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Judgment
,,
FPA-PMLA-1474/MUM/2016, FPA-PMLA-1475/MUM/2016, FPA-PMLA-1476/MUM/2016, FPA-PMLA-1477/MUM/2016 & FPA-",,
PMLA-1478/MUM/2016,,
The above mentioned five appeals shall be disposed of by common order having been filed against the same order dated 6.9.2016 as the question,,
involved in these appeals is identical. The facts are being taking from FPA-PMLA-1474/MUM/2016.,,
In the said appeal, the Complaint was filed under Section 5(5) of the Prevention of Money Laundering Act (""PMLA"") by the Respondent before the",,
Adjudicating Authority in respect of Provisional Attachment Order No. 11/2016 dated 11.06.2016 passed by him for adjudication under Section 8,,
thereof and sought confirmation of provisional attachment of certain properties of the Appellant. On 11.07.2016 the Adjudicating Authority issued,,
Show Cause Notice to the Appellants, under Section 8 of the PMLA. It was stated at the bottom of the notice that:-",,
“Notice along with Relied upon documents (RUD) shall be served by the complainant directly to all defendants as per law. Only Advance notice,,
has been sent to defendantsâ€.,,
The Advance notice referred above was received on 18.07.2016. However, the copy of complaint and the relied upon documents were served by the",,
complainant only on 2.8.2016 upon the Appellant.,,
As the documents supplied along with the complaint were incomplete, the appellant filed an application on 23.8.2016 seeking supply of complete set",,
of documents relied upon in the complaint. The same was opposed by the complainant by filing a reply on 6.9.2016. The Adjudicating Authority,,
rejected the application vide its order dated 8.9.2016 which is under challenge in the present appeal.,,
The Appellant stated in the application that in the absence of those documents which were not supplied by the Respondent, the right of the",,
Appellant to file a proper reply to the Show Cause Notice would be prejudiced. It was further stated that the complainant has relied upon statements,,
of various persons recorded under Section 50 of the PMLA by officials of the Directorate of Enforcement (""DoE"") but the statements supplied to the",,
Appellant are incomplete and other documents shown/produced while such statements were being recorded, have also not been supplied. Further only",,
statements recorded on certain dates of a person have been disclosed while the statements of the same person recorded on subsequent dates have,,
been withheld by the DoE. The Appellant gave the details in paragraph 4 of its application illustrating as to how the DoE has not supplied the complete,,
set of statements and other referred documents.,,
The following instances on behalf of the appellant which read as under:-,,
(a) Statement was recorded of Ms. Mythili Balasubramanian on 11th March, 2016 (filed as Annexure-VI) with the complaint. The said statement in",,
answer to Question-3 refers to letter dated 8.3.2016 given by lDBI furnishing details of applications by KAL. However, copy of the letter dated",,
8.3.2016 has not been supplied. Similarly the delegation of powers of lDBI is stated to be attached in answer to Question NO.8 but the same is not,,
supplied. Similarly in answer to Questio-10 copy of RBI dispensation letters dated 27.8.2010, 13.9.2010 and 22.10.2010 are stated to be attached but",,
have not been supplied. It also appears that in answer to various questions namely Question No, 13, 21, 23, 24, 25 details were answered to be",,
furnished on 14.3.2016 and 15.3.2016. It is not clear as to whether any further statements were recorded on 14.3.2016 and 15.3.2016 as also as to,,
whether any further documents in response to the questions asked on 11.3.2016 were given. The complainant should therefore, be directed to disclose",,
whether the statement as Annexure-VI is the only statement of Ms. Mythili Balasubramanian or there were other statements recorded in respect of,,
investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be,,
supplied.,,
(b) Statement was recorded of Mr. Ami Raghunathan on 11th March, 2016 and 12th March, 2016 (filed as Annexure- VII) with the complaint. The",,
said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents,,
have been supplied. Further it has not been clarified whether Annexure- VII is the total statement of Mr. Ami Raghunathan or statements on other,,
dates were also recorded. The complainant should therefore, be directed to disclose whether the statement as Annexure- VII is the only statement of",,
Mr. Ami Raghunathan or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements,,
