TMI Blog2024 (1) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of forged Form 15CB Certificates. However, in the present case, there is no property which is derived or obtained directly or indirectly as a result of criminal activity concerning the scheduled offence which can be regarded as proceeds of crime . There is legal force in the arguments advanced by the counsel for the petitioner that the unauthorized outward remittance by forged Form 15CB Certificates does not amount to proceeds of crime being generated from the scheduled offence i.e. fabrication of Form 15CB Certificates. After considering all facts, including incriminating material against the petitioner which are the statements made by co-accused/witness under section 50 of PMLA and the fact that their evidentiary value can be tested at the stage of trial, no generation of proceeds of crime from criminal activity and the petitioner being a sick and infirm person, the present anticipatory bail application is allowed. The petitioner, in case of arrest, shall be released on bail on furnishing personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount to the satisfaction of the concerned Investigating Officer or any other authorized person subject to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed by Sanjeet Kumar Sahu, Assistant Director that 15CA/CB certificates issued by using credentials of the complainant have been used and submitted to banks by M/s Kinzal Freight Forwarding (OPC) Private Limited, M/s Balaji International, M/s Shree Shyam International, and M/s Wentorz Logistics Private Limited, etc. for effecting outward remittances of approximate Rs. 300 crores towards freight payment from the respective bank accounts maintained with ICICI Bank. The complainant, after examination of the documents shown to him by the ED officials realized that those certificates have been forged with mala fide intention to remit the funds abroad by using forged and fabricated documents and by making wrong declaration regarding the purpose of remittance. The complainant also noticed various discrepancies in the Form 15CA/CB as detailed in FIR to show that those documents were fabricated. 2.2 The complainant on examination found that details used by the subject companies for using forged Form 15CB, have been obtained from the certificates issued by him on 11.03.2019 to M/s Wentorz Logistics Private Limited using UDIN no. 19505939AAAAA18327 and the said certificate has been il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limited and M/s Balaji International which are named in FIR noticed that CA s certificate on Form 15CB (as required under Rule 37BB of the Income Tax Rules) issued by the complainant had been submitted as documentation. The complainant during inquiry disclosed that he had issued only around 07 certificates on Form 15CB to M/s Wentorz Logistics Private Limited. The complainant in the complaint made to EOW stated that details used by the subject companies for issuing forged Form 15 CB have been obtained from the certificate issued by him on 11.03.2019 to M/s Wentorz Logistics Private Limited using UDIN no. 19505939AAAAA18327. It was also revealed that above mentioned 05 entities are connected with one another and are being run by the same set of persons. 3.1 The investigation further revealed that the entities as named in FIR bearing no. 0045/2022 i.e. M/s Mizta Tradex Private Limited, M/s Kinzal Freight Forwarding (OPC) Private Limited, M/s Shree Shyam International, M/s Wentorz Logistics Private Limited and M/s Balaji International have fraudulently effected heavy remittances of more than Rs.464 Crores in equivalent foreign exchange (US Dollars) to entities based in Singapore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Speedtec Global Services Pte Ltd. Singapore. 3.4 Navin Kejriwal was found to be associated with one Manpreet Singh Talwar and searches as per section 17(1) of PMLA were conducted on 21-22.09.2022 at their residential/business premises and recoveries were made. Navin Kejriwal evaded investigation and non bailable warrants were ordered to be issued against him on 14.02.2023. The respondent/ED also recovered data from the mobile phone of Manpreet Singh Talwar which was consisting of incriminating material regarding one Infiniti Futures Pte Ltd. , Singapore including the bank account details, User ID, etc. The fraudulently remitted foreign exchange from India was being received in bank account of Infiniti Futures Pte Ltd. which included remittances from ICICI Bank account of M/s Wentorz Logistics Private Limited and a total of USD 7,68,470.80 (Rs. 5,46,69,093.92/-) was fraudulently remitted in 06 tranches during October 2019. The investigation also revealed that from 18 Indian entities maintaining bank accounts in ICICI Bank, USD 12,578,993.08 (equivalent to INR 104,05,97,228.54/-) was remitted into the bank account of Infiniti Futures Pte Ltd., Singapore. Data of one KK Overs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. was being used for illegal forex transfer and forged documents i.e. Airway Bill, Invoice, A2 Form, Form 15CA and Form 15CB were prepared by the petitioner and on instructions of the petitioner, he used to upload the documents for effecting outward remittances. 