TMI Blog2017 (5) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered in the present proceedings belonged as there is no reliable or credible document on record to infer if the petitioner has obtained it from any legal / legitimate sources. Possibility of it to be ‘proceeds of crime’ can’t be ruled out.Taking into consideration the serious allegations against the petitioner and other factors including severity of the punishment prescribed in law, find no sufficient ground to grant bail to the petitioner. Bail application dismissed. - BAIL APPLN. 119/2017 & CRL.M.B. 121/2017 - - - Dated:- 5-5-2017 - MR. S.P. GARG J. Petitioner Through: Mr. Vikas Pahwa, Sr. Advocate Mr. Vivek Sood, Sr. Advocate with Mr. Arunabh Chawdhary, Mr. Amit Sharma, Mr. Vaibhav Tomar Ms. Kinnore Ghosh, Advocates. Respondent Through: Mr. Sanjay Jain, ASG with Mr. Amit Mahajan, CGSC, Ms. Karnika Singh, Ms. A. Thakur Mr. V. Pasayat, Advocates. S.P.GARG, J. 1. The petitioner seeks regular bail under Section 439 Cr.P.C. in case ECIR/18/DZ-II/2016/AD (RV) registered under Sections 3 4 of Prevention of Money Laundering Act, 2002 (hereinafter referred as PMLA ). Status report is on record. 2. I have heard learned Senior Counsel for the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out in the year 2005. It is further argued that allegations contained in FIR No.205/2016 and the ECIR/18 do not constitute violation of the Demonetization Policy of the Government of India and acts of deposit of cash of ₹ 38.53 crores and preparation of Demand Drafts, which were never encashed, are permissible under Section, 2(iii) and 2(vii) of Demonetization Policy. The said Notification does not attract any criminal charges for holding old notes in huge denominations. These sections permit unlimited deposit of old currency in the bank account and there are no restrictions in the use of banking transactions. It was further urged that the ED has no jurisdiction to investigate the instant case; only Delhi Police is competent to do so. Role of ED as an investigating agency comes into play only when a scheduled offence is prima facie made out and proceeds of crime as defined under Section 2(u) of PMLA have been identified and have been used to launder money. Most of the actions mentioned in the FIR attract tax implications and the appropriate authority to investigate the matter is Income Tax Department and not ED. 6. Reliance has been placed on Sushil Kumar Katiyar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire money running into crores of rupees was deposited into various accounts and Demand Drafts were made in fictitious names for encashment in future. During investigation under PMLA, statements of accounts of various companies i.e. namely Delhi Trading Company, Kwality Trading Company, Mahalaxmi Industries, R.K. International, Sapna Trading Company, Shree Ganesh Enterprises, Swastik Trading Company and Virgo International (herein referred to Group of Companies ) were analysed and scrutinized. One more additional account of Delhi Trading Company was also identified as related to Raj Kumar Goel where in similar transactions took place. During investigation, statements of various persons including Ashish Kumar, Raj Kumar Goel, Kamal Jain, C.A., Dinesh Bhola have been recorded under Section 50 PMLA. Call Data Records of the associated persons were collected and analyzed. It emerged therefrom that several persons were involved in deep-rooted racket to convert the demonetized currency into monetized currency by depositing the demonetized cash into various accounts of such firms where cash in hand was available in books of accounts. Later Demand Drafts were issued in fictitious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and these have been attached vide Attachment Order No.03/2017 dated 13.02.2017. 9. Learned Addl. Solicitor General urged that the statements recorded under Section 50 PMLA have evidentiary value. Statements of various individuals recorded under Section 50 confirm that money in old currency pertained to the petitioner and the conspiracy was executed on his instructions. 