TaxTMI 
TaxTMI 
2025 (8) TMI 504
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.... of the land Rs. 263 lac + total development cost of Rs. 260 lacs. Total Value Rs. 523 lacs. 2. As per the facts of the case, letter dated 8.06.2011 was received from the Superintendent of Police, CBI, BS&FC, Kolkata regarding registration of regular case vide RCBSK2009E0004 dated 27.03.2009 on the basis of complaint filed by Shri B.N.S. Ratnakar, General Manager, Zonal Office, Central Bank of India, Kolkata against Shri Ashok Kumar Gupta, Shri Vivek Gupta, Directors of M/s. Kali International Pvt. Ltd. and Shri R.S. Sahoo, the then AGM, Central Bank of India, Burrabazar Branch, Kolkata and Shri K.N. Mondal, the then Senior Manager in the said branch for commission of offences u/s 120B IPC r/w 420, 409, 468, 471, 477-A IPC and also r/w Section 13(2) r/w 13(1)(c) & (d) of Prevention of Corruption Act, 1988 and substantive offences thereunder, in respect of the alleged fraudulent transactions through CC Account of M/s. Kali International Pvt. Ltd., and thereby, caused a wrongful loss to the Central Bank of India to the tune of Rs. 72.44 Crores as on 28.02.2009. Another FIR vide Regular Case No. RCBSK2009E005 dated 27.03.2009 was also registered on the basis of another complaint....
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....nto the accounts of Kavita Saraff Rs. 32,95,00,000/- was transferred into the accounts of M/s. ARK Financial Services and Rs. 27,85,00,000/- was transferred into the account of M/s. Indian Textile Products and Rs. 70 lakhs to the account of Shri Ram Awatar Bhilwaniwala. Respondent ED on the basis of chargesheet registered ECIR No. 09/KOL/2012 dated 16.07.2012 against all the suspects for conducting investigation/enquiry for commission of offence for money laundering under PMLA, 2002. During the previous investigation by Respondent-ED, Provisional Attachment Order dated 29.09.2016 was passed and the properties of various companies controlled by Ramesh Gupta and his brothers were attached for sum of Rs. 3,83,232/09 and Rs.4,42,000/- respectively. The said attachment order was confirmed vide order dated 20.02.2017. During further investigation, statement of many persons was recorded. Statement of Ramesh Gupta partner of M/s. Rajco Steel Enterprises revealed that from 2008 their companies started incurring loss in steel and granite business. Shri Rahul Saraff and his wife Smt. Kavita Saraff gave them a proposal for investing money in their business with promise of good return.....
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....tement submitted that the property situated at 19A, S.R. Das Road, Kolkata - 700026 belongs to M/s Bright Commodeal Pvt. Ltd. having its registered office at 19A, S.R. Das Road, Kolkata - 700026. The said premises is having Ground Floor and four storey building. The ground floor is having one room which is used as office of the company. The first floor is leased to Mrs. Samta Gupta w/o Sh. Vivek Gupta (brother of Ramesh Gupta), the 3rd Floor of the building is leased to Mr. Mohit Gupta, son of Ashok Gupta (brother of Ramesh Gupta), the 4th floor of the building is leased to Shri Yogesh Kumar Bhojnagarwala, a relative to Shri Rajendra Kumar Gupta (brother of Ramesh Gupta). The second floor of the said building is occupied by Shri Ramesh Gupta himself and his family. Shri Ramesh Gupta further submitted that M/s Bright Commodeal Pvt. Ltd. purchased the said property in the year 2008. In and round the year 2012, Shri Varun Gupta, son of Shri Ramesh Gupta joined M/s Bright Commodeal Pvt. Ltd. as Director and shareholder. M/s Bright Commodeal Pvt. Ltd had a liability of about 270 lacs and asset of a land at 19A, S.R. Das Road, Kolkata of about Rs. Ninety lacs only. In and around the year....
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....f/ Defendant no.2 for passing the Provisional Attachment Order. As per the case of respondent ED, it would be palpably clear that an amount of Rs.135.87 crores were transferred to M/s Motilal Oswal Securities Limited, for the purpose of the speculation in the derivative segment, out of the money received from Sri Ramesh Gupta (Rs. 153.26 crores). The fulcrum of the alleged offence, sought to be investigated, revolved upon the siphoning of funds from the Central Bank of India, resulting in losses to the said Bank. The tainted money is limited to Rs.138.37 crores, out of which a sum of Rs. 135.87 is in the custody of M/s Motilal Oswal Securities Limited and a sum of Rs. 373.34 lakhs have been recovered by the bank by sale of the assets of certain companies. Accordingly, Ld. Counsel for the appellant stressed that the learned Adjudicating Authority ought to have held that the tainted money could not be, by any stretch of imagination, is in the possession of the appellant M/s Bright Commodeal Pvt. Ltd. Ld. Counsel for the appellant contended that as per the case of respondent ED, the investments in the form of acquisition of immovable property by M/s Bright Commodeal Pvt. Ltd. (Defe....
