Property Attachment Upheld in NSEL Scam Case: Tribunal Affirms PMLA's Reach Despite No Direct Predicate Offence Charge - 2025-04-14

NSEL Scam Fallout: Tribunal Upholds Property Attachment of Assistant VP's Wife Despite No Direct Charges

New Delhi, March 17, 2025 – The Appellate Tribunal under the SAFEMA has dismissed an appeal filed by Smt. Bonhi Mukherjee, wife of a former Assistant Vice President at the National Stock Exchange Limited (NSEL), upholding the attachment of her flat in Thane. The Tribunal affirmed the Adjudicating Authority's order which confirmed the Provisional Attachment Order (PAO) issued by the Directorate of Enforcement (ED). This case is rooted in the massive NSEL scam that defrauded thousands of investors.

Background: The NSEL Scam and Money Laundering Probe

The case stems from a First Information Report (FIR) registered in 2013 concerning fraudulent activities at NSEL. Investigations revealed that NSEL, promoted as a spot exchange, was facilitating trading in commodities without actual underlying goods, leading to significant financial losses for investors. The ED initiated a money laundering investigation under the Prevention of Money Laundering Act (PMLA), 2002, suspecting that proceeds of this crime were being laundered.

One of the entities under scrutiny was the Aastha Group, identified as a defaulting member of NSEL. Investigations revealed that Aastha Group received substantial funds from NSEL under the guise of commodity trading, but allegedly without delivering actual goods. These funds were then suspected of being diverted and laundered.

Property Attachment and the Appellant's Claim

The ED provisionally attached several properties, including Flat No. 801 owned by Bonhi Mukherjee. The ED contended that this property was purchased using funds originating from the "proceeds of crime" generated by the NSEL scam and laundered through the Aastha Group.

Ms. Mukherjee appealed against the confirmation of this attachment, arguing that the flat was purchased from her legitimate income earned through consultancy services provided to Aastha Group and other companies. She presented an appointment letter and claimed to have experience in customer care and consultancy. Her counsel argued that the ED's allegation that payments from Aastha Group were "consultancy charges in guise" to facilitate her husband's role in the NSEL scam was baseless, lacking documentary evidence of such facilitation. They emphasized that Ms. Mukherjee was not charge-sheeted in the predicate offence and should not be penalized for her husband's alleged actions. It was further argued that she purchased the property before the 2013 amendment to PMLA and the property value was below the threshold for scheduled offences under the pre-amended act.

ED's Counter Arguments: Proceeds of Crime and Sham Consultancy

Representing the ED, the counsel countered these arguments by detailing the modus operandi of the NSEL scam and Aastha Group's role. They highlighted the financial trail showing funds originating from NSEL's settlement accounts, linked to the fraudulent trading, and ultimately reaching Ms. Mukherjee's account. The ED argued that the "consultancy" was a sham to channel the proceeds of crime to Ms. Mukherjee, who is the wife of Amit Mukherjee, a key figure as Assistant VP at NSEL, allegedly complicit in the scam. The ED pointed out that while Ms. Mukherjee was not charged in the initial police FIR, she is an accused in the Prosecution Complaint filed by the ED under PMLA, and charges have been framed against her.

Tribunal's Decision: Evidence Points to Proceeds of Crime

The Single Bench of the Appellate Tribunal, presided over by Rajesh Malhotra, Member, sided with the ED and dismissed the appeal. The Tribunal stated that despite Ms. Mukherjee not being charge-sheeted in the predicate offense, this does not automatically entitle her to the release of the attached property, especially considering she is an accused in the ED's PMLA case with charges framed against her.

The judgment highlighted the evidence presented by the ED, including the flow of funds from Aastha Group's settlement accounts, which received money from NSEL based on fraudulent transactions, to Ms. Mukherjee's personal account. The Tribunal emphasized the statement of Mohit Agarwal of Aastha Group, who admitted that payments to Ms. Mukherjee were "towards facilitation services provided by her husband Mr. Amit Mukherjee in the NSEL Scam."

The Tribunal rejected the appellant's claim of legitimate consultancy income, deeming it a "false and an afterthought defence." It noted Amit Mukherjee's key role in the NSEL scam, stating:

> "He [Amit Mukherjee] was hand in glove with the other co-accused persons for commission of NSEL scam including granting of NSEL membership to dubious entities and in allowing them to trade in commodities without the actual delivery of the stock. He was deeply involved in manipulation and generation of bogus documents such as stock offer letters and warehouse receipts... For the service rendered by him to the defaulting members, he received part of the proceeds of the crime in the form of payment to his wife Mrs. Bohni Mukherjee..."

Regarding Ms. Mukherjee's role, the Tribunal observed:

> "Now coming to the role of present appellant, she received kickbacks in her bank accounts from the defaulting members. She has indulged herself in activities of money laundering including projection of the proceeds of crime as untainted proceeds for purchasing property. She has knowingly indulged herself in the activities of money laundering..."

The Tribunal concluded that the evidence on record clearly indicated that the flat was purchased using proceeds of crime, dismissing the argument about property value being less than ₹30 lakhs and the pre-amendment provisions, stating that the predicate offences were covered even under the pre-amended schedule of PMLA.

Implications and Way Forward

The dismissal of the appeal reinforces the stringent provisions of the PMLA and its broad reach in attaching properties deemed to be "proceeds of crime," even if the property owner is not directly accused in the predicate offence but is linked through financial transactions and familial connections to individuals involved in the alleged criminal activity. The attached property will remain under attachment until the conclusion of the criminal trials, and its disposal will be subject to the final outcome. The case underscores the ongoing legal ramifications of the NSEL scam and the ED's relentless pursuit of individuals and assets linked to the fraud.