10. Admitted position is that prior to registration of ECIR No. 18 dated 26.12.2016 by the ED for investigation, Crime Branch of Delhi Police had already registered FIR No.205/2016 under Sections 420/406/409/467/468/188/120B IPC on 25.12.2016 against Ashish Kumar, Manager, Kotak Mahindra Bank, Connaught Place; Raj Kumar Goel and certain other persons. It is not in dispute that the offences mentioned in FIR No.205/2016 are scheduled offences , prima facie, giving jurisdiction to ED to carry out investigation under Sections 3 4 of PMLA. Presence of scheduled offence is only a trigger point for initiating investigation under PMLA, 2002. The Act nowhere prescribes if ED is debarred from conducting investigation under Sections 3 4 PMLA unless the investigating agency concludes its investigation in the FIR o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as it applies to a trial before a Court of Session. (Emphasis given) 12. Learned Senior Counsel for the petitioner was unable to show any precedent to buttress his contention that in the absence of filing of the charge-sheet in the scheduled offence , the proceedings under PMLA cannot be initiated or investigated. In Sushil Kumar Katiyar vs. Union of India and Others , MANU/UP/0777/2016 , relied upon by the petitioner, the High Court of Allahabad observed: 36. In this regard, I have examined the various case laws cited by the petitioner as well as the opposite parties and the legal position which emerges out after study of the various case laws, is that a person can be prosecuted for the offence of money laundering even if he is not guilty of scheduled offences and his property can also be provisionally attached irrespective of the fact as to whether he has been found guilty of the scheduled offences. The prosecution is not required to wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Kamal Jain have also been summoned to face trial under Section 4 of PMLA. Raj Kumar Goel and Ashish Kumar continue to be in custody in the said proceedings. 16. On perusal of the complaint lodged under Section 45 PMLA, it reveals that serious and grave allegations have been leveled against the petitioner and others. The allegations are categorical and specific; definite role has been assigned to each accused. It is alleged that during the period from 15.11.2016 to 19.11.2016, huge cash to the tune of ₹ 31.75 crores was deposited in eight bank accounts in Kotak Mahindra Bank in the accounts of the Group of Companies . It gives details of Demand Drafts issued during 15.11.2016 to 19.11.2016 from eight bank accounts in the name of Sunil Kumar, Dinesh Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai on various dates. Most of the Demand Drafts issued have since been recovered. Its detail finds mention in Table No.2 given in the complaint. 17. During arguments, specific query was raised and the learned Senior Counsel for the petitioner was asked as to, to whom the money deposited in the various accounts belonged. Learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 50 PMLA on various dates. There statements have evidentiary value under Section 50 PMLA. Prima facie, the version given by them is in consonance with the prosecution case. The prosecution has further relied upon Call Data Records, CCTV footage, Account Trend Analysis. 19. Relying upon Gurcharan Singh vs. Union of India , (supra ), learned Senior Counsel for the petitioner submitted that offences under PMLA are non-cognizable in terms of the amendment carried out in the year 2005. Dealing with this aspect, learned Trial Court observed that the issue of cognizability of the offence under Section 3 of PMLA is yet to be decided by this Court. It relied upon a judgment Chhagan Chandrakant Bhujbal vs. Union of India Ors. bearing Crl.W.P.No.3931/06 decided on 14.12.2016 by Bombay High Court. This Court finds no valid reasons to take a different view from the observations recorded by the Trial Court in para Nos. 17 18 of the impugned order. This Court in Anand Chauhan vs. Directorate of Enforcement while deciding Bail Application 2241/2016 on 10.04.2017 in para No.15 observed : 15. The petitioner further relies upon a Division Bench judgment of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an over-riding effect and the provisions of the Code would apply only if they are not inconsistent with the provisions of the PMLA. The Supreme Court has held that the compliance of the provisions of Section 45 of the PMLA should be insisted upon by the High Court as well, while considering an application under Section 439 Cr.P.C. In the present case, the prima facie finding returned by the trial court with regard to the petitioner s involvement in the scheduled offence is unexceptionable. 31. Reliance placed by learned senior counsel for the petitioner on Gurucharan Singh (supra) is not apposite in the facts of the present case. Firstly, the Division Bench in Gurucharan Singh (supra) was dealing with an application in writ proceedings whereas, in the present case, this Court is only concerned with an application seeking bail under Section 439 Cr.P.C. Thus, this Court is considering the present application within the boundaries of Section 45 of the PMLA as laid down in Gautam Kundu (supra). Secondly, in Gurucharan Singh (supra), the petitioner was not an accused in the scheduled offence. However, in the present case, the petitioner is an accused in the FIR/RC registered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
