Vijay Kumar Vs Deputy Director (Appellate Tribunal Under SAFEMA Delhi)
Mortgage No Bar to PMLA Attachment: ED’s Provisional Attachment Confirmed by SAFEMA Tribunal- Not Named in FIR? No Shield Under PMLA –
The Appellate Tribunal under SAFEMA, New Delhi, dismissed appeals filed by Vijay Kumar Kushwaha, Vimlesh Kumar & Rekha Kushwaha against confirmation of Provisional Attachment Order No. 03/2016 dated 28.09.2016 passed under the Prevention of Money Laundering Act, 2002, arising from ECIR/08/PMLA/DNSZO/2013 linked to South Indian Bank fraud. The appeals challenged the Adjudicating Authority’s order dated 03.03.2017 confirming attachment of multiple immovable properties aggregating to about ₹6.07 crore.
The Tribunal held that attachment under Section 5 PMLA is not confined to persons named as accused in the scheduled offence. Relying heavily on the Supreme Court judgment in Vijay Madanlal Choudhary v. UOI, it reiterated that any person holding or possessing proceeds of crime, or property connected with such proceeds, can be subjected to attachment, irrespective of their role in the predicate offence.
On the contention that certain properties were purchased prior to the period of alleged criminal activity, the Tribunal invoked the definition of “proceeds of crime” u/s 2(1)(u) PMLA and upheld the concept of attaching property as “value thereof.” Following Prakash Industries Ltd. v. Directorate of Enforcement (Delhi HC), it was held that even pre-PMLA or pre-offence properties can be attached where the actual tainted property is not traceable, provided the statutory safeguards are met.
The argument that mortgaged properties could not be attached was also rejected. The Tribunal observed that absence of attachment would enable alienation or settlement with banks, frustrating confiscation proceedings. Attachment under PMLA was distinguished from SARFAESI proceedings, and it was clarified that secured creditors may seek permission from the Special PMLA Court to auction the property, subject to deposit of surplus sale proceeds with ED.
FULL TEXT OF THE JUDGMENT APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI
Present Appeal under Section 26 of the Prevention of Money Laundering Act, 2002 (PMLA) is filed by the Appellants against the impugned order dated 03.03.2017 passed by the Adjudicating Authority in O.C. No. 660/2016, wherein the PAO No. 03/2016 dated 28.09.2016 was confirmed for attachment. The details of the properties of the present Appellants are as under:
| Sr. No. | Details of Property | Name of Owner | Amount |
|---|---|---|---|
| 1. | Plot No. 19, Khasra No. 1695, Khata No. 727, Yamunotri Enclave, Salempur Mehdood-II, Sidcul by-pass Road, Pargana-Roorkee, District: Haridwar | Vijay Kumar Kushwaha | 7,00,000 |
| 2. | Kumar Complex, Avas Vikas Colony, BHEL Road, Haridwar | Vijay Kumar Kushwaha | 90,00,000 |
| 3. | Plot No. 22, Khata No. 727, Khasra No. 1695, Village Salempur Mehdud-2, Pargana Roorkee, Tehsil & District Haridwar | Vijay Kumar Kushwaha | 7,00,000 |
| 4. | Plot No. 24, Khata No. 727, Khasra No. 1695, Vill. Salempur Mehdud-2, Pargana Roorkee, Tehsil & Distt. Haridwar | Vijay Kumar Kushwaha | 7,00,000 |
