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TMI Blog2020 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... l before this Hon'ble Court which was turned down by the order dated 21.07.2015 passed in C.R.M. No. 6285 of 2015. Background fact of this case is that Manoj Kumar, Assistant Director, Enforcement Branch being the authorized officer of Central Government under Prevention of Money Laundering Act, 2002, lodged a complaint before the learned Chief Judge, City Sessions Court, Kolkata (hereinafter referred to as the learned Trial Court) with a prayer for taking cognizance and to conduct trial of the offences punishable under Section 4 of the Prevention of Money Laundering Act (as amended) and the scheduled offences. In the complaint, it was alleged that an investigation was conducted against Rose Valley Group of Companies which revealed that Rose Valley Real Estate Construction Ltd. (RVRECL) repeatedly issued secured non convertible debentures for the years from 2001 to 2008 to more than 49 persons raising huge amount of money from public at large allegedly without filing offer document to regulatory authority or without following the norms of SEBI. It is also alleged that though the issue of debenture was for a specified project, but the funds have been allegedly diversified and ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C (3) of the Act, Section 405 of the Indian Penal Code vide Complaint Case NO. 14214 of 2013 before the learned Chief Metropolitan Magistrate, Calcutta against the RVRECL and the present petitioner and eight other Directors and office bearers of RVRECL. It is submitted on behalf of the petitioner that on the self same date i.e. 26.04.2013, the learned Chief Metropolitan Magistrate, Calcutta on the prayer of the complainant i.e. SEBI took cognizance against the said company under Sections 24/27 of the SEBI Act and it would be evident that on the day of filing the authorized representative of the complainant was personally absent before the learned Chief Metropolitan Magistrate, Calcutta and after taking cognizance against the aforesaid company and persons, the learned Chief Metropolitan Magistrate, Calcutta issued summons to the said company. It is submitted that the instant case relates to issuance of debentures to the tune of Rs. 12.82 crores which arose out of Complaint Case No. 14214 of 2013 preferred by SEBI. The petitioner was the Chairman of the said company who has/had collected Rs. 12,363.63 crores from the general public. It is contended on behalf of the petitioner tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India and Anr. reported in 2018 (11) SCC 1 to argue that twin restrictions on the discretion of the Court to grant bail to the accused under Section 45 of Prevention of Money Laundering Act has been done away with as the provision is manifestly arbitrary and used in arbitrary fashion to deny bail for offences under the said Act and struck down as unconstitutional observed in paragraphs 11, 12 and 13 thus:- "11. Having heard learned counsel for both sides, it is important to first understand what constitutes the offence of money laundering. Under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as "whosoever", "directly or indirectly" and "attempts to indulge" would show that all persons who are even remotely involved in this offence are sought to be roped in. An 23 important ingredient of the offence is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and "proceeds of crime" is defined under the Act, by Section 2 (u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be equated with the cases where the offenders involved in common phenomenon other than the economic offences and rejected prayer of the petitioner to release him on bail. It is argued that the provision of Section 436A of the Code relates to a maximum period for which an undertrial prisoner can be detained during investigation, inquiry or trial. It is also provided that in no case, an undertrial prisoner can be detained beyond the maximum period of imprisonment for which he can be convicted for the offence. Accordingly, it is urged that since the petitioner has been in custody for more than four and half years, his detention period is beyond one half of the maximum period as the maximum punishment provided for the offence under Section 4 of the Act, 2002 is for a term of seven years and even the trial has not been initiated. The trial Judge while dealing with the application under Section 436A of Cr.P.C. has observed that there is a merit of further detention of further custody since the matter is very sensitive. Similar to that of 167(2) of the Code, Section 436A of the Code of Criminal Procedure provides that the learned Judge loses his jurisdiction to remand the under trial f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfil the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance. WP (Crl.) No. 310 of 2005" It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention beyond the period of seven years. Now, the Court has to find as to whether delay in trial was caused by the petitioner and other accused person. The opposite party has by an affidavit submitted that the petitioner is the chairman cum director of Rose Valley Real Constructed Limited and the investigation has been concluded with the submission of the charge sheet which reveals that Rose Valley Group Company has repeatedly issued secured non convertible debentures in the year 2001-02, 2004-05, 2005-06 & 2007-08 to more than 49 persons in each Financial Year and raised a total sum of Rs. 12.82 crores from general public without following any norms of SEBI. And investigation further revealed that though the issue of debentures was for specific project but the funds have been diversified and utilized in other business which have been mobilized through the issue of secured non-convertible debentures. That Rose Valley illegally and fraudulently collected public money from the general public from different states amounting more than Rs. 12363.63 crores. The learned Special Judge-PMLA Court fixed the matter for consideration of charge on several occasions however the same could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In my considered view, the learned trial Judge has rightly turned down his prayer for release under the provision of Section 436A of the Code of Criminal Procedure by taking in view the proviso clauses for his continued detention till the conclusion of the trial. Accordingly, in the context of what has been discussed above, the prayer for release of the petitioner Gautam Kundu is refused considering the enormity of the crime and his involvement in many other cases relating to Rose Valley cheat fund scam case. Accordingly, the C.R.M. No. 8345 of 2019 is dismissed, however, with the direction to the trial Court to frame charge on the date fixed and endeavour to conclude the trial as per the provision of Section 309 of Cr.P.C. without giving any accommodation of time to any of the parties and to dispose of the case as expeditiously as possible with further direction to the Enforcement Directorate to produce all its witnesses on the time schedule framed by the trial Court but on their failure to do so the petitioner is given liberty to renew his prayer for release under the provision of Section 436A of Cr.P.C. if delay is caused in conclusion of the trial for non production of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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