300
sq. ft.]","21,00,000",,,,
3,"Flat No.1D/201, 2nd Floor, NG Sun City,
Thakur Village, Kandivali (E), Mumbai-101
[294 sq. ft]","39,54,170",,,,
4,"Hotel Shoreline at Darbar Road, Murud,
Janjira, [700 sq. mtrs]","1,80,00,000",,,,
Sr.
No.",Particulars,"Consideration mentioned
in the
Documents",,,,
1,"Plot of land at City Survey No.73, Hissa
No.0.30.6 city survey No.1009 area
3388.88 sq.mtrs at Alibag.","39,00,000",,,,
2,"S. No.191/17, 1 for 21.7 gunthas land
plot, opposite Koteshwari Temple,
Murud- Janjira, Distt. Raigad.","45,10,000",,,,
3,"Shop No.9, Parmar Complex, Pali,
Raigad.","4,90,000",,,,
,,"89,00,000",,,,
Sr.
No","Name of
Bank","Bank Account No./
FD No.","Name of Entity
/ Company",On 08.09.2014,,
1,GBCB,1576,PRS Developers,41635.92,,
2,GBCB,1537,PRS Enterprises,2626.05,,
3,GBCB,30200761612,"Aishwarya
Investments",18522,,
4,GBCB,10216009856,"AcecardInfrasol
Pvt Ltd",1864100.75,,
5,GBCB,30200287913,"Shoreline
Exports",3124,"19,30,008.7",
6,GBCB,FDR 30201322722,"AcecardInfrasol
Pvt Ltd.",13290421.33,"1,32,90,421",
7,KAPOL,5295,"Acecard
Trading Pvt.
Ltd.",3690134.58,,
8,KAPOL,5296,"AcecardInfrasol
Pvt Ltd",757.88,,
9,KAPOL,5326,"Ace Card
Export Pvt Ltd",166.76,,
10,KAPOL,5327,"Ace Card Agro
Ind Pvt Ltd",7859.57,,
11,KAPOL,5328,"Ace Card
Power Pvt Ltd",332393.07,,
12,KAPOL,5329,"Ace Card Media
Pvt Ltd",182.76,,
13,KAPOL,5330,"Ace Card HR
Pvt Ltd",2862.64,,
14,KAPOL,5331,"Ace Card
Hotels &
Resorts Pvt Ltd",182.76,,
15,KAPOL,5332,"Ace Card
Construction Pvt
Ltd",5031732.65,,
16,KAPOL,5333,"Ace Card
Reality Pvt Ltd",675.76,,
17,KAPOL,5392,"Dhan Share
Trading Pvt Ltd",9871770.97,,
18,KAPOL,16334,"Thakur Family
Trust",52485092.59,,
19,KAPOL,211,"Ice Card
Construction Pvt
Ltd",2502710.87,,
20,KAPOL,212,"Ace Card
Reality Pvt Ltd",7699480.87,,
21,KAPOL,230,"Ace Card
Power Pvt Ltd",1539810.23,,
22,KAPOL,231,"Ace Card Media
Pvt. Ltd",1539810.23,,
23,KAPOL,232,"Ace Card
Hotels &
Resorts Pvt.
Ltd.",1539810.23,,
24,KAPOL,233,"Ace Card
Export Pvt. Ltd",4620179.23,,
25,KAPOL,5392,"Dhan Share
Trading Pvt Ltd","98,71,770.97","9,08,65,614",
26,KAPOL,"FDR Nos.36828 to
361856 of Rs.1
crore each","Thakur Family
Trust",290000000,290000000,
27,BOI,3220110000304,"Siddhivinayak
Enterprises",11812.5,"11,812.5",
28,UBI,441601010036441,"Ace Card
Inforasol Pvt
Ltd",13219.5,,
29,UBI,546410110050207,"Ace Card
InfrasolPvt. Ltd",100000,"1,13,219.5",
30,HSBC,3014412001,"Ace Card Agro
Industries Pvt
Ltd",318519.66,"3,18,519.66",
,,,,Fixed Deposits,"30,32,90,421",
,,,,"Bank a/c
balance","9,32,39,174",
,,,,Gr Total,"39,65,29,595",
4,"Commercial Shop No.8, Shrutisarang
Cooperative Society, Alibag Area 376 Sq. Ft.
(Built up area)","6,74,000",,,,
5,"Commercial Shop No.9, Shrutisarang
Cooperative Society, Alibag Area 382 Sq. Ft.
(Built up area)","6,74,000",,,,
6,"Flat No.202, 2nd Floor, Sapphire, Ram
Mandir Road, MG Cross Road, Vile Parle
(E), Mumbai-400057 area 622 sq.ft. (carpet
area)","Agreement value-
1,15,50,000 +
other charges
Rs.92,661 +
Stamp Duty,
registration fee etc.
Rs.6,23,955",,,,
,,"Totalling to
1,22,66,616",,,,
7,"Room/ residential plot admeasuring area
11.20 sq. Mt. (built up area) next to building
No.10, Old MHB Colony, Borivali West,
Mumbai-400091","6,00,000",,,,
8,"Room/ residential plot admeasuring area
150 sq. ft. next to building No.10, Old MHB
Colony, Borivali West, Mumbai- 400091","5,00,000",,,,
9,"Room/ residential plot admeasuring area
10.40 sq. mt. next to building No.10, Old
MHB Colony, Borivali West, Mumbai-
400091","20,00,000",,,,
,,"1,82,16,616",,,,
CHEQUE
NO.",DATE,AMOUNT,"DRAWN ON
BANK/BRANCH",,,
346049,26.09.2007,Rs.2 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
346094,26.09.2007,Rs.3 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
346193,01.10.2007,Rs.3 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
346263,31.10.2007,Rs.5 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
279998,29.11.2007,Rs.4.5 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
005001,26.12.2007,Rs.9.5 crores,"Deutsche Bank/DN Road, Fort",,,
280050,10.01.2008,Rs.6.5 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
280174,10.03.2018,Rs.10 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
117653,07.04.2008,Rs.16.5 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
117801,09.06.2008,Rs.9.5 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
117892,14.07.2008,Rs.5 crores,"Standard Chartered/Mumbai
Metro Main Branch",,,
44743,21.07.2008,Rs.10 crores,Deutsche Bank/ Kodak House,,,
,Total,"Rs. 84.50 Crores
=============",,,,
Sr.
