TMI Blog2022 (2) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... son 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, advocate for applicant, submission in that behalf is acceptable. The bail application is rejected. - CRIMINAL BAIL APPLICATION NO.1046 OF 2021 - - - Dated:- 23-2-2022 - SARANG V. KOTWAL, J. Mr. Kushal Mor, Advocate a/w. Kunal Bilaney, Ms Miloni Gala i/b. Dhiren H Shah, for the Applicant Mr. Anil Singh, ASG, a/w. Aditya Thakkar, Shreeram Shirsat, Pranav Thakur, Ms. Smita Thakur, for the Respondent Smt. A.A. Takalkar, APP for the Respondent-State. ORDER 1. The applicant has preferred this application for his release on bail in connection with Special Case No.1124/2020 pending before the Designated Court for the Prevention of Money Laundering Act, 2002 (for short, 'PMLA'), Mumbai arising out of ECIR/MBZ0-I/40/2020 registered by respondent No.1 the Directorate of Enforcement (for short, 'ED'). 2. Heard Shri Kushal Mor, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted bills for many more guards. Those many guards were not actually deployed. Thus, there was undue monetary advantage gained by the Topsgrup. Out of this illegal profit, 50% of the profit was given to the accused Amit Chandole, in addition to commission of Rs.50,000/- per month and Rs.500/- per guard which was paid to him. As per the details provided by Ramesh Iyer; from May 2017 till June 2020, Rs.2.36 Crores were shared as a commission. Out of that Rs.90 Lakhs were paid through bank transfers to Amit Chandole and one Sanket More. Since 2014 the commission of Rs.7 Crores was paid to Amit Chandole. Those amounts were paid through Topsgrup's bank accounts. iii. There are allegations that the accused Rahul Nanda, Rasshi Nanda and their associates siphoned off huge amount of money from Topsgrup for their personal benefits and they had purchased immovable properties in U.K. and other parts of the world from the proceeds of crime so generated. There are allegations of diversion of funds to overseas jurisdictions in the guise of acquisitions, diversions of loans from India, misutilization of Government schemes etc. iv. According to one Neeraj Bijlani, a profit sharing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the contract with MMRDA. Inflated number of guards who were actually not employed were billed to the MMRDA. The money was illegally obtained. Some profit sharing accounts were made and the money was paid to the persons who were neither connected with the Topsgrup nor with the MMRDA. In this way, he assisted them in laundering the money obtained illegally. 7. Submissions of learned counsel for the applicant : (i) Learned counsel for the applicant submitted that the applicant was much lower in the hierarchy of the management. He did not have decision making power regarding the tenders. He was not concerned with entering into the contract with the MMRDA. The applicant was working with the company since 1979 and had studied only upto the matriculation. (ii) On 15.9.2020, the applicant had given a written complaint to Khar police station at the behest of Rahul Nanda and, therefore, to seek revenge against him, the first informant Ramesh Iyer has falsely implicated the present applicant. The informant Ramesh Iyer himself was occupying a very high position and all the decisions were taken by Ramesh Iyer and Rahul Nanda. (iii) According to Ramesh Iyer, the illegalities wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. (x) The statements of MMRDA officials are not recorded. In fact there is nothing to show that the guards were actually supplied short in numbers than what was claimed before the MMRDA. (xi) The EOW has filed 'C-summary' report in the predicate offence; and it is also an important consideration. (xii) The applicant is in custody for a long period of time. The maximum punishment, which could be awarded is seven years. The applicant is ready and willing to deposit his passport. He is not a flight risk. He is 71 years of age. He is suffering from high cholesterol and diabetes. The trial will take a long time to commence and, therefore, bail be granted to him. 8. Submissions of learned ASG on behalf of respondent No.1-ED : Learned ASG opposed this application. He made following submissions : (i) The Topsgrup Company deliberately supplied less number of guards. However the entire money, for the number of guards which is subject matter of the contract, was taken from MMRDA. This extra amount was shared as illegal profit by the Topsgrup and by other accused who were neither connected with MMRDA nor with the Topsgrup Company. (ii) The applicant was occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ASG referred to the statements of certain witnesses in that regard. 