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2011 (4) TMI 1490 - AT - Money LaunderingOffence under PMLA - Whether the order of the Adjudicating Authority confirming the provisional attachment order is valid - In present case, During investigation, it was found that the fake and forged documents of export were prepared with the help of his two employees and two customs broker and no actual export was ever done by Shri Gopinath Das or his company against the export invoices/documents submitted to banks for discounting and obtaining funds from SBI and OBC. The funds so fraudulently obtained through acts of forgery u/s 467 of IPC are proceeds of crime and it was found that out of these proceeds of crime, immovable properties were acquired and mortgaged with the appellant as security to obtain loan. Statement of Sh. Gopinath Das was recorded by the respondent u/s 50 of the Act, in the statement, he inter-alia stated that he has purchased various properties out of funds consisting of proceeds of crime and these properties were mortgaged with the Syndicate Bank. The properties owned by M/s. Himalayan Projects Pvt. Ltd. of which Shri Gopinath Das is the Managing Director were attached and complaint was filed with the Adjudicating Authority u/s 5(5) of the Act. The matter was placed before the Adjudicating Authority and the order of provisional attachment was confirmed by detailed order which is now being assailed before us in the present proceedings. HELD THAT:- The appellant is not owner of the properties attached. The properties are in the name of Gopinath Das and M/s. Himalayan Projects Pvt. Ltd. Sh. Gopinath Das has been charged for commission of a schedule offence. Further, any person who is in possession of proceeds of crime and even if not charged for commission of a schedule offence is covered by the provisions of section 5(1) of the Act in view of the findings of this Tribunal in its Judgment in the case of Radha Mohan J. Lakhotia & Others vs. Dy. Director, [2010 (8) TMI 947 - BOMBAY HIGH COURT] where it has been held that the property which is proceeds of crime and is in possession of any person, even though he is not charged of having committed a scheduled offence, can be attached. Thus, we are in full agreement with the reasoning of the Adjudicating Authority given in its order in Original Complaint. Thus, the appellants are covered under the Act and attachment proceedings commenced by the authorities under the Act were valid proceedings. question of prevalence of a subsequent legislation - The Securitisation Act has been enacted for the purpose of establishing a expeditious system for recovery of debts due to Banks and for matters connected therewith or incidental thereto. It only lays down a procedure for recovery of debts due to Banks. The Prevention of Money Laundering Act vests the statutory authorities with a power to forfeit proceeds of crime involved in money laundering to the State. There is thus no apparent conflict between the two statutes. The two statutes operate in their exclusive fields. The question is only who will have his first claim on any property where the claim of the State concur with the claim of any other person.
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