but the documents referred and/or attached with them are also required to be supplied.,,
(c) Statement was recorded of Mr. A. K. Ravindranath Nedungadi on 12lh March, 2016 and 5.5.2016 (filed as Annexure-VIII) with the complaint.",,
The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those,,
documents have been supplied. Further it has not been clarified whether Annexure-VIII is the total statement of Mr. AK Ravindranath Nedungadi or,,
statements on other dates were also recorded. Various documents/details were stated to be provided on 15.3.2016. The statement itself notes that Mr.,,
Nedungadi was to appear again on 14.3.2016. However, neither any statement of 14.3.2016 or 15.3.2016 or details supplied on 15.3.2016 form part of",,
the relied upon documents. The statement dated 5.5.2016 in reference to answer to question-7 and 8 relies upon Annexure-A which is part of the,,
statement but has not been supplied. Similarly Question 27 refer to Annexure-B and Question 28 refer to Annexure-C however, these annexures have",,
also not been supplied. The complainant should therefore, be directed to disclose whether the statement as Annexure- VIII is the only statement of",,
Mr. A.K. Ravindranath Nedungadi or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such,,
statements but the documents referred and/or attached with them are also required to be supplied.,,
(d) Statement was recorded of Mr. Yogesh Agarwal on 18th March, 2016, 23rd March, 2016 and 29th March, 2016 (filed as Annexure-IX) with the",,
complaint, The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of",,
those documents have been supplied. Further it has not been clarified whether Annexure-IX is the total statement of Mr. Yogesh Agarwal. Answer to,,
Question-4 of statement dated 18.3.2016 snows that Mr. Agarwal refers to a note dated 4.11.2009 which ties not been supplied. Similarly answer to,,
unnumbered question on 23.3.2016 refers to minutes of meeting dated 27.11.2009 of the EC of the Board of lDBI which has not been supplied.,,
Similarly answer to Question NO.3 refers to an appraisal note signed by Mr. R.S. Sridhar which has not been supplied. The complainant should,,
therefore, be directed to disclose whether the statement as Annexure-IX is the only statement of Mr. Yogesh Agarwal or there were other statements",,
recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them,,
are also required to be supplied.,,
(e) Statement was recorded of Mr. S.P. Govindan Nair on 15th April, 2016 (filed as Annexure-X) with the complaint. The said statement shows that",,
various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied.,,
Further it has not been clarified whether Annexure-X is the total statement of Mr. S.P. Govindan Nair. The complainant should therefore, be directed",,
to disclose whether the statement as Annexure-X is the only statement of Mr. S. P. Govindan Nair or there were other statements recorded in respect,,
of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be,,
supplied.,,
(f) Statement was recorded of Mr. P S. Sashidharan on 1SthApril, 2016 (filed as Annexure-XI) with the complaint. The said statement shows that",,
various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied.,,
Further it has not been clarified whether Annexure-XI is the total statement of Mr. P. S. Sashidharan. The complainant should therefore, be directed",,
to disclose whether the statement as Annexure- XI is the only statement of Mr. P. S. Sashidharan or there were other statements recorded in respect,,
of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be,,
supplied.,,
(g) Statement was recorded of Mr. V. Raju on 18th April, 2016 (filed as Annexure-XII) with the complaint. The said statement shows that various",,
documents have been referred on the basis of which the statement has been recorded but none of those documents. have been supplied. Further it has,,
not been clarified whether Annexure-XII is the total statement of Mr. V. Raju. The complainant should therefore, be directed to disclose whether the",,
statement as Annexure-XII is the only statement of Mr. V. Raju or there were other statements recorded in respect of investigating into,,
ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be supplied.,,
(h) Statement was recorded of Mr. Chandrashekhara Reddy Vinta on 16th April, 2016, 7th June, 2016 and (filed as Annexure-XIII) with the",,
complaint. The said statement shows that various documents have been referred on the basis of which the statement has been recorded but none of,,
those documents have been supplied. Further it has not been clarified whether Annexure-XIII is the total statement of Mr. Chandrashekhara Reddy,,
