TaxTMI 
TaxTMI 
2015 (3) TMI 1437
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....ion of Human Organ Rules. The brother of Appellant, Dr. Amit Kumar was registered under Central Council of Indian Medicine and had obtained a degree of Bachelor of Ayurvedic Medicine and Surgery (BAMS) from Nagpur University. 2.2. They formed a company called M/s. Liberty Health Care Pvt. Ltd. in which Dr. Amit Kumar was a Promoter/Director giving the registered address of the company as Malviya Nagar, Delhi. However, the kidney transplant operations were allegedly carried out at a hospital at 4374, sector 23 Palam Vihar, Gurgaon which was also not registered with Appropriate Authority under Transplantation of Human Organs Act 1994. 2.3. A complaint under section 22 of Transplantation of Human Organs Act, 1994 was filed in the court of Special Judicial Magistrate (CBI cases) Ambala on 29.4.2008 against Amit Kumar, Jeevan Kumar, (Appellant) and other associated persons, namely, Dr. Upendra Kumar, Dr. K.K. Aggrawal, Dr. S.K. Govind etc. who allegedly entered into a criminal conspiracy to fraudulently remove the kidneys of innocent victims and transplanting the same to recipients for huge monetary consideration. The complaint was for contravention of sections 326, 342, 417, 465, 4....
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....d prior to this date, therefore, any money allegedly earned out of illegal kidney transplant cannot be treated as proceeds of crime. It has also been alleged that major part of the purchase consideration was taken as a loan from Standard Charted Bank amounting to Rs. 30 lakhs which cannot be termed as proceeds of crime. The Appellant alleged that out of the loan amount of Rs. 30 lakhs, Rs. 27,04,296/- is still outstanding. Appellant, Jeevan Kumar also alleged that since 2008 onwards, Jeevan's wife Pooja Kumar was repaying the loan instalments from her own independent business source that is her export business. Copies of bank statement in respect of M/s. P.J. Buying House in Syndicate Bank, K.G. Marg, New Delhi were also produced showing some small payments to M/s. Essel Tower. Therefore, it had been alleged that the property is not the proceeds of crime. 2.6. The respondent refuted the pleas of the Appellant Jeevan Kumar and contended that the sale deed for this property between M/s. Essel Housing Project Pvt. Ltd. and Sh. Jeevan Kumar was executed only on 30.03.2007 which date falls after the introduction of PMLA on 01.07.2005. According to the respondent since sale deed co....
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....nificant to make a difference and to draw a prima facie inference that the said property does not represent the proceed of crime. 2.8. Regarding Industrial Plot No. 77, Ecotech - 1 Extn. Greater Noida. (allotted to M/s. Anchal Paper Products Pvt. Ltd./Sh. Raghuvinder Singh, Director) it has been contended that it was first time allotted to M/s. Anchal Paper Products Pvt. Ltd. through its Director Raghuvinder Singh by Greater Noida Authority. According to respondent, the Appellant had confirmed that he purchased this plot in Greater Noida and his wife had given Rs. 6 lakhs from her account to Sh. Raghuvinder Singh who was the actual allottee. Appellant also confirmed further payment of Rs. 12 lakhs to Sh. Raghuvinder Singh. According to the appellant, other co-investor Sh. Sanjay Gupta who was his friend had given his own share of investment to Sh. Raghuvinder Singh from his own sources. Sh. Sanjay Gupta, proprietor of M/s. Sangam Glass Work, Hauz Khas Market, New Delhi in his statement to the Deputy Director had confirmed the joint investment along with Jeevan Kumar in this plot. He stated that the plot was in the name of the company M/s. Anchal Papers Products Pvt. Ltd. He confi....
