Calcutta High Court
Smt. Taijunnehar Bibi vs The Joint Director on 17 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-OS:90-DB
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM JUDGMENT AND ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
APML/1/2025
IA No.GA/1/2025
SMT. TAIJUNNEHAR BIBI
Versus
THE JOINT DIRECTOR, DIRECTORATE OF ENFORCEMENT.
APML/2/2025
IA No.GA/1/2025
ILTUSH AHMMED
Versus
THE JOINT DIRECTOR, DIRECTORATE OF ENFORCEMENT.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant : Mr. Apurba Kumar Ghosh, Adv.
For the Respondent : Mr. Arijit Chakraborty, Adv.
Ms. Swati Kumari Singh, Adv.
HEARD ON : 20.05.2025 & 17.06.2025 DELIVERED ON : 17.06.2025 DEBANGSU BASAK, J.:-
1. Two appeals are taken up for analogous hearing as the same are
directed against the same Final Order dated February 25, 2025
passed by the Appellate Tribunal under SAFEMA at New Delhi in
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two appeals being FPA-PMLA-1429/Kol/2016 and FPA-PMLA-
1430/Kol/2016.
2. Learned advocate appearing for the appellants submits that, the
offences alleged as against the appellants were committed allegedly
for the period between June 13, 2005 to June 16, 2007. He points
out that the schedule of offences to the Prevention of Money
Laundering Act, 2002 were amended with effect from June 1, 2009.
Therefore, the Enforcement Directorate (ED) acted without
jurisdiction in proceeding under the Act of 2002.
3. Relying upon the value of the properties appearing from the title
deeds, learned advocate appearing for the appellants submits that,
such value was less than Rs.30 lakhs and, therefore, again the
same were not within the jurisdiction of the authorities under the
Act of 2002.
4. In response to a query of the Court, learned advocate for the
appellants submits that, there is a proposal for settlement with the
bank. He points out that proceedings under the Recovery of Debts
due to Banks and Insolvency Act, 1993 are pending. He also points
out that there are criminal proceedings pending as against the
appellants.
5. Learned advocate for the ED submits that, the offences of the
appellants are continuing till date. They are in possession of the
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proceeds of the crime till date. Therefore, the proceeding under the
Act of 2002 cannot be said to be without jurisdiction.
6. Referring to Section 2 (y) of the Act of 2002 learned advocate for the
ED submits that the appellants are being proceeded against for
offences described in part A of the schedule and therefore there is
no pecuniary limit as sought to be contended.
7. Materials on record establish that, the appellants were borrowers of
Indian Overseas Bank. By mortgaging 11 several immovable
properties with Indian Overseas Bank, the appellants obtained loan
from such bank. Loan was not repaid by the appellants. Despite
our requests to the appellants to inform the Court as to the time
period within which the liability to the bank will be discharged, it is
contended on behalf of the appellants, since proceedings before the
Debts Recovery Tribunal are pending and that there are settlement
proposals, they would not commit to any payment schedule. The
appellants did not exhibit any intention to repay the bank in course
of hearing of the appeals. Till date the proceeds of the crime are yet
to be recovered. Appellants are in possession of the proceeds of the
crime.
8. Stand of the appellants, if accepted, is one of a repayment holiday
in respect of a loan obtained by the appellants from a public sector
bank.
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9. Transactions between the appellants and the Bank are not
simplicities to on transactions. Central Bureau of Investigation
(CBI), Bank Securities and Fraud Cell, Kolkata registered a first
information report (FIR) against the appellants amongst other
persons, with active facilitation by employee of the bank for
commission of fraud on the bank. The first information report
speaks of fraud being committed for the period from June 13, 2005
to May 16, 2007. The first information report was registered, inter
alia, under Section 120B/41419/420/467/468/471 of the Indian
Penal Code and Sections 11/12/13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988 for causing wrongful loss to
the Indian Overseas Bank to the tune of Rs.5.24 crores. On the
basis of the first information report, Enforcement Directorate
recorded ECIR No.KLZO/05/2009 dated November 16, 2009
against the accused persons. ED recorded the statement of the
accused persons including the appellants before us.
10. On the basis of the materials collected during investigation,
ED attached 11 several properties as described in the order under
appeal under the Provisional Attachment Order dated April 3,
2014. Thereafter Original Complaint No.320/2014 was filed before
the adjudicating authority for confirmation of the Provisional
Attachment Order.