No.","Date of
Execution of
Documents","Consideration
mentioned in
the Documents",Particulars,,,
1,11.05.2009,"39,00,000","Plot of land at City Survey No.73, Hissa No.0.30.6
city survey No.1009 area 3388.88 sq.mtrs at
Alibag.",,,
2,16.06.2008,"45,10,000","S. No.191/17, 1 for 21.7 gunthas land plot,
opposite Koteshwari Temple, Murud- Janjira,
Distt. Raigad.",,,
3,25.04.2008,"4,90,000","Shop No.9, Parmar Complex, Pali, Raigad.",,,
,Total,"89,00,000",,,,
Sr.
No","Name
of Bank","Bank Account No./
FD No.","Name of Entity /
Company",On 08.09.2014,,
1,GBCB,1576,PRS Developers,41635.92,,
2,GBCB,1537,PRS Enterprises,2626.05,,
3,GBCB,30200761612,"Aishwarya
Investments",18522,,
4,GBCB,10216009856,"AcecardInfrasol
Pvt Ltd",1864100.75,,
5,GBCB,30200287913,Shoreline Exports,3124,"19,30,008.7",
6,GBCB,FDR 30201322722,"AcecardInfrasol
Pvt Ltd.",13290421.33,"1,32,90,421",
7,KAPOL,5295,"Acecard Trading
Pvt. Ltd.",3690134.58,,
8,KAPOL,5296,"AcecardInfrasol
Pvt Ltd",757.88,,
9,KAPOL,5326,"Ace Card Export
Pvt Ltd",166.76,,
10,KAPOL,5327,"Ace Card Agro
Ind Pvt Ltd",7859.57,,
11,KAPOL,5328,"Ace Card Power
Pvt Ltd",332393.07,,
12,KAPOL,5329,"Ace Card Media
Pvt Ltd",182.76,,
13,KAPOL,5330,"Ace Card HR Pvt
Ltd",2862.64,,
14,KAPOL,5331,"Ace Card Hotels
& Resorts Pvt Ltd",182.76,,
15,KAPOL,5332,"Ace Card
Construction Pvt
Ltd",5031732.65,,
16,KAPOL,5333,"Ace Card Reality
Pvt Ltd",675.76,,
17,KAPOL,5392,"Dhan Share
Trading Pvt Ltd",9871770.97,,
18,KAPOL,16334,"Thakur Family
Trust",52485092.59,,
19,KAPOL,211,"Ice Card
Construction Pvt
Ltd",2502710.87,,
20,KAPOL,212,"Ace Card Reality
Pvt Ltd",7699480.87,,
21,KAPOL,230,"Ace Card Power
Pvt Ltd",1539810.23,,
22,KAPOL,231,"Ace Card Media
Pvt. Ltd",1539810.23,,
23,KAPOL,232,"Ace Card Hotels
& Resorts Pvt.
Ltd.",1539810.23,,
24,KAPOL,233,"Ace Card Export
Pvt. Ltd",4620179.23,,
25,KAPOL,5392,"Dhan Share
Trading Pvt Ltd","98,71,770.97","9,08,65,614",
26,KAPOL,"FDR Nos.36828 to
361856 of Rs.1
crore each","Thakur Family
Trust",290000000,290000000,
27,BOI,3220110000304,"Siddhivinayak
Enterprises",11812.5,"11,812.5",
28,UBI,441601010036441,"Ace Card
Inforasol Pvt Ltd",13219.5,,
29,UBI,546410110050207,"Ace Card
InfrasolPvt. Ltd",100000,"1,13,219.5",
30,HSBC,3014412001,"Ace Card Agro
Industries Pvt Ltd",318519.66,"3,18,519.66",
,,,,"Fixed
Deposits","30,32,90,421",
,,,,"Bank
a/c balance","9,32,39,174",
,,,,Gr Total,"39,65,29,595",
Sr.
No.","Date of
Execution of
Documents","Consideration
mentioned in the
Documents",Particulars,,,
1,07.07.2008,"5,00,000","Flat No. 3, „H‟ wing, FlowerValley,
Mahad.",,,
2,28.08.2009,"2,63,95,100","Flat No. 53, B Wing, Swapnashilp, situated
at final Plot No. 52, Mahant Road,
VilleParle (East), Mumbai.",,,
3,31.12.2004,"1,23,95,100","Flat No.31, A-Wing, Swapnashilp, situated
at final Plot No. 52, Mahant Road,
VilleParle (East), Mumbai.",,,
4,29.08.2009,"61,25,100","Flat No. 1- C Block- C Viceroy Court
CHSL. ThakurVillage, Kandivali (East),
Mumbai 400101",,,
5,13.09.2010,"47,37,600","Flat 1208, B Wing, BorivaliDwarkanath
CHS (Vijay Nagar), Borivali, Mumbai",,,
,,"5,01,52,900",,,,
S.
no.","Date of
execution
of document","Consideration
mentioned in the
deed",Location,,,
,,"1,15,00,000","Balance lying in a/c No.703266871 of
M/s. SRB
Developers with Indian Bank,
Belapur Branch, Navi Mumbai",,,
s.
no.","Date of
execution of
document","Consideration
mentioned in the
deed",Location,,,
1,04.11.2011,"65,00,000","Office premises at FO-22 [area 374.40 sq.
ft.] alongwith open parking FD-10 at
Shubhada CHS Pochkanwala Road Worli,
Mumbai in the name of Ravindra Sapkal
purchased from the account of Kalyani
Charitable Trust‟s Axis Bank account",,,
2,,"65,00,000",Fixed Deposit Syndicate Bank Byuculla,,,
3,,"40,50,00,000","Building alongwith ancillary structures and
the land upon which said immoveable
property stands today in the Campus of
Kalyani Charitable Trust at plot Gut No.335,
340, 341, 342, 345, 367 of Village
Anjaneri, Tal. Trimbakeshwar, Distt. Nashik.",,,
4,,"5,32,469","Bank Balance account in RavindraSapkal‟s
bank account in Axis Bank, PrabhadeviWorli
Branch",,,
,,"14,16,73,249","Buildings alongwith ancillary structure and
the land upon immovable property stand
today situated in the Campus of Kalyani
Education Pvt. Ltd. at Plot Bearing Gut
No.370, 336, 453 of village Anjaneri& Gut
No.45/3, 47/2 & 589 of village Vadholi, Tal.
