TMI Blog2021 (6) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... because all the unaccounted cash has been deposited / placed into normal banking channels by use of this criminal modus operandi through the bank accounts opened through fraudulent means, thus, the same became proceeds of crime . The ingredients of crime offence are based on fact and not an inference or interpretation - offences alleged, if proved, may jeopardize the economy of the country. At the same time, I could lose sight of the fact that the investigating agency has already completed the investigation agency has already completed investigation and the charge sheet has already been filed before the Special Judge, ED, Patna. Therefore, his presence in the custody may not be necessary for further investigation. The petitioner is entitled to the grant of bail pending trial on stringent condition in order to ally the apprehension expressed by the ED - bail granted subject to conditions imposed - application allowed. - Criminal Miscellaneous No.5378 of 2021 - - - Dated:- 31-5-2021 - Honourable Mr. Justice Anjani Kumar Sharan For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv., Mr.Ravindra Kumar Singh, Adv. For the Union of India : Mr.Dr. K.N. Singh, ASG, Mr.Manoj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter s name and also in name of his employees, namely, Kunal Kumar (Informant) of Mithanpura P.S. Case No. 298/2016 and Sri Neeraj Kumar, so that they can also be deposited Pankaj Agrawal s cash in their bank accounts and transfer it to Sri Pankaj Agrawal. Sri Pankaj Agrawal s employees, sometimes including Gaurav Maheshwari, used to deliver 5-10 lakhs rupees daily to Raj Kumar Goenka in Muzaffarpur. The petitioner used to deposit such amount in self/employee bank accounts and do RTGS to companies owned by Pankaj Agrawal. Commission @0.25% of transaction value was given by Pankaj Agrawal to Raj Kumar Goenka for such activity. 5. Learned senior counsel for the petitioner submits that around end of 2015, petitioner became aware of the Income Tax implications of such transactions, so immediately stopped all such transaction. In May 2016, Income Declaration Scheme (IDS) was launched by IT Department, as contained in Annexure-5 of the bail petition, where petitioner went ahead to declare all such transaction in his name, wife s name, daughter s name and also the transaction of accounts which were in the name of his employees, namely, Kunal Kumar (informant in Mithanpura P.S. Case N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated that he himself used to go to the bank to deposit the amount in his account in between the period 2012-12 to 2016 and then used to transfer these amounts through bank to other places. In reply to Question no.7 of the ED, Kunal Kumar has accepted that Sanjay Mahto, Vikash Gathani and Ratan Goenka used to go alongwith him to deposit the amounts in the banks. In reply to Question no. 9 of the ED, Kunal Kumar has accepted that he used to get ₹ 500/- extra as consideration amount against operation of his accounts apart from the monthly salary. In reply to Question no.10 of the ED, Sri Kunal Kumar has further specifically admitted that the bank accounts were being operated by him on the direction of Ashok Goenka. Statement of Kunal Kumar recorded by ED shows that there is no merit in the FIR being recorded by him, as he himself has opened the bank account and has done transactions from such accounts on direction received from Ashok Goenka. FIR only includes bank accounts of Kunal Kumar, however, Enforcement Directorate claims that bank of account of Neeraj Kumar, who happens to be a brother of Kunal Kumar, has also been opened without his knowledge and consent. The Enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission income to Income Tax Authorities and has paid all due taxes alongwith penalty. The Income Tax Authority has accepted the defense of the petitioner and has dropped all further proceedings. Even upon completion of the entire investigation by ED, there is no allegation that the money deposited in the account of Kunal Kumar was acquired by commission of any scheduled offence. Thus, in absence of constitution of any crime, no offence of money laundering is made out, as PMLA has no legs to stand in absence of existence of a foundational structure of Scheduled Offence. In the present case, there has been no wrongful loss and no wrongful gain to any person. No loss has been claimed by either the informant, Bank or Income Tax Authority. In absence of no wrongful loss to any of the parties, Sections 420, 467, 468 and 471 of the IPC cannot be said to be constituted. 