Vinta. The statement of Mr. Vinta dated 28.4.2016 refers in response to Question NO.7 or 11 refers to spiral booklets being supplied by him which is,,
not part of statement. The complainant should therefore, be directed to disclose whether the statement as Annexure-XIII is the only statement of Mr.",,
Chandrashekhara Reddy Vinta or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such,,
statements but the documents referred and/or attached with them are a/so required to be supplied.,,
(i) Statement was recorded of Mr. Satvinderpal Singh Gulati on 29th April, 2016 (filed as Annexure-XIV) with the complaint. The said statement",,
shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been,,
supplied. Further it has not been clarified whether Annexure-XIV is the total statement of Mr. Satvinderpal Singh Gulati. The statement of Mr. Gulati,,
dated 29.4.2016 refers to documents in answers to various questions including Question No.1 0 or 11 which is not part of statement. The complainant,,
should therefore, be directed to disclose whether the statement as Annexure-XIV is the only statement of Mr. Satvinderpal Singh Gulati or there were",,
other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or,,
attached with them are also required to be supplied.,,
(j) Statement was recorded of Mr. Anil Pisharody on 4hMay,2016 (filed as Annexure-XV) with the complaint. The said statement shows that various",,
documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied. Further it has,,
not been clarified whether Annexure-XV is the total statement of Mr. Anil Pisharody. The complainant should therefore, be directed to disclose",,
whether the statement as Annexure-XV is the only statement of Mr Anil Pisharody or there were other statements recorded in respect of,,
investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be,,
supplied.,,
(k) Statement was recorded of Ms. Darshana Kadakia on 3fd May, 2016 (filed as Annexure-XVI) with the complaint. The said statement shows that",,
various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied.,,
Further it has not been clarified whether Annexure-XVI is the total statement of Ms. Darshana Kadakia. The complainant should therefore, be",,
directed to disclose whether the statement as Annexure-XVI is the only statement of Ms. Darshana Kadakia or there were other statements recorded,,
in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also,,
required to be supplied.,,
(l) Statement was recorded of Mr. R. S. Sridhar on 13th April, 2016 and 28th June, 2016 (filed as Annexure-XVII) with the complaint. The said",,
statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have,,
been supplied. Further it has not been clarified whether Annexure-XVII is the total statement of Mr. R.S. Sridhar. For example in statement dated,,
13.4.2016 in respect of Question-6 memorandum submitted to Credit Committee has been referred and in answer to Question-7 order dated 4.1.2009,,
of CMD has been referred but the same is not part of the statement. In statement dated 28.6.2016 Question-1 relates to Corporate Credit Policy 2009,",,
Question-2 refer to appraisal memorandum of M/s. KAL before the Credit Committee which have not supplied with the statement. The complainant,,
should therefore, be directed to disclose whether the statement as Annexure-XVII is the only statement of Mr. R. S. Sridhar or there were other",,
statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the documents referred and/or attached,,
with them are also required to be supplied.,,
(m) Statement was recorded of Mr. Srirangam Ranganthan Gopalan on 2nd June, 2016 (filed as Annexure-XVIII) with the complaint. The said",,
statement shows that various documents have been referred on the basis of which the statement has been recorded but none of those documents have,,
been supplied. Further it has not been clarified whether Annexure-XVIII is the total statement of Mr. Srirangam Ranganthan Gopalan. The,,
complainant should therefore, be directed to disclose whether the statement as Annexure-XVIII is the only statement of Mr. Srirangam Ranganthan",,
Gopalan or there were other statements recorded in respect of investigating into ECIR/03/MBZO/2016 and not only such statements but the,,
documents referred and/or attached with them are also required to be supplied.,,
(n) Statement was recorded of Mr. Manoj Kumar on 211d June, 2016 (filed as Annexure-XIX) with the complaint. The said statement shows that",,
various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied.,,
Further it has not been clarified whether Annexure-XIX is the total statement of Mr. Manoj Kumar. The complainant should therefore, be directed to",,