3.8 The statement of Rahul Kumar was also recorded under section 17(1) and section 50(2) and (3) of PMLA wherein he stated that he and the petitioner purchased two companies, namely, M/s Truzel Tradex Private Limited and M/s Mizta Tradex Private Limited from Chetan who was a Company Secretary wherein Chitra Pandey, Varun Rana and Mohammed Raza were the directors with names of Rashmi Dwivedi, Manab Chaudhary and Rahil. The fake IDs were created to camouflage the real identities of the Directors. He along with the petitioner used to pay a commission of 20 paise per dollar for arranging fake KYC documents and also used to arrange RTGS entries through various Hawala entry operators based at Karol Bagh and Ghaziabad. 3.9 The documents/evidence collected during the search, investigation and information received from the banks clearly indicates active indulgence of the petitioner in effecting fraudulent outward fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance. It has come on record that these companies were being run by fake directors appointed on forged identities. The evidence collected so far indicates that the entire process of foreign remittance was based upon fraud and forgery. Thus, this argument relating to the proceeds of crime is liable to be rejected. 17. As far as role of the petitioner is concerned, accused Chitra, Rahul Kumar and Gaurav Sharma have elaborated the role of the petitioner in the entire series of transactions. As has already been discussed, these statements were recorded u/s 50 of PMLA and same are admissible piece of evidence. 18. Further, Ld. SPP for the respondent has produced a complete chart containing the details of the notices issued to the petitioner to join the investigation but he refused to join the same on one pretext or another. The details of the notices given to the petitioner indicate that he is deliberately evading the process of law. 19. Taking note of the huge amount of money involved, role of the petitioner and his conduct during the investigation, this court is not inclined to grant anticipatory bail to the petitioner. 20. The application is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and electronic gadgets, filed an application before the adjudicating authority under section 17(4) of PMLA with the prayer for retention of these documents on 23.12.2022 which was allowed vide order dated 10.05.2023 passed by the adjudicating authority. The respondent filed a complaint under sections 44 and 45 of PMLA on 21.01.2023 and supplementary complaint on 31.01.2023 wherein the petitioner has been arrayed as an accused. The High Court of Delhi has already granted default bail to Rahul Kumar vide order dated 28.04.2023. The petitioner also filed an application for grant of anticipatory bail on 25.05.2023 before the Additional Sessions Judge-03, North-West District, Rohini Courts, Delhi wherein he alleged that no proceeds of crime have been discovered attributed or found in the hands of the petitioner. 5.2 The petitioner sought anticipatory bail on the grounds that the case of the respondent/ED is based on statements of the co-accused and there is no incriminating material or evidence which can connect the petitioner with the present case. The respondent/ED has failed to disclose how the petitioner is connected with the alleged foreign remittance as he was neither the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant were submitted to the banks by the entities as named in FIR i.e. M/s Kinzal Freight Forwarding (OPC) Private Limited; M/s Balaji International; M/s Shree Shyam International and M/s Wentorz Logistics Private Limited, etc. for effecting onward remittance of more than Rs. 300 crores. EOW, Delhi Police on the basis of complaint made by the complainant registered FIR bearing no. 0045/2022 dated 16.03.2022 for offences punishable under sections 420/467/438/471/120B IPC against M/s Kinzal Freight Forwarding (OPC) Private Limited and others. Subsequently, the respondent/ED also recorded ECIR bearing no. DLZO-II/24/2022 dated 28.03.2022 as the offences complained of in FIR bearing no. 0045/2022 are scheduled offences. 7.1 It was revealed during the investigation that the complainant issued only 07 certificates on Form 15CB to M/s Wentorz Logistics Private Limited and the details which were mentioned on 07 certificates on Form 15CB issued to M/s Wentorz Logistics Private Limited were used by the subject companies/entities for forging Form 15CB. It was also revealed that the 05 entities as named in FIR were connected with one another and were being run by the same set of pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining Form 15CB certificates. Ravi Mehra obtained 18 certificates from the complainant during the period from February, 2019 to April, 2019 and out of which, 07 certificates were in the name of M/s Wentorz Logistics Private Limited. The complainant on being shown the photograph of the petitioner identified/recognized him as Ravi Mehra. 7.4 The co-accused Rahul Kumar in the statement recorded on 02.12.2022 stated that M/s Mizta Tradex Private Limited and M/s Truzel Tradex Private Limited were managed by him along with the petitioner and the petitioner used to operate as Ravi Mehra. The co-accused Rahul Kumar also stated that he met with the petitioner through his friend Vishal Gupta in the year 2017 and subsequently, he became the partner with the father of the petitioner in a firm which used to run under the name and style of M/s Shri Venkatsaya Impex. The co-accused Rahul Kumar and the petitioner in the year 2019 purchased two companies i.e. M/s Truzel Tradex Private Limited and M/s Mizta Tradex Private Limited from one Company Secretary, namely, Chetan for total consideration of Rs.50,000/-. The coaccused Rahul Kumar also stated that Chitra Pandey, Varun Rana and Mohammad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dollar. The company M/s Wentorz Logistics Private Limited was being used for illegal forex transfer and the petitioner used to prepare forged document i.e. Airway Bill, Invoice, A2 Form, Form 15CA and Form 15CB and thereafter, Gaurav Sharma on instructions of the petitioner used to upload documents for effecting outward remittances. 