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TMI Blog2022 (2) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... oned, that C.B.I. has registered different FIRs alleging violation of sections 114, 201, 406, 409, 418, 420 and 120B of the IPC read with section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'P.C. Act' for short). 2.1 It is alleged that the applicant as one of the Directors of M/s Sai Infosystem (India) Ltd., M/s Atrium Infocomm Pvt. Ltd. and M/s. Click Telecom Pvt. Ltd., during the period between 2009-2014 has cheated the consortium of Banks laid by SBI to the tune of Rs. 867.43 Crores. On the basis of FIR registered by CBI, Enforcement Directorate, Ahmedabad on 08.02.2018, registered an ECIR being ECIR/AMZO/02-2018 against the present applicant. 2.2 The first and second summons were issued on 16.07.2019 and 09.08.2019 respectively. The applicant states that he had replied both the summons, and had requested for time to appear before the Investigating Officer. On telephonic instruction, he appeared on 20.09.2019 for the purpose of investigation and till late night, he was interrogated and at around 11:55 p.m., he was informed of his arrest under the PMLA. 2.3 The applicant states that he is an electronic engineer and had started his business in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IS) 03.08.2016 (Delay of 3 Years) 51.62 9 CBI BSM2016E024 (SIS) 04.08.2016 (Delay of 3 Years) 104.78 3.1 Mr. Syed submits that FIR No.308 of 2013 and FIR No.395 of 2013 for the schedule offence, were quashed on 21.12.2015. Bail was granted in regard to FIRs being CBI BSM2015E0001 and CBI RC.04(E) 2015 by the Bombay High Court and Sessions Court, Bombay respectively. Mr. Syed further stated that the protection of no coercive steps was provided by this Court vide order dated 28.11.2016 in Quashing Petitions, in regard to the FIRs mentioned at serial nos.5 to 9, in the table, which was further clarified vide order dated 08.06.2017. It is stated that seven Quashing Petitions are pending before this Court and the FIRs, which were registered at Bombay were transferred by order of the Hon'ble Supreme Court in Transfer Petition (Criminal) No.272- 273 of 2018, and thus registered as Sessions Case No.63 of 2017 and Sessions Case No.77 of 2017 at the Special Court, C.B.I. at Ahmedabad. 3.2 Senior Advocate Mr. Syed submitted that, on registration of the FIRs by the C.B.I., which are schedule offences under PMLA, ECIR was registered by Directorate of Enforcement, Ahmedabad, the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred to BSNL at zero cost and thus, caused a total loss of Rs. 602 crores of assets. He submitted that the inventory was not realized, which amounted to 204 crores, thus, led to cash crunch, as per the balance-sheet of 2012-13; and the forensic report also suggests that non tangible assets at that time i.e. research and development, technology, software, human resources, patent, copy rights, were worth Rs. 500 crores, thus Mr. Syed submitted, that approximately 1812 crores got stuck with various operations and could not be recovered, which led to financial liquidity crunch and company could not honour the financial obligations of the Banks. 3.6 Mr. Syed further contended that as per the conclusion of the SBI investigation report, based on forensic audit, the Company was awarded prestigious projects and was competing with other global players like TCS, HP, Infosys, Wipro, HCL, IBC etc. The Company did not have infrastructure which may be considered at par with other global players. Forensic report suggests that the Company used to participate in high value projects without proper Techno Economic Viability and the Company did not ensure proper financial closure before furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Liberia in July, 2014 and therefore, he is a flight risk, Mr. Syed stated that, when the applicant moved to Liberia in June, 2013, no FIR was pending against him and the applicant was extradited in connection with FIR No.308 of 2013 and the applicant was granted temporary bail vide order dated 16.02.2015 in CRMA No.3192 of 2015 and thereafter, after considering the submission regarding flight risk, the applicant was granted bail in CRMA No.18834 of 2014 on 01.04.2015. He submits that later by order dated 21.12.2015, the FIR was quashed by this Court in CRMA No.13736 of 2015 with 13731 of 2015. He submits that in connection with FIR RCBSM2015E001, he was granted bail by the Bombay High Court and as this Court has quashed FIR No.308 of 2013, the Chief Judicial Magistrate by order dated 08.01.2016, had ordered for releasing of the passport of the applicant. Mr. Syed, stated that the applicant has been granted temporary bail on various occasions and has never violated any condition of temporary bail and always surrendered on time. Senior advocate, Mr. Syed, states that reverse burden of proof as provided under section 24 PMLA applies at the stage of trial and not at the stage of bail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018] (xvii) Ahilya Devi Vs. The State of Bihar And Ors. [MANU/ BH/0245/2020] (xviii) All Cargo Movers Vs. Dinesh Bhadarmal Jani [2007 14 SCC] (xix) Nikesh Tarachand Shah Vs. Union of India [2018 11 SCC 1]. 4. Mr. Devang Vyas, learned A.S.G., submitted that on the basis of information/material, as evident from FIRs of CBI Mumbai, bearing FIRs Nos. RCBSM2016E0024 dated 04.08.2016, RCBSM2016E0023 dated 03.08.2016, RCBSM2016E009 dated 07.06.2016, RCBSM2016E016 dated 28.06.2016 and RCBSM2016E010 dated 16.06.2016, under sections 120B read with section 420 of IPC and section 13(2) read with section 13(1)(d) of P.C. Act, the Directorate of Enforcement, Ahmedabad Zonal Office, has started investigation for commission of offence under Section 3 of PMLA punishable under section 4 of the said Act against M/s. SIS, Chairman of SIS and others, who by criminal conspiracy cheated the Bank of Baroda, Allahabad Bank, Corporation Bank, State bank of Bikaner and Jaipur and State Bank of India to the tune of Rs. 699.44 crores under various types of loan/credit facilities. 