2017 (2) TMI 1248 - HC - Money Laundering

Entitlement to be enlarged on bail - Offences to be cognizable and non-bailable PMLA Act - Held that - A reasonable satisfaction as contemplated under Sub-section (2) of Section 45 would be construed as a similar offence contemplated under the same statute and not in another offence under the general statute or other statutes. In the present case the values of the properties of the applicant which are attached by the Economic Wing is much more than the liability which is indicated in the complaint against the present applicant. Moreover the office-bearers of the accused who are actively involved in trading on the platform of NSEL have not been taken into custody under the provisions of the PMLA. The principal accused Jignesh Shah has also been enlarged on bail Hence the applicant deserves the same relief. The observations herein are restricted to an application under Section 439 of Cr.P.C. and the same shall not be taken into consideration for the purpose of quashing of FIR discharge application or at the time of trial. (i) The application is allowed. (ii) The applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs. 1, 00, 000/- (Rupees one lakh only) with one or more solvent sureties. (iii) The applicant shall mark his presence before the Economic Offences Wing on first Sunday of each month till the conclusion of the trial. (iv) Upon failure to attend on any two consecutive dates the prosecution will be at liberty to file an application seeking cancellation of bail under Section 439(2) of Cr.P.C. Application stands disposed of.

Summary

Issues Involved:
1. Application under Section 439 of Cr.P.C.
2. Allegations against the applicant.
3. Investigation and charge-sheets.
4. Bail considerations under PMLA and Cr.P.C.
5. Doctrine of parity and reasonable grounds for bail.
6. Court’s discretionary powers under Section 439 of Cr.P.C.
7. Provisional cash bail request.

Detailed Analysis:

1. Application under Section 439 of Cr.P.C.:
The application was filed under Section 439 of the Code of Criminal Procedure, 1973, seeking bail for the applicant.

2. Allegations against the applicant:
The prosecution's case was based on a report by Pankaj Saraf, leading to Crime No.216 of 2013, registered for offences under Sections 120B, 409, 465, 467, 468, 471, 474, 477A of IPC and Sections 3 and 4 of PMLA. The complainant alleged misappropriation and diversion of funds by NSEL's directors and managers, including Jignesh Shah. The applicant was not initially named in the report but was later summoned and arrested.

3. Investigation and charge-sheets:
The investigation was transferred to the Economic Offences Wing (EOW), and a comprehensive charge-sheet was filed against the accused. The applicant was not mentioned in the initial charge-sheet or the first supplementary charge-sheet. He was later arrested on 11.8.2014 and released on bail on 11.9.2014. The Enforcement Directorate filed a comprehensive application against 68 accused, but the applicant was not included. The applicant challenged the summons in the Punjab & Haryana High Court, which ordered no coercive action against him. Despite this, he was arrested again on 23.9.2016 and remanded to custody.

4. Bail considerations under PMLA and Cr.P.C.:
The applicant’s counsel argued that the applicant had been in custody since 23.9.2016 and should be granted bail. The respondent’s counsel contended that Section 45 of PMLA imposes conditions for bail, requiring reasonable grounds to believe the applicant is not guilty and unlikely to commit an offence while on bail. The court noted that the applicant had been previously granted bail for IPC offences and that the PMLA offences were ancillary.

5. Doctrine of parity and reasonable grounds for bail:
The court considered the doctrine of parity, noting that co-accused in similar circumstances had been granted bail. It emphasized that reasonable grounds for bail under Section 45 of PMLA should be interpreted in the context of similar offences under the same statute, not other statutes. The court found that the applicant’s properties attached by the EOW exceeded the liability indicated in the complaint, and principal accused Jignesh Shah had been granted bail.

6. Court’s discretionary powers under Section 439 of Cr.P.C.:
The court referenced previous judgments, including the case of Ashok Zende vs. State of Maharashtra, which highlighted the court’s discretionary powers under Section 439 of Cr.P.C. and the need for caution in economic offences. The court concluded that Section 45 of PMLA does not entirely remove the court’s discretion to grant bail.

7. Provisional cash bail request:
The applicant requested provisional cash bail for three weeks to furnish sureties, which the court granted.

Conclusion:
The court allowed the application, granting bail with conditions, including a P.R. Bond of Rs. 1,00,000 and marking presence before the EOW monthly. The intervention application was also allowed and disposed of. The applicant was granted provisional cash bail of Rs. 1,00,000 for three weeks to furnish solvent sureties.

Order:
(i) Application allowed.
(ii) Applicant enlarged on bail with a P.R. Bond of Rs. 1,00,000.
(iii) Applicant to mark presence before EOW monthly.
(iv) Prosecution may seek bail cancellation upon failure to attend twice consecutively.
(v) Intervention application allowed and disposed of.
(vi) Provisional cash bail of Rs. 1,00,000 granted for three weeks.