7.7 The respondent issued various summons to the petitioner and the petitioner has joined the investigation only on 03.01.2023 and 04.01.2023. The respondent has already filed prosecution complaint dated 20.01.2023 and supplementary prosecution complaint dated 31.01.2023 under sections 44 and 45 of the PMLA. 8. The counsel for the petitioner advanced oral arguments and also submitted written submissions wherein besides mentioning the factual position, he also raised multiple arguments in support of bail application. The counsel for the petitioner argued that initially the respondent/ED conducted enquiry under the Foreign Exchange Management Act, 1999 (FEMA) qua the outward remittance by some companies using credentials of the complainant and his statement was recorded on 16.09.2021. FIR bearing no. 0045/2022 was got registered after a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cannot be regarded as proceeds of crime . The counsel for the petitioner placed reliance on Vijay Madanlal Chaudhary V Union of India, 2022 SCC OnLine SC 929. The respondent/ED has not alleged that the money which was remitted outward was itself generated from some scheduled offence and was tainted money and/or proceeds of crime . 8.3 The counsel for the petitioner also argued that the remittance of the money out of India can in itself, constitute an offence under sections 3 and 4 of the FEMA and is to be dealt with as per section 37A and section 13(1C) of the said Act. 8.4 It was also argued that the twin conditions as per section 45 of PMLA are not applicable as the petitioner is a sick and infirm person and has already undergone repeated kidney surgeries and requires constant medical supervision and has also developed further complications. The counsel for the petitioner relied upon Kewal Krishan Kumar V Enforcement Directorate, 2023 SCC OnLine Del 1547 and Sameer Mahendru V Directorate of Enforcement, 2023:DHC:4155. 8.5 The counsel for the petitioner also argued that the respondent/ED merely relied upon the statements of the co-accused which cannot be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Kumar in statement, also admitted that he was working with the petitioner and they have purchased two companies i.e. M/s Truzel Tradex Private Limited and M/s Mizta Tradex Private Limited from one Company Secretary, namely, Chetan and also stated that the fake identities were created to camouflage the real identity of the Directors and he along with petitioner used to pay commission of 20 paise per dollar for arranging fake KYC documents. The complainant in statement under section 50 of PMLA also identified the petitioner as Ravi Mehra who used to meet him for obtaining 15CA/CB Certificates. The CGSC relied upon Tarun Kumar V Enforcement Directorate, 2023 SCC OnLine SC 1486. 9.2 The CGSC also argued that the counsel for the petitioner has not advanced arguments regarding section 45 of PMLA and placed reliance on para no. 412 of Vijay Madanlal Choudhary (supra). 9.3 The CGSC also argued that the petitioner was avoiding the process of law as such, he is not entitled for grant of bail and besides mentioning the details of the summons issued to the petitioner, also referred Monu Kapoor V Directorate of Revenue, 2019 SCC OnLine Del 11829. The custodial interrogation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Delhi) and Others, Bail Application bearing no. 2030/2023 decided on 09.06.2023 after referring to Vijay Agrawal (supra). It was observed that the evidentiary value of the statement recorded under section 50 of PMLA has to be tested at the end of the trial and not at the stage of bail. The legal position which is emerging from above referred decision is that statements of witnesses/accused recorded under section 50 of PMLA are admissible in evidence and can make formidable case against the accused regarding his involvement in commission of offence of money laundering but their exact evidentiary value has to be tested at the end of trial and not at the stage of bail. 11. The CGSC for the respondent/ED argued that the counsel for the petitioner has not advanced arguments regarding lifting of bar of section 45 of PMLA. He further argued that rigour of section 45 of PMLA has to be satisfied before granting bail under section 438 of the Code and referred Vijay Madanlal Choudhary (supra). 11.1 Section 45 of PMLA provides that the offences punishable under PMLA are cognizable and non-bailable offences. Section 45 reads as under:- 45. Offences to be cognizable and non-baila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the 2002 Act, the sweep of that provision must prevail in terms of Section 71 of the 2002 Act. Further, the expression anticipatory bail is not used either in the 1973 Code or the 2002 Act. The relief granted in terms of Section 438 of the 1973 Code is one of directing release of the person on bail in case of his arrest; and such a relief has been described in judicial pronouncements as anticipatory bail. Section 45(1) uses generic expression bail without reference to any provision of the 1973 Code, such as Sections 437, 438 and 439 of the 1973 Code. Concededly, Section 65 of the 2002 Act states that the provisions of the 1973 Code shall apply to the provisions under the Act insofar as