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2019 Supreme(Mad) 526
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, M. VENUGOPAL, JJ.
Dr. V.M. Ganesh - Appellant
Versus
The Registrar, Appellate Tribunal, Prevention of Money Laundering, Department of Revenue, New Delhi & Others - Respondent
C.M.A. No. 1451 of 2015 M.P.No.1 of 2015
Decided On : 29-04-2019
Advocate Appeared:
For the Appellant :R. Jayaprakash, Advocate.
For the Respondents:M. Dhandapani, Advocate.
Headnote:
Constitution of India, 1950 - Article 14, 19 and 21 – Indian Penal Code, 1860 - Section 294 (b), 406, 420, 465, 468, 471, 197, 419, 506 (ii) - Transplantation of Human Organs Act, 1994 - Section 19 - Prevention of Money Laundering Act, 2002 - Section 42 - Prevention of Money-laundering (Taking Possession of Attached or Frozen Properties Confirmed by Adjudicating Authority) Rules, 2013 - Rule 6 - Offence of Criminal breach of trust – Criminal intimidation – Forgery - Cheating - Appeal is against the order - Appellant who is 3rd accused in FIR No. received from one (Informant) for kidney transplantation for his father namely and at a later point of time refused to conduct operation and after repeated demands appellant paid to and refused to pay remaining - During appellant as a Nephrologist took part in post transplantation care of 81 patients at Mission Hospital and received a tainted professional income of Rs.81 lakhs and purchased 2 properties - Appellant filed Crl.O.P.No. before this Court, challenging proceedings in Crime No. registered against him - Joint Director of Enforcement Directorate, after perusing records formed an opinion that appellant and one were in possession of 2 properties, acquired through tainted money – Held, authorized officer may take possession with a direction to person in-charge of concerned establishment or factory that gross income and any other monetary benefits which accrue there from shall be deposited in account of Directorate of Enforcement – Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall by an order in writing,confirm attachment of property made under sub-section (1) of section 5 or retention of property or record seized or frozen and record a finding to that effect, whereupon such attachment or retention or freezing of seized or frozen property or record shall - Power of adjudicating authority on conclusion of a trial to confiscate property and it has no reliable to case on hand - Attachment and confiscation are different - Attachment of property has been confirmed by adjudicating authority, as per statutory provisions - Therefore in terms of rules 8(3) and 8(4) of abovesaid rules, physical possession of attached property has to be taken - However, considering difficulty expressed, Appellate Tribunal, has passed a considered order dated - Considering facts and circumstances there is no ground to interfere with order - Hence, order made in dated is sustained - Civil Miscellaneous Appeal is dismissed - Appellant shall continue to deposit as ordered.
S. MANIKUMAR, J.
(Prayer: Appeal under Section 42 of the Prevention of Money Laundering Act, 2002, against the order passed in MP-PMLA-1745/CHN/2015 in FPA-PMLA-856/CHN/2015, dated 04.06.2015, on the file of the Appellate Tribunal, Prevention of Money Laundering Act at New Delhi.)
1. Instant Civil Miscellaneous Appeal is against the order, made in MP-PMLA-1745/CHN/2015 in FPA-PMLA-856/CHN/2015, dated 04.06.2015, on the file of the Appellate Tribunal, Prevention of Money Laundering Act at New Delhi.
2. It is the case of the appellant that he was an accused in Crime in FIR No.28/13, dated 10.06.2013; 29/13 dated 12.06.2013; and 31/13 dated 14.06.2013, along with 10 others, for the alleged offences under Section 294 (b), 406, 420, 465, 468, 471, 197, 419, 506 (ii) of the Indian Penal Code, 1860 read with Section 19 of the Transplantation of Human Organs Act, 1994 (hereinafter referred to as 'TOHO Act'), which is pending investigation on the file of the CBCID, Chennai.
3. The appellant, who is the 3rd accused in FIR No.29/13, received Rs.1,00,000/- from one Kathavarayan (Informant) for kidney transplantation for his father, namely, Ayyar and at a later point of time, refused to conduct the operation and after repeated demands, the appellant paid Rs.50,000/- to Kathavarayan and refused to pay the remaining Rs.50,000/-. During 2009-2013, the appellant as a Nephrologist took part in the post transplantation care of 81 patients at Salem Vinayaga Mission Hospital and received a tainted professional income of Rs.81 lakhs and purchased 2 properties in Salem, one in 2011 and another in 2013.
4. The appellant filed Crl.O.P.No.17736 of 2013, before this Court, challenging the proceedings in Crime No.29 of 2013 registered against him. The Joint Director of Enforcement Directorate, after perusing records, formed an opinion that the appellant and one Dr.Thirumal were in possession of 2 properties, acquired through tainted money. Thereafter, on 18th August' 2014, under Section 5(1) of the Act, an order of provisional attachment was passed. The said provisional order was challenged by the appellant before this Court, in W.P.No.22235 of 2014, which came to be dismissed, with a direction to the adjudicating authority to decide on merits. Aggrieved over the same, W.A.No.1626 of 2014 has been filed and the said writ Appeal was also disposed of as infructuous, since orders had been passed by the Adjudicating Authority in the meantime.
5. It is the further case of the appellant that ECIR was already registered on 15th November, 2013, on the basis of the earlier FIR's registered and enquiry ensued. After forming satisfaction, a case in O.C.No.355/2014, under Section 5(5) of PMLA was prepared by the Joint Director and a complaint was forwarded to the Adjudicating Authority, along with the documents and statements recorded during the course of investigation. The appellant filed his reply on the basis of the show cause notice, under Section 8(1) and taken all his stands to proving the procedural lacunas in the abovesaid O.C.
6. In the mean time, this Court, vide order, dated 18.02.2015, made in Crl.O.P.No.17736 of 2013, held that the police authorities has no jurisdiction to register a case and to investigate under the Transplantation of Human Organs Act, 1994 and further directed the police authorities to hand over the file to the appropriate authority notified under the TOHO Act. The Adjudicating Authority, after conducting enquiry, passed an order, confirming the provisional attachment order passed by the Joint Director, dated 12.02.2015, without considering any points raised by the appellant herein. At this juncture, the Assistant Director, Office of the Joint Director, Enforcement Directorate, Chennai Zonal Office, Chennai, 3rd respondent therein had issued a notice for taking possession on 08.04.2015.
7. Thereafter, again on 18.05.2015, the 3rd respondent issued a notice of eviction to vacate the property, where his family is living. If the appell