Trimbakeshwar, Distt. Nashik",,,
,Total,"56,02,05,718",,,,
Sr.
No.","Date of
Purch ase",Name of Purchaser,"Consideration for
the properties
advanced from the
bank account of:","Consideratio
n price
mentioned in
the Deed /
document
[“Rs.â€]","Description of
property","O.C.
NO.
1.,01.11.2007,"PRS Enterprises -
Proprietor Nilesh
Janardan Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","1,80,00,000/
-","Hotel Shoreline
at Darbar Road,
Murud, Janjira,
[700 sq. mtrs]",140/12
2.,18.01.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","39,54,170/-","Flat No.1, D/201,
2nd Floor, NG
Sun City, Thakur
Village,
Kandivali (E),
Mumbai-101
[294
sq. ft]",140/12
3.,19.03.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","3,44,40,000/-","Land 0-49-2
(HR) at village
Dhokawade,
Taluka Dighodi,
District. Alibaug,
S. No. 237 (old)
S. No.65/3 &
46/2) with two
houses
no.540(area 741
sq. ft.) and
No.1663 (area
500 sq. ft)",140/12
4.,27.03.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","5,27,52,859/-","[Surya Roshni]
Land totally
admeasuring
76.62 acres
(30.64.6 hectare)
in four villages in
Alibaug namely,
26.91.40 hectare
in village
Waghvira, 3.41.3
Hectare in
village Chikali
and 0.31.9
Hectare in
village
Hemnagar in
various survey
numbers totally
valued at Rs.
19,19,25,000/-.
Property
attached to the
extent of 27.49%
of the total value
of the property.",174/13
5.,27.03.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","13,91,72,141/-","Land totally
admeasuring
76.62
acres [30.64.6
hectare] in 3
villages in
Alibaug namely,
26.91.40
Hectare in
village Waghvira,
3.41.3
Hectare in
Village Chikali
and 0.31.9
Hectare in
village
Hemnagar
[totally valued at
Rs.19,19,25,000/-
out of which
Rs.5,27,52,859/-
has already been
attached in the
investigation
carried out under
ECIR/03/11].
Thus remaining
consideration for
purchase of
Surya Roshni
land amounting
to
Rs.13,91,72,141",370/14
6.,25.04.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","4,90,000/-","Shop No.9,
Parmar
Complex, Pali,
Raigad",169/12
7.,20.05.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","21,00,000/-","Shop No.9, Shri
Complex, B-
Wing, Ground
Floor, LT Road,
Borivali (W),
Mumbai-91 [300
sq. ft.]",140/12
8.,21.05.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","11,00,000/-","Office of
Aishwarya
Properties [shop]
at Vandana
CHS, Near
Alibaug Bus
Depot, Alibaug
[670 sq. ft] city
survey No.722,
722/1 and 722/2",140/12
9.,16.06.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","45,10,000/-","S. No.191/17, 1
for 21.7
gunthas land plot,
opposite
Koteshwari
Temple, Murud-
Janjira, Distt.
Raigad",169/12
10.,07.07.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","5,00,000/-","Flat No. 3,
„H‟ wing,
Flower Valley,
Mahad.",465/15
11.,11.09.2008,"Nilesh Janardan
Thakur",,"24,00,000/-","Gala No.1 & 2,
Puja
CHS, City Surey
No.1125,
Alibaug [total
area 622 sq. ft.]",140/12
12.,11.09.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","1,50,000/-","Commercial
Shop No.4,
Shrutisarang
Cooperative
Society, Alibag
Area 217 Sq. Ft.
(10.16 sq. Mtrs)
(Built up area)",408/15
13.,11.09.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","6,78,000/-","Commercial
Shop No.6,
Shrutisarang
Cooperative
Society, Alibag
Area 376 Sq. Ft.
(Built up area)",408/15
14.,11.09.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","6,74,000/-","Commercial
Shop No.7,
Shrutisarang
Cooperative
Society, Alibag
Area 376 Sq. Ft.
(Built up area)",408/15
15.,11.09.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","6,74,000/-","Commercial
Shop No.8,
Shrutisarang
Cooperative
Society, Alibag
Area 376 Sq. Ft.
(Built up area)",408/15
16.,11.09.2008,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","6,74,000/-","Commercial
Shop No.9,
Shrutisarang
Cooperative
Society, Alibag
Area 382 Sq. Ft.
(Built up area)",408/15
17.,20.02.2009,"AcecardInfrasolPvt.
Ltd","AcecardInfrasolPvt.
Ltd A/c No.
10216009856
with GBCB bank","1,23,95,100/-","Flat No.31, A-
Wing,
Swapnashilp,
situated at final
Plot No. 52,
Mahant Road,
Ville Parle
(East), Mumbai.",465/15
18.,11.05.2009,"Nilesh Janardan
Thakur","PRS Enterprises
A/s No. 1537 of
GBCB Bank","39,00,000/-","Plot of land at
City Survey
No.73, Hissa
No.0.30.6 city
survey No.1009
area 3388.88
sq.mtrs at
Alibaug",169/12
19.,20.05.2009,"Nilesh Janardan
Thakur",Cash payment,"20,00,000/-","Room/
residential plot
admeasuring
area 10.40 sq.
mt. next to
building No.10,
Old MHB
Colony, Borivali
West, Mumbai-
400091",408/15
20.,15.07.2009,"Nilesh Janardan
Thakur",Cash Payment,"6,00,000/-","Room/
residential plot
admeasuring
area 11.20 sq.
Mt. (built up
area) next to
building No.10,
Old MHB
Colony, Borivali
West, Mumbai-
400091",408/15
21..,15.07.2009,"Nilesh Janardan
Thakur",Cash payment,"5,00,000/-","Room/
residential plot
admeasuring
area 150 sq. ft.
next to building
No.10, Old
MHB Colony,
Borivali West,
Mumbai- 400091",408/14
22.,"Agreement
dated
28.07.
2009
&
rectification
deed dated
17.08.2009","AcecardInfrasolPvt.
