Shiv Narayan Joshi vs Deputy Director Directorate Of Enforcement, Jaipur

MP-PMLA-2433/JP/2016 (Stay) & FPA-PMLA-1258/JP/2016

By this order dated I proposed to decide the MP-4128/2017 filed in the present appeal seeking direction to operate the bank account of Appellant

seized by the respondent. The learned counsel for the appellant is pressing the relief to allow the appellant to operate the bank accounts to withdraw

his pension amount which is seized by the respondent. It is stated that the pension account has not been relieved since 15th February, 2017. The

various banks accounts were seized as well as other immovable and movable properties by the impugned order. The said bank accounts were open

after the year 2009-10. In the present application I am only confining the prayer with regard to the pension amount received by the appellant.

The brief facts are necessary to be referred in the year 2009 after returning to his parent department i.e. Public Works Department (PWD), Jaipur

Sh. Shiv Narayan Joshi (D-1), Assistant Engineer, PWD Jaipur claimed reimbursement against Thirteen medical bills for the medical treatment (OPD

& IPD) of his son Sh. Amit Joshi from 21/12/2008 to 01/10/2009 purportedly showing his son seriously ill due to lver transplantation. The amount

claimed through such reimbursement was to the tune of INR 2,65,96,086 /- (Two Crore Sixty five lacs ninety six thousand eighty six only). This

amount was reimbursed by PWD, Jaipur and the same was credited/deposited in his salary account no. 61069216008 maintained in the State bank of

Bikaner & Jaipur, PWD Complex, Jaipur. The committee submitted its report to the Chief Engineer, PWD, Jaipur vide letter dated 15.12.2009. In its

report the committee on basis of their findings found that this is prima facie a case of forged claim & committing fraudulent drawl of govt. money

amounting to Rs. 2,65,96,086/- (Two Crore Sixty Five Lacs Ninety Six Thousand Eighty Six Only) by way of medical reimbursement for which the

incumbent is fully responsible being a personal claim.

Sir Gangaram Hospital, New Delhi vide it s letter dated 12.12.2009 addressed to PWD, jaipur confirmed that Sh. Amit Joshi remained hospitalized

from 21.11.2007 to 9.12.2007, the pharmacy bills for the indoor treatment were not charged separately but were included in the package for liver

transplantation but in respect of the other bills they have stated that “However, the documents besides the ones hereby sent to you, appears to be

forged, fabricated, manipulated and created ones.â€​

In view of the above facts and circumstances the PWD, Jaipur lodged a complaint dated 30.12.2009 with Police Station, Thana Sadar, Jaipur against

Sh Shiv Narayan Joshi, Assistant Engineer (Mech.), PWD, Rajasthan.

Out of the above referred total amount of INR 2,65,96,086/-, the police authorities had recovered a sum of INR 48.62 lacs., from the persons, which

were purported to have been paid by Sh. Shiv Narayan Joshi.

Charge Sheet No. 45/2010 dated 25.03.2010 filed under the provisions of section 173(2) of Cr. P.C. in the FIR No. 454/2009, inter-alia, revealed that

Sh. Shiv narayan Joshi (D-1), is an accused of the offences which are punishable under Section 420, 463, 465. 467. 471 & 120B of IPC. Out of these

Sections 120B read with Section 420. 467. 471 of IPC are included in the list of scheduled offences under Paragraph 1 of part A of the schedule

under PMLA 2002.

Enforcement Directorate registered a case no. ECIR/3/2010/JPR/DB on 23.07.2010 under the provisions of the Prevention of Money Laundering Act,

2002 (PMLA) against Sh. Shiv Narayan Joshi (D-1). Investigation carried out so far under PMLA inter-alia reveals the following:-

The provisional attachment was passed in the above said matter whereby the various movable and immovable properties were attached. The said

order was confirmed by the impugned order. It is an admitted position that after the hospital Sir Ganga Ram has not denied the ailing health of the

appellant son and also after admitting the indoor treatment and liver transplantation surgery. However, the hospital refused to admit the fact that

pharmacy bill for the indoor treatment were charged separately.

As per the appellant, the doctor in Gangaram Hospital advised that further treatment by intimidating the seriousness health condition of the son of the

appellant and the heavy expenditure involved in the treatment. It is stated by the counsel for the appellant that the some of the medications were to be

imported and payments were made from time to time in cash and the appellant has not committed any crime and being an innocent person. It is

submitted by the appellant that those bills which were given by the Hospital and receipt made by the hospital, therefore, the question of forgery and

crime committed by the appellant and other family member does not arise. In support of his submissions, the learned counsel has also referred the

CFSL report dated 27.04.20111. The result of analyses the various documents would show that the standard signature and writing of the mark as U1

to U36 and D1 to D4. Similarly the signature mark as Z1 to Z18 and H1 to H12. The finding is that there are dis-similarity in general writing habits

such as skill.

