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TMI Blog2017 (10) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... the employee is mixed up with the appellant and helped them in order to obtain the loan by virtue of mis-presentation because the fact of the matter is that the money has gone to the appellants from the pocket of the bank and it was public money. The same cannot blocked till the trial in the prosecution complaint before the Special Court is over as it may take number of years. The said proceedings are to be continued even otherwise. The complainant in the criminal case is the Bank who is victim. Had the Bank not filed a criminal complaint, perhaps the conspiracy might not have been discovered. Further if in a case like the present if the security of the Bank, is treated as proceeds of crime and is confiscated under the Act, in future, no Bank in such circumstances would make a complaint to the authorities. The trial in the prosecution complaint would take number of years. The victim cannot wait for such a long period of time, although after trial and final determination, the victim is entitled to recover the amount by selling immovable properties u/s 8(8) of the Act. The intention of the Act could not have been to affect a third person or an innocent person as is sought to be done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts are that on complaint of Chief Vigilance Officer; Syndicate Bank, Corporate Office, Gandhi Nagar, Bangalore, regarding fraudulent transactions in the sanction and dispersal of Synd Jaikisan Loan and other credit facility, CBI registered a case on 15.04.2009 against Shri H.M. Swamy, the then Branch Manager of Syndicate Bank, Mandya Branch, Distt. Mandya, Shri Asdulla Khan, of Gandhi Nagar, Mandya and others for the offences punishable under sections 120-B read with 409, 420, 467, 471 IPC and section 13(2) read with section 13(1) (d) of the PC Act 1988. 3.1. On completion of the investigation CBI, BS&FC Bangalore, filed a charge sheet under section 173 Cr. PC against Shri H.M. Swamy, Ashadulla Khan, P.K. Vitthaldas, Shri Ayub Pasha, Shri Najamodeen, Smt. Ayesha Najam, Smt Naseemunnissa, and Smt. Nasreen Taj, for the offences punishable under section 120B read with 420 and section 13(2) read with 13(1) (d) of the PC Act and substantive offence under section 420 IPC against Shri Ashadulla Khan and others. 3.2 The case was based on the allegation that Sh. H.M. Swamy, the then Branch Manager, Syndicate Bank, Mandya Branch, Mandya, and Sh. P.K. Vitthal Das, the then Manager, Syndi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent a sum of ₹ 18 lakhs towards purchase of machinery from out of the money received from Syndicate Bank, Ashok Nagar, Mandya. 3.5 In his further statement dated 27.02.2012 it is further stated that, in addition to the investments made towards construction of house in the name of Smt. Ayesha Najam and jnvestments towards construction of M/s Faraah Industry in the name of Smt. Ayesha Najam and purchase of dry and wet land in the name of Smt Nasreen Taj at Pandavapura, he had made 'investment of ₹ 35 Lakhs in M/s GAD Industries, No. 50-D, KIADB Industrial Area, Tubinakere, Mandya from the money so derived from Syndicate Bank, Mandya towards construction of the said M/s GAD Industries held in the name of his mother-in-law Smt. Zareen Taj. He has further stated that he has made all the payments in cash only towards civil construction of the factory and the investment in the said factory is from out of the money derived from Syndicate bank, Ashoknagar Branch, Mandya and has also informed that the market-value for M/s GAD industries excluding the land value is not less than ₹ 50 lakhs. Further Smt. Zareen Taj, Proprietor of M/s GAD Industries, vide her letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties at Sl. No. 51/7, 51/6, 51/9, 51/2, 51/8 & 52/1; at Panduvapura taluk, Kasab Hobli Doddabyadrahalli, Mandya District was bought by-her husband Shri. Asadulla Khan in her name from out of the money derived from Syndicate Bank. 4. It is evident from the various statements recorded u/s 50 of PML Act, 2002 that Shri Asadulla Khan and his wives have defaulted in making repayment to the Syndicate Bank and thereby resulted in the loss to the Bank. Shri Asadulla Khan himself and his wives have confirmed to the fact that the properties were purchased from out of the money so derived from Syndicate Bank and also failed to submit the detail of his source of income in purchasing the properties from any other source. Shri Asadulla Khan and others have failed to produce any legitimate source of income till date having given several. opportunities for production of source of income. 