| 5. | Plot No. 17, Khata No. 727, Khasra No. 1695, Vill.: Salempur Mehdud-2, Pargana Roorkee Tehsil & District: Haridwar | Vijay Kumar Kushwaha | 7,00,000 |
| 6. | Plot No. 20, Khata No. 727, Khasra No. 1695, Vill: Salempur Mehdud-2, Pargana Roorkee, Tehsil & Dist. Haridwar | Vijay Kumar Kushwaha | 7,00,000 |
| 7. | Tehri Visthapit Colony, Gram Ranipur, Pargana, Jwalapur, Haridwar | Vijay Kumar Kushwaha | 4,90,000 |
| 8. | Mauja Sewla Kalan, Pargana Central Doon, Dehradun | Vijay Kumar Kushwaha | 45,00,000 |
| 9. | Flat No. G.B., – 08, Rock Valley Apartment, Mauja Sewla Kalan, Pargana Central Doon, Dehradun | Vijay Kumar Kushwaha | 28,00,000 |
| 10. | Residential Plot at Salempur Mahdud 2, Sidkul Haridwar, Khasra No. 1695 | Vijay Kumar Kushwaha | 32,61,500 |
| 11. | Shop No. 9, Kumar Complex, Vinayak Hotel Road, Avas Vikas Colony, Haridwar, Pargana, Jwalapur | Vijay Kumar Kushwaha | 6,25,000 |
| 12. | Flat No. G.B.-06, Rock Valley Apartment, Mauja Sewla Kalan, Pargana Central Doon, Dehradun | Vijay Kumar Kushwaha | 28,00,00 |
| 13. | Plot No. 85 to 94, Yamunotri Enclave, Gram Salempur, Mehdud-II, Sidcul, Bye-pass Road, Pargana Roorkee, Haridwar | Vimlesh Kumar | 35,52,200 |
| 14. | Plot No. 24, 25 & 26 Khasra No. 1695, Khata No. 727, Yamunotri Enclave Salempur, Mehdood-II, Sidcul, Bye pass Road, Pargana Roorkee, Haridwar | Vimlesh Kumar Kushwaha | 13,75,500 |
| 15. | Khata No. 3, Khasra No. 1688, Salempur, Mehdood-II Sidcul Bye Pass Road, Pargana Roorkee, Haridwar | Vimlesh Kr. Kushwaha | 60,00,000 |
| 16. | Khata No. 807, Khasra No. 1692, Yamunotri Enclave Salempur, Mehdood-II Sidcul Bye Pass Road, Pargana Roorkee, Haridwar | Vimlesh Kumar Kushwaha | 16,00,000 |
| 17. | Khasra No. 137, Khata No. 156, Gram Samaspur, Katwar Pargana Nazimabad, the – Haridwar | Vijay Kumar Kushwaha | 16,00,000 |
| 18. | Shop No. 2, in Rock Valley Apartment Mauja Sewalakalan Central Doon, Dehradun | Rekha Kushwaha & Vimlesh Kr. | 1,03,29,000 |
| 19. | H-13, Shivlok, Avas Yojna, Part 1, Nagar Nigarm Haridwara, Pargana Jwalapur, Haridwar | Rekha Kushwaha & Vimlesh Kr. | 49,00,000 |
| Total | 6,07,33,200 |
2. As per the facts of the case, the Directorate of Enforcement, Sub Zonal Office, Dehradun recorded ECIR/08/PMLA/DNSZO/2013 on 26.06.2013 under provisions of PMLA,2002, on the basis of FIR No. 389/2012, dated 23.11.2012, registered at Police Station, City Kotwali, Dehradun, for commission of offence under section 420 of IPC against Sanjay Minocha, Vijay Kushwaha and others, for having received the proceeds of the fraudulent transactions to the tune of Rs.4 Cr. each, involving the South Indian Bank (SIB), Dehradun Branch, in the accounts of their firms, namely, M/s Minocha Furniture, Dehradun (A/c No. 00750210000724 maintained with UCO Bank, Pritam Castle, Paltan Bazar, Dehradun) and M/s Computer Mart, Haridwar (A/c No. 01144015000188 maintained with Oriental Bank of Commerce, Nidhan Niketan, Kharkari Branch, Haridwar) by means of Pay Orders No. 157752 & 157753, both dated 15.05.2012, paid on 16.05.2012 & 18.05.2012, respectively.
