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2023 (6) TMI 67 - HC - Money LaunderingSeeking grant of Regular Bail - Money Laundering - predicate Offence - siphoning off of funds on the basis of fake/fictitious invoices - main thrust of the petitioner's submission is that the petitioner exercised no control over the affairs of Phoenix FZC; and that he was neither an employee, nor did he hold any key position in the management of the company - HELD THAT:- It cannot be gainsaid that the offence comprised in section 3 of the PMLA is a grave and serious economic offence, and has been couched in the widest of terms. However, before proceeding to consider the rival submissions of the parties, it is necessary to briefly set-out the position of law as enunciated by the Supreme Court as regards the considerations that must inform the grant or denial of bail in matters under the PMLA. In its recent decision in Ashish Mittal vs. Serious Fraud Investigation Office [2023 (5) TMI 144 - DELHI HIGH COURT], in the context of section 212(6) of the Companies Act, 2013 which contains a provision in pari materia to section 45(1)(i) and (ii) of the PMLA, this court has held that When the public prosecutor opposes a bail plea, he would have to establish foundational facts sufficiently to dislodge the presumption of innocence, and it is only then that the onus of satisfying the stringent twin-conditions would shift onto the accused. To be clear, there is no statutory mandate for the court to depart from the presumption of innocence. Insofar as the ED not having arrested similarly placed co-accused persons; and not even having arraigned some other persons evidently connected with the offending transactions as accused in the prosecution complaint, though these aspects would not be dispositive of a bail plea one way or the other, they are also not wholly irrelevant and the ‘doctrine of parity’ is not immaterial - insofar as the allegation of the ED as regards the petitioner’s conduct is concerned, it would appear that the petitioner has been forthcoming with the investigating agency about information that he did possess about the affairs of Phoenix FZC, as is seen from his statements recorded under section 50 of the PMLA. As regards the ED’s submission that the petitioner asked his son to delete e-mails concerning transactions of Phoenix FZC from his e-mail ID ramesh1994@yahoo.com and forwarded the same to another e-mail ID mainjhukekanahi@gmail.com, it is observed that such e-mails have subsequently been recovered by the investigating agency and the investigation has not suffered on that count. The prosecution complaint having now been filed, there is no demonstrable risk as to evidence tampering. In the circumstances, for the purpose of grant of regular bail to the petitioner, this court is satisfied that there are reasonable grounds to believe that the petitioner is ‘not guilty’ of the offence under section 3 of the PMLA. Further, considering that the prosecution complaint has been filed before the learned trial court; that the petitioner has materially co-operated in the investigation; and in view of the nature of the alleged role played by the petitioner in the allegedly offending transactions, this court is also satisfied that the petitioner is not likely to commit any offence under PMLA while on bail. This court is of the view that the petitioner deserves to be granted relief; and is hereby admitted to regular bail pending trial, subject to the conditions imposed - application allowed.
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