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....nses against Raghuvinder Singh. A Civil Suit has also been filed in the Hon'ble High Court of Delhi for recovery of the money paid, alleging that as the terms of the contract were not complied with and as Raghuvinder Singh avoided to get the lease deed registered, Rajesh Gupta has become entitled to receive back the consideration paid by him. The said suit being CS(OS) No. 2428 of 2008 was filed in November 2008. 2.13. It has also transpired that on 28.09.2010 another agreement to sell the same property was allegedly executed between M/s. Anchal Paper Products Pvt. Ltd. and M/s. N.R. Merchant Pvt. Ltd. for a consideration of Rs. 1.61 Crore and the possession of the plot was also given to M/s. N.R. Merchant Pvt. Ltd. who alleged that he is a bona fide purchaser. The said company contended that as he is a bona fide purchaser, the said property was purchased from legal money, the said property cannot be attached and the attachment order is liable to be vacated. 2.14. On behalf of Sanjay Gupta it was submitted that the investment in the said property was made jointly with Jeevan Kumar as a business proposition. On behalf of Sanjay Gupta it was pleaded that he had no knowledge a....
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....riginal owners, Mr. & Mrs. Rastogi had made wills in favor of Rajiv Chanana in respect of this property. The wills devised the their share/rights in this property (ground floor, first floor, second floor with entire terrace over and above second floor) to Shri Rajiv Chanana. On 23.01.2006 Rajiv Rastogi and Vandana Rastogi had also executed a registered general power of attorney authorizing Rajiv Chanana and Pooja Singhal w/o. Jeevan Kumar to renovate and develop the property and thereafter to sell the same. On 23.01.2006 Pooja Singhal transferred her rights in the said property in favor of Sh. Rajiv Chanana and executed a confirmation document which was duly signed by Sh. Rajiv Chanana and Smt. Pooja Singhal. 2.17. The original owners Mr. & Mrs. Rastogi, thereafter, on 7.3.2008 cancelled the power of attorney in favor of Sh. Rajiv Chanana and Pooja Singhal wife of Sh. Jeevan Kumar. A fresh power of attorney was thereafter, executed on 7.3.2008, the same date on which the earlier power of attorney was cancelled, another power of attorney which was irrevocable in favor of M/s. Land Crafts and Developers which is a proprietorship concern of Sh. Rajiv Chanana. The irrevocable power o....
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....as executed. The appellant/Rajiv Chanana contended that he had got the name of Pooja Singhal included in the GPA for family reasons and subsequently Pooja Singhal had withdrawn herself. Therefore, the new general power of attorney dated 07.03.2008 appointed Shri Rajiv Chanana and not the Pooja Singhal wife of Shri Jeevan Kumar. It was contended that there is no proof of any investment by Pooja Singhal in this property with reference to any bank or cash transactions. In the circumstances it was alleged that Pooja Singhal had nothing to do with the investments in the property covered under GPA i.e. E-86, South Extn. Part-I, New Delhi. Appellant Rajiv Chanana also emphasized that there is no evidence that Pooja Singhal had received any money from her husband Sh. Jeevan Kumar who allegedly earned huge amounts from illegal kidney transplants. According to him the sale proceeds of the flats of New Delhi South Extension cannot be construed as proceeds of crime so as to further link it with the investment in the property in East of Kailash. It was emphasized that Pooja Singhal was not a party to the collaboration agreement between the Appellant and the owners of the property at New Delhi S....
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....he same stands returned by M/s. Anchal Paper Products Pvt. Ltd. towards their respective shares and therefore, the subsequent agreements with Rajesh Gupta and N.R. Merchant Pvt. Ltd, Appellant, were only efforts to save this property from the provisional attachment and ultimate confiscation is perverse. According to said appellant the Agreement to Sell entered into with Rajesh Gupta was entered into on 29.3.2008 and an amount of Rs. 1 crore as advance was duly paid by Sh. Rajesh Gupta and the provisional order of Attachment was passed by the Dy. Director (Enforcement) on 9.9.2010. 3.6 The said Appellant's plea is that the Adjudicating Authority overlooked the fact that Sh. Rajesh Gupta is the Director in the Appellant Company and is also one of the beneficiaries of the Appellant Company. The Agreement to Sell (with Possession) entered into between M/s. Anchal Paper Products Pvt. Ltd. and the Appellant was only to bring quietus to the pending disputes between Sh. Rajesh Gupta and M/s. Anchal Paper Products Pvt. Ltd. The appellant has challenged the finding of the Adjudicating Authority concluding that even if the consideration has been paid and possession has been given, it ha....