4.1 Mr. Vyas, learned A.S.G., further stated that, for availing maximum loan from the banks, the Directors of SIS entered into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers' and all the transactions in these companies are circular transactions, which were done for inflating the balance sheet of SIS so that it can participate in big tenders and consequently availed loans. 4.5 Learned A.S.G. Mr. Vyas further submitted that on 20.09.2019, statement of the applicant was recorded; however, as he was not cooperative with investigation, he was arrested on 20.09.2019 and produced before the Special Court under P.M.L.A. at Ahmedabad along with remand application and at last on 03.10.2019, the Special Court sent the applicant in judicial custody. 4.6 Learned A.S.G. Mr. Vyas, submitted that on inquiry with the banks concerned, it was revealed that huge amounts of money running into several crores of rupees, received by the companies of the applicant and loans/advances were diverted out to the various companies and investigation revealed that more than 10 companies in India and certain other companies outside India are controlled by the applicant and these companies were used to divert and misutilize public money availed from the various banks as loans. He submits that a Provisional Attachment Order No.02/2019 was issued attaching immovable properties worth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the applicant was accorded sufficient opportunity to rebut the burden in regards to the properties which have been purchased in foreign countries and to explain about the proceeds of the crime. Mr. Vyas, learned A.S.G. stated that the statutory provision of sections 22, 23, 24 of the PMLA becomes applicable and the burden would be on the accused even in this proceeding. He submitted that rigor of Section 24 of PMLA while reaching the twin conditions under section 45 of the Act, would become applicable and thus urged to reject the bail application. 4.11 In support of his submission, Mr. Vyas also relied on the judgments of (i) Gautam Kundu Vs. Manoj Kumar, AD, Directorate of Enforcement, (ii) Union of India Vs. Hassan Ali Khan And Anr., (iii) Gautam Khaitan Vs. Enforcement Directorate (iv) State of Gujarat Vs. Mohanlal Jitamalji Porwal And Anr. [(1987) 2 SCC 364, (v) Y.S. Jagan Mohan Reddy Vs. CBI [(2013) 7 SCC 439], (vi) Nimmagadda Prasad Vs. CBI, (vii) Motilal Patwa Vs. Union of India [CRMA No.73052 of 2019], (viii) Vidhyut Kumar Sarkar Vs. Union of India & Ors. [CRMA No.73325 of 2019], (ix) Mukeshkumar S/o. Jai Kishan Sharma Vs. State of Gujarat & Ors., [ SCRA No.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence of a like nature. Again, we are afraid that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove. Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. For this purpose, he referred us to Amarmani Tripathi (supra) at para 18, in which it was stated that, for grant of bail, the Court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence being repeated has also be seen. It is obvious that the twin conditions set down in Section 45 are a much higher threshold bar than any of the conditions laid down in paragraph 18 of the aforesaid judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the various factors set out in paragraph 18 of the judgment are to be looked at. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e PMLA. Under these directions, when the matters were to be reconsidered without application of twin conditions of section 45, as it stood prior to the judgment of Nikesh Tarachand Shah (supra), in all the bail applications necessary orders would have followed. The important issue, now for consideration would be whether the Hon'ble Supreme Court decision in the case of Nikesh Tarachand Shah (supra) can be said to have lost its significance because of the amendment in section 45 of the PMLA. It would be significant to observe that the very declaration by the Hon'ble Apex Court of the twin conditions under section 45 of the Act as unconstitutional, would mean the twin conditions are to be treated, as though have never been passed. The consequences of declaration of unconstitutionality have to be dealt with only by the Court. The notification dated 29.03.2018 is silent about retrospective applicability. 6.2 Learned A.S.G. during the course of argument placed reliance on the Division Bench judgment of the High court of Judicature at Bombay Bench at Nagpur, in case of Ajay Kumar S/o. Chandraprakash Baheti Vs. Directorate of Enforcement, in Criminal Application (BA) No.1149 of 2021, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45 of the PMLA Act must get triggered. It has been further observed that the duty of Court is to examine the jurisdictional facts including the mandate of Section 45 of the PMLA Act, which must be kept in mind. 6.4 In the case of Directorate of Enforcement Vs. Deepak Virendra Kochhar & Anr. (supra), the Hon'ble Supreme Court while considering the bail application did not deem fit to interfere with the reasons passed by the High Court granting bail and further deem fit to keep the question of law open, to be decided in an appropriate case. 6.5 The provisions of law which are declared unconstitutional is not law, it confers no rights, it imposes no duties, it becomes inoperative, as though it has never been passed. Since the Notification dated 29.03.2018 has remained silent about its retrospective applicability, this Court in the present bail application, while observing that sub-section 45(1) (ii) have neither been revived nor resurrected by the amending Act, would consider this bail application on the premise that there is no rigor of the twin conditions of section 45(1) of PMLA. 7. Nikesh Tarachand Shah (supra) has referred to the judgment of Gorav Kathuria Vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of 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 so. 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." 8.1 While dealing with the bail application, three factors are mainly to be seen namely; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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