TMI Blog2023 (2) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... imate effect of their non-inclusion would be seen at the conclusion of trial. Further considering the order dated 03.09.2020 wherein all remaining co-accused in this ECIR were admitted to bail, this Court has every reason to say the petitioner has passed the test of broad probabilities. Admittedly twin conditions of Section 45 does not put an absolute restraint on grant of bail or require a positive finding qua guilt. The petitioner herein is admitted on bail on his executing a personal bond of Rs.25.00 lacs with one surety of like amount to the satisfaction of the learned Trial Court and subject t conditions imposed - bail application allowed. - BAIL APPLN. 2470/2022 - - - Dated:- 23-2-2023 - HON'BLE MR. JUSTICE YOGESH KHANNA For the Petitioner : Mr. Dayan Krishnan, Sr. Advocate with Mr. Manu Sharma, Mr. Nitesh Jain, Mr. Anuj Berry, Mr. Hridhay Khurana, Mr. Adrish Guha, Mr. Shiv Johar, Mr. Shreedhar Kale, Mr. Abhudaya Sharma, Mr. Somit Kumar Singh and Ms. Sanjana Mehra, Advocates. For the Respondent : Mr. Zoheb Hossain, Spl. Counsel with Mr. Vivek Gurnani, Mr. Siddharth Kaushik and Mr. Kavish Garach, Advocate with IO M L Meena, AD/ED. YOGESH KHANNA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of this applicant and the money which M/s. Trinity got to purchase the shares came from M/s. SVCT, which was in control of the present petitioner. Thus, this applicant was in control of M/s. Trinity; M/s. DDPL and M/s. Unicorn. 6. The learned SPP referred to the statements under Section 50 of PMLA and to questions put to Manoj Gupta; to the present petitioner and other witnesses to show the petitioner was dealing with the proceeds of crime and everything was going on as per his advice and he was having conclusive knowledge of the layers of crime and the return of Rs.110 crores was only at the instance of Lodha Committee and it would not reduce his crime. It is submitted though the petitioner has alleged he had nothing to do with M/s. PACL but the statement of witnesses as well as his own statement would reveal he was aware of the proceeds of crime of M/s. PACL and was dealing with it. Between 2009-15 M/s. PACL had transferred Rs.219 crores to M/s. B B Group on the pretext of bogus land development charges; found to be bogus by the income tax authorities and M/s. B B transferred Rs.38.32 crores to M/s. Dhananjay; managed and controlled by this applicant which further transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 45. Offences to be cognizable and non-bailable. (1) 1[Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless ] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: 10. It was argued the limitations under Section 45 (supra) are in addition to the conditions of bail under the Cr.P.C. 11. Reference was made to CBI vs. Vijay Sai Reddy (2013) 7 SCC 452 and Dr. Ashok Singhvi vs. Union of India 2020 SCC OnLine Raj 1075, to say grant of bail to co-accused is not a ground to grant bail; Ram Narain Popli vs. Central Bureau of Investigation (2003) 3 SCC 641, to say repayment is not a ground to prove innocence of accused; Rohit Tandon vs. Directorate of Enforcement ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary companies were never made an accused in the present case. Admittedly, on 28.11.2003 the Rajasthan High Court had taken a view PACL was not operating a corrective investment scheme and on 26.02.2013 the Hon ble Supreme Court dealing with similar allegation had refused a blanket order on receipts of PACL. Though it set aside the Rajasthan High Court s judgment but did not put any restraint upon to PACL to receive money though SEBI was asked to look into the transactions. Thus, uptil 2013 there was no restriction for PACL to receive investment. On 12.03.2013 the Supreme Court while dealing with one of the sister company of PACL had directed CBI investigation. It was only on 22.08.2014 PACL was declared as a corrective investment scheme by SEBI. 19. It was argued the petitioner s company if collected money from PACL prior to 2014 was not aware of any litigation or action taken by SEBI against PACL. It is argued there are four transactions alleged against the present applicant s company of which he was made a nominee director in the year 2012. It is submitted the CBI firstly identified ten companies of PACL relating to allegations qua transfer of loan; then identified 26 dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either by the ED or in the supplementary chargesheet filed by CBI. Similarly in second transaction the flow is from M/s. PACL to Mr. Prateek Kumar Group of companies and thereafter to M/s. DDPL. The allegations are the total amount received by M/s. DDPL and its associates was Rs.94,61,41,634/- between 25.02.2009 to 22.08.2012 and whereas Rs.80.00 crores have been returned to the companies from which such funds were received and that only Rs.50.00 lacs was received from M/s. Synergyone Infradevelopers Pvt. Ltd. in M/s. Unicorn on 08.01.2013 and whereas the petitioner became non-executive nominee director only on 11.09.2012. 