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TMI Blog2022 (6) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment, the immovable properties featuring in Schedule-II of the order as well as the movable properties consisting of five bank accounts belonging to the 1st petitioner and his wife (2nd petitioner) and one Ekdin Media Private Limited have been provisionally attached. 2. The case sought to be made out by the petitioner is that the impugned order is a consequence of the proceedings initiated by the ED against I-Core referred to as the I-Core Group case and that the petitioners are only ancillary parties without any connection to the alleged charges against I-Core. Learned counsel appearing for the petitioners points to the gaps in the impugned order and submits that the requirements of Section 5(1) of The Prevention of Money Launderin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner no. 1 received funds from the I-Core Group and entered into an agreement with I-Core on 29.07.2009. DPMPL and 'Ekdin' (run by DPMPL) were in a poor financial condition and defaulted on the loan taken from UCO Bank. The petitioners mortgaged Flat No. 9M at this time. I-Core undertook to pay all the financial obligations for running DPMPL on condition that DPMPL transferred 50% of its shares to the promoters of I-Core which did not take place. I-Core also did not receive any benefit from the investment made in DPMPL. The conclusion arrived at is that:- "It appears that the said agreement was made to siphon off funds from the I Core Group companies to M/s DPMPL and Sh. Suman Chattopadhyay in lieu of gaining faith of public by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, were purchased by the 1st petitioner in the name of his wife and daughter. There is no specific finding arrived at in respect of Flat Nos. 9F and 9G. 8. With regard to the Santiniketan property, it is recorded that the property was purchased in August, 2016 from one Prabir Chowdhury for Rs. 30 lacs from the sale proceeds of another flat at Sonar Tori Complex in Santiniketan. The earlier Flat was purchased for Rs. 30 lacs and the present flat which was bought in 2016 is now being occasionally used by the family. This is the conclusion from the narration of facts : "AND WHEREAS, in lieu of the proceeds of crime acquired by Sh. Suman Chattopadhyay and his company M/s DPMPL by his association with ICORE Group, so far, the assets of Sh. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is taken or held outside the country, then the property equivalent in value held within the country or abroad. The explanation to the definition classifies that 'proceeds of crime' would include property not only derived from the scheduled offence, but any property which may indirectly or directly be derived as a result of any criminal activity relatable to the scheduled offence. 13. Under section 5(1), a person must be in possession of any 'proceeds of crime', which is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings relating to confiscation of such 'proceeds of crime'. The provisional attachment of property being 'proceeds of crime' has also to fulfill the requirement under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements of "reason to believe" in respect of the person in possession of 'proceeds of crime' and the likelihood of the 'proceeds of crime' being transferred are required to be fulfilled independent of and in conjunction since 5(1)(a) and (b) are non-disjunctive. The requirement is also of the writing of reasons making out a case, in fact and evidence, that there is a real likelihood of the person who is in possession of the 'proceeds of crime' taking steps to frustrate the proceedings by dealing with the property or transferring the same. This is further reinforced by the 2nd proviso to 5(1)(b) which requires that any property of any person may be attached under section 5 if the designated officer has reason to believe and records the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties and balance lying the bank accounts, as detailed in para 10 above, if not attached immediately under Section 5(1) of Chapter III of the PMLA 2002, non-attachment of the same is likely to frustrate further proceedings under this Act". 18. If there is a complex web at all, the trail of money / 'proceeds of crime' must keenly be retraced to the source with specific instances of the money transferred and concealed in successive stages of the transactions. There is no indication of any such money-trail and least of all a believable culpability of the petitioners in that complex web of transactions. The proceedings started with I-Core which remained the primary target. The petitioners are but ancillary to the investigation and are at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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