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2020 (11) TMI 27 - HC - Money LaunderingMoney Laundering - proceeds of crime - submission of Shri Venegaonkar is that the applicant has failed to discharge the burden and has failed to produce even prima facie material in support of his contention. Shri Venegaonkar specifically deny the submission of Shri Ponda that the applicant was not a member of COD of IFIN at any point of time - HELD THAT:- From the material placed by the respondent, it can be seen that the applicant was involved in the infrastructure projects and the documents from the Ministry of Corporate affairs rather corroborate the submission of the respondent. He was involved into various infrastructure projects and therefore, in various Special Purpose vehicles or various infrastructure Limited companies, his name feature as a Director. The submission of Mr.Ponda therefore thus require a mention, just for its rejection. The applicant has also received amounts towards PRP, deputation cost and sitting fee that is clearly reflective of the benefit being drawn by him from the dealings of IFIN as well as IL&FS Financial Services. Reliance is placed on statements recorded during the course of investigation under the PMLA Act and the modus operandi of IL&FS and its subsidiary companies has surfaced. The PMLA Act of 2002 which aim to prevent money laundering, it contain a provision which raises presumption as to records or property and into interconnected transactions. By virtue of Section 24 while dealing with proceedings relating to proceeds of crime unless the contrary is proved, a presumption exists that such proceeds of crime are involved, where a person is charged with offence of money laundering. The burden under Section 24 is cast on the accused to prove that proceeds of crime are not involved in purchasing the properties owned by the accused. The applicant who has been arraigned as an accused in the capacity as the Managing Director of ITNL and one of the members of the Committee of Directors of IFIN (for infrastructure projects) is attributed a key role. IFIN who was shouldering the responsibility of syndicating the debt and equity for ITNL and ITNL would post its requirement for the projects to IFIN, the RBI had advised IFIN to run down its exposure to group companies with no fresh lending. In spite of that, ITNL for whom the applicant was working as Managing Director received fund from IFIN. It is revealed during investigation that loans were sanctioned to various entities who were undertaking various projects and the applicant had given letter of assurance dated 29th March 2018 on behalf of ITNL. The CFO of one of the groups in his statement has admitted that he had meetings with K. Ramchand for obtaining fund from IFIN in favour of M/s.GHV Hotels Ltd which is running in loss for last few years which was entitled to be transferred to ITNL. Prima facie on the basis of the allegations levelled against him and on the basis of the statements of the co-accused, Arun Saha has described the applicant to be in executive management of ITNL as Managing Director and Chief Executive Officer and his response to the query whether ITNL had any control over the SPVs and the contractors to whom work was allotted, is that ITNL had control over those SPVs in which ITNL was one of the partners and holding majority stake and that the executive management of ITNL had a role to play by ascertaining the genuineness, working experience, good will etc for contractors and their companies. The applicant has played a pivotal role since in most of the SPVs, ITNL had 100% stake - The applicant who was working as Managing Director of ITNL, therefore, will have to answer the charge. It is a well settled position that the jurisdiction to grant bail has tobe exercised having regard to the facts and circumstances. The following factors are to be taken into consideration while considering an application for bail – (a) The nature of accusastion and severity of the punishment in case of conviction and nature of material relied upon by the prosecution (b) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses (c) reasonable possibility of securing the presence of accused at the time of trial or the likelihood of his abscondence (d) character, behaviour and standing of accused and circumstances peculiar to him. (e) larger interest of public of the State and similar other considerations. There is no hard and fast rule regarding grant or refusal to grant bail. The magnitude of the offence involving the applicant is enormous and the amount involved is huge. The effect of the conspiracy on behalf of the accused persons focusing on a desired result makes it a serious economic offence. The IL&FS Financial Services which was facing a serious liquidity crisis leading to their inability to fulfil debt obligation and the investigation has revealed that those in helm of affairs played a hoax and in a disguised way duped the stakeholders and general public whose monies were at stake. The Committee of Directors failed to discharge their obligation and they were in hand-in-gloves with big corporate groups. They continued to refinance the big groups in connivance with their promoters, on the existing collateral or without sufficient security merely on personal guarantees being offered in order to avail the loans as also in re- financing - The default crisis in the IL&FS has adversely impacted the growth of Non-banking Finance Companies. It has jeopardised hundreds of investors, banks and mutual funds associated with IL&FS and sparked panic among equity investors, as several NBFC faced turmoil amid a default scare. The applicant is not entitled for being released on bail and the application deserves to be rejected - Application dismissed.
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