TMI Blog2019 (7) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... me would not have to be beyond reasonable doubt but on the basis of broad probabilities. In regard to the prima facie satisfaction of the Court in support of the charge in the two predicate offences on the basis of which ECIR stands recorded, the CBI has already clarified that in RC 0003 no pecuniary advantage has been received by the accused and thus there is no question of laundering the proceeds of the crime. In RC 0004 the complaint is by Kapil Wadhawan on behalf of M/s. White Lion Real Estate Developers Private Limited and it is alleged that a sum of ₹16,40,06,000/- has been extorted. There is no complaint from any of the entities noted in Para 25 above. Even otherwise as per the respondent, the total amount stated to have been laundered is approximately ₹52,55,00,000/- out of which ₹26,65,45,476/- stands attached - The maximum punishment provided for the offence punishable under Section 4 PMLA being 7 years imprisonment and the petitioner having undergone more than 1 year 1 month of custody and the trial likely to take some time, there being no material placed on record to show that the petitioner has been tampering of evidence and the statement of Alok S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... potraying himself as a power broker of the Income Tax Department and various other Government Departments. He also impressed that he was a senior journalist having worked with Tehelka, Star TV and was connected to big media houses. In his conversation with Mr. Kapil Wadhawan he claimed that he had sensitive information from the Income Tax Department relating to raids to be conducted on the companies related/ associated with M/s White Lion Real Estate Developers Private Limited and that action would be claimed against them under the new Benami Act. 4. Thereafter, Kapil Wadhawan met Upendra Rai in Delhi at his residence where he was shown a big bunch of documents of the Income Tax Department wherein action was contemplated on a number of companies, including those related/associated with M/s White Lion Real Estate Developers Private Limited. Upendra Rai demanded huge amount of money to settle the issue with the Income Tax department and adverse media reporting. He claimed that he had contacts in Income Tax department located at Scindia House, Mumbai. 5. Pursuant to this a consultancy agreement dated 3rd October 2017 was entered into between Upendra Rai Associates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and account number 13611930002043 owned jointly with Ms. Uma Rai revealed that voluminous transactions worth more than 100 crores were carried out by him within a period of three or four years. 8. Searches under Section 17(1) PMLA were carried out on different dates on 20 premises related to Upendra Rai and his associates which resulted in recoveries of details related to huge financial transactions. The search led to the recovery of a consultancy agreement dated 3rd October 2017 executed by Upendra Rai with M/s White Lion Real Estate Developers Private Limited. The scrutiny of the consultancy agreement revealed that to receive and claim the proceeds of crime as untainted money, Upendra Rai, for and on behalf of Upendra Rai Associates had entered into a consultancy agreement with the company M/s White Lion Real Estate Developers Private Limited on 3rd October 2017. As per the agreement Upendra Rai would be the executive of strategic goals and objectives, company policies, formulation and execution of all business strategies, business development, media affair and development of service lines relating to infra business and would preside over day to day performance etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and records statement of Alok Sharma, its Director who stated that the petitioner influenced him to issue an appointment letter to engage him as a consultant, however the terms and conditions of appointment were not clear and the work to be performed was unformulated. The work purportedly assigned to petitioner was to secure funds for planned scheduled airline s activities in addition to the banking and PR activities in respect of M/s. Air One Aviation Private Limited, however he could not arrange any investment for the said group. 11. Contention of learned counsel for the respondent seeking dismissal of this bail application is that merely because bail has been granted in the two predicate offences investigated by CBI would not be the sole criteria to grant bail in the ECIR. He states that the complaint and supplementary complaint filed by the respondent is distinct from the predicate offences due to the nature of investigation under PLMA. Charge-sheet for the offence of extortion has been filed against the petitioner by the CBI. Further evidence has come on record that the petitioner received a total amount of approximately ₹52,52,00,000/- from money laundering w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BI registered RC-217-2018 A 0003 under Sections 420 IPC and Section 120B read with Section 13(2) and Section 13(1) of PC Act registered by the CBI on 1st May, 2018. The CBI also registered RC-217-2018 A 0004 under Section 120B read with Section 384 IPC and Section 8 PC Act on 1st May, 2018. In RC 0003 petitioner was arrested on 3rd May, 2018 and granted bail on 8th June, 2018. On the night when he was released from the jail on 8th June, 2018 at 9.45 PM the petitioner was immediately apprehended by the officers of the respondent and a summon under Section 50 PMLA for appearance on 12:20 AM on 9th June, 2018 was handed-over. The ECIR/03/HIU/2018 wherein the petitioner is now seeking bail was only recorded on 9th May, 2018 after his apprehension on 8th May, 2018 and since then the petitioner is in custody in this case. Further on a petition filed before this Court, though the bail granted in RC 0003 was cancelled on 4th September, 2018, however a coordinate Bench of this Court granted bail in this RC on 7th January, 2019. In RC 0004 registered by the CBI, bail was granted by this Court on 11th December, 2018. 