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....on 24.10.2013 in the appeal to file an application contending that since Jeevan Kumar has been acquitted, the attachment of the property will not be maintainable and the appeal be accepted and the attachment of the property be released. The application filed by the Appellant being MP-PMLA-684/DLI/2013 was dismissed in default with the appeal 13.12.2013 and for reasons stated in the order, was later on restored by order dated 3rd July, 2014. 3.10 The appellant, in the application contended that since respondent No. 2 has been acquitted, therefore, there was no proceeds of crime and therefore, there could not be any provisional attachment order against him and consequently the property cannot continue to be attached. Though the respondent No. 1/Enforcement Directorate had sought time to file the reply of the said application, however, no reply was filed. 3.11 The counsel for the appellant sought a few adjournments and thereafter concluded the arguments contending that since respondent No. 2 has been acquitted, the attachment of the property in which the appellant has interest cannot continue and the order of the attachment has to be withdrawn. The learned counsel however, did not....
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....that the sale deed confers the ownership rights and effectively this is the material date when the projection of tainted money as untainted has taken place. A part payment was also made on 23.03.2007 amounting to Rs. 3,52,400/- as confirmed by M/s. Essel Housing Project Pvt. Ltd. Therefore, the entire purchase consideration was not paid by Jeevan Kumar prior to coming in force of PMLA. A total sum of Rs. 3,41,000/- was also paid back to Standard & Chartered Bank as loan repayments on different dates during the period 24.02.2007 to 25.01.2008. These dates of re-payment were also after PMLA came into effect and therefore, the provisions of PMLA would be attracted. 4.4. According to the counsel for the Enforcement Directorate the time of committing of scheduled offence was not relevant and it was the time of committing the offence of money laundering that was relevant. He contended that section 18, 19 and 20 of Transplantation of Human Organs Act, 1994 in the list of scheduled offences were included 01.06.2009. The respondent had relied on the decision dated 6.8.2010 of Hon'ble Jharkhand High Court in the case of Hari Narayan Rai vs. Union of India W.P. No. (Cr.) No. 325 of 2010.....
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....Kumar. The cash payment of Rs. 3,52,400/- on 23.03.2007 also was from the tainted source. Therefore, it has been held that whatever payments were made exclusive of Bank loan were obviously from the proceeds of crime. 5.3. Regarding alleged Bank loan allegedly taken by the Appellant, Jeevan Kumar, it was held that even if the loan had been obtained to show the immediate source to a substantial extent for acquisition of the property, the part re-payment was obviously from tainted source in absence of any untainted source. Further payment in future would have been planned from tainted source only in the absence of any ostensible source of income of Jeevan Kumar. At the time of sanction of loan in 2003 there was no known clean source with Jeevan Kumar for paying the stipulated monthly instalments. Small payments made by Pooja (who married Jeevan in 2005) in 2008 and onwards are too insignificant to make a difference. It was further held that when a property is acquired by investing a Bank loan i.e. clean money which is planned to be re-paid by using proceeds of crime (unclean money) in such a situation the property should be treated to be representing proceeds of crime since in final ....
