TMI Blog2020 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner can be continued with the detention beyond the period of seven years. Whether delay in trial was caused by the petitioner and other accused person? - HELD THAT:- It is evident from the charge sheet that the petitioner is responsible for the acts and affairs of the company as the Chairman of Rose Valley Group of Company who planned and designed the illegal schemes to mobilize deposits from the innocent investors including deposits under the scheme of issue of debenture with false assurance of high return and thereby generated huge sums and diverted and thereby laundered the money for different purposes by befooling the common public and has committed offence under Section 3 read with Section 70(1) and (2) of PMLA Act punishable under Section 4 of the Act. Thus, the petitioner is involved in a grave economic crime having serious social ramification and in the larger interest of the society - 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. The prayer for release of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but the funds have been allegedly diversified and utilized in other business which have been mobilized through the issue of secured non convertible debentures and the funds accumulated through other schemes like Ashirwad, have also allegedly been transferred to regional office at RVRECL and a part thereof was allegedly utilized for its project at Mandarmoni. It is further alleged that the income of RVRECL and the expenditure of the said company had allegedly accumulated a negative reserve and similarly RVRECL s income and total expenditure also accumulated negative reserves. On scrutiny of Balance Sheet of the said company indicates alleged siphoning of funds, cross share holding amongst the group of companies with an intent to show fake capital to change the colour of the public deposits into the company s capital and the funds have been accumulated by the company by making false promises to the common people and the said two companies have mobilized the fund under various schemes upon using manipulated wordings on the deposit of certificates to avoid regulatory bodies like SEBI, RBI etc. to bypass the law and regulations for raising money from the common public. Thus, the Rose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the general public. It is contended on behalf of the petitioner that by order dated 17.4.2017 passed in C.R.R. No. 3071 of 2015 by this Hon ble Court directed the trial Court to frame charge against the accused persons within two months from the date of communication of the order and if the charge is framed, trial be concluded as expeditiously as possible without granting any unnecessary adjournment to either of the parties. Although the order was passed more than 2 years back, but till date charge has not been framed. Accordingly, it is submitted that the accused petitioner Gautam Kundu was arrested on 25th March, 2015 and by now he has completed the custody period of four years eleven months except that he was allowed interim bail on 08.04.2015 to enable him to attend him shradh ceremony of his deceased father but his subsequent application for bail was rejected on 27.01.2015 as the bail application under Section 439 Cr.P.C. was not heard for a period of two years and ultimately the same was not pressed by the petitioner and thus dismissed. It is submitted that the offence alleged by the defacto complainant under Section 3 for money laundering provides that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is referred to in our judgment as the predicate offence). Thus, whosever is involved as aforesaid, in a process or activity connected with proceeds of crime as defined, which would include concealing, possessing, acquiring or using such property, would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 5 3, therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as guilty under the said provision, the said person must not only be involved in any process or activity connected with proceeds of crime, but must also project or claim it as being untainted property. 12. Under Section 4 of the Act, the offence of money laundering is punishable with rigorous imprisonment for a minimum period of three years which may extend to 7 years and fine. Also, under 24 the proviso, where the proceeds of crime involved in money laundering relate to a predicate offence under paragraph 2 of Part A of the Schedule, the sentence then gets extended from 7 years to 10 years. 13. Under Section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure provides that the learned Judge loses his jurisdiction to remand the under trial for custody after expiry of a period of one half of the maximum punishment and for such reasons the order rejecting the prayer for release of the accused petitioner has been assailed as per se illegal and in violation of Section 436A of Criminal Procedure Code. To support his contention learned counsel for the petitioner relied on a decision in case of Bhim Singh Vs Union of India reported in 2015(13)SCC 605 to the observation in the paragraphs of 4, 5 6 thus- 4. Section 436-A reads as follows: 436-A. Maximum period for which an under trial prisoner can be detained.-Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to onehalf of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o all Sessions Judges within his State for necessary compliance. WP (Crl.) No. 310 of 2005 It is also argued that Section 436A of the Code of Criminal Procedure is no way related to the gravity of the offence. The only consideration required for invoking the said provision is the period of detention of an under trial prisoner and the factum whether any delay has been caused by the said accused person and the offence is not punishable with death. The learned counsel for the petitioner further refers to a case in a decision of Subrata Chattoraj Vs. Union of India reported in (2016) 2 SCC 1 wherein it has been observed that the delay in investigation and trials is a wholesale breach of human rights guaranteed under Article 21 of the Constitution of India and criminal justice breaks down at a point when expeditious trial is not attempted while the affected parties are languishing in jail. Reliance was placed in the cited decision in case of Nimeon Sharma v. State of Meghalaya, (1980) 1 SCC 700 : 1980 SCC (Cri) 328, observing that- Fair, just and reasonable procedure is implicit in Article 21 of the Constitution and that Article 21 guarantees a right to the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Special Judge-PMLA Court fixed the matter for consideration of charge on several occasions however the same could not be proceeded due to dilatory tactics adopted by the different accused persons in the case and the detailed list to argue that the petitioners and other accused persons are instrumental in causing delay in the proceeding of which are noted hereunder:- 1. That on 19.04.2017 bail application was moved on behalf of accused B.K. Mallick and Arun Mukherjee. 2. That on 13.06.2017 bail application was moved on behalf of Sibamoy Dutta and Ashok Kumar Saha. 3. That on 30.06.2017 retraction petitions were filed by petitioner and Amit Banerjee. 4. That on 01.08.2017 petitions filed by B.K. Mallick and Sudhir Shaw seeking copies of certain documents. 5. That on 25.08.2017 discharge application under Section 239 of the Code of Criminal Procedure filed by Amit Banerjee. 6. That on 08.09.2017 discharge application under Section 239 of the Code of Criminal Procedure filed by Ashok Kumar Saha. 7. That on 27.10.2017 bail application filed by Arun Mukherjee. 8. That on 27.11.2017 bail application filed by Arun Mukherjee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