Ltd.","PRS Enterprises
A/s No. 1537 of
GBCB Bank
and
AcecardInfrasol
Pvt. Ltd A/c No.
10216009856
with GBCB bank
Note: Stamp duty
and registration fees
paid from
AcecardInfrasolPvt.
Ltd.","Agreement
value-
1,15,50,000
+ other
charges
Rs.92,661 +
Stamp Duty,
registration
fee etc.
Rs.6,23,955
Totalling to
1,22,66,616/-","Flat No.202, 2nd
Floor, Sapphire,
Ram Mandir
Road, MG Cross
Road, Vile Parle
(E), Mumbai-
400057 area 622
sq.ft. (carpet
area)",408/15
23.,28.08.2009,"AcecardInfrasolPvt.
Ltd","AcecardInfrasolPvt.
Ltd A/c No.
10216009856
with GBCB bank","2,63,95,100/-","Flat No. 53, B
Wing,
Swapnashilp,
situated at final
Plot No. 52,
Mahant Road,
Ville Parle
(East), Mumbai.",465/15
24.,28.08.2009,"Nilesh Janardan
Thakur","PRS Enterprises
A/c No. 1537 of
GBCB Bank","61,25,100/-","Flat No. 1- C
Block- C
Viceroy Court
CHSL. Thakur
Village,
Kandivali (East),
Mumbai 400101",465/15
25.,30.08.2010,"Acecard Trading
Pvt. Ltd.","PRS Enterprises
A/c No. 1537 of
GBCB Bank","74,00,000/-","Row House/
Bungalow
No.62/65, Road
No.RSC-13,
MHADA
Layout, Gorai,
Borivali West,
Mumbai-92 [103
.70 sq. mtrs]",140/12
26.,13.09.2010,"Acecard Trading
Pvt. Ltd.","Acecard Trading
Pvt. Ltd. A/c No.
CA/5295, of Kapol
Bank, Vile Parle.","47,37,600/-","Flat 1208, B
Wing, Borivali
Dwarkanath
CHS (Vijay
Nagar), Borivali,
Mumbai",465/15
27.,"24.09.2009
to
11.01.2010","AcecardInfrasolPvt.
Ltd.","AcecardInfrasolPvt.
Ltd A/c No.
10216009856
with GBCB bank","35,00,000/-
35,93,407/-
11,00,000/-","Land Rover
â€"MH-02- BR-
3900",495/15
28.,23.06.2010,"Acecard Trading
Pvt. Ltd.","Acecard Trading
Pvt. Ltd A/c No.
CA/5295 of Kapol
Bank, Vile Parle.","57,00,000/-","Audi â€" MH-
02-CH-777",495/15
29.,03.10.2011,"Acecard Trading
Pvt. Ltd.","Acecard Trading
Pvt. Ltd. A/c No.
CA/5295, of Kapol
Bank, Vile Parle.","26,00,000/-","Honda CRV â€
MH-092- BR-
3993",495/15
30.,"11.02.2008
to
23.06.2008","Kalyani Charitable
Trust","PRS Enterprises
A/s No. 1537 of
GBCB Bank","22,55,00,000/-","Advances to
Kalyani
Charitable Trust
â€" Rs.
22,55,00,000/-
11.2.2008-
4,00,00,000/-
5.3.2008 â€
7,00,00,000/-
3.5.2008 â€
2,00,00,000/-
11.6.2008 -
3,25,00,000/-
23.6.2008 â€
6,30,00,000/-
Note:These
monies were
advanced by
the Nilesh
Thakur Group
to the Kalyani
Group and the
same were
utilized for
purchase of
properties and
construction of
buildings/
structures,
which buildings
/ structures
have been
subject matter
of attachment in
Original
Complaint No.
512/15.",512/15
31.,"15.12.2007
to
28.08.2008","Kalyani Education
Pvt. Ltd","PRS Enterprises
A/s No. 1537 of
GBCB Bank","18,97,00,000/-","Advances to
Kalyani
Education Pvt.
Ltd. â€" Rs.
18,97,00,000/-
15.12.2007 â€
52,00,000/-
20.12.2007 â€
3,80,00,000/-
21.1.2008 â€
1,50,00,000/-
3.4.2008 â€
1,00,00,000/-
15.4.2008 â€
2,00,00,000/-
21.4.2008 â€
2,65,00,000/-
12.7.2008 -
50,00,000/-
28.8.2008 â€
7,00,00,000/-
Note:These
monies were
advanced by
the Nilesh
Thakur Group
to the Kalyani
Group and the
same were
utilized for
purchase of
properties and
construction of
buildings
/ structures,
which buildings
/ structures
have been
subject matter
of attachment
of
Original
Complaint No.
512/15.",512/15
32.,22.08.2009,"Kalyani Charitable
Trust","AcecardInfrasolPvt.
Ltd
A/c No.
10216009856
with GBCB bank","1,00,00,000/-","Advances to
Kalyani
Chartitable
Trust:
Note:These
monies were
advanced by
the Nilesh
Thakur Group
to the Kalyani
Group and the
same were
utilized for
purchase of
properties and
construction of
buildings/
structures,
which buildings
/ structures
have been
subject matter
of attachment in
Original
Complaint No.
512/15.",
33.,"Balances in Bank Accounts and Fixed Deposit Receipts
In addition to the above properties acquired out of SPCL‟s funds, the Nilesh Thakur Group also
invested a portion of SPCL‟s monies in Fixed Deposit Receipts [“FDR‟sâ€] of certain Banks. The
remaining monies continued to remain as unutilised balances in the Nilesh Thakur Group entities‟ Bank
Accounts. These FDR‟s and Bank balances in Bank Accounts are subject matter of Provisional
Attachment in Original Complaint No. 370 of 2014. Since the record relating to these FDR‟s and Bank
Accounts are not available with SPCL, SPCL is unable to provide any details concerning the same.
The total value of the FDR‟s and the amounts lying in the Bank Accounts as bank balances is Rs.