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....ansfer of property. It has only created debtor-creditor relationship. 5.7. In respect of agreement to sell dated 29.03.2008 between M/s. Anchal Paper Products Pvt. Ltd. and Rajesh Gupta, it was held that only part payment was made and possession was not given. M/s. Anchal Paper Products Pvt. Ltd. avoided executing the sale deed that led Rajesh Gupta to file a civil suit in the High Court. As such there was no sale. It was further held that this document shows that M/s. N.R. Merchant Pvt. Ltd. was not a party to it and apparently Rajesh Gupta had entered into this agreement in his personal capacity and M/s. N.R. Merchants Pvt. Ltd. has no locus standi in the proceedings before the Adjudicating Authority. The Adjudicating Authority further held that proceeds of crime were involved in the said property on the basis of statements of Jeevan Kumar and Sanjeev Gupta as well as the agreement to sell dated 22.03.2007 between Anchal Paper Products Pvt. Ltd. and these persons confirming payment of Rs. 36 lakhs to M/s. Anchal Papers Products Pvt. Ltd. This plot was purchased in January 2007 for a total amount of Rs. 66 lakhs out of which Rs. 18 lakhs was invested by Jeevan Kumar and rest of t....
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.... for criminal offence nor it is a civil litigation on a property dispute as to ownership of the properties. The rigors of Evidence Act as contemplated in a crime trial are not applicable to proceedings for attachment under the provisions of PMLA. It is held that what is to be seen is whether the properties provisionally attached are involved in money laundering, irrespective of its legal ownership or not and all that is required to be seen is whether there was cogent materials on the basis of which the Deputy Director could form his reason to believe that the properties represent proceeds of crime. 5.9. The Adjudicating Authority has also held there was no infringement of any constitutional rights of the Appellant on attachment of their properties since ownership is not affected by the attachment order which is provisional in nature. If the proceedings before the criminal court would fail, the attachment order will lapse also. It is also held that there is no legal requirement under PMLA to furnish reasons to believe to the Appellants and the Adjudicating Authority is also not required to record the reasons in writing. With regard to the plea of appellants to cross examine the per....
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.... of that property have flowed into the investment in East of Kailash property. It was reasoned that if the owners of the New Delhi South Extension property, Mr. & Mrs. Rastogi, had given the power of transferring the developed portion of the property and also to receive the consideration amount to Shri Rajiv Chanana without mentioning the consideration in the GPA, then it is apparent that they were not just acting on behalf of the owners. Shri Rajiv Chanana would not have given free service to the owners of the property and substantial property rights, even if not full ownership has been given through this GPA to Rajiv Chanana and Pooja Singhal. If Pooja Singhal had been given substantial right she would not have given up her rights as has been alleged. Regarding the valuation of the property it was held that no alternative report of any approved valuer had been produced to show that the government valuer's report was incorrect. The plea that after acquiring rights in the property on the basis of collaboration agreement, Pooja Singhal was involved on account of some family dispute between him and his brothers was not found to be at all convincing. It was also held that when the....
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....visionally attached by the Enforcement Directorate by the order dated 4th February, 2010. 6. In the case of Shri Rajiv Chanana, an application for allowing the appeal in view of acquittal of Jeevan Kumar was filed, being MP-PMLA-498/DLI/2013 dated 10th April, 2013. Along with the application the applicant/Rajiv Chanana had produced the copy of judgment dated 22.03.2013 of Shri Najar Singh Addl. Session Judge-cum-Special Judge, CBI, Haryana Panchkula acquitting the Appellant Sh. Jeevan Kumar from all charges. The Applicant contended that in view of acquittal of Sh. Jeevan Kumar from the scheduled offense, provisional attachment order dated 9.9.2010 and the order of confirmation dated 4.2.2011 passed in OC 66 of 2010 is liable to be vacated in terms of section 8(5) of PMLA. The Appellant/Shri Rajiv Chanana sought disposal of the appeal in these circumstances. 7. The respondent did not file the reply to the application. The arguments in the application were heard on 10.07.2013. The applicant/Shri Rajiv Chanana had sought disposal of the appeal in view of acquittal of Shri Jeevan Kumar and his counsel Shri Vikas Pahawa and Shri Badrinath had not argued the appeal of Shri Rajiv Chanan....
