TMI Blog2015 (12) TMI 1661X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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. Hence, the application is allowed and the applicant is ordered to be released on bail registered at the instance of the respondent No.2, on executing a bond of ₹ 1,00,000/- (Rupees One Lac only) with two local sureties of ₹ 50,000/- each to the satisfaction of the trial Court and subject to the certain conditions . - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO.20433 of 2015 - - - Dated:- 17-12-2015 - HONOURABLE MR.JUSTICE A.J.DESAI MR VIKRAM CHAUDHARY, SENIOR ADVOCATE ASSISTED BY MR SUMIT B SIKARWAR, MR. VIJAY U. GOSWAMI, MR. MOHD. JUBER KHAN PATHAN AND MR CHETAN K. PANDYA, ADVOCATES FOR THE APPLICANT. MS NISHA THAKORE, APP FOR THE RESPONDENT CAV ORDER 1. By way of the present application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') read with Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigation of the said offence, it was found that the aforesaid four accused persons had entered into a partnership firm by oral understanding, namely, M/s. Maruti Ahmedabad, Partnership Firm to carry on illegal activities like cricket betting, Hawala etc. It was found that against those persons, other offences were registered for betting at Unjha of District Mehsana as well as Ahmedabad and Mumbai. It was alleged in the FIR that during the raid, different types of electronic gadgets were discovered 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved any instructions and, therefore, on 2.12.2015, following order was passed:- Mr. Sumit B. Sikarwar, learned advocate appearing on behalf of the applicant states that respondent No.2 is served and shall file affidavit of service to that effect. Ms. Trusha K. Patel, learned Standing Counsel is usually appearing on behalf of respondent No.2 states that she has no instruction to appear in this matter. Hence, the matter is adjourned to 10th December 2015. 5. Today also, Ms. Trusha Patel was called for and she disclosed that though she had informed to the respondent No.2, she had not been instructed to appear in the matter. 6. It is very unfortunate that the respondent No.2 has neither appeared through any counsel nor has filed any affidavit-in-reply. 7. Therefore, Mr. Vikram Chaudhary, learned Senior Counsel assisted by Mr. Sumit Sikarwar appearing for the applicant was heart at length. He has fairly produced the copy of affidavit-in-reply filed by the respondent No.2 before the trial Court and has also supplied the statement of the petitioner recorded under Section 50 of the PMLA Act. 8. Kept for order. 4. Mr. Vikram Chaudhary, learned Senior Counsel assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upporting evidence and has failed in establishing that the alleged amount of ₹ 57.37 Crores have been forwarded to foreign countries. He would submit that except the statement of a person who is accused of the original offence, there is no material against him which would even prima facie establish that the applicant has committed any offence which is a scheduled offence. 4.2 He would further submit that the investigation is over qua C.R. No.85 of 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 permanent resident of Delhi and shall cooperate with the Investigating Agency and Court till the trial is over and shall abide by all the conditions which may be imposed by this Court and, therefore, he may be released on bail. He has also relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int are untainted property. The provisions of Section 45 of PMLA would be applicable and, therefore, unless the Court concludes that the applicant is innocent, he may not be released on bail. Even otherwise, considering the gravity of offence and the maximum punishment provided under the PMLA Act, the Court may not use powers under Section 439 of the Code. 6. I have heard learned advocates appearing for the applicant and perused the affidavit-in-reply filed on behalf of the respondent No.2 before the learned Trial Court as well as gone through the statement of the applicant. If the complaint is looked into, 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 Act read as under :- 3. Offence of money-laundering - Whosoever directly or indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant i.e. with regard to cricket betting, but in my prima facie 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 opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by - (i) the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the unreported decision dated 5.10.2015 passed by the coordinate Bench of this Court (Coram :- Hon'ble Ms. Justice Harsha Devani) in the case of Afroz Mohmad Hasanfatta v. Deputy Director and another, Criminal Misc. Application No.17000 of 2014. I have also gone through another unreported decision dated 31.3.2015 of the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice Paresh Upadhyay) in the case of Rakesh Manekchand Kothari v. Deputy Director, Enforcement Directorate, in Criminal Misc. Application No.3637 of 2015 wherein the coordinate Bench has dealt with similar 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 connection with ECIR No.- ECIR/03/AMZO/2015 [Now PMLA Complaint No.10 of 2015] registered at the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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