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2023 (9) TMI 1473 - KERALA HIGH COURTSeeking grant of regular bail - Money Laundering - cheating depositors by collecting fixed deposits without authority - predicate offence - HELD THAT:- While considering the prayer for regular bail, this Court bears in mind the views of the Supreme Court in P. Chidambaram v. Directorate of Enforcement [2019 (12) TMI 186 - SUPREME COURT] that "one of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed" and that in Vijay Madanlal Choudhary's case [2022 (7) TMI 1316 - SUPREME COURT] that "The punishment provided for the offence is certainly one of the principles in deciding the gravity of the offence, however, it cannot be said that it is the sole factor in deciding the severity of the offence as contended by the petitioners. Money laundering is one of the heinous crimes, which not only affects the social and economic fabric of the nation but also tends to promote other heinous offences, such as terrorism, offences related to NDPS Act, etc." Both decisions were rendered by coordinate Benches and state that one of the principles to decide the gravity of the offence can be the sentence. The predicate offences charged against the petitioner are under sections 420, 120B, 421, and 471 IPC. Though FIR has been registered against the petitioner for the offences under the BUDS Act and under the Kerala Protection of Interests of Depositors in Financial Establishments Act, 2013 as well, those offences are not scheduled offences under the PML Act and cannot hence be termed as predicate offences. There is nothing to indicate how the offence under section 471 IPC applies to the petitioner's case. Therefore, the main predicate offences charged against the petitioner are under sections 420 and 421 IPC. In the absence of any presumption of guilt for the predicate offences, this Court has to consider whether there are reasonable grounds to believe that petitioner is not guilty of the offence of money laundering as alleged. The burden of proving the predicate offence of section 420 IPC thus stands entirely on the prosecution. The offence under section 420 IPC has to be independently established. When the investigation into the predicate offence has been continuing for the last more than three and a half years, and a final report has not been able to be filed till date, it goes without saying that it cannot be assumed that the accused can be said to be guilty of the offence under section 420 IPC. There is nothing to indicate at present that there was any dishonest or fraudulent removal, concealment or delivery of any property without adequate consideration to prevent the distribution of property to creditors. This Court is of the considered view that the twin conditions stipulated under section 45 of the PML Act are satisfied, entitling the petitioner to be released on regular bail. It is clarified that the findings entered into in this order are purely for the purpose of this bail application and shall not affect the validity of any other proceedings under the PML Act or the investigation into the predicate offences. The petitioner is entitled to be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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