39,65,29,595/- as per the Original Complaint No. 370 of 2014.",,,,,
34.,"05.01.2008
and
16.08.2008","M/s. SRB
Developers","PRS Enterprises
A/c No. 1537 of
GBCB Bank
And
PRS Enterprises
A/c No. 1576 of
GBCB Bank","1,15,00,000/-","Advances to
SRB Developers
Note: These
monies were
invested in
ownership flats
by the Nilesh
Thakur Group
and the same
were paid to to
M/s SRB
Developers as
advances
/ deposit for
purchase of
these flats.",596/16
or other for his interest from the amount received from SPCL only. Thus, inter-se fight between two brothers and allegation against SPCL are false",,,,,,
and irrelevant on the face of record.,,,,,,
After the conclusion at the hearing of the above Appeals on 22.11.2018, this Tribunal had required parties to give necessary details, particulars and",,,,,,
information relating to the amount of Rs. 40 Crores or thereabouts which had been made over by Kapol Co-op Bank Ltd. [“Kapol Bankâ€] to the,,,,,,
Respondent No. 1/ Enforcement of Directorate [“E.D.â€] pursuant to confirmation of the PAO No. 19 /2014 and Original Complaint No. 370 of,,,,,,
2014, whereby, inter-alia, the balances in Bank Accounts and the FDR monies held by Nilesh Thakur Group entities with Kapol Bank had been",,,,,,
attached. The balances in Bank Accounts, FDRâ€s of the Nilesh Thakur Group with Kapol Bank is hereinafter for convenience sake referred to as",,,,,,
“the subject investmentsâ€,,,,,,
Pursuant to the confirmation of the PAO by way of Order dated 01.01.2015 passed in Original Complaint No. 370 of 2014, by way of their letter",,,,,,
dated 30.06.2015, the ED had required Kapol Bank to make over the amounts of the subject investments totalling to Rs. 38,08,65,613/- [Rs. 38.08",,,,,,
Crores] along with all interest accrued thereon, by way of Pay Order/ Demand Draft favouring the Deputy Director, Directorate of Enforcement,",,,,,,
Mumbai. Kapol Bank had informed Nilesh Thakur by way of Kapol Bankâ€s letter dated 07.08.2015 that the entire amount of Rs. 38.08 Crores along,,,,,,
with all interest had been remitted to the E.D. by way of Pay Order. Thus, the entire amount of the subject investments of Rs. 38.08 Crores along",,,,,,
with interest accrued thereon has been paid over to and is presently lying with Respondent No. 1 /E.D.,,,,,,
As already mentioned that if the Appeals filed by the Nilesh Thakur Group entities are allowed and the properties attached by way of the various,,,,,,
Provisional Attachment Orders issued by the E.D. vacated / raised and the properties freed from attachment, all the properties of which possession",,,,,,
has been taken by the E.D. from the Nilesh Thakur Group entities have to be returned by the E.D. In that event, this Tribunal will have to provide and",,,,,,
direct the return by the E.D. of these properties.,,,,,,
As far as the return by the E.D. of the amount of the subject investments is concerned, it is hereby brought to the notice of this Tribunal that",,,,,,
Kapol Bank has been in financial trouble for the last two to three years and the Reserve Bank of India [“RBIâ€] had issued circular / press release,,,,,,
dated 31.03.2017 under the provisions of Section 35A of the Banking Regulation Act 1949 read with Section 56 of the Reserve Bank of India Act,,,,,,
whereby, inter-alia, the RBI has issued necessary directions concerning Kapol Bank.",,,,,,
The relevant portion of the circular / press release dated 31.03.2017 is reproduced below for convenience:,,,,,,
“The Reserve Bank of India (vide directive DCBS.CO.BSD-I/D-09/12.22.111/2016-17 dated March 30, 2017) has placed The Kapol Co-operative",,,,,,
Bank Ltd., Mumbai Maharashtra, under Directions. According to the Directions, depositors will be allowed to withdraw a sum not exceeding₹₹ 3000",,,,,,
(Rupees Three Thousand only) of the total balance held in every saving bank or current account or any other deposit account by whatever name,,,,,,
called, subject to conditions stipulated in the RBI Directions. The Kapol Co-operative Bank Ltd will, without prior approval in writing from the Reserve",,,,,,
Bank, also not able to grant or renew any loans and advances, make any investment, incur any liability including borrowal of funds and acceptance of",,,,,,
fresh deposits, disburse or agree to disburse any payment whether in discharge of its liabilities and obligations or otherwise, enter into any compromise",,,,,,
or arrangement and sell, transfer or otherwise dispose any of its properties or assets except as notified in the RBI directions dated March 30, 2017.",,,,,,
The Directions have been issued from the close of business on March 30, 2017.â€",,,,,,
The operation of the circular dated 31.3.2017 has been continued till 31.1.2019 as per the RBIâ€s subsequent circular / press release dated,,,,,,
27.7.2018. Thus RBI has severely restricted Kapol Bankâ€s operations and restricted it from making payment in discharge of its liabilities. It would,,,,,,
therefore not be prudent nor in the interest of the Nilesh Thakur Group entities, for the amount of the subject investments to be returned to Kapol",,,,,,
Bank into the Nilesh Thakur Groupâ€s Bank Accounts since in that event Kapol Bank would never be in a financial position to pay over the amounts /,,,,,,
proceeds of the subject investments to the Nilesh Thakur Group entities who would stand to lose the entire investment monies and all interest accrued,,,,,,
thereon if returned to Kapol Bank.,,,,,,
The amount of subject investments lying with the E.D. would have accrued interest for a period of about three years and would have grown to at,,,,,,
least about Rs. 45 Crores or thereabouts. These monies had been remitted to the E.D. out of the balances in Bank Accounts and FDRâ€s of the,,,,,,
Nilesh Thakur Group with Kapol Bank which monies are of the entitlement of Shapoorji Pallonji & Co. Ltd. [“SPCLâ€] and in respect whereof the,,,,,,
Nilesh Thakur Group had submitted to as Decree on admission / Consent Decree dated 19.10.2011 passed by the Bombay High Court as has been,,,,,,
already stated by the Nilesh Thakur Group entities in the proceedings of the Original Complaints and the above Appeals.,,,,,,
The Consent Decree is under execution by SPCL in the proceedings of Execution Application No. 1580 of 2015 filed by SPCL against Nilesh,,,,,,
Thakur and Others in the Bombay High Court as has also been stated by the Nilesh Thakur Group entities in the proceedings of the above Appeals.,,,,,,