10. Learned senior counsel for the petitioner submits that the Income Tax proceedings against the petitioner is that the petitioner had made a voluntary and bonafide disclosure of the all transactions carried out by him from 2012 to 2016, standing in different persons names under Income Disclosure Scheme (IDS), 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not amount to an offence of money laundering. Section 5 of PMLA requires that a report under Section 173 of the Cr.P.C. has to be forwarded to a Magistrate before proceeding for attachment of property. No such report has been sent by ED and the ED has also arbitrarily went ahead to attach properties of the petitioner. As per claims made by ED. The petitioner has deposited money in Kunal Kumar s bank accounts and then transferred it to companies controlled by Pankaj Agrawal (co-accused). Thus, no alleged proceeds of crime are left in possession of the petitioner. 14. Learned senior counsel for the petitioner submits that ED s investigation has begun in Feb 17 and the petitioner was summoned 8 times before being arrested on 22.09.2020. The petitioner has appeared on every single summon and has answered all questions asked by ED. Despite being so medically unfit, he has fully cooperated in the entire investigation till date. Even after his arrest on 22.09.2020, he was available for further interrogation in last six months, however, ED has not asked for his remand after interrogating him one for seven days and then for four days. Since 05.10.2020, ED has not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orcement, while granting bail, has again laid down in para 21 as basic jurisprudence relating to Bail matters remains the same inasmuch as grant of Bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. Patna High Court in case of Ahilya Devi vs State of Bihar dated 28 May, 2020, while granting Anticipatory Bail, has said in para 24 that I have no hesitation in reaching to a definite conclusion that the amendment in sub Section (1) of Section 45 of the Act introduced after Supreme Court s decision in case of Nikesh Tarachand Shah (supra) does not have the effect of reviving the twin conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India. Delhi High Court in case of Raj Kumar Goel vs Directorate of Enforcement has held in para 25 that because all evidence are documentary in nature and statement of accused has already been recorded and because trial of PMLA Scheduled Offence are required to be held together, which is likely to take some time, the Court deems it fit to grant Bail . The Hon ble Supreme Court in case of Sanjay Chandra vs CBI, (2012) I SCC 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Penal Code on information lodged by Kunal Kumar a peon, that an account in the ICICI, Muzaffarpur was fraudulently opened in his name by his empoyer Raj Kumar Goenka (petitioner) and his brother Ashok Kumar Goenka without his knowledge and consent which was done by cheating and inducing him to deliver his photographs and documents on pretext of job requirement which was fraudulently used by accused for opening several bank accounts in his name and that of Neeraj Kumar without their knowledge. The two accused Goenka brothers admittedly deposited huge cash to the tune of ₹ 20,97,01,912/- and ₹ 12,78,94,516/- into these accounts. Subsequently Kunal Kumar came to know of the opening of accounts in their names and huge deposits made into them during the survey operation under the Income Tax Act when it was emerged that the petitioner by using else and other accounts fraudulently opened in names of his employees placed huge cash for layering through several bank accounts which in itself constitutes a Scheduled Offence under as per Schedule I of the PMLA, 2002 or PMLA. Neeraj Kumar has further stated and alleged that his signatures were forged on cheques. 20. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NED UNDISCLOSED INCOME PER IDS at w.p. page 48 TAX PAID PER IDS DISCLOSURE CASH DEPOSITS PER I.T. Assessment of u/s 143 (3), 147 IT Income Assessed @ 0.25% on Deposits Writ Petition 2011-12 1,66,090/- 3,99,763/- 2,02,88,615/- P.51 2012-13 1,90,490/- 2,25,835/- 3,04,19,315/- P.55 2013-14 2,05,190/- 2,76,295/- 1,81,70,723/- P.59 2014-15 2,19,570/- 2,28,490/- 2,55,15,382/- P.65 2015-16 2,91,060/- 8,77,666/- 1,33,52,54,200/- P.71-72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been booked under Income Tax Act. Rather, FIR no.298/2016 dated 22.12.2016 was registered with P.S. Mithanpura, Muzaffarpur, Bihar for commission of offence punishable under Sections 420, 467, 468, 469, 471 and 120B of the Indian Penal Code. As, these offences are covered as Scheduled offences under Para 1, in Part A of the Schedule to the Prevention of Money Laundering Act, 2002 (as amended), an ECIR No. PTZO/01/2017 has been registered by ED Patna Zonal Office on 14.02.2017 and investigation under PMLA, 2002 has been initiated in the present case. It may here be stated that one a case of predicate offence comes to be registered (Mithanpura P.S. Case No. 298/2016 on 22.12.2016) and thereafter an ECIR under the PMLA is registered, then on, the two case would stand alone and the former will be investigated by the police in this case and the latter by the ED. The PMLA investigation and subsequent filing of the Complaint and trial will be on