TMI Blog2023 (3) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant in furtherance of the proceed of crime and considering the statement that nothing remains to be recovered from him now, it is found appropriate that the present applicant may be enlarged on bail as rigour of Section 45 of PMLA are satisfied, particularly in view of the fact that the present applicant has already served more than half of the punishment, has not misused the liberty of interim bail granted by the Apex Court and there is no possibility or likelihood to conclude the trial with expedition inasmuch as there are total 150 prosecution witnesses and only two prosecution witnesses have been examined by now. Let the present applicant (Shiv Priya) be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed. - Criminal Misc. Bail Application No. - 12591 of 2022 - - - Dated:- 22-2-2023 - Hon'ble Rajesh Singh Chauhan, J. For the Applicant : Mohd.Ghayasuddin Khan For the Opposite Party : Rohit Tripathi,Rohit Tripathi ORDER HON'BLE RAJESH SINGH CHAUHAN,J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Report (here-in-after referred to as the ECIR ) No. ECIR/ 06/PMLA/LKZO/2019. The E.D. has taken custody of the present applicant on 03.12.2019. 5. On 16.03.2020, the Session Case No.1266 of 2020 was filed against the present applicant. On 13.08.2020 a Criminal Complaint / Session Case No.1234 of 2021 was filed against 04 co-accused persons. On 06.04.2022, 03 Criminal Complaint/ Session Case No.1266 of 2020, 1234 of 2021 and 1219 of 2022 were consolidated involving the present applicant. On 26.04.2022, the charges were framed against the present applicant. 6. Sri I.B. Singh, learned Senior Advocate for the applicant has submitted that with effect from 21.05.2022 till date as many as 15 dates have been fixed, and only two prosecution witnesses could be examined and the chief-examination of PW-3 has been completed on 01.02.2023 but he could not be cross-examined till date. Sri Singh has filed certified copy of the order-sheet to show that the examination of the prosecution witness/ witnesses could not be done properly on account of non-cooperation on the part of the prosecution inasmuch as the case is being regularly attended from the side of the present applicant/ de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant period of time, so he may be enlarged on bail. Paras-14, 15 17 read as under:- 14. The facts of the instant case are more egregious than these two above cited instances. Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27.11.2020. Still further, two opportunities were given to the appellant NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice. 15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in connection with the offence relating to the PMLA. Therefore, he may be enlarged on bail. The relevant para-6 reads as under:- 6. We are presently concerned with the proceedings arising out of the complaint filed under the provisions of PML Act. In the instant case, the appellant was taken in custody on 19.06.2019 and has remained in custody since then. Thus, the appellant has completed more than three years of actual custody in connection with the offence in respect of PML Act. 12. Sri I.B. Singh, learned Senior Advocate for the applicant has also submitted that the present applicant was granted an opportunity of hearing by the Apex Court in respect of the issue regularly vide order dated 21.02.2022, the Receiver was appointed by the Apex Court and the Receiver has prima-facie found discrepancy with respect to recovery relating to the present applicant. The amount was substantially reduced by the Forensic Auditors. 13. Sri Singh has submitted that the amount alleged by the E.D. was Rs.95.54 crores. The amount removed by the Forensic Auditors was 68.88 crores. Therefore, the actual remaining amount is Rs.26.66 crores. A sum of Rs.28.95 crores has already been rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing actively involved n the decision making exercise regarding diversion of funds raised as a consequence of deposits by thousands of prospective home buyers. The role of the present applicant in the process of diversion of funds and his consequent enrichment out of the laundered money have been convincingly established by the documentary and oral evidence collected by E.D. The modus operandi adopted by the accused persons including the present applicant and the proceeds of crime, the evidence is rather overwhelming. In this regard, Sri Tripathi has drawn attention of this Court towards paras-4.12 to 4.21 and paras-5.1.17, 5.1.24, 5.1.26, 5.1.50, 5.1.52, 5.1.54 5.1.55 to 5.1.65 of the memorandum of complaint (Annexure No.7). 17. Sri Tripathi has submitted that the above mentioned evidence is mostly in form of bank accounts and statements of the accused persons, which have not been disputed. In any case, in view of the reverse presumption stipulated in Section 24 of the PMLA, it is the applicant's duty to discharge the burden of proof regarding these documents. The applicant/ accused has miserably failed to place on record any cogent or reliable material which can even p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situations the present applicant has served half of the sentence. 22. The certified copy of the order-sheet of the learned trial court shows that charges were framed on 26.04.2022, thereafter with effect from 21.05.2022 the prosecution witness was to be examined. Notably, with effect from 21.05.2022 till date as many 15 dates have been fixed but only 02 prosecution witnesses could be examined and the chief examination of the prosecution witness No.3 has been completed on 01.02.2023 but he could not cross-examine in subsequent dates. The order-sheet reveals that the prosecution witnesses are not co-operating properly and there is no report to the effect that from the side of the applicant/ defence any adjournment has been sought. Notably, there are 150 prosecution witnesses, out of which, the examination of 02 prosecution witnesses have been completed. Therefore, if the progress of trial remains the same, there is no possibility or likelihood to conclude the trial with expedition, at least it may not likely be completed in further five or six years and in that case the present applicant will have to serve the maximum punishment of seven years even before completion of trial. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, the opinion of the Forensic Auditor being an opinion of an expert, it shall be considered by the learned trial court carefully. 26. Learned counsel for the E.D., Sri Rohit Tripathi, has been asked as to whether there is any possibility to conclude the trial with expedition where there are total 150 prosecution witnesses are to be examined and only two prosecution witnesses have been examined with effect from 21.05.2022 till date, Sri Tripathi has stated that he shall instruct the learned counsel for E.D. who is conducting the case before the learned trial court to do the needful to expedite the trial however he has fairly stated that it will take some substantial time to examine total 150 prosecution witnesses. He has been further confronted as to whether the present applicant has misused the liberty of interim bail so granted by the Apex Court, he has submitted that there is no adverse information against the present applicant to that effect. 27. On being further confronted regarding the case of Ramchand Karunakaran (supra) where the Apex Court granted bail to the accused person for an offence of PMLA considering the fact that the said accused has completed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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