TaxTMI 
TaxTMI 
2026 (2) TMI 845
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....ve parties, it would be relevant to give brief facts of the case: Brief facts of the case: 2. It is a case where FIR No. 85(26) and FIR No. 86(27) dated 27.04.2010 were registered for the offences under Section 302, 120-B IPC and Section 25(1)(b) of the Arms At, 1959 at Paradeep Police Station. It was alleged that the managing partner of the appellant company M/s Mahimananda Mishra hatched a conspiracy to fail the execution of work allotted to one M/s Swastik Stevedores Pvt. Ltd. (M/s SSPL) for unloading of limestone imported by M/s SAIL and hired people to cause threat to the life of the staff and equipment by burning off their two pay loader machines. As a result of the burning of pay loaders, M/s SSPL could not complete the unloading of limestone imported by M/s SAIL and M/s Mahimananda Mishra provided the service instead received Rs. 23,21,321/- as per the bill raised due to the alleged criminal activities. 3. Mr. Mahimananda Mishra was the main accused and the managing director of M/s. Orissa Stevedores Ltd. until his resignation in 2017 and the managing partner of M/s. Mahimananda Mishra. The investigation revealed various cases registered against the main accused th....
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.... Mr. Mahimnanda Mishra, revealed withdrawal of huge cash from M/s OSL during October, 2016 and Rs. 40,00,000/- after the murder of manager of M/s Seaways thus, the transactions in the ledger account substantiate the allegations against the main accused and the involvement of the appellants in the said conspiracy. 7. On the basis of facts referred above, provisional attachment order was passed and confirmed by the Adjudicating Authority. Aggrieved by the order of the Adjudicating Authority, appellants have preferred these appeals raising factual and legal issues. Arguments of counsel for the appellants 8. The counsel for the appellants submitted that none of the appellants are involved in commission of crime; rather, the complaint was filed based on presumption. It was submitted that appellants are not named in predicate offence and thus, the property belonging to them could not have been attached. 9. The learned counsel for the appellants further argued that the prosecution complaint has been challenged because a case against the appellants is not made out. On the aforesaid ground itself, the impugned order deserves to be set aside. 10. The learned counsel for the ap....
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....t, Mr. Mahimananda Mishra, managing director of M/s. OSL hatched a conspiracy to kill the manager of the company M/s Seaways and about Rs. 12 lakhs were given to one Rakesh Choubey in the beginning and remaining Rs. 38 lakhs were to be given after completion of the work. He took huge amount in cash from the appellant M/s OSL. 15. The main accused is the managing director of the appellant M/s. Orissa Stevedores Ltd. until his resignation in 2017 and the managing partner of appellant M/s. Mahimananda Mishra. The further involvement of M/s OSL in criminal activity and deriving proceeds of crimes is borne out from the chargesheet was filed in 2006 by Balimi Police Station. It is alleging that M/s Bhushan Steel Pvt. Ltd., Narendrapur, Meramundali, Dhenkanal assigned the work of construction a boundary wall near village Sarapa to Mr. Mahimananda Mishra however, despite repeated protests by the villagers the work was continued. A conspiracy was hatched by the main accused to injure and kill the villagers, who were demanding the compensation for land losers and peripheral development. A letter was sent by M/s Bhushan Steel Pvt. Ltd. stating that payments aggregating to Rs. 94,50,241/- a....
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....ng any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in 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 posse....
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....b-section (1) of section 5, or, seized or frozen under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (2) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under sub-section (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf; and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under subsection (1) are involved in money-laundering: ....
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....entral Government. (6) Where on conclusion of a trial under this Act, the Special Court finds that the offence of money laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. (7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under sub-section (3) of section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offence of money-laundering after having regard to the material before it. (8) Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest ....
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....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;] 3. Offence of money-laundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the 1[proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. [Explanation.--For the removal of doubts, it is hereby clarified that,-- (i) a person shall be guilty of offence of money- laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; ....
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....quence of provisional attachment order, may end up in being named as accused in the complaint to be filed by the authorised officer concerning offence under section 3 of the 2002 Act." In view of the judgment supra, first issue is answered against the appellant. 15. The other issue is that the property is not 'proceeds of crime'. To fall in the definition of 'proceeds of crime', it can be even a property of equivalent in value to the proceeds out of the crime. Meaning thereby, it is not necessary that to fall in the definition 'proceeds of crime' it should always be a property directly or indirectly derived or obtained as a result of criminal activity rather if somebody has obtained and derived any property out of the crime and has siphoned off or vanished, then any property of equivalent in value can be attached. In view of the above, if the documents related to property have been seized though the property was acquired much prior to the offence then also it can be subjected to seizure or even attachment if the property obtained out of the crime is not available in the hands of the accused or short in value. 16. It is also necessary to clarify that if th....