TaxTMI 
TaxTMI 
2026 (9) TMI 1215
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....of Flood Spill Channel, including its side slope protection and dredging of drainage/escape channels flowing into Hokersar Wetland, the petitioner company submitted its bid, which was found to be the lowest one. The Letter of Intent was issued in favour of the petitioner on 15.09.2018, which was subsequently followed by an allotment order dated 01.02.2019. It has been submitted that the work was completed by the petitioner company in the year 2020 to the satisfaction of the intending department as well as the Wildlife Department. However, after a gap of five years from the date of completion of the project by the petitioner company, Police Station, Anti-Corruption Bureau, on 18.04.2025, registered FIR No.7/2025 for offences under Section 5(1)(d) of the J&K Prevention of Corruption Act (for short "the J&K PC Act") and Section 120-B of the RPC. 3) According to the petitioner, it has already challenged the aforesaid FIR by way of a petition under Section 528 of the BNSS bearing CRM(M) No.580/2025, and on 23.09.2025, this Court has passed an interim direction asking ACB, Srinagar, not to file the charge-sheet without permission of the Court. 4) It has been submitted that, during ....
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....r Section 13(1)(d) of the said Act stood obliterated as if it never existed and, as such, there was no law corresponding to Section 5(1)(d) of the J&K PC Act in the Central PC Act on or after 15.09.2018, when the Letter of Intent was issued in favour of the petitioner company. 10) On the basis of aforesaid ground, it has been submitted that issuance of the impugned summons, while assuming jurisdiction with respect to offences that are not scheduled offences, is wholly illegal and unlawful and, therefore, all underlying proceedings, including registration of the ECIR, suffer from lack of jurisdiction and, as such, deserve to be quashed. 11) Counter/reply affidavit has been filed by the respondent agency in which, while giving the background facts leading to lodging of the FIR for the predicate offence against the petitioner, it has been submitted that Section 5(1)(d) read with Section 5(2) of the J&K PC Act is in pari-materia with Section 13(b) read with Section 13(2) of the Central PC Act, which are scheduled offences in terms of Section 2(1)(x) & (y) of PMLA, therefore, the respondent Enforcement Directorate gets jurisdiction to record ECIR and initiate investigation under P....
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.... proceeds of crime. Therefore, commission of a scheduled offence is sine qua non for existence of proceeds of crime and commission of the offence of money laundering under Section 3 of the PMLA. In this regard, the statement of law declared by the Supreme Court in the case of Vijay Madanlal Choudhary v. Union of India and others, 2022 SCC OnLine SC 929, as contained in paragraph (253) of the said judgment, is reproduced as under: "253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression "derived or obtained" is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity rela....
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....(d) of the J&K PC Act in the Central PC Act and, as such, an offence defined under Section 5(1)(d) of the J&K PC Act no longer qualifies to be a scheduled offence. 20) The argument, at its first blush, appears to be attractive, but when closely scrutinized in the context of an overall analysis of the provisions contained in the J&K PC Act and the Central PC Act read with the statement of Objects and Reasons pertaining to the Amendment Act of 2018, the contention of the petitioner appears to be misconceived. 21) For reaching the aforesaid conclusion and understanding the position of law, it would be necessary to notice the provisions contained in Section 5(1)(d) of the J&K PC Act and Section 13(1)(d) of the Central PC Act as it existed prior to the Amendment Act of 2018: Section 5(1)(d) of J&K PC Act Section 13(1)(d) of Central PC Act. 5. Criminal misconduct.-(1) A public is said to commit the offence of criminal misconduct.-- xxx xxx xxxx xxx xxx xxxx xxx xxx xxxx (d) If he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, 13. Crimi....
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....due advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties, be made a criminal offence. Accordingly, it is proposed to substitute a new section 8 to meet the said obligation; (c) as the proposed new definitions of bribery, both as regards the solicitation and acceptance of undue advantage and as regards the promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, are found to be comprehensive enough to cover all offences presently provided in section 8 which covers taking gratification, in order, by corrupt or illegal means, to influence public servant; section S which covers taking gratification, for exercise of personal influence with public servant; section 10 which provides for punishment for abetment by public servant of offences defined in section & or section S: and section 11 which provides for public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant; and also the offences presently defined in clauses (a), (b) and (d) of....
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....either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. Explanation 2.--For the purpose of this section,-- (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for h....
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....on other than legal remuneration in respect of an official act. - Whoever, being, or expected to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Government or the State Legislature or with any local authority, Corporation or corporate body referred to in clause (c) of section 2, or with any public servant, shall be punishable with imprisonment which shall be not less than one year but which may extend to five years and shall also be liable to fine. Explanations:- (a) "Expecting to be a public servant" if a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this sec....