disclose whether the statement as Annexure-XIX is the only statement of Mr. Mana} Kumar or there were other statements recorded in respect of,,
investigating into ECIRl03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are also required to be,,
supplied.,,
(o) Statement was recorded of Mr. Gunaseelan Thangaraj on 11th June, 2016 (filed as Annexure-XX) with the complaint. The said statement shows",,
that various documents have been referred on the basis of which the statement has been recorded but none of those documents have been supplied.,,
Further it has not been clarified whether Annexure-XX is the total statement of Mr. Gunaseelan Thangaraj. The complainant should therefore, be",,
directed to disclose whether the statement as Annexure-XX is the only statement of Mr. Gunaseelan Thangaraj or there were other statements,,
recorded in respect of investigating into ECIRl03/MBZO/2016 and not only such statements but the documents referred and/or attached with them are,,
also required to be supplied.â€,,
It is stated in the application that the statement of witnesses were admittedly recorded on various dates but only part of the same was supplied and,,
S.No.,Description of documents,Action
01 ( 41
of RUD)","Q . 3 refers to letter dtd.8.3.2016,
furnishing details of applications by M/s
KAL","These loan applications are documents of M/s
KAL who have submitted to IDBI at the time of
applying for loan. Thus, all the documents are in
the possession of M/s KAL & such, there is no
need to supply the same again.
02 (Page 43
of RUD)","Q . 8 Sanctioning limit of various
committees for loans viz. Delegation of
power","The details of the DOP has already been
mentioned in the statement. Further, the same is
not relevant. However, a copy of the extract is
enclosed.
03 (Page 44
of RUD)","Q.10 Copy of RBI dispensation letters
dated 27.8.2010, 13.09.2010 &
22.10.2010","The same is irrelevant. However, copy of the
RBI letters are enclosed.
04,"Q . 13 Personal Guarantee of Vijay
Mallya.
Q.21- Collateral security of 12 hire
purchase aircrafts.
Q. 23- Utilization of funds/loan of IDBI
given of KAL & Utilization certificate.
Q. 24- Funds diverted by KAL.
Q.25- Details of restructuring process by
banks.","It was submitted by Vijay Mallya to IDBI & is
readily available with them. The documents
were submitted by M/s KAL to IDBI. The
same are readily available with them.
The bank statements are with M/s KAL and the
utilization certificate are issued by their
Chartered Accountant.
Investigation is going on in the
subject case. There is non- co-operation on the
part of Mr. Vijay Mallya, and hence, parting of
the information at this stage will jeopardize the
investigation.
The information are available with
M/s KAL
05,"Any further statement recorded of Ms.
Mythili Balasubramanium on
14.03.16 & 15.03.16",No further statements have been recorded.
01,"Only two statements are referred and not
other statements.","The present complaint is limited to attachment
of certain properties. Hence, all the statements
relevant to the said attachments were enclosed.
The investigation process is still going on and
further attachments may also follow and the
relevant statements required, will be used. This
is only for confirmation of the provisionally
attached property . Further, it is the
discretion/prerogative of the investigating
agency of decide as to which statements to be
referred or
otherwise.
02(Page No.
57
& 58 of
RUD)",KAL,"Said company is a public limited company.
Further, it was submitted by the company & it
must be available with them.
,Q20-List of Free Tickets (FOC),"The list was provided by M/s KAL
and same are available with them.
,Q21 Flight manifesto of corporate jet of,"The same has not be provided by M/s KAL
inspite of repeated
reminder, which shows their non co-operation
approach. Further, these details are of M/s
KAL and the same can be obtained from
them
0 3 ( Page
No. 60
& 63 of
RUD)","Q7- Details of Payments made to group
companies.","The information was provided by M/s KAL and
the same are available with them.
,"Q8 Details of payments received from
group","The information was provided by
M/s KAL and the same are available with them.
,Q11 Details of payments to Formula -1,"The information was provided by M/s KAL and
the same are
available with them.
,"Q14 Details of Payments made to
Toyota Team","The information was provided by M/s KAL and
the same are
available with them.
,"Q16 Details of total number of aircraft
owned & leased","The information was provided by M/s KAL and
the same are
available with them.
