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MUKESH KUMAR S/O LATE JAI KISHAN SHARMA Versus STATE OF GUJARAT & 1

2015 (12) TMI 1601 - GUJARAT HIGH COURT

Bail application - nature of offence - Prevention of Money Laundering - Held that:- As far as the allegations levelled against the present applicant are concerned, I have gone through the statement of the applicant himself. It appears that he was assisting his brother who was dealing with the cricket betting though he might be deciding or circulating the bhav (rate). The investigation is almost over and on completion of investigation, the present complaint has been filed by the authority. I have .....

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a] not take undue advantage of liberty or misuse liberty; - [b] not act in a manner injuries to the interest of the prosecution; - [c] surrender passport, if any, to the lower court within a week; - [d] not leave State of Gujarat and Union territory of Delhi without prior permission of the Sessions Judge concerned; - [e] mark presence with the respondent No.2 every Monday for a period of three months and thereafter on any day of the first week of each English Calendar month for a .....

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atter. Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO.18711 of 2015 - Dated:- 8-12-2015 - MR.JUSTICE A .....

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n connection with ECIR No. - ECIR/03/AMZO/2015 [NOW PMLA Complaint No.8 of 2015] registered at the instance of the respondent No.2 - the authority appointed under the PMLA for the offences punishable under Section 3 read with Section 4 of the PMLA read with Section 120-B of the Indian Penal Code. 2. Pursuant to the notice issued by this Court, on 3.11.2015, learned Central Government Standing Counsel Ms. Trusha Patel appeared before the Court on behalf of respondent No.2 and requested for time t .....

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ot been filed. On inquiry, she disclosed that the Investigating Officers are not present before the Court. However, she has submitted that she would assist the Court in deciding the present application since the Court had granted sufficient time to the respondent No.2 for filing affidavit-in-reply who was served way back on 19.10.2015 and accordingly, she has assisted the Court in deciding the present application. 3. The brief facts arose from the record are as under :- 3.1 That on 25.3.2015, on .....

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.2015 wherein it was found that 16 persons were indulging in Hawala racket and of cricket betting. An FIR was also lodged against 16 persons for the offences punishable under Sections 4 and 5 of the Public Gambling Act, 1867 read with Sections 65, 66 and 66C of the I.T. Act. The said FIR was registered as C.R. No.222 of 2015 with Kishanvadi Police Station. The said four persons who are referred herein above were amongst the 16 accused against whom the said FIR was filed. 3.2 During further inves .....

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ed and about 147 Mobiles were collected which were being used for betting. The Sim Cards which were being used by those persons, found to be forged and the same were collected in bogus names. It was also found that by creating bogus documents and forging signatures in the applications form, different Sim Cards were purchased and the same were used for cricket betting which is an illegal activity. 3.3 The Investigating Agency recorded the statement of the above referred accused persons and starte .....

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the Court of Principal District and Sessions Judge, Ahmedabad (Rural), the Designated Special Court established under the PMLA being PMLA Complaint No.8 of 2015. 3.4 Subsequent to his arrest, an application was filed by the applicant before the Special Designated Court at Ahmedabad under Section 439 of the Code read with Section 435 of the PMLA to release him on bail during the pendency of the trial being Criminal Misc. Application No.1058 of 2015. The learned Designated Special Judge by his jud .....

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ion 3 of the PMLA provides that a person can be held guilty of offence of money laundering who is 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 also projecting or claiming it as untainted property. 4.1 He would submit that the word proceeds of crime is defined under Section 2 (u) of the PMLA. As per the said definit .....

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ETFAIR.COM which was obtained without providing any documents as mandated under the Know Your Client (KYC) norms. The residential premises of the applicant at Delhi was searched on 22.5.2015 itself under the provisions of PMLA Act, 2002 which was resulted in recovery and seizure of incriminating records maintained both manually as well as electronically, and a currency of ₹ 10 Lacs were found from the said premises. He would, however, submit that the allegations levelled against the presen .....

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ubmit that the Investigating Agency revealed that the applicant is the person who has provided Master Login ID for running BETFAIR.COM website through which huge money in terms of Crores of Rupees have been transferred to foreign country. He would further submit that unless the applicant who is mastermind in creating Master Login ID, the other accused could not have transferred the money and, therefore, the application is required to be rejected. He would submit that the applicant is maximum can .....