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....anuary, 2015 the date fixed by the Division Bench for hearing further the parties. A photocopy of the said order was received on 21st January, 2015. Consequently the Tribunal listed the appeals of Jeevan Kumar and Rajiv Chanana on 22nd January, 2015 and intimated the counsel for Rajiv Chanana and Enforcement Directorate. On 22nd January, 2015 the counsel for Rajiv Chanana and Enforcement Directorate appeared and sought time to raise further arguments. The said appeal FPA-167/DLI/2011 was therefore, adjourned to 28th January, 2015. 12. On 28th January, 2015, arguments were partly heard. However, the arguments were not concluded by the counsel for the parties on the ground that an application for clarification had been filed in the High Court in respect of order dated 13th January, 2015 and therefore, the appeal was adjourned to 5th February, 2015. On 5th February, 2015 the counsel for the parties sought another adjournment which was granted in view of the observation of the Hon'ble Division Bench and the liberty granted to the counsel for the parties to further address the arguments before the Tribunal and the appeal was adjourned to 11th February, 2015. 13. On 11th February, ....
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....isposed of by the Hon'ble Division Bench holding that order dated 13.1.2015 did not express any opinion and it is for the Appellate Authority to hear both the parties and dispose of the appeal independently, without being swayed by any observation in the said order. The Hon'ble Division Bench reiterated that the parties will be entitled to raise additional grounds including the ground that provisional attachment will cease to have any effect in terms of section 8(5) of PMLA as it stood prior to amendment by Act 2 of 2013 which ground had already been taken by the appellant/Rajiv Chanana in his application dated 10th April, 2013. 18. Arguments on behalf of another Appellant, M/s. N.R. Merchant Pvt. Ltd. were also concluded on that date and the order was reserved. The counsel for the said appellant also did not address arguments on the merits of the appeal against the impugned order dated 4th February, 2011 and confined herself to the plea that in absence of conviction of Shri Jeevan Kumar, there will be no proceeds of crime and the property of said appellant is also liable to be released. 19. The functioning of this Tribunal is severely restricted and impacted on account o....
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.... provisions of amended Act are retrospective nor they can be construed to be retrospective as the amendment effects the rights of the appellants substantially. 21. The learned counsel for the Appellant, Shri Badrinath had relied on (1984) 1 SCC 206 in which the Hon'ble Supreme Court held that the Retrospectivity of an Act depends upon express or implied language used in it. It was held that where language is not clear, the provision should be construed in context of surrounding circumstances. It was further held that there is presumption against retrospectivity. In (2002) 3 SCC 463 Land Acquisition officer cum DSWO, A.P. Vs. B.V. Reddy and sons relied on by the Appellants, it was held that a substantive provision cannot be retrospective unless the provision itself so indicates. 22. The Appellants had also placed reliance on Anil Kr. Goel Vs. Kishan Chand Kaura, (2007) 13 SCC 492 in which the proviso to section 142(b) of the Negotiable Instrument Act, 1881 empowering court to extend the period of limitation for filing appeal under section 138 was held to be prospective in nature especially as this was not even the case of the complainant and therefore, the order of the High Co....
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....f there is no conviction, so long as it is proved that predicate offence and money laundering offence have taken place and the property in question (i.e. the proceeds of crime) is involved in money-laundering. 24. To emphasise his plea, the learned counsel for the respondent has relied on (2011) 3 SCC 581, Radhey Shyam Kejriwal Vs. State of West Bengal. He contended that the Hon'ble Supreme Court had held that the adjudication proceedings and criminal prosecution can be launched simultaneously; decision in adjudication proceedings is not necessary before initiating criminal prosecution; adjudication proceedings and criminal proceedings are independent in nature to each other; the finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; adjudication proceedings by ED is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 Cr.P.C.; the finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding and if the exoneration in adjudication proceedings is on tec....