they are not inconsistent with the provisions of the 2002 Act. Further, Section 71 of the Act gives overriding effect to the Act. Section 45 of the Act begins with a non-obstante clause, thus excluding the application of the 1973 Code in matters related to bail . The word anticipatory bail has not been defined under the 1973 Code... 408. Thus, anticipatory bail is nothing but a bail granted in anticipation of arrest, hence, it has been held in various judgments by this Court tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agrawal (supra) as under:- 30. The jurisprudence of the bail positively lays down that a liberty of a person should not ordinarily been interfered with unless there exist cogent grounds. Despite, the twin conditions, it is not necessary that at the stage of bail, the Court has to come to the conclusion that the petitioner is not guilty for such an offence. The Court is at the stage of has to examine the case on the scale of broad probabilities. The Court at this stage is required to record an objective finding on the basis of material available on record and no other purpose. 12. The counsel for the petitioner argued that the alleged offence i.e. unauthorized outward remittance by placing the forged 15CB form has not fulfilled the ingredients of the offence of money laundering as there is no proceeds of crime being generated from the scheduled offence i.e. fabrication of 15CB form. The counsel for the petitioner relied on observations made in Vijay Madanlal Choudhary (supra). The Supreme Court in Vijay Madanlal Choudhary (supra) observed as under:- 250. The other relevant definition is proceeds of crime in Section 2(1)(w) of the 2002. Act. This definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded as proceeds of crime. There may be cases where the property involved in the commission of scheduled offence attached by the investigating agency dealing with that offence, cannot be wholly or partly regarded as proceeds of crime within the meaning of Section 2(1)(w) of the 2002 Act - so long as the whole or some portion of the property has been derived or obtained by any person as a result of criminal activity relating to the stated scheduled offence. To be proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence. To put it differently, the vehicle used in commission of scheduled offence may be attached as property in the concerned case (crime), it may still not be proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act. Similarly, possession of unaccounted property acquired by legal means may be actionable for tax violation and yet, will not be regarded as proceeds of crime unless the concerned tax legislation prescribes such violation as an offence and such offence is included in the Schedule of the 2002 Act. For being regarded as proceeds of crime, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjects for enactment of 2002 Act. 253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity 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 offense already 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to proceeds of crime being generated from the scheduled offence i.e. fabrication of Form 15CB Certificates. 13. The counsel for the petitioner also argued that the twin conditions as per section 45 of PMLA are not applicable as the petitioner is a sick and infirm person and has already undergone repeated kidney surgeries and requires constant medical supervision and primarily relied upon Kewal Krishan Kumar (supra). The medical records/documents submitted by the petitioner reflect that the petitioner is suffering from various ailments including renal problem which requires constant medical treatment. This court in Kewal Krishan Kumar (supra) has granted bail on ground of sickness and infirmity of the accused. 14. The CGSC also argued that the petitioner is avoiding investigation and his custodial investigation is required as the offence of money laundering involves multiple layers of placement, layering and integration. It is further argued that summons were issued to the petitioner to join investigation but the petitioner only joined investigation on 03.01.2023 and 04.01.2023 and subsequently avoided investigation. The CGSC also referred details of summons issued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the concerned Investigating Officer or any other authorized person subject to following conditions:- i. The petitioner shall join investigation as and when directed by the Investigating Officer and shall provide necessary information and documents as required for the purpose of investigation to the satisfaction of the Investigating Officer. ii. The petitioner shall surrender his passport before the concerned trial court within fifteen (15) days and shall not leave country in any circumstance without prior permission of the concerned trial court. iii. The petitioner shall mark his presence before the Investigating Officer on the fourth Friday of each English Calendar Month till the completion of investigation qua him. iv. The petitioner shall not, in any manner, make any inducement to the witnesses directly and indirectly. v. The petitioner shall provide his operational mobile number within seven (7) days so that he can be contacted by the Investigating Officer as and when required. The petitioner shall also intimate any change in his residential address immediately to the Investigating Officer. 17. The present bail application stands disposed of. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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