,Q27 Copy of end use certificate,"The information was provided by M/s KAL and
the same are
available with them.
,"Q19- Details of shares of UBHL which
are not under encumbrances","The information are available with M/s UBHL
as the same were provided by them. Further,
the details are not relevant to the
present PAO.
,"Q20- Details of funds transferred from
UB group to
KAL","Information available with UB Group, who had
provided the
details to us.
,"Q21- Copies of balance sheets of UB
Group companies",The information are available with them.
,Q22- Details of India Head of Diageo,"Information available with UB Group. Further, it
is not relevant
to the present PAO.
03,"He was to appear on 14.03.16. Whether
statement recorded.","The present complaint is limited to attachment
of certain properties. Hence, all the statements
relevant to the said case are enclosed. The
investigation process is still going on and further
attachments may also follow and the relevant
statements required, will be used. This is only
for confirmation of the Provisionally attached
property. Further, it is the discretion/prerogative
of the investigating agency to be referred or
otherwise. This is only for confirmation of the
Provisionally
attached property.
04 [
Page No. 74
to 80]","Q1. Details of properties held by M/s
UBHL","Details were provided by UBHL & the same
are available with them
,Q3. New Valuation report,"The report are available with
UBHL/UB Group
,"Q7. Details of Special purpose
Vehicles (Paper companies) â€
Annexure A","Details were provided by UBHL & the same
are available with them
,"Q8. Infusion of funds in M/s KAL by
various group
companies","Details were provided by UBHL & the same
are available with them
,"Q27. Details of holdings of Mr. Vijay
Mallya & his family
members","Details were provided by UBHL & the same
are available with them
,"Q28. Assets of M/s USL-
Annexure C","Details were provided by UBHL &
the same are available with them
Sr. NO.,Description of Documents,Action taken
01
[Page
106 to","Q.5. Details of the Directors of the
companies","Only one statement has been recorded & the
documents provided are available with UB
108],"Q17. Various documents from page no. 1
to 80 are supplied but not part of
documents given to the Noticee.","Group.
All these documents are provided by UB.
Groups & are available with them. The said
person was working with UB Group &
thereafter, on superannuation was working as a
retainer for M/s UB Group.
Sr. No.,Description of Documents,Action taken
01[Page
145 to","Q.6 Memorandum submitted to Credit
Committee has been referred but the
same is not supplied
Q.7 proposal,
recommendation of sanction, order dated
04.11.2009 of CMD has been referred but
the same is not supplied
Q.8 details were answered to be
furnished. It is not clear as to whether
documents in response to the question
were furnished or supplementary
statement was recorded","The documents are irrelevant to the subject
PAO and no statement was recorded on the
same
0 2 [Page
153","Q.1 refers to Corporate Credit Policy,
2009 but the same is not supplied
Q.2 refers to appraisal memorandum of
M/s KAL before the Credit Committee
which is not supplied with the statement","Explanation has been given. But no documents
have been tendered. No documents have been
tendered only explanation has been given.
All the documents relevant to the case has
been supplied.