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11. The adjudicating authority confirmed the attachment by its
order dated June 30, 2016. Being aggrieved the appellant filed two
several appeals before the Tribunal being FPA-PMLA-
1429/Kol/2016 and FPA-PMLA-1430/Kol/2016, which resulted in
the impugned order.
12. With regard to the issue of the period of alleged offences and
the schedule of offences are concerned, we find that, the period of
the offences is alleged to be between June 13, 2005 to May 16,
2007. It is alleged that within this period that fraud was
committed. By perpetrating such fraud, the appellants along with
other persons, denuded a public sector bank, Indian Overseas
Bank, of money legitimately belonging to Indian Overseas Bank, on
the plea of obtaining loan by mortgaging several immovable
properties. The proceeds of the crime remain with the appellants
till date. It remained with the appellants on the date when the
Schedule to the Act of 2002 was amended with effect from June 1,
2009.
13. Therefore, it cannot be said that, as on the date when the
Schedule to the Act, 2002 was amended, the appellants were not in
possession of the proceeds of the crime of an offence within the
meaning of the Act of 2002 disentitling the authorities under the
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Act, 2002 to invoke the provisions of the Act of 2002 as against any
of the appellants before us.
14. The plea, therefore, that by virtue of the Schedule to the Act,
2002 being amended with effect from June 1, 2009 and the
offences alleged to be committed for a period prior thereto is not
accepted. In our view, the Act of 2002 attempts to deal with and
prevent money laundering. It is this essence which should be kept
in mind while deciding the issue as to whether or not the period of
the commission of the offence, is beyond the Act of 2002. The test
would be whether or not with the coming into force of the Act of
2002 as also the subsequent amendments thereto, the persons
charged under the Act, 2002 are in possession of the proceeds of
the crime. If the answer to the issue as to whether the persons
charged are in possession of the proceeds of the crime, after the
Act, 2002 and its amendment came into effect, is in the affirmative
then the invocation of the Act, 2002 against such charged persons
cannot be faulted.
15. In the facts and circumstances of the present case, it appears
that the appellants were dealing with immovable properties
concerned as well as the proceeds of the crime subsequent to June
1, 2009. Therefore, we are not in a position to agree with the
contention of the appellants that the period of offence being prior to
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June 1, 2009, therefore, the provisions of Act of 2002 are not
attracted.
16. Section 2(1)(y) of the Act of 2002 defines a scheduled offence.
Clause (ii) thereof speaks of total value involved in offences to be in
excess of Rs. 1 crore or more. Clause (ii) was amended by the
amending Act of 2015 and Rs. 30 lakhs was substituted with Rs. 1
crore.
17. The proceedings initiated by ED as against the appellants
herein relates to Section 2(1)(y) Clause (i) of the Act of 2002 which
does not prescribe any pecuniary value. That apart, Clause (ii) prior
to its amendment stood at Rs. 30 lakhs whereas, the proceeds of
the crime are in excess of Rs. 5.24 crores. Even taking the value
prescribed by way of the amendment to Clause (ii) then also, the
proceedings are in respect of proceeds of crime far in excess of the
prescribed limit. We hasten to add that, the proceedings of the ED
against the appellants, are in respect of offences specified under
Part A of the Schedule of the Act of 2002 which does not prescribe
any pecuniary limit.
18. In a proceeding under the Act, 2002 so as to adjudicate
whether the subject-matter falls within the pecuniary jurisdiction
or not, one should be concerned with the quantum of the fraud
committed rather the value of the immovable properties concerned.
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19. Moreover, the prescription of value as made under the Act,
2002 under Section 2(1)(y) relates to Part-B of the Schedule and
not to Part-A thereof. The offence alleged as against the appellants
are under Part-A of the Schedule. The contention that the
proceedings being below the prescribed pecuniary limit is without
any basis.
20. In such circumstances, we do not find any merit in the
present appeal.
21. Accordingly, both the appeals along with the connected
applications (APML/1/2025 with IA GA/1/2025 and APML/2/2025
with IA GA/1/2025) are dismissed without any order as to costs.
(DEBANGSU BASAK, J.)
22. I agree.
(MD. SHABBAR RASHIDI, J.)
A/s.