24. Admittedly, the transactions executed between M/s. PACL and Mr. Prateek Kumar are not identified in the CBI chargesheet. Even otherwise, the land which was purchased from such money is still existing and the petitioner undertakes not to deal in it till further orders; despite the fact Rs.80.00 crores has been returned. 25. In third transaction of flow of fund concerning 25 companies/intermediaries, the allegation is an amount of Rs.110 crores was received by the companies wherein the petitioner acted as an investment non-executive director but admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed as an accused and various accused granted bail till date. 30. I may here refer to an order dated 03.09.2020 of learned Trial Court in respect of other accused persons which is relevant: 15. During the course of arguments on these bail applications as well as on other occasions, the complainant of this case admitted that investigation qua the money laundering involved in the present matter is still underway and it is also admitted that several months are required by the complainant to complete the investigation , particularly since the investigation relates to off shore aspects also. In such circumstances, no useful purpose would be served by keeping these accused in custody. When the custody of any of these accused was not even deemed necessary by the complainant during investigation into the present offence under PMLA, no useful purpose would be served by now taking them in custody in this case. Although on behalf of complainant it is claimed that there is possibility of tampering of evidence by the accused, if they are released on bail, but no plausible apprehension and no reasonable grounds have been put forth to nurture any such apprehension. This is parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a crime which is an offence under the Act after grant of bail. 400. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. xxx 32. In Sanjay Pandey vs. Directorate of Enforcement 2022 SCC OnLine Del 4279 decided on 08.12.2022 the bail was granted on the principle of broad probabilities. Similarly, in Raman Bhuraria vs. Directorate of Enforcement in BAIL APPL.4330/2021 decided on 08.02.2023; Chitra Ramkrishna vs. Assistant Director, Enforcement Directorate, BAIL APPL.2919/2022 decided on 09.02.2023 and in Anil Vasantrao Deshmukh vs. State of Maharashtra 2022 SCC OnLine Bom 3150 bail(s) were granted. 33. Moreso, Ramchand Karunakaran, Managing Director vs. Directorate of Enforcement in CRL.A.1650/2022 decided on 23.09.2022; Dr. Bindu Rana vs. Serious Fraud Investigation Office in B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner has passed the test of broad probabilities. Admittedly twin conditions of Section 45 (supra) does not put an absolute restraint on grant of bail or require a positive finding qua guilt. 35. Thus considering his period of custody of about 08 months and the broad probabilities discussed above; I admit the petitioner herein on bail on his executing a personal bond of Rs.25.00 lacs with one surety of like amount to the satisfaction of the learned Trial Court. The applicant shall surrender his passport before the learned Trial Court; the applicant shall not leave the country without permission of the learned Trial Court; shall ordinarily reside in his place of residence and immediately inform change of address if any to the Investigating Officer; the applicant shall furnish to the Investigating Officer a cell phone number on which the applicant may be contacted at any reasonable time and shall ensure the number is kept active; the applicant shall cooperate in any further investigation, as and when required; the applicant shall not, directly or indirectly, contact or visit or offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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