5. It is not denied by the appellants as well as the respondent no. 1 as all these witnesses admitted the facts that Defendant No. 1 has received a bank loan from Syndicate Bank, Mandya Branch, Mandya and invested the said money for construction of house and industry at Mandya for which there is charge sheet fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the house site/plot measuring 37ft X 60ft property municipal Khata No. D4/418/2481 at 5th Cross, Gandhinagar, Mandya City, Mandya purchased vide Registration No. 5047 registered at Sub-registrar, Mandya dated 08-08-2006. Smt. Ayesha Najam Wife of Mr. Asadulla Khan ₹ 1,00,00,000/- 2 A factory M/s Faara Industries constructed by Shri Asadull Khan at No. 163, 5th Cross, Gandhinagar, Mandya. The factory plot was allotted by KIADB (The Karnataka Industrial Areas Development Board) vide Possession Certificate No. IADB/MYS/941/1846/99- 2000 dated 8-11-1999 measuring 53.75 Mts X 150.00 Mtrs. Industrial Property bearing site No. 916, "F" Block, Vivekananda Nagar Layout, Mandya City Smt. Ayesha Najam, wife of Mr. Asadulla Khan ₹ 1,00,00,000/- 3 Agricultural land measuring 12 Guntas at Sy. No. 51/7, and 1 acre at Sy. No. 51/6 at Panduvapura taluk, Kasab Hobli, Doddabyadrahalli, Mandya District with property registration of sub-registrar Pandavapura No. 4584/07-08 dated 22- 01-2008 held in the name of Smt. Nasreen Taj D/o Najamudeen Smt. Nasreen Taj Wife of Mr. Asadulla Khan ₹ 42,000/- as per sale deed registered at sub-registrar office Pandavapura on 22-01-2008 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) House bearing Municipal Khata No. D4/418/2481, 5th Cross, Gandhinagar, Mandya City, Mandya. The site of this property was purchased by Smt. Ayesha Najam under registered sale deed dated 08.08.2006, prior to construction. Thereafter Smt. Ayesha Najam was granted a loan of ₹ 25 lacs on 25.08.2006 against the security of the site and the proposed construction. In this respect Ayesha Najam created a mortgage with the Syndicate Bank on 25.08.2006 before availing the loan. Thereafter another loan of ₹ 60 lacs was granted to Ayesha Najam on 23.01.2007 after she created/continued the mortgage security in favour of the Syndicate Bank on 23.10.2007. The construction was completed in 2009. The land having been purchased prior to the grant of the loan by the Syndicate Bank, and having been mortgaged with the Bank thereafter the assumption that the subject property is the proceeds of a crime is misconceived and wrong. In respect of this property that since the borrower and guarantor failed to pay the loan amount to the Bank, the Bank in exercise in its rights under the Securitisation Act issued a demand notice under S. 13(2) thereof and a possession notice dated 12.03.2010. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollateral security with the Syndicate Bank by M/s Faara Industries on 21.09.2007 against the loan of ₹ 32 lacs mentioned above. Both the properties were acquired by Ms. Ayesa Nazam in 1999 and 2003 having been acquired prior to the grant of the loan by the Syndicate Bank, and having been mortgaged to the Bank thereafter the assumption that the properties are from the proceeds of a crime is misconceived and wrong. Both the above loan accounts were rendered NPAs on 30.06.2009. Therefore, the Authorised Officer of the Bank in exercise in its rights under the Securitisation Act issued demand notice dated 05.08.2009 under S. 13 (2) thereof demanding the amount due. Thereafter, the Authorised Officer of the Bank issued possession notice dated 12.03.2010 in respect of both the industrial properties compositely mentioned as item no. 8(ii) above. The borrowers M/s Faara Industries filed application under S. 17(1) of the Securitisation Act before the DRT Bangalore against the possession notice of the Bank, wherein by order dated 28.04.2010 the DRT stayed the possession notice. As per the order by DRT, Bangalore the Bank issued fresh Demand Notice on 08.04.2011 and Possession Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd another farm loan ₹ 15 lacs on 23.06.2008. Both the above loans were granted by the Syndicate Bank against the mortgage of the properties described as item no. 8(iv) above. Both the properties were acquired by Ms. Nasreen Taj in January 2008 having been acquired prior to the grant of the loan on 23.06.2008 by the Syndicate Bank, and having been mortgaged with the Bank thereafter the assumption that the properties are from the proceeds of a crime is misconceived and wrong. Agricultural land Survey No. 51/8, Dodda Byadarshalli Village, Kasaba Hobli, Pandavapura Taluk Mandya District was acquired by Nasreen Taj on 10.01.2008/22.01.2008. Mrs. Nasreen