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f 2015 registered with Kishanvadi Police Station wherein the applicant has not been made an accused. He would submit that since the applicant is not the accused in the said offence which are scheduled offence as per PMLA, he cannot be charged under Section 3 of the PMLA. Since provisions of Section 45 of the PMLA is not applicable, his case can be considered under Section 45 (2) of the PMLA and he can be released by imposing appropriate conditions. He would submit that the applicant is a permane .....

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bmitted that the said orders have become final and no appeals have been preferred before the Hon'ble Supreme Court. 5. On the other hand, learned Standing Counsel Ms. Trusha Patel appearing for the respondent No.2 - original complainant has vehemently submitted that huge scam of Hawala to the tune of about ₹ 2500 Crores has come in light in the game of Cricket betting. The investigation till date carried out and record recovered and seized from the Farm house at Vadodara on 19.3.2015 r .....

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tively participating in the illegal activities of betting. 5.1 It was further argued by Ms. Patel that unless and until there is conspiracy between the applicant and other co-accused to project and/or claim the untainted property which has been received through cricket betting, false and fabricated Sim Cards could not have been prepared at the instance of those four accused. She would submit that the money found at the time of raid where the applicant was working, therefore, is a proceeds of cri .....

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concludes that the applicant is innocent, he may not be released on bail. In support of her contention, she has relied upon the Division Bench decision of this Court dated 16.1.2015 rendered in Special Criminal Application (Direction) No.4496 of 2014 with Special Criminal Application No.4672 of 2014. She has also relied upon the decision of the coordinate Bench of this Court dated 31.7.2013 rendered in Special Civil Application No.4171 of 2012 with Special Civil Application No.1059 of 2012 where .....

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o, the present applicant along with other six accused have been charged under Sections 3 and 4 of the PMLA Act. The four accused against whom FIR being C.R. No. I-85 of 2015 was lodged on 25.3.2015 at Kishanvadi Police Station, the present applicant is not implicated as an accused. For the ready reference and for appreciating the arguments advanced by learned advocates for the respective parties, certain provisions of the PMLA Act are reproduced herein below :- 7. Sections 3 and 4 of the PMLA Ac .....

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ree years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years , the words which may extend to ten years had been substituted. 8. Section 3 provides that a person shall be guilty of offence of mon .....

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criminal activity relating to a scheduled offence or the value of any such property; 9. The scheduled offence defined under Section 2 (y) of the PMLA reads as under :- 2 (y) scheduled offence means - (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more; or] (iii) the offences specified under Part C of the Schedule; 10. In view of the above, if the Schedules .....

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acie opinion, the said income would not be covered under the definition of proceeds of crime. 11. Section 45 of PMLA reads as under :- 45. Offences to be cognizable and nonbailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opp .....

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nizance of any offence punishable under section 4 except upon a complaint in writing made by - (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence unde .....

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der section 3, the burden of proving that proceeds of crime are untainted property shall be on the accused. 13. The burden of proof as referred to herein above relates to proceeds of crime. As stated herein above, since the applicant is not facing any charge for any offence under Part A of Schedule, Section 45 (1) of the PMLA would not be prima facie applicable and, therefore, it is not required that the applicant is to be declared as not guilty of such offence at the time of dealing with an app .....

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gation is almost over and on completion of investigation, the present complaint has been filed by the authority. I have also considered the fact that the maximum punishment is of 7 years and, therefore, the case of the applicant can be considered by imposing certain conditions. In my view, the judgments relied upon by Ms. Patel would not be applicable to the facts of the present case. 15. I have gone through the unreported decision dated 5.10.2015 passed by the coordinate Bench of this Court (Co .....

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lar offence and has refused to release the applicant on bail on the ground that he is not facing any charge of scheduled offence which order has been confirmed by the Hon'ble Supreme Court. 16. I have also considered the fact that the Hon'ble Supreme Court has released the accused, namely, Afroz Mohmad Hasanfatta on interim bail who is facing charges under PMLA Act as well as scheduled offence. 17. Hence, the application is allowed and the applicant is ordered to be released on bail in c .....

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