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2015 (3) TMI 1437 - APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHIProvisional attachment order - Money Laundering - scheduled offences - untainted source - proceeds of crime - Reasons to believe - burden of proving that property was untainted was on the Appellants - HELD THAT:- A person charged of committing a scheduled offence and having proceeds of crime is liable for attachment of his properties acquired from proceeds of crime and another person who is not charged of committing a scheduled offense but having the proceeds of crime is also liable for attachment of properties acquired from the proceeds of crime. The Appellant Jeevan Kumar belongs to both the categories. He was charged with scheduled offence and to have acquired from the proceeds of crime generated by him and also having the proceeds of crime of his brother which have been laundered by his brother, Amit Kumar, through the Appellant, Jeevan Kumar. On his acquittal from the scheduled crime though it cannot be held that he generated proceeds of crime by committing schedule offence himself but in the peculiar facts and circumstances, Jeevan Kumar who had no source of his own income, earning or assets and who admitted in the statement recorded to have co-operated with his brother Amit Kumar who was involved in scheduled crime and his brother Amit Kumar had also admitted in the statement that Jeevan Kumar assisted him will be liable for attachment of properties acquired with the proceeds of crime generated by Amit Kumar who has been convicted in the scheduled offence. The Statements under section 50 of the PMLA given by Amit Kumar, brother of the Appellant and Appellant, Jeevan Kumar were not retracted by them. Jeevan Kumar admitted that he had no source of income except from the business of kidney transplant, which was carried on by his brother. Though the criminal Court has acquitted the Appellant and its consequence will be only that he did not carry out the kidney transplant himself and did not earn on his own any amount; but he had also given the statement that he had no source of income and he cooperated with his brother Amit Kumar who is accused of scheduled offences - No relevant documents showing sufficient income from the export business of the wife has also been produced by the Appellant Jeevan Kumar. In these facts and circumstances, it is apparent that the proceeds of crime came from his brother Amit Kumar and he allegedly prima facie, laundered the proceeds of crime generated by his brother, Amit Kumar. This Tribunal need not decide whether the amendment to the Act notified on 15.2.2013 are retrospective or not because under the unamended Act also the properties of all the appellants are liable to be attached and are not liable to be released on acquittal of the Jeevan Kumar as detailed hereinbefore. Assuming that the provision of amended Act carried out in the PMLA on 15.2.2013 are retrospective, then in view of amended section 8(5) of PMLA, mere acquittal of Shri Jeevan Kumar in the scheduled offence is not sufficient for releasing the properties and there should be acquittal in the case filed against the said appellants under section 3 & 4 of the PMLA also. Appeal dismissed.
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