Under the Consent Decree Nilesh Thakur Group is required to make payment to SPCL of amounts more that Rs. 350 Crores as of today as per the,,,,,,
case of decree-holder. By way of Chamber Summons No. 1554 of 2016 filed in the proceeding of the Execution Application, SPCL has specifically",,,,,,
sought Orders against the E.D. relating to the amounts of the subject investments with Kapol Bank which have been lying with the E.D. since June,,,,,,
2015. The E.D. has been made party Respondent to the Chamber Summons. The prayer made against the E.D. by way of the Chamber Summons in,,,,,,
connection with the amount / monies representing the subject investment amounts is as under:,,,,,,
“That Respondent No. 1 [being the Deputy Director, Directorate of Enforcement] be ordered and directed by this Hon’ble Court to deposit",,,,,,
with the Applicants within two weeks or such other period as may be fixed by this Hon’ble Court the sum of Rs. 38,08,65,613/- [Rupees Thirty",,,,,,
eight crores eight lacs sixty five thousand six hundred and thirteen only] along with the amount of interest accrued thereon, both received by the",,,,,,
Respondent No. 1 from the Respondent No. 5 Bank [being The Kapol Co-operative Bank Ltd.] being the amounts which were held by the,,,,,,
Respondent No. 5 Bank in various Bank Accounts and/or Fixed Deposits standing in the name/s of the Defendants and/or their various entities,,,,,,
including the entities listed in the Schedule of this Chamber Summons.â€,,,,,,
SPCL had already asserted its claim to the attached properties as legal and beneficial owner by filing necessary applications with the Adjudicating,,,,,,
Authority and has also filed Appeals in connection therewith which have already been heard by this Honâ€ble Appellate Tribunal along with the above,,,,,,
Appeals. SPCL is also party Respondent to the captioned Appeals filed by the Nilesh Thakur Group entities.,,,,,,
In view of the above and in the event the above Appeals are allowed and the attachment on the subject investments is raised, it would be just,",,,,,,
necessary and appropriate that the E.D. be ordered and directed by this Tribunal to make over / transfer / pay over the said amount of about Rs. 44,,,,,,
Crores or thereabouts lying with itself, along with all interest accrued thereon, to SPCL for being appropriated by SPCL towards the dues under the",,,,,,
Consent Decree, to reduce the Nilesh Thakur Group entities†obligations and liabilities under the Consent Decree.",,,,,,
It is alleged on behalf of Nilesh Thakur as well as the appellants that if such order is passed in favour of SPCL, the entire amount may be handed",,,,,,
over to appellant by the Respondent No. 1 /E.D. of his obligation in law to make over / return the amounts representing the subject investments upon,,,,,,
raising of the attachment thereon strictly without prejudice. Thus, the E.D. is ordered and directed by this Tribunal to deposit the monies / amounts of",,,,,,
Rs. 45 Crores or thereabouts representing the subject investments along with all interest accrued thereon, either to the appellant or to the office of the",,,,,,
Prothonotary and Senior Master of the Honâ€ble Bombay High Court, to the credit of the proceedings of Chamber Summons No. 1554 of 2016 in",,,,,,
Execution Application No. 1580 of 2011 which is referred to above.,,,,,,
It is an undisputed and accepted fact that the attached properties had been purchased out of funds provided by the Appellant Company / SPCL.,,,,,,
The funds provided by Appellant Company/ SPCL to the Nilesh Thakur Group are not proceeds of crime. Hence the attached properties, acquired out",,,,,,
of the same, cannot be termed in any manner as “proceeds of crimeâ€. All these factual position is not controverted by the counsel of ED and he",,,,,,
admits that nothing contrary is available with ED. In view of admitted fact, I am of the view that the Provisional Attachment Order ought not to have",,,,,,
been confirmed by the Adjudicating Authority.,,,,,,
The Adjudicating Authority failed to appreciate that the finding of the Respondent No. 1 / Org. Complainant regarding layering of transaction is not,,,,,,
correct as the flow of untainted money from the Appellant Company/ SPCL and the transfers, for purchase of the properties in question, is not",,,,,,
layering with a view to camouflage the origin of the tainted money. No tainted money is being projected as untainted money and therefore, the finding",,,,,,
that there is money laundering is an incorrect finding and is completely perverse and liable to be set aside. The Adjudicating Authority failed to,,,,,,
appreciate that the contract between the parties contained in the letters dated 16.7.2007 and 19.7.2007, constitute a legally valid, binding and",,,,,,
enforceable contract.,,,,,,
Both authorities did not understand that it was a clean money. SPCL is an innocent party who is entitled to recover the entire amount. They have,,,,,,
just ignored the decree passed by the court without application of mind. They were dealing the matters as SPCL has given tainted money to Nilesh J.,,,,,,
Thakur which is generated from proceed of crime, the same is not correct as admitted by the counsel for the respondent. It was submitted by the",,,,,,
EDâ€s Counsel that the Decree dated 19.10.2011 passed by the Bombay High Court in Suit No.2576 of 2011 is a Consent Decree and not a Decree,,,,,,
on contest and, therefore, the Consent Decree ought not to be looked into by this Authority.",,,,,,
The Consent Decree is as much a Decree as a Decree in invitum (meaning a Decree passed on contest) and has th e same legal effect and,,,,,,
trappings as a Decree passed in invitum. Both Decrees have the trappings of finality and operate as re s-ju d ic ata on the matters covered by the,,,,,,
Decree and the issues decided by the Consent Decree cannot be re-agitated in subsequent proceedings. ( See judgement of the Hon’ble Supreme,,,,,,
Court in Shankar Sitaram Sontake v. Balkrishna Sitaram Sontakke, 1995 SCR 99 )",,,,,,
No Suit will lie for setting aside a Consent Decree (see Order XXIII Rule 3A of the Code of Civil Procedure, 1908). The law and statutory",,,,,,
provisions is clear that a Consent Decree has the same effect and legal efficacy as a Decree passed in invitum. The contention of the ED in that,,,,,,
regard is contrary to law and is rejected.,,,,,,
