TMI Blog2022 (3) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... The Supreme Court has asserted that, the twin conditions prescribed in Section 45 of the PMLA Act would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 of the PMLA Act is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. The Supreme Court has held that that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination . Such observations facilitate the Courts to realize and interpret the legal effect of the twin conditions attached to Section 45 of the PMLA Act - the Supreme Court has directed all the concerned courts to decide the matter on merits without application of the twin conditions contained in Section 45 of the PMLA Act as they are declared unconstitutional. The twin conditions still continue. Unquestionably, the Amendment Act of 2018, which introduces the expression under this Act to Section 45 of the PMLA Act, in no uncertain terms can obliterate or dilute the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Laundering Act, 2002 (hereinafter in short referred to as PMLA ). 4. The prosecution case, in nutshell, is that one Shri Shashi Kumar and Shri Rajesh Kumar lodged a case bearing Civil Line P.S. Case No.339/2016 and Civil Lines P.S. Case No.340/2016 under Sections 419, 420, 467, 468, 469, 471 and 120B of the Indian Penal Code against the Chief Manager and other officials of Bank of India, G.B. Road Branch, Gaya as well as others. A copy of the same were also forwarded to the Superintendent of Police, Economic Offence Unit (EOU), Patna. It reveals that bank account in their names or in the name of their firms M/s. Shiva Agro Enterprises and their family members held with Bank of India, G.B. Road Branch, Gaya were misutilized in connivance with the bank officials and huge amount of cash was deposited and transferred to other bank accounts without their knowledge and consent. 5. Earlier Complaint No.2 of 2018, in the instant case, had been filed against ten accused persons including officials of Bank of India, G.B. Road, Gaya and further investigation was in progress. First supplementary complaint no.11 of 2018 had been filed against four accused persons and on further investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporated under the Companies Act, 1956, having an industrial unit situated in Bagru industrial area Bagru, Jaipur in the State of Rajasthan. This company is engaged in manufacturing of MS TMT BAR and Billets since 2008. The produce manufactured by the petitioner has got ISI and ISO specification. It sells its manufactured products in the name of SANJOG SONA TMT. It is registered with the Department of Central Excise, VAT etc. and now with the Department of GST. The petitioner also manufactures in other branch with whom it entered into tie-ups. The company is also a member of Rajasthan Steel Chamber and Steel Merchant Association. 9. He further submitted that the said company namely M/s Sanjog Steels Pvt. Ltd. get orders for supply of its products telephonically without maintaining any written purchase orders either directly or through brokers of this trade from across the country. On getting the orders, it supplies its products along with statutory and transport documents through the transporters. All the transactions of sale and purchase are ordinarily made through bank transactions. This fact can be corroborated by the certificates issued by the Steel Merchants Associatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the firm M/s Radha Trading Company having indulged in any financial irregularities or the alleged offence of money laundering. The ED has not been able to show any connection of the petitioner with the bank accounts in Gaya, where the money was transferred to the account of M/s Radha Trading in Delhi or to show any cash transaction or unaccounted transaction between the petitioner and M/s Radha Trading. The ED has alleged that the amount of ₹ 10 lakhs each was transferred from the account of M/s Radha Trading Company to the account of M/s Sanjog Steels, twice, after allegedly tainted amounts were received on the same day, i.e., 21.10.2016 and 25.10.2016 from the accounts of M/s Shiva Agro and M/s MTI Cotton Mills respectively. 15. It is further submitted that the ED, during the course of investigation, has already called the representatives of M/s Sanjog Steels Pvt. Ltd. and obtained all the documents relating to the business transactions and never required custodial interrogation. It is also submitted that the twin conditions under Section 45(1) of the PMLA is not applicable in the case of the petitioner as the amount alleged to be laundered by the petitioner is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Apex Court in the case of Aman Preet Singh Vs. CBI in 2021 SCC online 941 and Siddharth Vs. State of U.P. in 2021 SCC online SC 615 has held that after submission of charge-sheet no interrogation of accused is required, hence it can be granted anticipatory bail. There is no assertion against the petitioner of fly by night as the petitioner has got an established industrial unit at Jaipur with huge investment and he stays with his entire family there. He is permanent resident of Jaipur and there is no charge of running out from the country. 