Most of said documents have been submitted by the appellant himself or its employee or the companies controlled (directly or indirectly) by the Vijay,,
Mallaya.,,
It is also submitted by Mr. Rajeev Awasthi that the appellant is deliberately adopting a delaying tactics to scuttle the judicial proceedings with a,,
view to extend the use of the proceeds of crime for a longer period as the purpose of attachment is to deprive the offender from enjoying the proceeds,,
of crime. As per the mandate of the Act if the Provisional Attachment order (P.A.O.) is not confirmed within 180 days of the date of the order,,
(P.A.O.) by the Adjudicating Authority, it will loose its validity.",,
We have perused the case records and considered the rival contentions.,,
It is well settled that the question of compliance with the principles of natural justice in a proceeding under an Act is to be seen in accordance with the,,
scheme of the Act. We may take note of the framework of attachment and adjudication under the PMLA. Thus, in terms of the provisions of Section",,
5 of the Act, if the attaching authority, on the basis of material in his possession, has reason to believe (such reasons to be recorded in writing) that the",,
conditions as prescribed under section 5(1) of the Act are met in respect of certain property(s), the related property(s) can be attached by him, in the",,
manner prescribed, for a period not exceeding 180 days from the date of the order. Pertinently, this stage does not provide for issue of notice to the",,
concerned parties. However, in terms of Section 5(2) of the Act, a copy of the attachment order alongwith the material in his possession as referred in",,
Section 5(1) ibid is required to be forwarded immediately to the Adjudicating Authority (AA, for short) and in terms of Section 5(5) ibid, the attaching",,
authority is required to file a complaint [hereinafter referred to as Original Complaint (O.C.,for short)] with the Adjudicating Authority within 30 days",,
of the attachment seeking confirmation of the Provisional Attachment Order (P.A.O.) order.,,
Further, in terms of Section 8(1) of the PMLA on receipt of the original complaint(O.C.) under Section 5(5) of the Act, if the Adjudicating",,
Authority has reason to believe that a person has committed an offence of Money Laundering as defined in Section 3 of the Act or is in possession of,,
proceeds of crime, he is required to issue notice of not less than 30 days on such person calling upon him to explain the sources of the income, earning",,
or assets out of which or by means of which he has acquired the property attached. Thus, the stage of confirmation of the P.A.O. by the Adjudicating",,
Authority is the first stage under the PMLA where issue of a notice to the concerned person(s) is provided. Section 8(2) of the PMLA provides that,,
adjudication is required be done by the adjudicating authority taking note of all the relevant material placed before him on record.,,
It is subsequent to issue of notice under Section 8(1) of the Act, and prior to submission of the reply to the notice that the appellant has sought the",,
copies of the complete documents as referred above. Their contention is that in the absence of the complete documents, their right of giving an",,
effective reply to the charges against them is prejudiced. Reference is also made to Section 6(15) of the Act providing that the Adjudicating authority,,
though not bound by the Code of Civil Procedure shall be guided by the principles of natural justice.,,
The framework of attachment and adjudication provided under the PMLA provides for issue of a Notice at the stage of adjudication. As a natural,,
corollary, the evidence/statements/documents etc on which the charges are based and which the appellants are required to meet are also to be",,
supplied to the persons required to show cause. Here, it is also required to note that the adjudication proceedings under the PMLA are interlocutory in",,
nature for deciding the safe keep of the attached property(s) till the completion of the criminal proceedings in the competent Court with regard to the,,
offence of money laundering and therefore these are on a separate footing from criminal proceedings. Also by virtue of Section 71 of the Act, PMLA",,
is a special law over-riding above other laws.,,
It is submitted by the learned senior counsel appearing on behalf of two of the appellants that the Adjudicating Authority has while rejecting the,,
application failed to consider the scheme of the aforesaid provisions and has further failed to take into consideration the aspects of compliance with,,
natural justice.,,
In the present case, the provisions of the Act do not suggest non-disclosure of the documents in the possession of the competent",,
authority/complainant. It is the admitted position that the present case is not a case where merely an inquiry is pending. The stage of the case is for,,
confirmation of attachment of the properties listed in the complaint which as seen above, has grave consequences for the appellant, though for the",,
period till the completion of the criminal trial for the offence of the money laundering.,,
It is settled rule of law that impartial and fair opportunity in a trial are Constitutional as well as human right. It is an undeniable duty of the Court to,,
ensure that nothing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may,,
tantamount to jeopardizing the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to.,,