It was argued on behalf of respondent that the proceedings and Orders passed by the authorities under the Income Tax Act have no connection,,,,,,
with the present proceedings under the PML Act and therefore, this Authority ought not to take cognizance of the Orders and Judgment dated",,,,,,
10.04.2015 of the ITAT passed in the assessment of the Appellant.,,,,,,
The said contention is without any force as the proceedings under the PML Act as initiated by the ED arose on the basis of the Charge Sheet filed,,,,,,
by the ACB, Thane on 15.03.2014 against Shri Nitish Thakur, Nilesh Thakur and others [including their family members] under Section 13(1)(e) read",,,,,,
with 13(2) of the Prevention of Corruption Act, 1988 [ “the POC Actâ€]. The entire basis of the ACBâ€sCharge Sheet are the adverse",,,,,,
observations made by the Assessing Officer under the Income Tax Act. The Assessing Officerâ€s observations and Order were set aside on Appeal,,,,,,
by the Appellant to the CIT (Appeals) and on further Appeal by the Income Tax Department, the Order and Judgment of the CIT (Appeals) was",,,,,,
confirmed by ITAT.,,,,,,
The basis and foundation of the ACBâ€s Charge Sheet has been dis-approved. The adverse observations of the Assessing Officer in the,,,,,,
assessment of the Appellant no longer survives once the CIT (Appeals) Order which has been confirmed by the ITAT.,,,,,,
It is wrong to hold that the Orders of the Income Tax Authorities have no connection with the proceedings under the PML Act. The contention of,,,,,,
the ED is misconceived, contrary to the record and was incorrectly held by the Adjudicating Authority without consulting law and application of mind",,,,,,
by way of the impugned Orders whereby the PAOâ€s were confirmed.,,,,,,
The payments under the said agreement/contract made to Nilesh Thakur has no connection with Nitish Thakur, who was a Government servant.",,,,,,
Simply because Nilesh Thakur is the brother of Nitish Thakur, the money paid by the Appellant Company to Nilesh Thakur and the properties acquired",,,,,,
from the said money cannot be treated as disproportionate assets in the hands of Shri Nitish Thakur. Even counsel for the respondent no. 1 has,,,,,,
admitted that there is no cogent evidence gathered to the effect which may link SPCL and Nitish Thakur directly or indirectly and any evidence to,,,,,,
show where the SPCL has tried to take any favour from Nitish who was the Government employee.,,,,,,
A perusal of the Charge Sheet filed by the ACB, Mumbai would show that the properties acquired by Nilesh Thakur [from the monies made",,,,,,
available by the Appellant Company] has been treated to be the disproportionate assets of Nitish Thakur without any basis whatsoever.,,,,,,
With regard to the objection about Nitish Kumarâ€s link and nexus with his brother regarding the purchase of property with his hold as he was the,,,,,,
Government employee, i n fact, the Appellant Company has absolutely no concern or connection w ith Nitish Thakur (brother of Nilesh Thakur). The",,,,,,
monies paid by the Appellant Company to Nilesh Thakur could not have had any connection with Nitish Thakur. The Appellant had filed an additional,,,,,,
affidavit of Mahesh Gursale, Deputy Manager of SPCL pointed out factual position along with document evidence. There is no contrary evidence",,,,,,
produced by ED. The counsel for ED maintain the silence once the documents were confronted with him.,,,,,,
The said details are as follows:-,,,,,,
a) Shri Nitish Thakur joined Govt Service as Dy. Collector in the State of Maharashtra on 02.03.1994 and held various positions in the State,,,,,,
Government. A chart showing the service particulars of Shri Nitish Thakur, Dy. Collector, is annexed with the appeal.",,,,,,
b) Shri Nitish Thakur went on leave from 02.12.2002 without any leave application and without any sanction of leave and was absent till 08.06.2004.,,,,,,
This is clear from the fact that departmental proceedings were initiated against Shri Nitish Thakur for his unauthorized absence. Copy of chargesheet,,,,,,
against Shri Nitish Thakur is also annexed with the appeal.,,,,,,
c) Shri Nitish Thakur joined the post of Special Executive Officer, JJ Group Hospital, Mumbai on 09.06.2004. However, he remained absence on",,,,,,
medical grounds. He was transferred, in the year 2007, to the post of Special Executive Officer, Konkan Railway, but he did not resume his duties,",,,,,,
either on said post or any other post. All these facts are clear from the letters of Divisional Commissioner, Konkan Division dated January and",,,,,,
February, 2010, which are also annexed with the appeal.",,,,,,
It is clear that Shri Nitish Thakur has not attended office effectively from 02.12.2002 and has barely discharged any official duties as a public,,,,,,
servant from said date. He was also subsequently placed under suspension and removed from service in 2012. The said affidavit would show that,,,,,,
Nitish Thakur was a Government servant in the State of Maharashtra from 1994, but he has been absent from duties right from December, 2002.",,,,,,
Nitish Thakur did not discharge any official function from December, 2002 onwards.",,,,,,
The Appellant Company paid money to Nilesh Thakur Group for purchase of properties in the year 2007 to 2009. Obviously, the said payments",,,,,,
cannot and did not have had any nexus with Nitish Thakur. When Nitish Thakur has not been attending office from December, 2002, the payments",,,,,,
made by the Appellant Company to Nilesh Thakur (in 2007 to 2009), could not have had any nexus with the discharge of duties by the public servant.",,,,,,
Therefore, it is clear and evident that the properties standing in the name of Nilesh Thakur Group have been wrongly and illegally treated as",,,,,,
disproportionate assets of Nitish Thakur and have been wrongly attached by the complainant.,,,,,,
The properties have been acquired out of the funds of this Appellant, for the Appellant, under the legal agreement. The payments made by the",,,,,,
appellant Company to Nilesh Thakur Group had nothing to do with Nitish Thakur. The attached properties are of the l egal and beneficial ownership of,,,,,,
the Appellant and those cannot be treated as alleged disproportionate assets of Nitish Thakur.,,,,,,
The Respondent No. 1 / mainly in the Original Complainant in the Provisional Attachment Orders was formed on the foundation that the Charge,,,,,,
