TaxTMI 
TaxTMI 
2025 (12) TMI 1554
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....ridwar Vijay Kumar Kushwaha 7,00,000 2. Kumar Complex, Avas Vikas Colony, BHEL Road, Haridwar Vijay Kumar Kushwaha 90,00,000 3. Plot No. 22, Khata No. 727, Khasra No. 1695, Village Salempur Mehdud-2, Pargana Roorkee, Tehsil & District Haridwar Vijay Kumar Kushwaha 7,00,000 4. Plot No. 24, Khata No. 727, Khasra No. 1695, Vill. Salempur Mehdud-2, Pargana Roorkee, Tehsil & Distt. Haridwar Vijay Kumar Kushwaha 7,00,000 5. Plot No. 17, Khata No. 727, Khasra No. 1695, Vill.: Salempur Mehdud-2, Pargana Roorkee Tehsil & District: Haridwar Vijay Kumar Kushwaha 7,00,000 6. Plot No. 20, Khata No. 727, Khasra No. 1695, Vill: Salempur Mehdud-2, Pargana Roorkee, Tehsil & Dist. Haridwar Vijay Kumar Kushwaha 7,00,000 7. Tehri Visthapit Colony, Gram Ranipur, Pargana, Jwalapur, Haridwar Vijay Kumar Kushwaha 4,90,000 8. Mauja Sewla Kalan, Pargana Central Doon, Dehradun Vijay Kumar Kushwaha 45,00,000 9. Flat No. G.B., - 08, Rock Valley Apartment, Mauja Sewla Kalan, Pargana Central Doon, Dehradun Vijay Kumar Kushwaha 28,00,000 10. Residential ....
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....2012, paid on 16.05.2012 & 18.05.2012, respectively. Investigations revealed the involvement of Sh. Manoj Kumar R., the then Branch Manager & Senior Manager of SIB and Sh. Jacob Kovoor, Ex. Additional Manager of SIB in the said crime for alleged transfer of public funds, by way of fraudulent transactions, totaling to Rs. 8 Cr. in the accounts of the firms of private persons, i.e., Sanjay Minocha & Vijay Kushwaha, maintained with other banks and also issuance of forged Fixed Deposit Receipts (FDRs) to the original depositors as genuine FDRs. On the basis of internal investigation conducted by the bank the total amount of the said fraud was reported to be Rs. 33,97,55,319.06. Therefore, sections 120B, 409, 467, 468 & 471 of IPC were also incorporated in the said case by the Investigating Officer on 03.01.2013. The Internal Investigation Reports of the bank dated 07.11.2012 & 10.01.2013 of Shri Ranjith J, Senior Manager, Inspection & Vigilance Deptt., South Indian Bank, Head Office, Thrissur on misappropriation of balance in the accounts through unauthorized and false transactions, and his subsequent letter dated 01.01.2014, revealed that the Sanjay Minocha & family firms/indivi....
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....trument in Inward Clearing. As per the investigation report of the bank dated 10.01.2013, prima facie loss identified by the bank was Rs. 33,97,55,319/-. However, vide letter dated 01.01.2014, the internal investigator of SIB, Sh. Ranjith J., stated that the loss suffered by the bank has been calculated to be Rs. 30,68,38,618/-. Further investigation revealed that Mr. Vinay Kumar Kushwaha is the proprietor of M/s Computer Mart and M/s IT Computer Park dealing in the sale and purchase of computers and its peripherals. He opened a firm in the name & style M/s Uttrakhand IT services & Trading Co. & M/s Apple system and Technology under the proprietorship his wife Mrs. Rekha Kushwaha. He further opened firms, M/s National Era Computers and M/s Shikar Communications under the proprietorship of his brother Vimlesh Kumar Kushwaha. He made Mr. Kamal Singh, Ranjit Singh and Mrs. Geetanjali Bhardwaj his sub-dealers and they did the work of sub- dealership from their firms, M/s Laptop Zone, M/s Computer Junction & M/s Uttarakhand IT Mall respectively. Mr. Ranjit Singh and Mrs. Geetanjali Bhardwaj were employees of Mr. Vijay Kumar Kushwaha, while Mr. Kamal Singh was his tenan....
