TMI Blog2021 (3) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... se and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. A careful reading of the legal position and in the light of the circumstances of the case on hand, which clearly indicates that the 1st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and she is being summoned for disclosure and in case of her non-disclosure of any material, on the pretext of non-co-operation, the 1st respondent may proceed to arrest her. The petitioner is a woman and she is having two minor children, whom she has to look after. Further, major part of the investigation has been completed with respect to the accounts and documents, which have already been seized. Hence, there may not be a chance of tampering with the investigation at this stage, because as rightly pointed out by the learned Senior Counsel for the petitioner that a criminal case has already been filed and the same is pending before the Special Court at Bhopal. The petitioner is directed to surrender before the Assistant Director, Enforcement Directorate, Government of India, Hyderabad, within a period of fifteen days from today, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which, these companies became the lowest bidder and their tender got accepted and thus, these companies. got undue benefits. The details of such tenders, which were tampered and changed are as follows:- i. 2 tenders vide Nos. 49985 and 49982 of PWD totaling to ₹ 13.46 Crores were tampered and changed to price bid of M/S. Ramkumar Narwani, Bhopal. ii. Tender No.49813 Of Crore of Project Execution Unit was tampered and changed to price bid of M/S. Sorathia Velji Ratna and Company, Vadodara, Gujarat. iii. Tender No.786 for ₹ 7.86 Crore of MP Road Development Corporation was tampered and changed to price bid of M/S. Madhav Infra Projects, Vadodara. iv. Tenders vide Nos. 10030 and 10044 for total amount of ₹ 1135 Crore was tampered and changed to price bid of M/S. Max Mantena Micro JV, Hyderabad (₹ 1030 crore) and M/S. Sorathia Velji Ratna and Company. It was also found that e-portal system, which is maintained and operated by MPSEDC, was hacked to change the price bid of the above mentioned Applicant Companies. The Digital Signature Certificates (DSC) of Tender Opening Authority of the concerned departments were used to make unauthorized acces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ife of Mr. Srinivas Mantena, who is the Promoter/ Director of a company named 'Mantena Constructions Private Limited'. The said company is involved in the business of construction and infrastructure development. The petitioner is only a shareholder/ Investing Partner in Limited Liability Partnership (LLP) concerns i.e M/S. DRM Composites LLP, (2) M/S. River Volt Hydro LLP that too only from 2019 and she is not involved in the day-to-day activities of the company. It is also submitted that Srinivas Mantena, who is the husband of the petitioner, was arrested by the 1st respondent on 19.01.2021 in connection with the above E.C.I.R. and the 1st respondent has also moved a police custody petition in the Court of Metropolitan Sessions Judge, Hyderabad. It is submitted that one of the Joint Ventures of Mr.Srinivas Mantena had participated in the e-tendering process floated by the Government of Madhya Pradesh in 2018 and qualified as the leading bidder for a project involving irrigation works. In the backdrop of allegations of impropriety and corruption in the said bidding process, the Economic Offences Wing, Bhopal, had launched investigation in the matter and lodged F.1.R.No.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roots in the society and is engaged in the business and has never indulged in any crime including in the present crime, under which the present summons were issued. It is further submitted that the offences alleged in the case diary are neither punishable with death nor imprisonment for life. Therefore, so far as the petitioner, who is a woman, is concerned, for the purpose of bail, the offences shall be treated as 'bailable offences only' in view of the proviso to Section 437 (1), which reads as under: Provided that the Court may direct that a person referred to in clause (i) of Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm' In view of the above legal provision, the petitioner urges that liberal view can be taken to grant anticipatory bail to her, because, if once she is arrested, her respect and dignity in society will be at jeopardy and she has to bear social stigma. The petitioner is a permanent resident of Hyderabad and is a law-abiding citizen, as such the question of her absconding does not arise and that the petitioner is ready to furnish sufficient solvencies to the satisfaction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n offence punishable under this Act. In the present case, no prosecution complaint under the P.M.L. Act has been filed by the 1st respondent as on date and, therefore, the fear of the petitioner that she will be arrested by the 1st respondent based merely on receipt of summons is baseless and a vague apprehension at best. There is certainly no real and apparent reason to believe that the petitioner apprehends arrest, which can be examined objectively by this Court. Therefore, in terms of the judgment of the Apex Court in Gurbaksh Singh Sibbia and others case (3 supra), the present application is liable to be dismissed since it fails to make out any reasonable belief that the petitioner is likely to be arrested. Furthermore, there is absolutely no warrant in law to interfere with the statutory powers of arrest of the Directorate of Enforcement, under Section 19 of the P.M.L. Act at this stage. As and when the Directorate of Enforcement forms a reason to believe on the basis of material in its possession that any person has been guilty of an offence punishable under the P.M.L. Act, it may arrest such person. It is further submitted that a blanket anticipatory bail order ought not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been seized and are being examined for evidence. It is clear from the E.D. investigation done so far that a systematic conspiracy has been planned and executed by a number of infrastructure companies based at Hyderabad in collusion with a few Government officials and IT management companies to win e-tenders illegally. Large amounts of bribes running into Crores of Rupees have exchanged hands using hawala channels. Public funds meant for development activities have been diverted and siphoned off for personal enrichment and for making illegal bribe payments. E.D. has recovered fund trial evidence and generation of black money through bogus and over billing by the Infra companies. It is further submitted that the petitioner