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TMI Blog2022 (2) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... t accused including the present applicant. In that complaint, the learned Magistrate had passed an order under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') and had directed the Yellow Gate Police Station to investigate into those allegations. Pursuant to that order, the FIR vide MECR No.3/2020 was lodged at Yellow Gate police station, Mumbai on 28.10.2020 for commission of offence punishable under Sections 420, 406, 465, 467, 468, 471 and 120-B of IPC. The proforma mentions that the period of the offence was between the year 2008 to year 2020. 4. In respect of the allegations in the FIR, the respondent No.1 registered their Enforcement Case Information Report (ECIR) No.ECIR/MBZO-I/40/2020 on 31.10.2020, as according to respondent No.1 prima facie a case for offence of money laundering under Section 3 of the PMLA was made out. The applicant was shown as accused No.8 in that ECIR. 5. The investigation was conducted by respondent No.1 and that culminated into filing of the complaint on 19.12.2020 before the Designated Court for the PMLA, Greater Mumbai. The complaint was filed against five accused. The applicant was shown as accused No.3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Chandole used to coordinate for the same and used to collect the profit shared on behalf of Pratap Sarnaik. v. It is alleged that the applicant tried to mislead the investigation by stating that Rahul Nanda was unaware of the arrangement with Amit Chandole; though the investigation revealed that the applicant was apprising Rahul Nanda regarding the same. It is alleged that the applicant accepted that he had spoken to Amit Chandole about making pay off to a person from MMRDA for releasing the payment and removing Topsgrup Company from the blacklist. vi. In paragraph-6.2 of the complaint, the details of the amounts given to Amit Chandole are mentioned. From the year 2017 onwards he was paid Rs.2,36,18,865/- in cash which was calculated as 50% of the profitability of the MMRDA contract. The profitability was calculated on the basis of short deployment, underpaid overtime and commissions. Mr. Amit Chandole was paid also through NEFT and that amount was mentioned as Rs.56,92,446/-. vii. In paragraph-8.4 of the complaint, the role played by the applicant is described. According to this complaint, the applicant had a complete knowledge of under deployment of guards at MMRDA sites. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial reason to invoke PMLA. Ramesh Iyer was terminated vide letter dated 15.10.2020 and, therefore, immediately he had lodged complaint against the company. That termination letter was issued under the signature of the present applicant and, therefore, the applicant is also roped in as an accused. (v) The money trail analysis mentioned in paragraph-6 of the complaint shows that the money has gone to Rahul Nanda and his relatives. No money is received illegally by the applicant himself. No amount has come to him. He is not the beneficiary. As per the allegations, the profitability sheet was manipulated for the purpose of profit sharing with Amit Chandole, but, it was an internal sheet of Topsgrup. It was neither submitted to MMRDA nor to any of the authorities. There is nothing to show that the applicant had destroyed any evidence. (vi) Even as per the statement of Neeraj Bijlani, only the final process in respect of MMRDA tender was completed by the present applicant. And, therefore, he had no connection with the decision to enter into contract or to gain and share the illegal profit by deploying lesser number of guards. (vii) None from the MMRDA is an accused. The contract wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to foreign countries to benefit Rahul Nanda. (v) Learned ASG referred to the applicant's statement, the statement of Amar Panghal and the four statements referred to by learned counsel Shri Mor. (vi) The money earned illegally in this case would fall within the definition of the 'proceeds of crime' provided under Section 2(1)(u) of the PMLA. (vii) The applicant's act also falls within the meaning of "money-laundering" as provided under Section 3 of the PMLA. (viii) There are restrictions to release the applicant on bail in view of the conditions laid down under Section 45(1) of the PMLA. A Division Bench of this Court in the case of Ajay Kumar Vs. Directorate of Enforcement1 has held that the twin conditions mentioned in Section 45(1) of the PMLA would revive and operate by virtue of Amendment Act which which is on date in force. In view of these twin conditions and the judgment of the Division Bench, the 1 2022 SCC OnLine Bom 196 13 of 30 : 14 : ba-1046-21.odt applicant cannot be granted bail. (ix) He submitted that the trial of the applicant and his co- accused who is already arrested can be separated from other accused who are not yet arrested. