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TMI Blog2022 (3) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... rate lodged an ECIR on 26.08.2010 in pursuance of the schedule offence bearing F.I.R. No. RC-8A/2007 dated 31.03.2007. After issuance of provisional attachment order No.01 of 2016 dated 28.03.2016, a complaint under Sections 44 and 45 of P.M.L.A., 2002 has been filed against the applicant and other co-accused persons for an offence under Sections 3/4 of P.M.L.A., 2002. 5. In pursuance of F.I.R. No. RC-8A/2007, under Sections 120B, 420, 467, 468 and 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, several charge-sheets have been filed against different co-accused persons including the one against the applicant and his brother Ashwani Kumar Shukla along with one other co-accused person. 6. As per the F.I.R. lodged by the C.B.I./A.C.B., Lucknow in 2007 during the period of 14.11.2005 to 7.11.2016, V.K. Srivastava, Senior Manager, R.K. Mishra, Senior Manager, Naresh Chandra Bhardwaj, Senior Manager, Dinesh Kumar, Clerk of Bank of India and Vikram Dixit entered into a criminal conspiracy with some unknown persons and got sanctioned 08 housing loans on the basis of false and fictitious documents such as I.T.R., PAN, Sale Deeds, Voter I.D. etc. The said loan accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating from the schedule offence was transcribed in the provisional attachment order and the present applicant was not named as defendant in the original complaint. The brother of the applicant is only named in that complaint as defendant no.7 for the limited role that a sum of Rs. 25,000/- was transferred from OD mortgaged loan account to the current account and subsequently the said amount was deposited with ED in the form of FDR. Learned counsel for the applicant has further submitted that no proceeds of crime has been deciphered and derived in respect of the applicant. There is no provisional attachment issued in respect of the applicant. There is no evidence with regard to possession, acquisition or use and projecting or claiming any proceeds of crime as tainted property qua applicant. The applicant himself is stated to have got an FIR lodged against Vikram Dixit on 20.10.2007 at Case Crime No.338 of 2007, under Sections 406, 420, 504 and 506 IPC, Police Station Kakadev Kanpur, wherein charge-sheet has been filed. The applicant is unaware of the entire transactions as he is a resident of Thane, Maharashtra. 9. Learned counsel for the applicant has placed much reliance on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Enforcement Directorate has further stated that the provisional attachment order dated 28.03.2016 finds the reference of the aforesaid transaction of Rs. 25,000/- at serial no.7. He has further submitted that the applicant along with his brother had entered into a criminal conspiracy with R.K. Mishra, Senior Branch Manager Credit and Vinny Sodhi @ Vikram Dixit for sanction of an overdraft limit of Rs. 2.50 lakhs for business purpose against the mortgaged of property of Ram Nath Sharma by submitted fake documents. Learned counsel for the E.D. has stated that the chargesheet in the present case had already been filed on 27.11.2018 and the cognizance has been taken on 11.04.2019. Summons and non bailable warrants have already been issued against the co-accused persons. There is no reason for entertaining an anticipatory bail of the applicant at this stage. The accused himself should surrender before the Special Court and apply for regular bail. 14. Sri Shiv P. Shukla, learned counsel for the Enforcement Directorate has placed much reliance on the judgment of Supreme Court in case of Assistant Director vs. Dr. V.C. Mohan (S.L.P. Criminal No.8441 of 2021), wherein it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheduled offence. In support of his contention he relied upon Judgment of Hon'ble Telangana High Court in case of State of V. Vijay Sai Reddy vs Enforcement Directorate Cr. Petition Nos.1073 and 1074 of 2021, wherein it was held that trial for the offence of money laundering is independent trial and it is governed by its own provisions and it need not get interfered by the trial of scheduled offences. 18. It is further submitted that PML Act is Special Act to deal with economic offences. Offence under PML Act is made as cognizable and non-bailable and granting anticipatory bail may hamper the societal and national interest. In support of his contention learned counsel relied upon Judgment of Supreme Court in the case of Jai Prakash Singh v. State of Bihar & Anr. (2012) 4 SCC 379, wherein it is held that "parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the Court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 21. Section 45 specially provides two conditions which is mandatory in nature and must be complied before granting bail to accused of offence. 22. The same is reiterated is case of Gautam Kundu vs Directorate of Enforcement (2015) 16 SCC 1, the Supreme Court held as under:- 29. Section 45 of PML Act starts with a non obstante clause which indicates that the provisions laid down in Section 45 of PML Act will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of PML Act imposes the following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule of PML Act: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. 30. The conditions specified u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 [...]" 26. In case of P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24, the Supreme Court observed as under:- "67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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