11. Anand Kori was one such witness. He had joined M/s. Tops Securities Limited in May 2008 as a Senior Accountant. He has stated that he used to prepare a Gross Operative Margin [GOM] sheets (profitability sheets) in respect of the clients. He has specifically stated that, in respect of the contract of MMRDA, the applicant used to instruct him to prepare the GOM sheets. The percentage of profit was very high, but, the applicant used to instruct to keep the profit margin very low to about 20%. This witness accordingly used to adjust wages, statistics and other parameters by inflating the wages paid to keep the profitability low. 50% of the profitability was paid to Amit Chandole in the name and under the head of Admin expenses . However, to keep the payment to Amit Chandole low, the profitability was adjusted to 20% on average. The actual profitability was very high. The applicant has told this witness to meet Amit Chandole as Amit Chandole was complaining of wrong 15 of 30 : 16 : ba-1046-21.odt calculations of GOM (profitability). As per the instructions of the applicant, this witness along with other witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 125 guards were deployed. When 170 guards were required, only 60 to 65 guards were deployed. But the bills were always sent for supply of full number of guards irrespective of short deployment. Payment for full supply was released from MMRDA. The applicant had told this witness that Amit Chandole was an important person and friend of the company's owner Rahul Nanda. The issues/tensions with MMRDA payments used to be sorted out by Amit Chandole and that the applicant used to directly contact the co-accused Amit Chandole. Once Amit Chandole had raised the issue that he was receiving less amount, the applicant had told this witness to meet Amit Chandole to resolve the issue. Thereafter Amit Chandole was explained the calculations 14. The next witness is Rajesh Singh. He was working with the company since 2009 and was promoted to the post of Operations Manager in 2016. He has stated that the applicant had orally instructed him to keep a short supply of more than 30% in guard deployment on MMRDA sites. This was in turn instructed by this witness to Raju Pandey. This witness has also spoken about how the documents were maintained by Raju Pandey on the directions of the applicant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence; 19. Section 3 of PMLA defines 'offence of money- laundering' as follows : 3. Offence of money-laundering.- 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, including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money- laundering. Explanation.--For the removal of doubts, it is hereby clarified that,-- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:-- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in conclusion, it was held thus : 51. We may reiterate that the reference arose out of statutory jurisdiction and not constitutional jurisdiction of this Court. Unless there is proper challenge and pleadings, the issue of constitutional validity cannot be undertaken. Undoubtedly, the Legislature has power and competence to amend the provisions of the Act. Unless the amended provision is struck down by the Courts, it cannot be watered down. Since after the amendment the entire complexion of section 45 has been changed, we are not in agreement with the contention that the entire section has to be re-enacted by way of amendment after decision in the case of Nikesh T. Shah Vs. Union of India, (2018) 11 SCC 1. Therefore, in our opinion, the twin conditions would revive and operate by virtue of Amendment Act, which is on date in force. In view of that, we answer the reference by stating that the twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T. Shah Vs. Union of India, (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018. Therefore it is necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Sharma's case (supra) only for the purpose of deciding this bail application. Ordinarily the applicant's age, long period spent as an undertrial, absence of material to show that he is a beneficiary and maximum sentence being seven years; would have been relevant considerations for granting bail, but, because of the restrictions imposed by the twin conditions, these factors cannot be considered in favour of the applicant. 26. Having said that the applicant cannot be kept in custody for inordinate long time. The applicant is 71 years of age and since 7.2.2021 he is in custody. 27. Learned ASG submitted that the trial of the arrested accused can be separated from the accused who are not arrested as of today. According to learned ASG, if any such application is made by either of the parties, the respondent No.1's stand would be that the trial can be separated. He further submitted that once the trial is separated, the trial can be directed to be concluded expeditiously and even in a time bound manner. 28. Learned counsel for the applicant Shri Mor submitted that in view of Section 44(1)Explanation (ii), the trial cannot be separated. Said explanation reads thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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