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Securities Ltd. The funds were immediately used for the benefit of other above mentioned accused. The applicant was not only fully aware of the illegal profit, but, he was directly responsible for instructing this witness to manipulate the accounts. Though, this statement of account has not gone to MMRDA, the receipt of money from MMRDA was used in preparing the accounts to share that illegal profit with Amit Chandole. Therefore, the applicant not only was aware of the illegal manipulation of the accounts, but, he was instrumental in actual manipulation. 12. The next witness in that behalf is Dilesh Thawai. He had joined M/s. Tops Detective and Security Services Limited as a guard and got promotions intermittently. He had left the company but then he had again joined the company as a Branch Head of Konkan; and in the year 2018 he was promoted as Deputy Regional Head, Mumbai and was posted at Sakinaka office. He has stated that MMRDA contract was assigned to Raju Pandey, who was handling the entire business including billing wages. Raju Pandey was specially selected by the present applicant to handle the entire working in MMRDA contract. This witness has stated that around Rs.9 La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e witnesses in manipulating accounts and earning higher illegal profits for the company. 15. Besides the statements of these four witnesses, learned ASG also referred to the statements of the applicant himself and one Amar Panghal. The applicant has referred to the WhatsApp Group namely "Senior Management Group" and 19 of 30 : 20 : ba-1046-21.odt from the conversation shown to him during investigation; according to the applicant, Rahul Nanda was aware of all this and was part of the scheme. 16. Amar Panghal had joined the Topsgrup from 2008 and in 2016, he was the Finance Director. He had noticed several irregularities due to misappropriation of funds, mismanagement and siphoning off of funds from the company by Rahul Nanda for his personal use and for use of his family. He has stated that under the instructions of Rahul Nanda, the accounts department kept on transferring the funds on-line. He has named the applicant along with others who were instrumental in transferring the funds. He has also referred to MMRDA contract and has stated that, in that connection huge amounts were withdrawn from the Topsgrup bank accounts and were given to the ex-CEO Niraj Bijlani. He has referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived illegally from MMRDA would be covered by the definition of 'proceeds of crime'. The predicate offences are covered under the schedule of the Act i.e. under Sections 420, 406, 465, 467, 468, 471 and 120-B of IPC. 21. The definition of "offence of money laundering" also mentions that the accused who knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, or possession, or acquisition, or use, or projecting or claiming it as untainted property, is said to have committed the offence. In this case, the proceeds of crime were received from MMRDA. It was projected as if it was legally acquired and then it was utilized for the personal benefits of Rahul Nanda and his family. Thus, his act clearly falls within the definition of 'offence of money laundering'. The material shows that the applicant had done it knowingly. 22. The relevant provision for restrictions on granting bail under the PMLA are under sub-section (1) of Section 45, which reads thus : "45. Offences to be cognizable and non-bailable.-- (1) Notwithstanding anything contained in the Code of Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar provision under the Maharashtra Control of Organized Crime Act, 1999, the Hon'ble Supreme Court had observed as to what should be the approach of the Court in dealing with these twin conditions. The relevant paragraphs in that judgment are paragraphs-45 and 46, which read thus : "45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, for which complaint has already been filed, whether named in the original complaint or not." 29. I do not see how this explanation supports Shri Mor's submission. It would be beyond logic, reason and propriety that the arrested accused would have to remain in jail as an under-trial prisoner till all the absconding accused are arrested, though he cannot be granted bail because of the restrictions under Section 45 of the PMLA. Said explanation does not indicate even remotely that Shri Mor's submission in that behalf is acceptable. 30. In view of the above discussion, the following order is passed : ORDER (i) The bail application is rejected. (ii) Either the prosecuting agency or the applicant is at liberty to make an application before the trial court for separation of the applicant's trial. If the trial is separated, learned trial Judge is requested to decide the trial expeditiously and in any case within a period of nine months or earlier from separation of the trial. (ii) Learned trial Judge shall send a report of the progress of the trial to this Court every two month's till conclusion of the trial. (iii) The prosecuting agency as well as the defence sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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