2G Spectrum Case: Delhi HC dismisses plea filed by A Raja

The Joint Director, Directorate of Enforcement Vs A. Raja & Ors (Delhi High Court)

1. The application Crl.M.A. 10885/2020 is filed by respondent No.17- M/s Conwood Construction & Developers (P) Ltd. and Crl.M.A. 12520/2020 is filed by respondent No.15- M/s Dynamix Realty. The applicants are seeking modification of the ex parte ad interim order dated 21^st March, 2018, vide which status quo in respect of the attached properties was directed to be maintained, which were directed to be released upon acquittal of the present applicants vide order dated 21^st December, 2017 passed by the learned Special Judge, CBI, New Delhi.

2. The pleas raised in these applications are almost similar and therefore, these applications are being disposed of by this common order.

3. At the hearing, while addressing his submissions in Crl.M.A. 10885/2020, Mr. Vijay Aggarwal, learned counsel appearing for the applicants submitted, that in FIR bearing No. RC DAI 2009 A 0045, registered on 21^st October, 2009, by the Central Bureau of Investigation for the offences under Sections 120-B of IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC Act”), the present applicants i.e. respondent No.17-M/s Conwood Construction & Developers (P) Ltd. and respondent No.15/ M/s Dynamix Realty were not named. However, based on the allegations of CBI, the Enforcement Directorate (henceforth referred to as the “ED”) registered a case No. ECIR/31/DZ/2010 under the provisions of Prevention of Money Laundering Act, 2002 (PMLA) and it was alleged that the present applicants with other accused were intentionally aiding and facilitating the payment of alleged quid pro-quo of Rs.200 crores as a reward for alleged undue favours shown to company- M/s Swan Telecom Pvt. Limited. After registration of ECIR, the ED by way of a provisional attachment order No. 01/2011, dated 30^th August, 2011 attached the properties worth Rs.223.55 crores under the provisions of PMLA and the said attachment was confirmed by the adjudicating authority on 10^th January, 2012 alleging that the monies returned to M/s Dynamix Realty constitute “proceeds of crime” and hence, come under the purview of the PMLA.

4. Learned counsel further submitted that the learned Special Court vide order of 31^st October, 2014 framed charges on the accused persons, including the present applicants for commission of offence under Section 4 of PMLA and vide order dated 21^st December, 2017 all the accused persons, including the present applicants, were acquitted of the charges framed against them.

5. Learned counsel for the applicants next submitted that in the instant ‘leave to appeal’ under Section 378(4) Cr.P.C filed by the ED, Crl.M.A. 9402/2018 has already been filed for modification of order of 21^st March, 2018 for exclusion of assets/ properties of the applicant from “status quo”. Learned counsel further submitted that the said application is pending for long and is resulting in grave injustice due to “ex-parte status quo” order dated 21^st March, 2018, thereby depriving the innocent and acquitted applicants from use and enjoyment of their property. Learned counsel submitted that it stands admitted during evidence that the assets and properties of applicants, which were attached during trial, were not acquired out of the alleged ‘proceeds of crime’ and no part of alleged ‘proceeds of crime’ has either reached applicant or Eversmile Construction Co. Private Limited. Learned counsel submitted that the present applicant was neither arraigned as accused in the FIR nor in the chargesheet and during recording of evidence, the Investigating Officer had specifically stated that that the applicant/company had no role in the transactions. It was submitted that during the cross-examination, it emerged that no money flew to or from the applicant/ company with respect to the transaction in dispute and applicants were arrayed only on the basis of civil liability and a bare perusal of the complaint under Section 45 PMLA confirms that no money originated from Eversmile Construction Co. Pvt. Ltd and Conwood Construction & Developers (P) Ltd. during the flow of funds of Rs.200 crore from Dynamix Realty to Kusegaon Fruits and Vegetables (P) Limited.

6. Learned counsel submitted that the present case is contradictory to the complaint filed by the ED under Section 5 (5) of the PMLA before the learned adjudicating authority, wherein the applicant/Company has been arrayed as respondent only on the concept of civil liability, being partners of Dynamix Realty and the fact that the companies were roped in on the concept of civil liability was known to the complainant, however, the complainant arrayed the applicant/company in the present case on the allegation that the applicant/company had knowledge of the alleged transactions.

7. Learned counsel for the applicants submitted that the ED had taken actual physical possession of the properties since September, 2014, which are various shops/offices and were “stock in trade” and situated in Building Shagun Arcade & Shagun Towers. They are Co­operative Housing Society formed by Purchasers of Premises in Building Shagun Arcade & Shagun Towers, which is entitled to recover “maintenance and other charges/funds” for the various shops and offices and that Municipal Corporation of Greater Mumbai is entitled to claim “Property Taxes” for the various Shops/Offices including those belonging to applicant, which are attached and under the possession of ED and are not being released due to “status quo” order.

8. Learned counsel for the petitioner submitted that with respect to the applicant-M/S Conwood Constructions and Developers Pvt. Ltd., the following immovable properties have been attached:-