TMI Blog2022 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... terial collected so far by the respondent/Directorate, it cannot be said that there is no prima facie material to show that the funds borrowed by the petitioner for SIPL has been siphoned for wrongful gain. This Court is not inclined to record that there are no grounds to believe that the petitioner is not found guilty of the offence alleged against him. In fact, it is the trial Court, which, after full-fledged trial, only will undertake to record such kind of observation. Since the petitioner has failed to fulfill the two conditions prescribed under Section 45 of the Act, this Court is not inclined to grant the relief sought for by him - Criminal petition dismissed. - CRIMINAL PETITION No.1849 of 2022 - - - Dated:- 19-4-2022 - HON BLE DR. JUSTICE D. NAGARJUN Petitioner and Advocate : Pavan Kumar Aditya Malladi Respondent and Advocate : Anil Prasad Tiwari ORDER: This petition is filed under Sections 437 and 439 Cr.P.C. to enlarge the petitioner/accused on bail, who has been remanded to judicial custody on 18.01.2022 for the offences under Sections 120-B read with Sections 420, 468 and 471 IPC. The facts in brief which led the petitioner to file this petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s banks. The investigation revealed that consortium of banks has issued letter of credits to benami entities of the petitioner/accused as per his instructions as if raw material was being supplied. The benami entities of the petitioner and their authorized agents have admitted that as per the instructions of the petitioner the letter of credits so received were discounted and money was diverted and transferred back to SIPL directly or through other benami sources. The petitioner, as the Managing Director, has induced the consortium of banks to release the loan amounts by using false documents through one P.V.S. Kutumba Rao, General Manager (Finance) of SIPL. The petitioner has directed to create dummy bills without any actual supply of material to defraud the banks. Investigation also revealed that the petitioner used to arrange funds through banks to benami companies and also to the employees of the company. The investigation by the Enforcement Directorate also stated to have been revealed that huge proceeds of the crime were invested in various immovable properties, number of assets were acquired and investments were made. The General Manager (Finance) has also stated in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ready and willing to cooperate with the investigation and therefore, prayed the Court to enlarge the petitioner on bail. On the other hand, learned Special Public Prosecutor appearing for Enforcement Directorate has filed a detailed counter stating that the investigation done so far has revealed that the petitioner has prima facie committed the offence and that the two conditions prescribed under Section 45 of the Act have not been fulfilled and therefore, prayed the Court to dismiss the petition. The point for consideration is: Whether the petitioner can be enlarged on bail? As seen from the investigation done so far by the respondent/Directorate, the consortium of banks has advanced money to SIPL for which the petitioner is the Managing Director and it is alleged that the funds to the tune of Rs.395 crores advanced by the consortium of banks were diverted wrongfully by the petitioner. The report of DDI LLP, which was got done by lenders, also shows that SIPL has shown false transactions and siphoned the funds and issued letter of credits in the name of the companies and the persons belonging to the petitioner, who, in turn, have again diverted the funds in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. A perusal of the above provision shows that there are two conditions, which are required to be fulfilled prior to grant of bail. The first condition is that the Public Prosecutor has to be given an opportunity of opposing the bail. In this case, notice has already been given to the Special Public Prosecutor and he has also filed a lengthy counter opposing grant of bail by replying each and every contention raised by the petitioner in this petition. The other condition is that when the Public Prosecutor opposes the application, the Court shall satisfy that there are reasonable grounds for believing that the petitioner/accused is not guilty of the offence and not only that the Court must also satisfy that he is not likely to commit any offence while on bail. The second limb of second condition that the Court shall satisfy that the accused shall not commit any offence will come only if the Court records that there are no reasonable grounds to believe that the petitioner/accused is not guilty of the offence. Learned counsel for the petitioner submitted that the two conditions prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Shah (supra), the said amendment is also not applicable to the facts of the case. Opposing the arguments made by the learned counsel for the petitioner, the learned Special Public Prosecutor has relied upon the judgment delivered by a Division Bench of the High Court of Madras in the case of N. Umashankar @ N.M. Umashankar and others vs. The Assistant Director, Directorate of Enforcement, Government of India, Chennai Crl.O.P.Nos.3381, 3383 3385 of 2021, dt. 03.01.2022, wherein at paragraph 16 the High Court has held as under: 16. No doubt, the legislature has the power to cure the underlying defect pointed out by a Court, while striking down a provision of law and pass a suitable amendment. When such a law is passed, the legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. Therefore, merely because the entire section is not re-enacted would be of no consequence, since the provision even after being declared unconstitutional, does not get repealed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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