15. Learned counsel for the petitioner further contends that in RC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it violates Article 14 and 21 of the Constitution of India. Reliance of the learned counsel for the respondent on the decision in Kalyan Chandra Sarkar (supra) is also misconceived as the said decision was rendered under Section 437 (1) Cr.P.C. wherein the offence punishable is with death or imprisonment for life. In the present ECIR the maximum punishment which can be awarded after trial to the petitioner would be imprisonment for a period of 7 years out of which more than 1 year has already elapsed for the petitioner being in custody and no charge could be framed for the purported reason that the respondent claims that their investigation is in progress. Contention of learned counsel for the respondent that with the amendment in Section 45 of PMLA in the year 2018 wherein the words under this Act have been used have been dealt by two different High Courts i.e. Bombay High Court and Madhya Pradesh High Court, which clearly note that the amendment does not revive or resurrect the original Section 45(1)(ii). Section 24 of the PMLA has no application to the facts of the present case for the reason no charge has been framed on the petitioner and thus Section 24 does not come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other law for the time being in force on granting of bail. 19. By virtue of the amendment in the year 2018 the words under this Act have been inserted in sub-Section 1 of Section 45, as noted above. In Nikesh Tarachand Shah (supra) while dealing with the constitutional validity of the twin condition imposed under Section 45(1), the Supreme Court held: 54. Regard being had to the above, we declare Section 45(1) of the Prevention of Money-Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective courts which denied bail. All such orders are set aside, and the cases remanded to the respective courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that the persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective courts for fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch proceeds of crime are involved in money-laundering. 23. A bare perusal of Section 24 reveals that in the case of a person charged with the offence of money laundering, the authority or the Court shall presume that such proceeds of crime are involved in money laundering unless the contrary is proved. The stage of raising the presumption or for the accused to rebut the said presumption would be during the course of trial. Even if assuming that at the stage of bail this Court is required to consider that the accused is prima facie required to rebut the presumption, the same would not have to be beyond reasonable doubt but on the basis of broad probabilities. 24. As noted above, a reply has already been filed by the CBI in relation to one of the predicate offences being RC 0003 on which the present ECIR has been recorded that no sanction has been granted against any of the public servant and the charge-sheet has been filed as the accused person induced Bureau of Civil Aviation Authorities on the strength of forged documents to obtain Aerodrome Entry Pass (AEP) in the petitioner s favour. It is clarified that the charge-sheet does not involve any wrongful pecunia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e crime. In RC 0004 the complaint is by Kapil Wadhawan on behalf of M/s. White Lion Real Estate Developers Private Limited and it is alleged that a sum of ₹16,40,06,000/- has been extorted. There is no complaint from any of the entities noted in Para 25 above. Even otherwise as per the respondent, the total amount stated to have been laundered is approximately ₹52,55,00,000/- out of which ₹26,65,45,476/- stands attached. The maximum punishment provided for the offence punishable under Section 4 PMLA being 7 years imprisonment and the petitioner having undergone more than 1 year 1 month of custody and the trial likely to take some time, there being no material placed on record to show that the petitioner has been tampering of evidence and the statement of Alok Sharma which has been pressed in by the respondent stating that the petitioner forced him to remain associated with him, this Court finds it to be a fit case for grant of bail to the petitioner. 28. Consequently, the petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with one surety bond of the like amount to the satisfaction of the learned Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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