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....d as such it is retrospective in nature. He contended that the general rule is that all the statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implications, it appears that this was the intention of the legislature. However, this presumption against retrospection does not apply to the legislation concerned merely with matters of procedure or of evidence and provisions of such nature are to be construed as retrospective unless there is a clear indication that such was not the intention of the Parliament. 28. Reliance has also been placed by the respondent on (1987) 3 SCC 27, M/s. Rai Bahadur Seth Shreeram Durgaprasad Vs. Director of Enforcement; (1989) 2 SCC 95, Mithlesh Kumari & Ors. Vs. Prem Behari Khare and (1995) 2 SCC 630, B. Rajagopal Reddy & Ors. Vs. Padmini Chandrasekharan to contend that the amendment to the Act in 2013 was retrospective as it was procedural and therefore, on acquittal from the scheduled offense, the Appellant is not entitled to contend that the properties be released from a....
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....ed on by the Appellants, the Hon'ble Court in para 6 at page 471 had held as follows:- "6. Coming to the second question, it is a well-settled principle of construction that a substantive provision cannot be retrospective in nature unless the provision itself indicates the same. The amended provision of Section 25 nowhere indicates that the same would have any retrospective effect. Consequently, therefore, it would apply to all acquisitions made subsequent to 24-9-1984, the date on which Act 68 of 1984 came into force. The Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on 30-4-1982 and came into operation with effect from 24-9-1984. Under the amendment in question, the provisions of Section 23(2) dealing with solatium were amended and Section 30(2) of the amended Act provided that the provisions of sub-section (2) of Section 23 of the principal Act as amended by clause (b) of Section 15 shall apply and shall be deemed to have applied, also to and in relation to any award made by the Collector or court or to any order passed by the High Court or the Supreme Court in appeal against any such award under the provisions of the principal Act, after 30-4-1982....
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....ourt had held as under: "15. Section 140 of the 1988 Act does not contain any procedural provision so as to construe it to have retrospective effect. It cannot enlarge any right. Rights of the parties are to be determined on the basis of the law as it then stood viz. before the new Act came into force. 16. It is now well-settled that a change in the substantive law, as opposed to adjective law, would not affect the pending litigation unless the legislature has enacted otherwise, either expressly or by necessary implication. 17. In Garikapati Veeraya v. N. Subbiah Choudhry the law is stated thus: (AIR p. 553, para 25) "25. ... The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed." 18. The question was considered by this Court in Gajraj Singh v. STAT and the law was stated in the following terms: (SCC pp. 664-66, paras 22-24) "22. Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never existed. T....
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.... that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial. 19. Still, reference can be made to the judgment of this Court in Ravinder Singh v. State of H.P. 5, wherein this Court was dealing with the question as to what would be the law applicable for imposition of a sentence irrespective of when the trial was concluded with reference to Article 20(1) of the Constitution of India and the provision of the Punjab Excise Act, 1914 as applicable and amended by H.P. Act 8 of 1995 where punishment was enhanced and minimum sentence was provided. The Court held that: (SCC p. 202, para 7) "7. It is trite law that the sentence imposable on the date of commission of the offence has to determine the sentence imposable on completion of trial." 20. Even in Hari Ram v. State of Rajasthan 6 this C....
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....charged of having committed a scheduled offence and in possession of any proceed of crime, such proceeds of crime can be attached and confiscated, subject to fulfillment of the specified conditions. Consequently, even if the person has not been charged of scheduled offence but who has the proceeds of crime, then such properties with such 'person' can be attached. In W.P. No. 530 of 2011 and M.P. Nos. 2 to 4 of 2011, decided on 01.04.2011, G. Srinivasan Vs. The Chairperson, Adjudicating Authority, the Hon'ble Madras High Court had held as under: "13. The Appellants however, have placed emphasis on the expression "such person" used in Clause (b) of Section 5(1) of the Act. According to them, the word "such" is prefix to the word "person" in Clause (b). That is not superfluous, but is ascribable to the person referred to in Clause (a). Which means that even Clause (a) deals with person who has been charged of having committed a scheduled offence. It is not possible to countenance this submission. We are conscious of the fact that penal provisions should be strictly construed. At the same time, we cannot overlook the language of Section 5 as applicable at the relevant tim....