21. Per contra, Mr. K.N. Singh, learned Additional Solicitor General of India vehemently opposing the prayer for anticipatory bail has submitted that one Motilal, in connivance with the bank officials of Bank of India, GB Road Branch, Gaya mis-utilized the bank account held in his name/firm/ family member/relatives/in the name of complainants Shashi Kumar and Rajesh Kumar and their firm / brothers/wife, inasmuch as substantial cash deposits illegally were made in the bank accounts. The cash deposits were dishonestly and fraudulently transferred to the bank accounts of different other entities without the knowledge and consent of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and fictitious firms and have not been operating from the addresses as mentioned in their bank accounts or in the sales invoices of appellant. 25. The enquiries revealed that they do not exist at given address. It is submitted that in this manner, ₹ 20 lakhs cash after deposit in these accounts was transferred to the bank accounts of M/s Sanjog Steels Pvt. Ltd., Jaipur after being layered through the bank accounts of fake and non-existent firms. Hence, transactions through these firms are involved in money laundering in terms of Section 23 of PMLA. 26. M/s Sanjog Steels Pvt. Ltd., Jaipur has created false evidence by issuing sale invoices and other documents in the name of M/s Radha Trading Company, Delhi, whereas it has been found during investigation that the said firm is fake and non-existent. 27. It is submitted that Sri Nirmal Kumar Sharma, broker of Jaipur vide his statement dated 01.02.2021 recorded under Section 50 of the PMLA stated that he had received a call from the representative of M/s Sanjog Steels Pvt. Ltd., Jaipur, who has enquired about the credential of M/s Radha Trading Company, Delhi and its operator Bimal Jain. Accordingly, he has enquired abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of transaction made with the firm M/s Radha Trading Company Delhi, does not know these firms personally and does not have the mobile numbers of the firm M/s Radha Trading Company, Delhi, failed to produce any reliable documents in support of his claim that his firm had not paid the freight for delivery of goods to this firm as the goods were dispatched on to pay basis, failed to produce any documents in support of his claim that his firm did not collect delivery challans/acknowledgment from these firms in respect of goods sold to them because his firm had sold the goods on Ex-Works basis. M/s Sanjog Steels Pvt. Ltd., Jaipur has created false evidence by issuing fabricated sale invoices and other documents in the name of M/s Radha Trading Company, Delhi whereas it has been found during investigation that the said firm is fake and non-existent, failed to produce any reliable documents in support of his claim that credit of ₹ 20 lakhs were received against the goods (TMT Bars) sold to non-existent company M/s Radha Trading Company, Delhi and M/s Sanjog Steels Pvt. Ltd., Jaipur had business transaction with these firms during September, 2016 to November, 2016 but no busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of bail have been declared ultra vires by the Supreme Court in case of Nikesh Tarachand Shah (supra) not because of its dependence on the applicability, relatable only to the offences in Part A of the Schedule; for the reason that the offences under Part A of the Schedule are not offences of money laundering rather different predicate offences. 34. It is further submitted that the amendment has been introduced w.e.f. 19.04.2018, after taking note of the decision of the Supreme Court in case of Nikesh Tarachand Shah (supra) and the defects, which were pointed out in the judgment, have thus been rectified, for, in place of the term punishable for a term of imprisonment of more than three years of Part A of the Schedule , under this Act has been substituted. 35. Accordingly, he submitted that the twin conditions have not become referable and relatable to the offence under the Act of 2002. The discrepancy, as pointed out by the Supreme Court, according to him, has thus been removed in the statute book, he contends. He has submitted that decision of the High Court of Delhi dated 9th of July, 2019 in case of Upendra Rai vs. Directorate of Enforcement (Bail Application No.249 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il application which concerns itself with the offence of money laundering, for if Section 45 of the PMLA Act is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. It is observed that Section 45 of the PMLA Act is a drastic provision which affects the fundamental right of personal liberty granted by Article 21 of the Constitution of India and turns on its head the presumption of innocence which is fundamental to a person accused of any offence. The Supreme Court has held that that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination . Such observations facilitate the Courts to realize and interpret the legal effect of the twin conditions attached to Section 45 of the PMLA Act. 39. Finally, the Supreme Court has directed all the concerned courts to decide the matter on merits without application of the twin conditions contained in Section 45 of the PMLA Act as they are declared unconstitutional. The twin conditions still continue. Unquestionably, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they do not exist at given address. In this manner, ₹ 20 lakh cash after deposit in these accounts was transferred to the bank accounts of M/s Sanjog Steel Pvt. Ltd., Jaipur after being layered through the bank accounts of fake and none-existent firms. Hence, the transactions, through these firms, are involved in money laundering in terms of Section 23 of the PMLA. 44. The entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to book. A murder may be committed in the hit of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. 45. Having heard the parties at length, considering their rival submissions, gone through the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