Taj availed a farm development loan of ₹ 40 lacs on 23.06.2008 and another farm loan ₹ 15 lacs on 23.06.2008. Both the above loans were granted by the Syndicate Bank against the mortgage of the property described as item no. 8(v) above. Both the properties were acquired by Ms. Nasreen Taj in January 2008 having been acquired prior to the grant of the loan on 23.06.2008 by the Syndicate Bank, and having been mortgaged with the Bank thereafter the assumption that the properties are from the proceeds of a crime is misco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is stated on behalf of Syndicate Bank that the impugned order shows that the Adjudicating Authority has come to a prima face conclusion that all the above properties are proceeds of money laundering subject to action under the Prevention of Money Laundering Act. The authority appears to have proceeded on the basis that the CBI has registered a case of criminal conspiracy and under the Prevention of Corruption Act against two Bank officials of Syndicate Bank and Asadulla Khan and his family members alleging that the Bank Officials have conspired with Asadulla Khan and others in the matter of disbursal of various loans from the Syndicate Bank, in excess of their powers and in violation of the procedures, resulting in a loss to the Syndicate Bank. It is also alleged that the properties offered as collateral security against the land have not been found sufficient. On these allegations the authority has held that the above properties have been acquired out of proceeds of crime as defined under Section 2(u) of the Act and the same are involved in the offence of "Money Laundering" and liable for confiscation of the property by the Central Government. It is submitted that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the Memorandum or Articles of Association of an industrial company or in any other instrument having effect by virtue of any /law other than this Act." 8. The effect of this provision is that the said Act will have effect notwithstanding anything inconsistent therewith contained in any other law except to the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land (Ceiling and Regulation) Act, 1976. A similar non obstante provision is contained in Section 13 of the Special Court Act which reads as follows: "13. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any Court, tribunal or other authority." 9. It is clear that both these Acts are special Acts. This Court has laid down in no uncertain terms that in such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(2), the Special Court is to distribute the assets of the notified party in the manner set out thereunder. Monies payable to the notified parties are assets of the notified party and are, therefore, assets which stand attached. These are assets which have to be collected by the Special Court for the purposes of distribution under Section 11(2). The distribution can only take place provided the assets are first collected. The whole aim of these provisions is to ensure that monies which are siphoned off from hanks and financial institutions into private pockets are returned to the banks and financial institutions. The time and manner of distribution is to be decided by the Special Court only. Under Section 22 of the 1985 Act, recovery proceedings can only be with the consent of the Board for Industrial and Financial Reconstruction or the appellate authority under that Act. The Legislature being aware of the provisions of Section 22 under the 1985 Act still empowered only the Special Court under the 1992 Act of the 1992 Act to give directions to recover and to distribute the assets of the notified persons in the manner set down under Section 11 (2) of the 1992 Act. This can only mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar view was taken by the Bombay High Court in the case of Bhoruka Steel Ltd. Vs. Fairgrowth Financial Services Ltd. The judgment rendered on 09.02.2016 reported in 1997 (89) company cases 547 (BOM) para 15 of the said judgment read as under: 15. To be noted that in both the judgments, relied upon by counsel, the Supreme Court has held that generally where there are two special statues, which contain non-obstante clauses, the later statute must prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non-obstante clause. If the Legislature still confers the later enactment with a non- obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply. In the present case, the said Act is later. The said Act provides that its provisions are to prevail over any other Act. This would include the Sick Companies Act. If the legislature wanted to provide otherwise, they would have specifically so provided." 