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....he person charged of a scheduled offence can be proceeded only on forwarding of a report to Magistrate under Section 173 of the Code or a complaint has been filed for taking cognizance of offence by the Special Court constituted under the NDPS Act. In so far as the person who is not named in the scheduled offence, there can be no question of filing of any report or complaint for taking cognizance. That stipulation has no application to the person who is not a person having been charged of a scheduled offence. The view that we propose to take is reinforced from the purport of Section 3 and 4 of the Act of 2002. The same deal with the offence of money-laundering and punishment for money-laundering respectively. Both these provisions, even on strict construction, plainly indicate that the person to be proceeded for this offence need not necessarily be charged of having committed a scheduled offence. For, the expression used in "whosoever". The offence of money-laundering under Section 3 of the Act of 2002 is an independent offence. It is committed if "any person" directly or indirectly attempts to indulge or knowingly assists of knowingly is a party or is actually involved in any proc....
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.... them, as they were not charged of having committed a scheduled offence." 36. Thus a person charged of committing a scheduled offence and having proceeds of crime is liable for attachment of his properties acquired from proceeds of crime and another person who is not charged of committing a scheduled offense but having the proceeds of crime is also liable for attachment of properties acquired from the proceeds of crime. The Appellant Jeevan Kumar belongs to both the categories. He was charged with scheduled offence and to have acquired from the proceeds of crime generated by him and also having the proceeds of crime of his brother which have been laundered by his brother, Amit Kumar, through the Appellant, Jeevan Kumar. 37. Therefore, on his acquittal from the scheduled crime though it cannot be held that he generated proceeds of crime by committing schedule offence himself but in the peculiar facts and circumstances, Jeevan Kumar who had no source of his own income, earning or assets and who admitted in the statement recorded to have co-operated with his brother Amit Kumar who was involved in scheduled crime and his brother Amit Kumar had also admitted in the statement that Jeev....
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....st a person who is not named as an accused in the commission of a scheduled offence. After his acquittal in the criminal case, Appellant Jeevan Kumar continues to remain a person who is not named as an accused in the commission of a scheduled offence but who has the proceeds of crime as he did not have any source of income and whatsoever he had was from his brother, Amit Kumar who has been convicted. In FP-PMLA-21/AHD/2008, Dy. Director, PMLA Vs. M/s. Lok Prakashan Ltd., it was held as under:- "62. The definition of "offence of money laundering" in section 3 and read with section 5 shows that any person who directly or indirectly is a party or is actually involved in any process or activity connected with the proceeds of the crime and projecting it as untainted property is covered under the Act and therefore any person in the possession of proceeds any crime even if he is not charged with the commission of scheduled offence is covered under the Act. It has been held in the M. Penitiah Vs. Veeramallappa Muddala, AIR 1961 SC 1107 (1111) that the Court must strongly lean against the construction which reduces a statute to a futility. A statue or any enacting provision therein must b....
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....r occasion he was arrested by the Mumbai Police in kidney racket scam; that he has purchased different properties in India; that he purchased one flat from Essel Group for Rs. 34 Lakhs and got financed Rs. 30 Lakhs approximately from Standard Chartered Bank; that he was repaying loan amount by paying monthly installments of Rs. 26,000 to Rs. 29,000/- approximately per month; that he purchased plot in Greater NOIDA from Eco Tech and his wife has given Rs. 6 Lakhs from her account to one Raghuvinder Singh of Saket who was the actual allottee of the plot; that he paid Rs. 12 Lakhs to Raghuvinder Singh; that he did not remember the details at that moment; that Shri Sanjay Gupta who was his friend has given his own share to Shri Raghuvinder Singh from his own sources; that the property was in the name of the company namely M/s. Anchal Papers (P) Ltd.,; that the property documents were not traceable; that the company M/s. Anchal Papers (P) Ltd., was still in the name of Raghuvinder Singh; that regarding the property at E-86, NDSE, Part-I, New Delhi, he did not remember the details, however, he signed all the papers including GPA in which his wife Smt. Pooja Singhal was one of the GPA hol....