TMI Blog2023 (5) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of Section 2(y) of the said Act - Suffice it to say that serious allegations of money laundering are alleged against both the petitioners in the Prosecution complaint and sufficient material particulars have been narrated in the said complaint to substantiate the said allegations, which prima facie show the direct involvement of the petitioners in the alleged offences of money laundering as defined in Section 3 of the said PMLA. Having regard to the definition contained in Section 3, it would be a folly to hold that the knowledge of the accused that he was dealing with the proceeds of crime, would be a condition precedent or sine qua non required to be shown by the prosecution for lodging the complaint under the said Act. As the definition itself suggests 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 - In the instant case, the direct involvement of the petitioners in the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther prayer against the respondents not to file any criminal complaint against the petitioner and not to take any coercive steps against the petitioner in respect of the said ECIR. The S.B. Criminal Writ Petition No. 757 of 2018 was filed by the petitioner Anoop Bartaria, the Director, World Trade Park Ltd., and by M/s World Trade Park Ltd, a company registered under the Companies Act, 1956, seeking a prayer to quash and set aside the prosecution complaint in ECIR No.JPZO/01/2016. 3. As per the case of the petitioners, the petitioner- Anoop Bartaria is a leading and an awarded engineer/architect having an expertise in providing structural, architectural and design consultancy services and is also the Chairman and Managing Director of the World Trade Park Ltd., (Erstwhile M/s R.F. Properties Trading Ltd.) a company registered under the Companies Act, 1956. The World Trade Park is one of the most sought-after real estate commercial properties situated at JLN Marg, Jaipur. The World Trade Park Company is engaged in the business of selling and leasing commercial spaces to various interested buyers/purchasers. 4. One Mr. Bharat Bomb and his associates approached the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Udaipur (2) Malviya Nagar, Jaipur and (3) MI Road, Jaipur and certain other persons for the offences under the 120B, 420, 467, 468, 471, 472 and 474 of IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. It was alleged inter alia in the said FIR that during 2011-2015, to defraud the bank, the accused Bharat Bomb and his associates, in collusion with the officials of Syndicate Bank had misused the KYC documents of his clients/employees/family members as well as the existing customers of the Syndicate Bank to launder the money to the tune of about more than 18,000 crores which resulted in siphoning off Rs. 1055.79 crores. On 14.06.2016, the CBI, BS FC filed charge-sheet before the Designated CBI Court, Jaipur against Mr. Bharat Bomb and some of the officers of the Syndicate Bank for the said offences. 8. Since some of the offences registered by the CBI in the said FIR were scheduled offences under the Prevention of Money Laundering Act, 2002 (PMLA), the Directorate of Enforcement (ED) Jaipur, initiated investigation for the offence of money laundering by registering an Enforcement Case Information Report (ECIR) on 11.07.2016. 9. During the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners had only buyer-seller relationship with Mr. Bharat Bomb and his associates, and that the petitioners had no knowledge that the money received by them was the proceeds of crime. In this regard Mr. Hora has placed reliance on Nikesh Tarachand Shah Vs. Union of India and Another (2018) 11 SCC 1 . He further submitted that though initially Mr. Bharat Bomb had requested the petitioners to book certain units in the name of M/s Raj Darbar Material Trading Pvt. Ltd., subsequently he had requested to execute sale deeds in the name of various associated entities, and therefore 34 separate registered sale deeds were executed by the petitioners, and respective amounts were received separately from each of the entity through demand drafts or RTGS, after refunding the amount received from M/s. Raj Darbar Material Trading Pvt. Ltd. In the said transactions, the petitioners had received the sale consideration of INR 76.72 crores and not INR 150 crores as alleged. 13. Mr. Hora further submitted that the petitioners had sold the units after obtaining valid NOCs from UCO Bank, IDBI AND DHFL and none of the banks has raised any grievance against the petitioners, as all the dues were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso pointed out that the said current bank account opened by the petitioner- Anoop Bartaria with Syndicate bank on 30.09.2014 was exclusively operated for receiving tainted money from Mr. Bharat Bomb and no other transactions had taken place in the said account. The said account was also not declared in ITR of Anoop Bartaria filed for the assessment year 2015-16. 17. He submitted that the petitioner- Anoop Bartaria and his company had availed the loans for the project of World Trade Park from IDBI Bank/DHFL and UCO Bank, by mortgaging the units of the said project to the said banks. In line with terms of sanction, the World Trade Park Ltd. had opened an escrow account with IDBI Bank, in which all sale proceeds were to be deposited in that account only. However, Mr. Bartaria did not deposit any amount in the said escrow account and facilitated Mr. Bharat Bomb and his associates in parking the tainted money by opening the account in the Syndicate bank. In the request letters to IDBI for issuing NOC in respect of office nos. 407, 408 and 409, the name of the customer shown was M/s Raj Darbar Material Ltd. showing the status of the properties as unsold. 18. Learned ASG has also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless 23. It may be noted that for removal of doubts, the Explanation to Section 45 was inserted by the Finance (No.2) Act, 2019 w.e.f. 1.8.2019 which reads as under: Explanation- For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all the offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorized under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under Section 19 and subject to the conditions enshrined under this Section . 24. From the afore-stated substitution of sub-section (1) and insertion of the Explanation to Section 45, and non-amendment in the short title of Section 45 offences to be cognizable and non-bailable , there remains no shadow of doubt that all the offences under the PMLA were, are and shall be cognizable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.] 26. Section 2(u) defines what is proceeds of crime and Section 2(y) defines what is Scheduled offence . As discernable from the record, the Prosecution complaint in ECIR was lodged against the petitioners and others under the PMLA by the ED, pursuant to the investigation carried out by the CBI in the FIR No. RCBD1/2016/E/0002 dated 07.03.2016 and the charge-sheet dated 14.06.2016 filed by the CBI against Bharat Bomb and others for the offences under Sections 120B, 420, 467, 468, 471, 472 and 474 of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 at the Designated CBI Court at Jaipur. All the said offences are scheduled offences within the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise to secure ends of justice. 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d judgment and order dated 21.02.2019 passed by the High Court, had sought interim relief seeking stay of the entire proceedings and the prosecution complaint no. 12/2018 in ECIR No.JPZO/01/2016 pending before the Special Judge (PMLA cases) Jaipur, without producing the said complaint along with the SLP paper books. The SLPs appear to have been filed on 8th March, 2019 declaring that all the defects have been cured, and thereafter on 25.03.2019, by way of an application seeking permission to file additional documents, the petitioners had produced the said Prosecution complaint no.12/2018 on record. Apart from the fact that after filing of the SLPs, no documents could have been filed without the permission of the Court, which in the instant case does not appear to have been sought for by the petitioners nor granted by the Court, the very practice of not filing the essential and relevant documents, more particularly, the documents in respect of which a relief is sought in the SLPs, is strongly deprecated. It may be noted that non-production of the relevant documents especially the documents in respect of which the relief is sought, along with the SLPs could be the sole ground for rej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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