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TMI Blog2022 (6) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the remaining accused had cheated several investors by accepting investment under an investment scheme through his three Bangalore based companies (1) Long Reach Global (2) Long Reach Technologies and (3) Morris Trading, by promising high returns of dividend. As per the scheme, the investors will be able to exchange Morris Coins - Crypto currency after the 300-day lock-up period. It was further alleged that the accused also offered high commission income for those who bring more investors to invest in the Morris Coin Crypto currency. It was also alleged that even though the dividend was paid as agreed initially, the accused persons neither paid any dividend thereafter, nor returned the money collected from the investors. The investigation revealed that the accused persons defrauded a total amount of Rs.1200 crore under the above-mentioned scheme. 4. The Deputy Superintendent of Police, C-Branch, Malappuram who conducted the investigation into one of the crimes (Cr.No.356/2020 of Pookottumpadam PS) forwarded a report about all the crimes registered against Sri. Nishad and others to the Directorate of Enforcement, Kochi on 11/05/2021. On the basis of the said information, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail. 8. I have heard Sri. George Thomas, the learned Senior Counsel for the petitioner and Sri.Suvin R.Menon, the learned Central Government Counsel for respondent No.1. 9. The learned Senior Counsel for the petitioner Sri.George Thomas submitted that the petitioner is absolutely innocent of the offences alleged against him and he has been falsely implicated in the case. According to the learned Counsel, the petitioner is the Director of the Company namely Stoxglobal Brokers Private Limited which was appointed as a pin stockist of Long Reach company run by the accused No.1, Sri.Nishad. The Counsel submitted that the petitioner's company only accepted payments from the clients for the purchase of the pins of Long Reach Company issued through their bank and he is in no way involved with the alleged money scam. The Counsel further submitted that the petitioner has no responsibility to answer or explain all the transactions of the accused No.1 or his companies or schemes evolved by them. The Counsel also submitted that the petitioner has already been given in enforcement custody for a period of 14 days, he has been extensively questioned for days together and the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deep-rooted conspiracies altering the moral fibre of the society and causing irreparable harm, which needs to be considered seriously [State of Bihar and Another v. Amit Kumar, (2017) 13 SCC 751]. In Chidambaram P. v. Directorate of Enforcement (2019 KHC 7201), the Apex Court has held that the economic offence would fall under the category of "grave offence" and in such circumstances, while considering the application for bail in such matters, the court will have to deal with the same, being sensitive to the nature of the allegation made against the accused. 12. The jurisdiction of the Court to grant bail to a person accused of an offence under PMLA is circumscribed by the provisions of Section 45 as amended in 2018. The bail can be granted in a case where there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. The twin conditions under sub-section (1) of Section 45 of PMLA as it originally stood were made applicable only to the offences punishable for a term of imprisonment of more than three years under Part A of the Schedule II of the Act. The Apex Court in its decision Nikesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .O.P.Nos.3381, 3383 and 3385 of 2021 decided on 10 March, 2021) and Jharkhand (Bindeshwar Ganjhu @ Bindu Ganjhu. v. Union of India through Directorate of Enforcement, B.A. No. 16501 of 2021 decided on 28/04/2022) took the view and held that Section 45(1), though struck down by the Apex Court, was revived by the 2018 amendment and that the bail application has to be considered in view of the amended provisions satisfying the twin conditions. The High Court of Kerala in M. Sivasankar v. Union of India [LAWS (KER)-2021-1-177] held that in view of the changes brought about by way of amendment, the embargo under Section 45(1) would continue to stand in the way of granting bail to the accused except under the conditions mentioned therein. However, the High Courts of Patna (Ahilya Devi v. State of Bihar and Others, 2020 Crl.Law Journal 2810), Delhi (Upendra Rai v. Directorate of Enforcement AIR Online 2019 Delhi 1177), Madhyapradesh (Dr.Vinod Bhandari v. Assistant Director, Directorate of Enforcement (M.Cr.C.No.34201 of 2018 decided on 29th August 2018)) and Chhattisgarh (Anil Tuteja and Others v. The Director, Directorate of Enforcement and others (M.Cr.C.(A) Nos. 469 & 484 of 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than three years under Part A of the schedule", the term "under this Act" has been substituted. Thus, twin conditions for bail declared unconstitutional by the Apex Court in Nikesh Shah (supra) stood restored by Amendment in 2018. That apart, the Apex Court in P.Chidambaram v. Directorate of Enforcement (AIR 2019 SC 4198), which is a judgment subsequent to the amendment to Section 45(1) of PMLA, dismissed the application for grant of anticipatory bail applying the provisions under Section 45(1) of PMLA as well. It did not lay down that the twin conditions would not survive in view of Nikesh Shah (supra). The Apex Court again in The Assistant Director Enforcement Directorate v. Dr. V.C. Mohan [2022 Live Law (SC) 16] decided on 4/1/2022 held that once the prayer for bail is made for the offence under PMLA 2002, the rigours and principles underlying Section 45 get triggered on although the application is under Section 438 of Cr.P.C. Recently, the Apex Court (SLP (Crl.No.620-622 of 2022 decided on 25/2/2022)) rejected the challenge against Madras High Court's decision in Umashankar (supra) that the 2018 Amendment revived twin conditions for bail under Section 45. Hence, I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by him during the said period. In the statement given by the petitioner under Section 50 of PMLA, he has admitted that, in 2019, he invested a sum of Rs.1,00,000/- in the above-said scheme ran by the company named Long Reach Technology belonging to the accused No.1 and later on he was appointed as the pin stockist of the said company. The petitioner further admitted that he along with his wife started a company namely Stoxglobal Brokers (P) Ltd. in 2020 and the said company has been appointed as the pin stockists of Long Reach Technology ran by Sri. Nishad and transaction of around Rs.40 crores have been done through this company. He also admitted that the money of the investors were invested in the account of M/s Long Reach Technology through the accounts of the pin stockists like him as per the instruction given by Sri.Nishad. The statement made before the Enforcement Officials under Section 50 of PMLA is not a statement recorded under Section 161 of Cr.P.C. The Apex Court in Rohit Tandon v. Enforcement Directorate (2017 KHC 6767) observed that the statement of the accused recorded under Section 50 of PMLA is admissible in evidence. The provisions of Section 50 of PMLA are an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Rs.50 crores has been made with the accused No.1 and he has earned Rs.1.5 crores as commission. The records would further show the companies owned and managed by the petitioner were opened at the time of commission of scheduled offences. On the basis of the bank account statement as well as the statement of the petitioner, it has been prima facie established that the petitioner has directly received funds from various investors in the investment plan run by the accused No.1 and he has also received the commission from the accused No.1. As per Section 3 of PMLA, whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting or claiming it as untainted property, shall be guilty of the offence of money-laundering. The materials mentioned above would prima facie indicate that the petitioner knowingly assisted in the layering of possession of proceeds of crime acquired by the accused No.1. 18. On a careful analysis of the materials placed on record, the factual discussions made above and the legal submissions advanced, it is not possible for me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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