36. The Full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority. This section introduced in the Central Act is with "notwithstanding" clause and has come into force from 01.09.2016" "4 The law having now come into force, naturally it would govern the rights of the parties in respect of even a lis pending." "5 The aforesaid would, thus, answer question (a) in favour of the financial institution, which is a secured creditor having the benefit of the mortgaged property." 38. In another Madras High Court judgment in the case of "Dr. V. M. Ganesan vs. The Joint Director, Directorate of Enforcement" has explained the grievances faced by the financial institutions while holding that "For instance, if LIC Housing Finance Limited, which has advanced money to the petitioner in the first writ petition and which consequently has a right over the property, is able to satisfy the Adjudicating Authority that the money advanced by them for the purchase of the property cannot be taken to be the proceeds of crime, then, the Adjudicating Authority is obliged to record a finding to that effect and to allow the provisional order of attachm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bona fide acquisition of the property, relieve such property from provisional attachment by declining to pass an order of confirmation of the provisional attachment; either in respect of the whole or such part of the property provisionally attached in respect whereof bona fide acquisition by a person is established, at the stage of the section 8(2) process…" 41. The Supreme Court in (2010)8 Supreme Court Cases 110 (Before G.S. Singhvi and A.K. Ganguly, JJ) in the case of United Bank of India V/s. Satyawati Tondon and Ors. In paras no. 6, 55 & 56 has held as under:- 6. To put it differently, the DRT Act has not only brought into existence special procedural mechanism for speedy recovery of dues of banks and financial institutions, but also made provision for ensuring that defaulting borrowers are not able to invoke the jurisdiction of the civil courts for frustrating the proceedings initiated by the banks and other financial institutions. 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtful in the mind of the Court in whose favour it would be decided." "71. In view of above mentioned reasons, this Court is inclined to quash the proceedings pending against the petitioners, arising out of R.C. No. 4A/94/SIU(X) dated 23rd May, 1994, titled "CBI vs. N. Bhojraj Shetty & Ors.', being C.C. No.65/11, pending in the Court of Spl. Judge (CBI), Tis Hazari Courts, Delhi." The said decision has been upheld by the Hon'ble Supreme Court. 48. This Tribunal in the case of IPRS in appeal no. FPA-PMLA- 1302/MUM/2016 decided on 22.06.2017 had dealt with the similar issue as to whether the innocent party whose immovable properties are attached by the ED can approach the Adjudicating Authority for release of the same in para no. 55 to 60 the same read as under:- "55. Whether innocent party whose properties i.e. movable or immovable are attached can approach the Adjudicating Authority for release of attached property. The Scheme of Prevention of Money Laundering Act clearly provides the mechanism whereby the innocent parties can approach the Adjudicating Authority for the purposes of release of properties which have been attached in terms of the provisions of Section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Adjudicating Authority for release of property by showing their bonafides in their dealings with the property. In the case of Sushil Kumar Katiyar (Appellants) Vs UOI and Ors. (Respondents) MANU/UP/0777/2016 decided on 10.05.2016 by Allahabad High Court, it has been observed by the Ld. Single Judge after noticing the judgment of Karnataka High Court that the element of knowingly or mens rea have been provided under the Act so that the aspect of implicating any innocent person can be ruled out. Relevant para 26 of judgment is reproduced below:- "26. Thus, upon consideration of the law laid down by the Hon'ble Karnataka High Court, it is clear that the amendment incorporated in the Money Laundering Act was not held unconstitutional and ultra virus, but it was observed by the Karnataka High Court that the property of a person can be attached without there being any prosecution for the offence of Money Laundering, but so far as the prosecution of a person for the offence of money laundering is concerned, the proceedings under section 3 of the PML Act can be initiated only in case the person is held guilty of receiving proceeds of crime as a result of commission of scheduled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the said property is not involved in money laundering. 