In para-3 of the report, it is mentioned that on the basis of the material at end which has not been able to express any opinion on the rest of the many

items. The situation was given that more admitted genuine signature of the relevant period of the hospital are required for examination. The counsel

for the appellant states that the respondent has not been taken the genuine signature of the said period of the hospital. It is also stated that where the

report was issued in favour of the appellant. The same has also not challenged by the respondent for the last 8 years.

The learned counsel for the appellant states that the subject to the decision of the present appeal, the appellant is papered to face the trial before the

special court in both the complaints. It is also stated by him that apart from the immovable property of the FDRs of the wife of the appellant were

attached as well as all the accounts and the accounts owned by the appellant. It is stated by him that after the retirement earlier he was working in

some private companies, however, as he has not working the same. In nut-shell it is stated that the appellant has no resources to run the house as

earlier his salary account was also freezed. After the retirement, the pension account has also been freezed by the respondent and the appellant has

not been able to get the pension w.e.f. 25th October, 2017.

The wife of the appellant Smt. Pushpa Joshi is virtually on death bed and has undergone surgery in Jaipur and is in ICU. She was earlier also in the

hospital. Copy of the documents are also filed alongwith the application. The Account No. 51101191218 is the pension account which was opened on

03.03.2010, account no. 51101719374 is in the name of his wife name which was opened on 6.7.2011.

The reply has been filed by the respondent. As gone through the reply merely the contention of the respondent is that the appellant has filed frozen

and fabricated documents of the hospital. The counsel for the respondent does not dispute that certain part of the CFSL report is in favour of the

appellant. He has also not disputed the fact that said report has not challenged by the respondent nor the genuine signature were taken from the

hospital. In a way the counsel for the respondent is supporting the entire order of confirmation passed by the Adjudicating Authority. As far as the

merit of the case is concerned, I do not wish to express any opinion at this stage. I am of the consider view that in case the appellant is involve in the

criminal offence or under the PMLA complaint he must face the trial before the special court.

However, in the present application I am only concerned with the pension account which is received by the appellant. As far as medical alignment of

the wife of the appellant concern. There is no allegation on the part of the respondent with the wife of the appellant has not in serious condition.

Contrary status report has not been filed by the respondent. There is also no affidavit or pleadings that at present the appellant has no resources of

income. The counsel for the appellant has specifically stated that as of today that it is very difficult to run the kitchen as well as the medical alignment

of the wife of the appellant. In fact he states that the attachment order of movable and immovable properties is more than the allegation of the

respondent about corruption amount. The counsel for the appellant has relied upon the recent decision of the Supreme Court in further appeal no.

2693/2013 which is passed in the case of UCO Bank Vs. Rajendra Shankar Shukla. Para-15 of the judgment reads as under:

“An employee is entitled to subsistence alloweance during an inquiry pending against him or her but if that employee is starved of

finances by zero payment, it would be unreasonable to expect the employee to meaningfully participate in a departmental inquiry. Access to

justice is a valuable right available to every person, even to a criminal, and indeed free legal representation is provided even to a criminal.

In the case of a departmental inquiry, the delinquent is at best guilty of a misconduct but that is no ground to deny access to pension

(wherever applicable or subsistence allowance (wherever applicable). As far as Shukla is concerned he was denied his pension as well as

subsistence allowance which prevented him from effectively participating in the disciplinary inquiry. On this ground as well, the

proceedings against Shukla are vitiated.â€​

In view of the finding arrived by the Supreme Court in Para-15 of the said judgment, the circumstances in present case are quite similar where the

appellant has no resource of income. The wife of the appellant is serious as per the documents attached alongwith the application.

The account no. 51101191218 is the pension account which was opened on 03.02.2010, Account no. 51101719374 is in the name of his wife name

which was opened on 6.7.2011. Under these circumstances it is directed that the bank shall allow the appellant to withdraw the pension from the

accounts. The impugned order dated 2510.2017 shall continue to withdraw the pension amount till the further order by this tribunal.

MP is accordingly disposed of.

FPA-PMLA-1258/JP/2016

List on 25th July, 2018.