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....PMLA, are yet to be detected and it is reasonably believed that substantial amounts have also been siphoned off and transferred to Sh. Rahul Saraff for share transaction in collusion with Sh. Rahul Saraff and other unknown destinations. Hence, the immovable properties as mentioned in Table 2 of PAO, including the property mentioned in para number no.1 above, being the value of the proceeds of crime in terms of Section 2(1)(u) of PMLA, 2002, is rightly confirmed for attachment. Hence, present appellant company cannot escape from the liability by taking the plea that the said company has not received any proceeds of crime for purchasing the assets. The plea of non- applicability of the scheduled offence, by way of any subsequent amendment is also devoid of any merit, in view of judgment of Hon'ble Supreme Court of India in case Vijay Madanlal v. Union of India, 2022 SCC OnLine SC 929. Accordingly, the present appeal is liable to be dismissed being devoid of any merits. 5. After hearing the rival submissions, I have given my thoughtful consideration to the same. The Ld. Counsel for the appellant company has not disputed the facts and allegations as mentioned in para no. 2 above.....
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....tly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property' [or where such property is taken or held outside the country, then the property equivalent in value held within the country] [or abroad]; [Explanation.- For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence]." xx xx xx xx xx xx xx xx xx xx The perusal of the definition reveals three limbs of the definition out of which first part refers to the property acquired or derived directly or indirectly by a person relating to the criminal activity to a scheduled offence. The second part includes "the value of any such property". The second part is generally mixed with third party for giving interpretation. However, an elaborate judgment on the issue has been given by the Delhi High Court in the case of Prakash Industries Ltd. v. Directorate of Enforcement, 2022 SCC OnLine Del 2087 and in this regard....
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....ime only if the proceeds of crime are situated outside India. This argument, in our opinion, is tenuous. For, the definition of "proceeds of crime" is wide enough to not only refer to the property derived or obtained as a result of criminal activity relating to a scheduled offence, but also of the value of any such property. If the property is taken or held outside the country, even in such a case, the property equivalent in value held within the country or abroad can be proceeded with. The definition of "property" as in Section 2(1)(v) is equally wide enough to encompass the value of the property of proceeds of crime. Such interpretation would further the legislative intent in recovery of the proceeds of crime and vesting it in the Central Government for effective prevention of money-laundering." The paras quoted above show a detailed discussion to the interpretation to the definition of "proceeds of crime". The judgment of the Apex Court in the case of Smt. Pavana Dibbur v. The Directorate of Enforcement 2023 SCC OnLine SC 1586 has also been considered. However, findings given by three judges Bench of the Apex Court in the Vijay Madanlal Choudhary v. Union of India (supra) has....
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....omplaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in 1 [first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act." In the matter at hand, there is ample evidence available from the investigation against the accused persons who were managing the affairs of the accused company & firm and in pursuance to conspiracy they committed bank frauds to the tune of Rs.138.37 crores, by siphoning of the loan funds for the other purposes, as detailed in para no.2 above. They and their family members were also the directors of the present appellant company and managing its affairs. The explanation and defence taken by the appellant company are appa....
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....efore the society and claims that said money was acquired by proper means, then he would be guilty of the offence of money laundering. A person might have committed an offence long back and the proceeds of it is being placed, layered or sought to be integrated to the main stream of economy, then also, he is said to have committed the offence of money laundering. Incorporation of certain offences in the Schedule is to bring it within the net of PML Act namely, proceeds of that crime within the provisions of the Act. For constituting an offence under Section 3 of PML Act, it is the connection of transaction to proceeds of crime which is sufficient and not the crime." The relevant date to find out offence of money laundering is when proceeds is projected to be untainted property. The issue aforesaid has been decided even in the case of Vem Krishna Keerthan v. Directorate of Enforcement reported in CRIMINAL PETITION No.9314 of 2022. "38. In respect of the second argument, it should be borne in mind that the offence of money laundering is a continuous offence. The date of commission of the scheduled offence may not be relevant to prosecute a person for the offence of money l....
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....t -- for continuing to possess or conceal the proceeds of crime (fully or in part) or retaining possession thereof or uses it in trenches until fully exhausted. The offence of money-laundering is not dependent on or linked to the date on which the scheduled offence or if we may say so the predicate offence has been committed. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. These ingredients are intrinsic in the original provision (Section 3, as amended until 2013 and were in force till 31.7.2019); and the same has been merely explained and clarified by way of Explanation vide Finance (No. 2) Act, 2019. Thus understood, inclusion of Clause (ii) in Explanation inserted in 2019 is of no consequence as it does not alter or enlarge the scope of Section 3 at all." Hence, the issue no.3 also decided against the appellant and in favour of the respondent ED. Issue No. 4 9. Now coming to issue no. (iv), as per the contention of the appellant company, it is not named in the CBI charge-sheet or in the prosecution complaint filed under the PMLA, 2002. The law on this issue now stands settled by the landmark ju....