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....ailed from time to time and to close the various cash credit limits, housing loan availed from different banks, thereby keeping the loan facilities, taken from various banks in running standard. They have utilised the proceeds of crime in maintaining the limit of the cash credit account and for purchasing of immovable properties. Had they not repaid the amount on the aforesaid loans by using the proceeds of crime, all their concerned loan accounts would have turned into Non-Performing Assets (NPA) and the properties kept as security against such loans might have been taken over by the banks, who disbursed loans to Sh. Vijay Kumar Kushwaha and his associates. Investigations, thus revealed that Vijay Kumar Kushwaha knowingly utilized the proceeds of crime towards the repayment of interest on their limit account, closing of the cash credit accounts, adjustment of TODs given from time to time and purchasing of immovable properties, projecting it as untainted. During the course of investigation, it was also revealed that apart from SIB, Sh. Vijay Kumar Kushwaha has availed overdraft facility from Bank of Baroda, Chandra Charaya Chowk branch Haridwar, Ballupur Chowk, Dehradun....
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....uantum of loans taken in the name of the firms, to pay off the interest amount accrued on loans, adjustments of temporary Over Draft taken in the firms from time to time and purchase of immovable properties. Proceeds of crime were transferred from one account to another account for the purpose of layering/laundering in an attempt to project it as untainted. The said proceeds of crime were invested/used to pay off several liabilities of Vijay Kumar Kushwaha and his associated firms, to pay off interest amount of various loans, adjustments of temporary over draft facility taken from time to time and purchase of immovable properties, so as to integrate the proceeds of crime with legal economy and also to project the said proceeds as untainted. Shri Vijay Kumar Kushwaha repatriated Rs. 50,09,000/- to South Indian Bank in lieu of/against the proceeds of crime possessed by him, therefore, the proceeds of crime amounting to Rs. 10,20,99,800/- was still in the possession of Shri Vijay Kumar Kushwaha & his associated firms, namely, M/s IT Computer Park, M/s Computer Mart & M/s Uttarakhand IT Services & Trading Co. During the course of investigation, it was further revealed that Sh. Vi....
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....fence i.e. in the year 2005 & 2009, whereas the remaining properties was purchased in the year 2011. He stressed that the two old properties cannot be attached as value thereof having no connection with the alleged proceeds of crime. He further contented that valuation of the properties was wrongly taken as a registered value, instead of taking the market value of the same. He argued that admittedly all the properties were mortgaged with the bank, and hence, there was no apprehension that the said properties are likely to be disposed of the in any manner. He pointed out that Hon'ble High Court in W.P. No. 126/2018 already stayed the proceedings in the Prosecution Complaint case filed by the ED, though the proceedings in the present appeal are not stayed. Prayer is accordingly made to set aside the impugned order passed by the Adjudicating Authority and thereby release the properties of the appellants. 4. On the other hand, Ld. Counsel for the respondent ED strongly controverted the submissions made by the Ld. Counsel for the Appellant on each and every issue, which will be reflected in our discussions and findings in para no. 6 onwards. 5. On the basis of the respective submi....
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....uoted thus- 2. Definitions -(1) In this Act, unless the context otherwise requires, -xx xx xx xx xx xx xx xx (u) "proceeds of crime" means any property derived or obtained, directly 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 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....
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....the judgments on the issue have been considered and thereby this issue was decided in favour of ED. Further, in view of the para 68 of the judgment of Hon'ble Supreme Court of India in the case of Vijay Madanlal Chaudhary v. Union of India, 2022 SCC OnLine SC 929, wherein, it is held that- "68. It was also urged before us that the attachment of property must be equivalent in value of the proceeds of crime 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 prevent....
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....MLA, 2002, cannot be equated with type of physical possession under SARFAESI, Act, on account of mortgage of the property and subsequent action under SARFAESI. Further, even at this stage, if we allow the present appeals on the ground that the property was already mortgaged with the bank, then we are giving room to the appellants to negotiate with the other bank to take over the present mortgaged properties, on enhanced loan limit, on account of rise in prices of properties during this intervening period, and thereafter, discharge the liability of present mortgagee bank. Under such circumstances, the ED will have no scope to affect the fresh attachment for taking additional loan on the properties. Moreover, in the present case impugned order was passed by the Adjudicating Authority on 03.03.2017. ED has already filed the prosecution complaint against the appellants. The purpose of attachment proceedings is to protect the property, till the conclusion of investigation or till the conclusion of trial. Once the prosecution complaint for commission of offence u/s 3 punishable under section 4 of PMLA is filed, wherein relying upon the attached properties for purpose of confiscatio....