herein has been summoned by the 1st respondent to explain some of her financial transactions with certain suspect shell companies. It is the statutory duty of the 1st respondent to carry out fund trail investigation and trace the entire amount of proceeds of crime and to attach them and prosecute the accused under P.M.L. Act. It is reiterated that investigation done by the 1st respondent is initiated on the basis Of the predicate LEA investigation, but after that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one. In such cases, the Court must account for several factors while granting pre-arrest bail, especially the gravity of the scam involved. In a case of money laundering where it involves many stage of placement , layering i.e., funds moved to other institutions to conceal origin' and 'interrogation i.e., funds used to acquire various assets', it requires systematic and sustained questioning. The success in such interrogation would be eluded if the accused knows that he is protected by a pre-arrest bail order. Section 438 of Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case on hand, there are strong allegations of laundering the proceeds of the crime and using the same for personal gain by the petitioner herein. It is also submitted that there is no reasonable explanation of petitioner's apprehension of arrest, apart from probably her own guilt-ridden conscious mind. It is also submitted that the petitioner has been summoned to explain the entire financial transactions of M/S DRM Composites LLP and M/S River Volt Hydro LLP. The petitioner has admitted in her petition before this Court that she is a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no occasion for this Court to consider Section 437 of Cr.P.C. which deals with post-arrest grant of bail in a case involving a non-bailable offence. Since the petitioner is not arrested and is seeking pre-arrest bail, the proviso of Section 437 of Cr.P.C. dealing with post-arrest grant bail cannot be cherry picked and adverted to. It is further submitted that financial frauds involving large scale loot of public funds are a scourge on the National economy and integrity of our Nation and the petitioner instead of explaining her conduct and appearing before the 1st respondent on issuance of lawful summons, is misusing the legal provisions to delay and derail the investigation and prayed to dismiss the petition. In support of his contentions, learned Counsel appearing for the 1st respondent relied upon the following judgments. 1. Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 2. Rohit Tandon v. Directorate of Enforcement(2018) 11 scc 46 3. Gautam Kundu v. Directorate of Enforcement(2015) 16 SCC 1 4. Nimmagadda Prasad v. CBI(2013) 7 SCC 466 5. Vinod Kumar v. State of u.p. and another(2019) SCC Online All 4821 6. State of Gujarat v. Mohanlal Jitamalji Porwal(1987) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others v. The Director, Directorate of Enforcement and others Manu/CG/0463/2020 Chattisgarh High Court at Bilaspur, held as under: As regards the jurisdiction of this Court, there is no doubt that both High Court as well as Court of Session have concurrent jurisdiction for entertaining an application under Section 438 Cr.P.C. Referring to and relying on the judgment in Mubarik v. State of Uttarakhand (Cri,W.P.No.2059/201S, ct. 2.11.2018), this Court has already held vide order, dated 02.07.2019 passed in M.Cr.C.(A) No.91S of 2019 (Ratnesh Singh Chouhan v. State of Chattisgarh) that High Court as well as Sessions Court have concurrent jurisdiction to entertain an application filed under Section 438 Cr.P.C. and no person can be restrained to move an application under Section 438 Cr.P.C. directly before the High Court and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable. In view of the judgments referred to above, the argument of the learned Senior Counsel for the 1st respondent with regard to jurisdiction of this Court in entertaining this Criminal Petition is lacking force. The next objection of the 1st respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or non-application of Section 45, and would directly violate Articles 14 and 21, inasmuch as the procedure for bail would become harsh, burdensome, wrongful and discriminatory depending upon whether a person is being tried for an offence which also happens to be an offence under Part A of the Schedule, or an offence under Part A of the Schedule together with an offence under the 2002 Act. Obviously, the grant of bail would depend upon a circumstance which has nothing to do with the offence of money laundering. On this ground alone, Section 45 would have to be struck down as being manifestly arbitrary and providing a procedure which is not fair or just and would, thus, violate both Articles 14 and 21 of the Constitution. Therefore, as held by the Supreme Court in Nikesh Tarachand Shah case (1 supra), the provisions of Section 45 of Prevention of Money Laundering Act do not apply to Section 438 Cr.P.C. proceedings. Coming to the merits of the case, it is the apprehension of the petitioner that under the guise Of summoning her, the 1st respondent is preparing a ground for her arrest. Though the argument of the learned Senior Counsel for the 1st respondent is that such app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is also to be kept in perspective is that even if the allegation is one cf grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides sc. Therefore, the underlining conclusion is that irrespective of the nature and gravity Of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for life . In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session thinks fit to do so, Section 437 (I) does not confer the power to grant bail in the same wide terms. It is the further submission of the learned Senior Counsel for the 1st respondent that the petitioner is now being questioned and several documents were seized during search and her statement is to be recorded. In the circumstances, if her arrest is prevented, the investigation will be hampered. His argument is two fold. On one hand it is stated that the name of the petitioner is not so far shown as one of the suspects and on the other hand, it is argued that there is likelihood of her statement during investigation disclose her involvement. A careful reading of the aforesaid legal position and in the light of the circumstances of the case on hand, which clearly indicates that the 1st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and she is being summoned for disclosure and in case of her non-disclosure of any material, on the pretext of non-co-operation, the 1st responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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