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TMI Blog2024 (12) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... de purchase before the issuance of the provisional Attachment Order and hence only the sale proceeds in the hands of the Vendor is liable to be attached as the proceeds of crime. The bona fide and legally acquired property of the Applicant herein, therefore, cannot be treated as proceeds of crime. Consequently, the Application filed by the Applicant, pursuant to the directions of the Hon'ble Appellate Tribunal deserves an acceptance and the same is allowed. Accordingly, the Provisional attachment order is respect of the property being 1BA out of Survey number 570/1/2 (2) (1) and having C.T.S. no. 7232 and Final Plot no. 62/02 admeasuring 1260.38 sq. mtrs (approx.). cannot be confirmed. The PAO no. 15/2016 dated 11.08.2016 to the said extent is, therefore, not confirmed by this Adjudicating Authority. The Application filed by the Applicant/Appellant in terms of the directions contained in the order dated 03.08.2017 of the Hon'ble Appellate Tribunal, is therefore allowed. The Provisional Attachment Order No. 15/2016 dated 11.08.2016 stands setaside in respect of the property bearing number 1BA out of Survey number 570/1/2 (2) (1) and having C.T.S. no. 7232 and Final Plot no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing, it is submitted by the Ld. counsel for the respondent that the main accused persons against whom FIR No. 35/2015 was registered in the predicate offence have been discharged by the Ld. Special Court, ACB on 09.09.2021 and has that order not been challenged by the predicate agency and it has attainted finality. It is also argued that the batch of appeals filed by Growth Infrastructure Pvt. Ltd. & Ors. vide appeal nos. FPA-PMLA-703-711/MUM/2024 and FPA-PMLA-1666,1682&1665/MUM/2017 (total 12 appeals) were heard and decided vide final order dated 09.09.2024 by setting-aside the confirmation of the Provisional Attachment Order dated 20.01.2017. On the basis of above, it is argued by the Ld. counsel for the respondent in view of the said order the present appeal does not survive and liable to be dismissed. The Ld. Counsel for the appellant, on the other hand, did not dispute the fact argued by the Ld. Counsel for the respondent and subsequent developments after filing of the appeal and has prayed that appropriate order may be passed. It is a fact that the first confirmation order dated 20.01.2017 was set-aside by this Appellate Tribunal, so far as the property mentioned above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) were discharged by the order dated 09.09.2021. The operating part of the discharge order is quoted hereunder for ready reference: - " 1. The application Exh. 340 of accused No. 14 Tanvir Ismail Shaikh, accused No.15 Smt. Iram Tanvir Shaikh, accused No.16 Sanjay Diwakar Joshi and accused No.17 Smt. Geeta Sanjay Joshi, the application Exh. 342 of accused No.12 Pankaj Chhagan Bhujbal and accused No.13 Sameer Magan Bhujbal, the application Exh.346 of accused No.1 Chhagan Chandrakant Bhujbal and application Exh.347 of accused No.4 Deodatta Gangadhar Marathe are allowed. 2. Accused No.1 Chhagan Chandrakant Bhujbal and accused No.4 Deodatta Gangadhar Marathe, are discharged u/s.227 of the Code of Criminal Procedure for the offences punishable u/secs.13 (2) r/w 13(1)(c) and 13 (1)(d) of the Prevention of Corruption Act, 1988 and under sections 120- B, 406, 420, 465, 468 and 471 r/w. 109 and 34 of the Indian Penal Code in connection with Crime No.35/2015, registered with Anti-Corruption Bureau, Mumbai Division, Mumbai. 3. Accused No.12 Pankaj Chhagan Bhujbal, accused No.13 Sameer Magan Bhujbal, accused No. 14 Tanvir Ismail Shaikh, accused No.15 Smt. Iram Tanvir Shaikh, accused No.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the offence under the Act of 2002 rest on the predicate offence and in case there is no predicate offence, proceedings under the Act of 2002 cannot continue. The accused having been discharged from the predicate offence, therefore, impugned order deserves to be set-aside. 11. The learned counsel for the appellant made reference to the allegations against the accused holding the companies and an analysis of it by the Special Court, ACB, to discharge the appellant from the predicate offence. 12. The learned counsel for the appellant cited several judgements of the Apex Court and different High Courts to emphasize that proceedings under the Act of 2002 can continue only if there exists a scheduled offence. If the accused has been discharged from a predicate offence or acquitted, the proceedings under the Act of 2002 cannot continue. 13. At this stage, the learned counsel for the appellant was fair to state that an application was moved before the Special Court under the Act of 2002 for dropping the proceedings but it has been dismissed on the ground that the Special Court is not vested with the power to drop the proceedings, which can be exercised by the High Court under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectly or indirectly as a result of criminal activity FPA-PMLA-2396/MUM/2018, Page 7 of 10 FPA-PMLA-6034-37/MUM/2023 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 Criminal Appeal No.2779 of 2023 Page 12 of 31 accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed by the Court of competent jurisdiction, there can be no offence of moneylaundering against him or any one claiming such property being the property linked to stated scheduled offence through him." Learned senior counsel has submitted that in the present case, prosecution of the petitioners in relation to the scheduled offence, on which the proceedings under the Prevention of Moneylaundering Act, 2022 (PMLA) were based, have already come to an end with the petitioners having been discharged from V.G.R. Case No. 59 of 2009(T.R. Case No. 80 of 2011) by the order dated 27.11.2020, as passed by the High Court of Orissa in Criminal Revision No. 831 of 2018. Learned counsel would submit that in the given state of facts and the law declared by this Court, there cannot be any prosecution for the alleged offence of money-laundering in relation to the said offence for which, the petitioners have already been discharged". 19. The facts on record shows that the FIR was registered against Chhagan Bhujbal and his sons, apart from the associates. The attachment of the properties was made even for the entities in light of the fact that they belong to the accused involved in the crime. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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