58. For the purposes of determining whether the property is involved in money laundering, the Court may consider the ingredients of Section 3 which define offence of money laundering. The aspect of knowledge or involvement has been discussed by Ld. Single Judge of Gujarat High Court in the case of Jafar Mohammed Hasanfatta and Ors (Appellants) Vs Deputy Director and Ors. (Respondents) MANU/GJ/0219/2017 wherein Ld Single Judge has observed as under:- "37. A holistic reading of this definition of 'proceeds of crime' and the penal provision under Section 3 of PMLA, which uses conjunctive 'and', makes it luminous that any persons concerned in any process or activity connected with such "proceeds of crime" relating to a "scheduled offence" including its concealment, possession, acquisition or use can be guilty of money laundering, only if both of the two prerequisites are satisfied i.e.- "(i) Firstly, if he- (a) directly or indirectly 'attempts' to indulge, (b) "knowingly" either assists or is a party, or (c) is "actually involved" in such activity; and (ii) Secondly, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is absolutely no material or circumstantial evidence whatsoever, oral or documentary, to show that any of the petitioners, 'Knowingly', assisted or was a party to, any offence. C. Actually involved: Actually involved would mean actually involved into any process or activity connected with the proceeds of crime and thus scheduled offence, including its concealment, possession, acquisition or use. There is absolutely no material or circumstantial evidence whatsoever, oral or documentary, to substantiate any such allegation qua the petitioners, D. Neither any of the petitioners is arraigned as accused in the 'Scheduled Offences' punishable under Indian Penal Code for direct or indirect involvement, abetment, conspiracy or common intention, nor is any such case made out even on prima facie basis against any of them." 39. The second of the two pre-requisite to attract Section 3 of PMLA would be satisfied only if the person also projects or claims proceeds of crime as untainted property. For making such claim or to project 'proceeds of crime' as untainted, the knowledge of tainted nature i.e. the property being 'proceeds of crime' derived or obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt), be presumed that the remaining transactions form part of such inter-connected transaction. 24. Burden of proof In any proceeding relating to proceeds of crime under this Act, (a) in the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money- laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering. 21. In the present case, one G. Srinivasan is accused of having played fraud and obtained a loan of ₹ 15,00,00,000/- by producing bogus and fabricated documents. From and out of the said amount, the property in question was purchased by him in the names of his Benamies. One Ayyappan was appointed as their Power Agent. One Gunaseelan purchased the property through the Power Agent Ayyappan. The said Gunaseelan was examined and his statement was recorded Under Section 50 of the Act. He had stated that he purchased the property for cultivation. He developed the property but geologist gave opinion that property will not yield proper income. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty in the hands of genuine legitimate bona fide purchaser without knowledge. 24. Before the Adjudicating Authority it was admitted by complainant that appellants had no knowledge that properties in the hands of their vendor was proceeds of crime. It was also not disputed by complainant that the appellants did not have financial capacity to buy properties. Paragraphs 21, 22, 23 and 24 of order of Adjudicating Authority is extracted herein for better appreciation. "21. The CBIBS & FC (BLR) has filed a charge sheet in the court of Spl. Judge for CBI cases Coimbatore, against Sh. Arivarasu, Sh. R. Manoharan, Sh. R. Selvakumar, Sh. G. Srinivasan, Sh. K. Martha Muthu, Sh. V. InduNesan, Sh. K. Vignesh, Sh. A. Sainthil Kumar, Sh. M. Ram Krishnan, for the offences punishable under Section 120-B read with 420, 467, 471 IPC and section 13(2) read with 13(1)(d) of PC Act 1988. The offences punishable under section 120-B, 420, 471 are schedule offence under Section 2(1)(y) of the PMLA and therefore on of the condition for issuing provisional attachment order is satisfied. The other important point to be determined is whether the properties attached vide Provisional attachment order are inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had placed substantial and acceptable facts to prove that the property in the hands of third party was proceeds of crime. It is pertinent to note that in Mr. Radha Mohan Lokatia's case, Department had proved the nexus and link between the person possessing the property and person accused of having committed an offence. All the persons involved in that case were close relatives. 