ED challenges clean chit to Kochhars and Dhoot, moves appellate tribunal

The Enforcement Directorate (ED) has moved the appellate tribunal challenging the order of its own adjudicating authority, which dismissed the attachment of properties belonging to ICICI Bank’s former managing director Chanda Kochhar and her husband Deepak Kochhar, said sources in know.

Seeking immediate stay on the order, the agency feels the impugned order, passed by the authority, went beyond its jurisdiction.

It (authority) has exceeded its jurisdiction by making a roving and fishing enquiry into the evidence placed on record and also disregarded the records and documents relied upon, the ED is learnt to have said in the plea.

The federal agency, which is investigating the ICICI-Videocon money laundering case, had earlier this year provisionally attached assets valued at Rs 78.15 crore, which include the Kochhar’s 2,230 sq ft Churchgate flat that has a book value of Rs 3.5 crore, as proceeds of crime.

The authority on November 6, not just refused to confirm the attachment but also trashed the argument that a loan was given by ICICI Bank to Videocon Group following which an alleged kickback of Rs 64 crore was paid to Deepak Kochhar.

“Despite submitting sufficient records and evidences that Deepak Kochhar was never owner of the said flat (till it was transferred by Videocon Group for a meagre sum of Rs 11 lakh in 2016), still authority recorded that the flat was purchased and owned by Deepak Kochhar, which is completely perverse and repugnant to the facts,” the ED is believed to have said.

It also said the adjudicating authority passed the order against the mandate of the anti-money laundering laws and without application of mind.

The ED is of the opinion that the authority stepped into the shoes of the trial court and commented on the preliminary investigation done by the Central Bureau of Investigation (CBI) in the impugned order. It even held that there were no proceeds of crime generated from the scheduled offence, even when CBI had categorically recorded in its first information report that Rs 64 crore was the illegal gratification/bribe money given to Chanda Kochhar through her husband’s company Nupower Renewables, said people privy to the matter.

It is learnt that ED also alleged that adjudicating authority had selectively read the documents. It even gave its findings (submitted by defendants in toto) which were contrary to the facts and records of the case, especially in regard to the Kochhar’s flat.

Calling some of the remarks in the order incorrect, ED said the authority incorrectly recorded in its impugned order that both CBI and ED had not recorded the statements of the persons concerned, including bank officials.

The agency is learnt to have questioned how and who informed the authority of this and on what basis it recorded this observation.

ED further points out that the authority failed to appreciate the complete record submitted by ED and referred only to selective statements that were in the defendants’ favour and based its order on their pleadings.

The agency also claimed that there was repeated change of fonts in the order of authority, especially when recording its findings in favour of defendants. “At page numbers 764 to 767 of its order about four times fonts have changed in between, while recording its findings in favour of defendants.”

Tushar V Shah, member (law), adjudicating authority, had said in the 800-page order that ICICI Bank’s Rs 300 crore loan to Videocon International Electronics (VIEL) in September 2009 was never declared a non-performing asset and was in line with the bank’s credit policy.

The order observed that the loan was repaid, and so there was no question of a loss and that Chanda Kochhar was just one of the members on the loan sanctioning committee and the decision to sanction loans could not have been taken by her individually.

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