the basis of money trail and evidence found and will stand on its own legs independently of the predicate offence; during investigation under PMLA if the money trail leads to a person who is not accused in predicate offence i.e. has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness such as smuggling the profits will be taxed viz Receipts-expenses of the business (which would also include seizures by customs auth)= taxable income/loss. The case is best illustrated by the case of Commr. Of Income Tax, Patiala Vs. Piara Singh AIR 1980 SC 1271 applying the ratio of CIT Gujrat Vs. S.C. Kothari [1971] 82 ITR 794 Guj) wherein Piara Singh, a gold smuggler, was allowed to claim the value of goods seized by Customs as business expenses. Similarly, although gold smuggling is illegitimate and punishable the profits would be taxable and the punishable for crime would be in another proceeding under the appropriate (Customs) Act. In S.C. Kothari the Hon ble Court has, illustrating the above proposition succinctly quoted vide para 21 Lord Morison who also held that an illegal trade is a trade for the purpose of the income tax law and the burglar and swindler, who carry on trade or business for profit, are as liable to tax as an honest business man, and in addition, they get their deserts elsewhere . Finlay J. also took the same view in Southern (H.M. Inspector of Taxes) v. A.B. Ltd. He also regarded the question as one of construction He said : The questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had family and property but they evaded the law and so may petitioner. It cannot be lost sight of that petitioner being the king pin has control and influence over many witnesses who were/are employees of accused and obliged to him. He accepts that he has fraudulently opened bank accounts in name of other and transferred money from those accounts for illegitimate purposes and realizing his mistake he filed under Income Disclosure Scheme but in that also he played truant and failed to make trur and correct disclosure because of which I.T. authorities started proceedings u/s 147 of the I.T. Act. Nowhere has it been said that if custodial interrogation is not required for the present and accused is remanded to judicial custody it amounts to the prosecution having no objection to bail being granted to the petitioner as was sought to be fallaciously made out on his behalf. Investigation in the case is still going on. 29. Learned ASG submits that it is relevant here to refer to the amended Section 45 of the PMLA, which says that the offences are cognizable and non-bailable. Section 45 of the Act (as amended vide Finance Act 2018) reads as under:- Offence to be cognizable and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused reasonable apprehension of the witnesses being tampered with the larger interests of the public/State and other similar consideration. - AK Samsuddin Vs. Union of India WP (C) No. 15378 of 2016 (V ). -Motilal@ Moti Lal Patwa Vs Union of India Cr. Misc. No.73052/2019 Patna High Court as affirmed by the Apex Court. -Vidyut Kr. Sarkar Vs. State of Bihar Ors. Cr. Misc. 73325/2019 dated 18.06.2020 Patna High Court. -State of Bihar Vs. Amit Kumr (2017) 13 SCC 751. -Union of India Vs. Hassan Ali (2011) 10 SCC 235.- Shivendra Mohan Singh Vs. DE 2020 SCC Online Del 766. 32. Learned ASG submits that in view of the aforesaid amended provisions contained in Section 45 of the Act, an accused can be granted bail only if the Hon ble Court is of the view that the accused has not committed any offence under the Act. To the contrary, in the instant case there are sufficient materials as has been stated in the complaint petition which goes to prove the guilty of the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -sheet filed by the ED, it is stated that because all the unaccounted cash has been deposited / placed into normal banking channels by use of this criminal modus operandi through the bank accounts opened through fraudulent means, thus, the same became proceeds of crime . The ingredients of crime offence are based on fact and not an inference or interpretation. Raj Kumar Goenka (petitioner) had made a voluntary and bonafide disclosure of all the transactions carried out by him from 2012 to 2016, standing in different persons names under Income Disclosure Scheme (IDS) 2016. All due taxes alongwith additional penalty @ 50% of tax) was paid by the petitioner on all incomes arising out of such transactions. On that basis, Raj Kumar Goenka (petitioner) has been granted anticipatory bail by a co-ordinate Bench of this Court vide Cr. Misc. No. 7790/2018 in Mithanpura P.S. Case No. 298/2016 and till date no charge- sheet has been filed by the police in Mithanpura P.S. Case No. 298/2016, after more than four years. 36. I am conscious of the fact that accused is charged with economic offence of huge magnitude. I am also conscious of the fact that offences alleged, if proved, may jeopar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