No Court shall allow breach of these principles. Similarly, the right of disclosure in any enquiry, domestic or otherwise, or in any trial, or other",,
proceedings, which are capable of affecting rights, interests and liberties of a citizen, may have either a statutory genesis, including a provision in the",,
Constitution, or may be based on well recognized principles of natural justice, mandatory requirements of a fair trial.",,
The extract of the judgment delivered by Lord Denning in the case of Kanda v. Govt. of Malaya, 1962 AC 322 is reproduced here as under:",,
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is",,
made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair,,
opportunity to correct or contradict them.â€,,
A Division Bench of the Hon'ble Bombay High Court in Writ Petition No. 1703 of 2013 (Lalit Kumar Modi vs. Special Director, DoE & Anr.)",,
pronounced judgement on 6.2.2014. This judgement follows the Supreme Court judgement in Natwar Singh VS. Director of Enforcement (2010) 13,,
SCC 255, and in effect holds that (A) a noticee is entitled to information or documents relied upon in the show cause notice of the Adjudicating",,
Authority, meaning thereby information or documents which are the basis on which the show cause notice is issued, (B) every document relied upon in",,
the show cause notice ought to be furnished to the noticee, (C) if the show cause notice does not refer to any document except the complaint, then to",,
decide whether a document was relied upon it is necessary to read the complaint itself as the complaint has in effect been incorporated in the show,,
cause notice, and (D) merely because there is an Annexure listing the documents relied upon, it would not follow that the documents referred to in the",,
rest of the show cause notice are not relied upon.,,
Based on the aforesaid judgement of the Hon'ble Bombay High Court, on a mere perusal of the complaint, and in particular paragraphs 3.1 to 3.22",,
thereof, it is evident that there are numerous documents and statements referred to therein which form the basis of the complaint and as listed in the",,
Annexure thereto which are necessarily required to be furnished to the Appellant to enable the Appellant to effectively deal with and respond to the,,
complaint and show cause notice.,,
One of the arguments of Mr. Awasthi is that these companies owned and controlled by Mr. Vijay Mallaya and the documents which are now,,
asked for were provided by officer of UB Group when called for recording their statement under Section 50 of the PMLA. The investigation against,,
Mr. Vijay Mallaya and above stated company is still going on. He could be called for recording of statements during the ongoing investigation seeking,,
the explanation qua various other properties detected during investigation but the same could not be made part of the present original complaint, he",,
was called for recording his statement but did not appear. He also did not give response to various summons issued during investigation and presently,,
living in London along with his family who has evaded the process of law. Even non-bailable Warrants have been issued against him by Special Judge,,
PMLA. Not only this, his passport been invoked, he is a declared proclaimed offender. Mr. Awasthi Says that one such person who has not made",,
himself available for the purpose of investigation and evaded the process of law, should not be heard by the court of law. It has been held by",,
Hon’ble Supreme Court in Writ Petition (Crl.) No. 137/2011 in case of Subhash Kopatlal Deva Vs. UOI, wherein the Honâ€ble Supreme Court",,
has held in para 23 of the judgment where it was observed as under:-,,
Therefore, I am of the opinion that those who have evaded the process of law should not be heard by this Hon’ble Court to urge that their",,
fundamental rights are in jeopardy.,,
We do agree with Mr. Awasthi that no one should be allowed to escape the process of investigation and a person who has evaded the law cannot,,
claim the protection of the law as a right. However, his submissions have no relevance to the present issue under consideration.",,
His next submission is that some of the documents are already in the possession of the Group Companies of the appellants, therefore, they are not",,
obliged to serve the copies of the same to the appellants, as all of them are controlled by Mr.Vijay Mallya and most of the documents, even if are lying",,
with one of the Companies, the same can be obtained from the other Company.",,
The said submission of Mr.Rajiv Awasthi has no force, as all the Companies are different entities in the eye of law. In case the complaint is filed",,
against all the Companies, the documents referred in the complaint and the statements recorded leading to the complaint which also referred to the",,
accused parties are entitled to receive the documents in view of the settled law on this issue which are in the possession of the competent authority.,,
Here it is necessary to clarify that the appellants are entitled to receive the documents and copies of the statements only pertaining to attachment of,,
properties thatare the subject matter of the present complaint and which are to be referred at the time of deciding the question of confirmation of the,,
subject provisional attachment or otherwise. In the present case, no doubt, a part of such statements have been received by the appellants. We are of",,
the considered opinion that in case the remaining part of the statements is also pertaining to the subject matter of the present complaint and present,,