Sheet submitted by ACB states, inter-alia, that the income has been rejected by the Income Tax department as legitimate income in the form of",,,,,,
receipt of funds for land aggregation.,,,,,,
The reasonable belief was formed in view of the findings of investigation by ACB that the said amounts are nothing but proceeds of crime in terms,,,,,,
of Section 2 (1) (u) of PMLA. The Adjudicating Authority failed to appreciate that the Income Tax Appellate Tribunal [“ITATâ€] by its Order,,,,,,
dated 10.4.2015 passed in the proceedings of Income Tax Appeal Nos. 5766 and 5767 of 2013 filed by the Revenue [Income Tax department],,,,,,
[against the Order of the CIT (Appeals)], has given a definite and clear finding that the amount of Rs. 141.50 Crores advanced by SPCL to Nilesh",,,,,,
Thakur [Respondent No. 3] was for business purposes.,,,,,,
The Order of the ITAT confirmed the Order of the CIT (Appeals) dated 17.5.2013 which had set aside the Order of the ITO which had been,,,,,,
heavily relied upon by the ACB in the Charge Sheet on the basis of which the reasonable belief was formed by the Respondent No. 1 /Org.,,,,,,
Complainant i.e. Directorate of Enforcement. The Adjudicating Authority failed to appreciate that by reason of the Order of the CIT (Appeals) which,,,,,,
was confirmed by the ITAT by its Order dated 10.4.2015, the ITOâ€s Order [which was relied upon by the ACB in the Charge Sheet and",,,,,,
subsequently by the Respondent No. 1 / Org. Complainant] was set aside.,,,,,,
Therefore, the entire foundation of the reasonable belief set out in the Provisional Attachment Order ceased to exist and therefore the same had to",,,,,,
be vacated and set aside.,,,,,,
The PAOâ€s issued by the Directorate of Enforcement which were subject matter of the Original Complaints from which the above Appeals,,,,,,
arise, are based on the following alleged scheduled offences under the PMLA:",,,,,,
(i) The scheduled offences concerning Original Complaint Nos. 140 of 2012, 169 of 2012 and 147 of 2013. These relate to offences under Sections",,,,,,
387, 467, 471 and 420 of the IPC.",,,,,,
(ii) The scheduled offences concerning Original Complaint Nos. 370 of 2014, 408 of 2014, 465 of 2015, 495 of 2015, 512 of 2015 and 596 of 2016.",,,,,,
These relate to offences under Sections 109 IPC, 13(2) r/w 13(1)(e) of the Prevention of Corruption Act [“the POC Actâ€].",,,,,,
The Appellant / SPCL had advanced to the Nilesh Thakur Group a total sum of Rs. 141.50 Crores from September 2007 to August 2009. A sum,,,,,,
of Rs. 111.50 crores was advance between the period 26.9.2007 to 1.6.2009 while the remaining Rs.30 Crores was advance after 1.6.2009. It is the,,,,,,
case and contention of the ACB that the advances / payment by SPCL of the said amount of Rs. 141.50 Crores to the Nilesh Thakur Group,",,,,,,
constitutes an offence committed by Nilesh Thakur and Ors. under the provisions of Section 13 of the POC Act. Pertinently, the said offence under",,,,,,
the POC Act came to be notified as a scheduled offence under paragraph 5 of Part A of the Schedule of the PMLA only by way of the PMLA,,,,,,
Amendment Act of 2009 which was brought into force only on 1.6.2009.,,,,,,
Thus, the legal position is that the purported offence under Section 13 of the POC Act was not a predicate / scheduled offence under the PMLA",,,,,,
prior to 1.6.2009 and since the Appellant / SPCL had advanced monies to Nilesh Thakur Group to the tune of Rs. 111.50 Crores prior to 1.6.2009, the",,,,,,
provisions of PMLA could not have been applied to the said monies or the properties acquired out of the same and the said monies / properties cannot,,,,,,
be treated as proceeds of crime for the purposes of the PMLA.,,,,,,
Thus, it was beyond the jurisdiction of the authorities under the PMLA to issue PAOâ€s or file Original Complaints in respect of the said monies",,,,,,
of Rs. 111.50 Crores or the properties acquired out of the same.,,,,,,
[76. It is evident that the action of the Directorate of Enforcement is in violation of Article 20(1) of the Constitution of India which protects a citizen,,,,,,
from being subjected to any penalty greater that what might have been inflicted under the law in force at the time of the commission of offence.,,,,,,
Thus, issuance of PAOâ€s or attachment in respect of the said monies of Rs. 111.50 Crores or properties acquired out of the same was clearly",,,,,,
beyond the power of authority and the Directorate of Enforcement and the said PAOâ€s and the Original Complaints in connection therewith are null,,,,,,
and void, a nullity and of no legal effect whatsoever.",,,,,,
In the light of above, there is absolutely no connection between the monies paid by the Appellant to Nilesh Thakur and the discharge of public",,,,,,
duties by the brother of Nilesh Thakur [Nitish Thakur]. Nitesh Thakur had effectively not discharged any public duties since 2002.,,,,,,
The Enforcement Directorate has incorrectly attached the properties standing in the name of Nilesh Thakur Group only by making a bald,,,,,,
statement that they are disproportionate assets of Nitesh Thakur. The said properties are of beneficial ownership of the Appellant.,,,,,,
The Appellant is entitled to the said the said properties come back to the Execution Application for enforcement properties to ensure that,,,,,,
Appellant and has filed of the Consent Decree. However, the attachment made by the Enforcement Direc torate is coming in the way of the",,,,,,
Appellant enforcing the said Decree against Nilesh Thakur .,,,,,,
Therefore, in the light of above, all appeals filed by the appellants are allowed, all orders under appeal are set -aside. The provisional attachment",,,,,,
orders are also quashed. All the attached properties, movable and immovable properties, are released forthwith.The entire amount detained by ED",,,,,,
shall be refunded to the appellant with interest already accrued forthwith.,,,,,,
In view of allowing the appeals filed by EPCL, the appeals filed by SRB Developers being no. FPA-PMLA-1491/MUM/2016 and three appeals",,,,,,
no. FPA-PMLA-1220, 1221 & 1213/MUM/2016 filed by Kalyan Groups are also allowed in view of respective finding on the basis of facts arrived.",,,,,,
The amount deposited by SRB Developers shall be refunded by the ED along with interest already accrued to the SPCL within one week from today.,,,,,,
All MPs are disposed of.,,,,,,
No costs.,,,,,,