TMI Blog2014 (12) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... have the evidence establishing the guilt of the accused beyond reasonable doubt. Thus the petitioner cannot be released on bail at this stage. - Bail Appl No. 2354/2014 - - - Dated:- 3-12-2014 - Ved Prakash Vaish, J Appellants Rep by: Mr. P.V. Kapur Mr Siddarth Luthara Ms. Geeta Luthra, Sr. Adv. Mr. K.K. Manan, Mr. P.K. Dubey, Adv. Respondents Rep by: Mr. Sanjay Jain, ASG Mr. Ajay Digpaul, CGSC, Mr Akash Nagar, Adv. Mr. Vikas Singh, Dy Director/IO JUDGEMENT Per: Ved Prakash Vaish: 1. By this application filed under Section 439 read with Section 482 of Cr.P.C., the petitioner is seeking bail in ECIR No.DLZO/15/2014/AD(VM)/CBI/ACU-V/NEW DELHI under Section 120B read with Section 420 of IPC and Sections 7/8/9/12/13(2) read with Section 13(1)(d) of PC Act, 1988 (hereinafter referred to as 'PC Act') read with Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (for short, 'PMLA') registered by the Enforcement Department, New Delhi on 03.07.2014. 2. The facts of the case as borne out from Enforcement Case Information Report (for short, 'ECIR') are that on 08.02.2010 Ministry of Defence, Government of India signed a Contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. Mr. Haschke and Mr. Gerosa along with Mr. Gautam Khaitan were also shareholders in M/s Aeromatrix through their company IDS Mauritius, and they brought money through this company by way of fictitious/over invoices. 4. The alleged business which M/s IDS, India was getting from M/s Augusta Westland, went to IDS Tunisia after its incorporation. Initially, M/s IDS Infotech, India started receiving the alleged work through M/s. IDS Tunisia, but after incorporation of M/s Aeromatrix Info Solution Pvt. Ltd, M/s IDS Tunisia stopped entrusting any work to IDS Infotech, India and started giving it to M/s Aeromatrix. M/s Aeromatrix received purchase orders from IDS Tunisia and after execution of alleged work, invoiced product was delivered directly to M/s Agustawestland, but the payments for the same were received through M/s IDS Tunisia. It was also revealed that about 82% shares of M/s Aeromatrix are held by M/s Infotech Design System (IDS) Mauritius and about 17% by Mr. Gautam Khaitan. M/s Aeromatrix also placed some of its engineers at the premises of M/s Agustawestland for on-site engineering activities for which payments were made to M/s Aeromatrix directly. It was also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the petitioner also submitted that the provisions of Section 45 of PMLA apply to the offences under Part A of the Schedule under the Act. As per provisions of PMLA the investigation is to be conducted by Directorate of Enforcement and not by CBI. He had also pointed out that according to Directorate of Enforcement there are 19 accused persons and out of them only petitioner has been arrested. The charge-sheet against 5 accused persons have been filed and no other accused has been arrested except the petitioner. 9. Mr. Kapur, learned senior counsel for the petitioner further submitted that the petitioner has disclosed the sources of income and there are no illicit proceeds, and, therefore, the PMLA is not applicable. 10. Learned senior counsel for the petitioner has relied upon judgment in 'Shivkant Tripathi vs. State of U.P. Ors.', 2013 (6) ADJ 672: MANU/UP/0935/2013 to contend that from proviso to Section 17(1) and 18(1) of PMLA, it prima facie, appears that the Directorate of Enforcement comes into action in respect of the money laundering allegations only after a charge-sheet is submitted by the police investigating the question whether any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Arihant Jain were shareholders and Directors and subsequently on receipt of FDI from M/s. Infotech Design System Ltd., Mauritius, Mr. Carlos Gerosa and Mr. Guido Ralph Haschke were also appointed Directors of the company and the name of the company was changed to M/s. Aeromatrix Info Solutions Pvt. Ltd. The petitioner was instrumental in incorporating M/s. IDS, Tunisia in which Mr. Guido Ralph Haschke, Mr. Carlos Gerosa and Mr. Gautam Khaitan (the petitioner) generated proceeds of crime in connivance with M/s. Agustawestland SPA in the form of payments towards inflated/ increased invoices against IT related work done by M/s. IDS Infotech, Chandigarh and M/s. Aeromatrix Info Solutions Pvt. Ltd. 14. It was also submitted on behalf of respondent from the copies of documents obtained from Ministry of Defence that a total of Euro 70 million was paid as kickbacks. The search of residential house and office premises of the petitioner was conducted on 22.09.2014, in which copies of various documents including a copy of order by an Italian Court on 05.08.2014 on the petition filed by the petitioner against issue of his arrest warrant, rejecting the said appeal and copy of a document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to consider the relevant provisions of PMLA. The offence of money laundering is defined under Section 3 of PMLA, which reads as under: 3. Offence of money-laundering. Whosever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. 19. The expression proceeds of crime is defined under clause (u) of Section 2 of PMLA, which reads as under: (u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. 20. Section 24 of PMLA assigns the burden of proof relating to proceeds of crime under PMLA, which reads as under: 24. In any proceeding relating to proceeds of crime under this Act- (a) In the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in respect of the money laundering allegations only after a charge-sheet is submitted by the police/ agency investigating the question whether any of the 'scheduled offences' has been committed. We will assume that even if the police submits a final report, alleging that no scheduled offence has been committed, but the Magistrate does not accept the same and issues process, even then the directorate can initiate investigation into money-laundering allegations. In that view the investigation done by the directorate under the interim orders passed herein, even before a charge-sheet by the police regarding any scheduled offence having been committed, was premature. 23. In Narender Mohan Singh s case (supra), Hon'ble Supreme Court observed as under:- 5. Further, it was submitted that the provision as contained in section 3 of the Prevention of Money Laundering Act, never does stipulate that only when one commits scheduled offence particularly offence under Section 13 of the Prevention of Corruption Act, when it was incorporated in the statute by way of amendment, projection of the proceeds of the crime by the person would be liable to be prosecuted, rather the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the commission of an offence under the PML Act, 2002. However, when there are other surrounding circumstances which reveal that there were doubts about the origin of the accounts and the monies deposited therein, the same principles would not apply 25. There is no hard and fast rule regarding grant or refusal of bail. Each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. Where the offence is of serious nature, the Court has to decide the question of grant of bail in the light of considerations such as nature and seriousness of offence, nature and character of evidence in support thereof, the severity of the punishment for which conviction will entail the character of the accused, circumstances which are peculiar to the accused, a reasonable possibility of securing the presence of the accused at the trial, the reasonable apprehension of influencing the witness and tampering with the evidence and the larger interest of the public or such similar other considerations. 26. The economic offences constitute a class apart and need to be vested with different approach in the matter of bail. The economic off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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