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2023 (3) TMI 541 - HC - Money LaunderingSeeking grant of bail - Money Laundering - scheduled offence - proceeds of crime - rebuttal of presumption - inviting deposits from general public promising to pay interest upto 90% per annum - effect of bar under Section 45(1)(ii) of PMLA - HELD THAT:- Admittedly, the accused was apprehended on 15.11.2022. Three months have already lapsed from the date of arrest. The complaint in the form of ECIR is filed on 13.01.2023 which is registered in PCR No. 4 of 2023. Details of the assets acquired and the money invested by the accused along with the details of bank account are stated in the complaint. It is the specific contention of the prosecution that accused No. 2 being one of the partner of accused No. 1 is in charge of investing the proceeds of crime in various assets as he has purchased the lands out of the amount so received by accused No. 1 and used to develop the same. There are no justification for non producing any of the documents in support of the allegations made in the complaint. Apparently, the statements of the petitioner recorded by the Investigating Officer disclose that the accused invited deposits promising exorbitant rate of interest, not subjected such monetary transaction for audit, not returned the amount i.e., due to the investors on time and on the other hand, the amounts were being invested in the landed properties in the name of the accused. Apparently, the petitioner could not justify collection of crores of rupees from thousands of depositors, promising to pay return as high as upto 90%. Prima facie, the intention of the accused may attract Section 420 of IPC, for which a criminal complaint is already lodged way back in the year 2018. To constitute the proceeds of crime as defined under Section 2(u) of PMLA, the prosecution has to prove that the properties derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence. As per Section 3 of PMLA, even concealment, possession, acquisition, use of proceeds or claiming the proceeds of crime as untainted property would amount to money laundering - to constitute the offence of money laundering, the prosecution has to establish that the petitioner had indulged in criminal activity relating to scheduled offence, the property referred to in the complaint have been derived or obtained as a result of such criminal activity and the petitioner is involved in any process or activity connected with the said property being the proceeds of crime. Unless these basic requirements are fulfilled, the presumption under Section 24 of PMLA, cannot be raised. It is the contention of the prosecution that further investigation is still in progress. But at present, no prima facie materials, except the assertion made in the complaint are available to form an opinion that the accused is guilty of the offence which is one of the requirement under Section 45(1)(ii) of PMLA to deny bail to the petitioner. Without such materials on record, the accused is not required to be detained in custody as the same would amount to infringement of his right to life and liberty. It is not the contention of the prosecution that the petitioner would abscond as his passport is already said to have been seized. The interest of the prosecution could be safeguarded by imposing suitable conditions. The petitioner is ordered to be enlarged on bail on obtaining the bond in a sum of Rs. 2,00,000/- with two sureties for the likesum to the satisfaction of the jurisdictional Court, subject to the conditions imposed - application allowed.
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