26. In the present case, the respondent failed to prove that the appellants did not have sufficient financial capacity to buy the property or that the money paid by them as sale consideration was not legitimate money derived by agricultural activities. No material was produced to show that the appellants are close relatives of person, who involved in criminal activities and the person, who sent monies to purchase the property did not possess financial capacity to provide such huge amounts and that they are not genuine purchasers of agricultural products of appellants. The respondent has not made any such investigation and has not produced any such material. Further, the Appellate Authority in fact considered the additional documents produced before it, but rejected the same on the ground that Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f crime by the appellants. The impugned order does not disclose any reasoning. There is no reasoning to show as to how the attached properties are the proceeds of crime. The impugned order suffers from a fundamental error. There is no understanding by the Adjudicating Authority of the contents of the statute, much less its application to the facts of the case. 19. In view of the facts as mentioned above it cannot be said that the loan proceeds and investment made from the loan proceeds are the "proceeds of crime" under Section 2(u) of the Act' Is the property in question derived by the borrower as a result of any criminal activity' Is the contract of loan between bank and borrower a criminal activity' The bank is a bona fide party who is victim and at the time of sanctioning loan, the bank was not aware about the conduct of the appellant. It is a public money. No action against the bank under the schedule offences are pending so as under the PMLA, 2002. 20. In the present case, the Adjudicating Authority has not complied with the statutory provisions contained in S. 8. It was on record of the Adjudicating Authority that all the properties in question were mortgaged by the borrowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (1) of Section 5, 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. 24. For determining what property can be confiscated under the Act, Sections 2(u), 3, 5(1) and 8 have to be read together. Section 2(u) defines proceeds of crime to mean any property derived or obtained by any person as a result of "criminal activity relating to a scheduled offence". This means that there must be a connection between the property in question and the criminal activity relating to a scheduled offence. S.3 defines the offence of money laundering. Perusal of S.3 indicates that only a person who is knowingly a party to any activity or is involved in such activity connected with proceeds of crime and projects or claims it as untainted property can be guilty of the offence. 25. In other words it means that a person who is in possession of any proceeds of crime but has no connection or involvement whatsoever or knowledge that any property is proceeds of crime cannot be guilty of the said offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney is not illicit or tainted money, nor is the Bank a party to the criminal conspiracy hatched between the manager of the Bank and the borrower. The Bank is an innocent third party who is to be treated as a victim of the crime, if at all. The money received by the appellants were pure and untainted. It was a public money. It is wholly immaterial if one of the employee is mixed up with the appellant and helped them in order to obtain the loan by virtue of mis-presentation because the fact of the matter is that the money has gone to the appellants from the pocket of the bank and it was public money. The same cannot blocked till the trial in the prosecution complaint before the Special Court is over as it may take number of years. The said proceedings are to be continued even otherwise. 30. The complainant in the criminal case is the Bank who is victim. Had the Bank not filed a criminal complaint, perhaps the conspiracy might not have been discovered. Further if in a case like the present if the security of the Bank, is treated as proceeds of crime and is confiscated under the Act, in future, no Bank in such circumstances would make a complaint to the authorities. The trial in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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