attachment, the appellants would be entitled to receive the copies of the same which are in the possession of the respondent. However, if any",,
document and part of the statement is pertaining to other attachment or proposed attachment, no doubt the appellants are not entitled to receive the",,
copies thereof.,,
There is also no force in the submission of Mr. Rajeev Awasthi that the appellants are adopting the tactics in order to delay the proceedings,,
pending before the Competent Authority. In the present case, the advance notice of the show cause notice under section 8(1) of the Act was issued",,
by the AA on 11th July, 2016 which was received by the appellant on 18th July, 2016. However, the copy of the complaint and the documents relied",,
upon were supplied to the appellants for the first time only on 2.8.2016. Not being satisfied with the documents supplied, the present applications",,
requesting for complete documents were filed on 23.8.2016. The notice granted 30 days time for filing the reply. Considering that the documents relied,,
upon have been supplied only on 2nd August, 2016 and applications were filed on 23.8.2016, the application was filed without waiting till the end of the",,
30 days period given in the Show Cause Notice for filing reply. In the facts of the case, the submission of the respondent that the applications were",,
nothing but dilatory tactics to delay adjudication process does not carry much weight. Moreover, upon instructions the statement was made by all the",,
concerned counselâ€s for the appellants that they have no objection if the matters be decided by the Adjudicating Authority on or before the expiry of,,
the 180 days period. Therefore, the question of delay does not arise.",,
The applications of the appellants were rejected by the Adjudicating Authority, mainly, on the reason that this is not a criminal trial; this Authority",,
has to prima-facie satisfy as to the commission of the scheduled offences/possession of the proceeds of crime or as to whether the defendants/,,
appellants are involved in money laundering or not and that the grievance regarding non-furnishing of documents seems to be initiated as to delay the,,
adjudication.,,
We do not agree with the findings given by the Adjudicating Authority, as the confirmation of attachment of properties is a serious matter. Without",,
giving any opportunity to the accused party to raise its defence in the matter, there would be a grave injustice. We are of the view that no harm would",,
be caused to the Respondent and/or the Adjudicating Authority if the relied upon documents of the subject matter are supplied to the accused party,",,
particularly, when the said party agrees not to delay the adjudication and to bear all expenses. We are of the view that unless the Rule prohibits such",,
entitlement this cannot be denied when valuable rights of the parties for defence of confirmation of attached properties are involved. Neither the,,
respondents have made such a claim/submission nor the Adjudicating Authority has held to this effect. Thus, the impugned order suffers from",,
infirmity.,,
It cannot be said that the documents relied upon or referred to in the matter may not be supplied simply on the grounds that most of the documents,,
are already in the possession of the appellants or on the ground that they are not relevant. We are of the considered view that once the documents are,,
referred or likely to be referred while passing the order after considering the reply and taking into account all the relevant material placed on record,",,
under sub-Section (2) of Section 8 of the PMLA, the same are necessary to be supplied, even though some of the documents are already in the",,
possession of the accused person. As far as the attachment of any other properties and/or further attachment of properties are concerned where the,,
investigation is ongoing, the appellants are not entitled to any document and part of the statement(s) of witnesses recorded during the investigation at",,
this stage if it relates to such attachment/on-going investigations. Only the documents referred to in the statement of witnesses in relation to the,,
attachment of properties as covered in the present P.A.O. and relied on in the present original complaint are to be supplied.,,
In view of the above said facts and circumstances of the case, the prayers made in the abovementioned appeals are partly allowed by setting aside",,
the impugned orders dated 8.9.2016. The limited prayer is granted by directing the respondent to supply the copies of statement(s) of witnesses,,
recorded by the investigation and pertaining to the attachment of certain properties under the present P.A.O. and relied on in the present original,,
complaint which are in its possession, and the documents shown/tendered during such statement(s) to the appellants within a period of 10 days from",,
today. It is agreed by the learned counsels for the appellants that they will file the reply within 10 days thereafter and would not seek any adjournment,,
in the matter before the Adjudicating Authority so that the Adjudicating Authority would be at liberty to decide the show-cause notice issued within the,,
time prescribed under the Act.,,
The present appeals are accordingly disposed of with these directions. The affidavit filed by Mr. Munjaal Bhatt, Advocate is taken on the record",,
wherein he has clarified his position about the mentioning of the matters on 30th September, 2016.",,