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TMI Blog2023 (5) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... has been registered against one Ghanta Subba Rao, the then Special Secretary of Government, Skill Development, Entrepreneurship and Innovation Department, M/s. Siemens Industry Software India Private Limited (SISW), M/s. Design Tech System Private Limited (DTSPL) and others for allegedly swindling of money invested by the Government in a dubious manner. According to the said FIR, APSSDC entered into a Memorandum of Association (MoA) with SIEMENS (combination of SISW and DTSPL), to impart Hi-end technology training to the trainers of APSSDC, pursuant to which DTSPL had to provide training software development including various sub modules designed for the high-end software for advanced manufacturing CAD/CAM, and the MoA does not contemplate any sub contract. As part of the SIEMENS project, 6 clusters at a cost of Rs. 546.84 crores (per cluster) were to be formed in which 90% of the total project cost i.e. Rs. 2951.00 crores was supposed to be borne by M/s. SISW and M/s. DTSPL, and the remaining 10% i.e. Rs .330.00 crores was supposed to be borne by the Government. The total project cost for establishing 6 SIEMENS clusters amount to Rs. 3281.40 crores. 3. Since Sections 120B, 418, 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re created to project these bogus transactions as genuine. Profiles of most of these companies are nowhere related to software/ hardware services. Funds transferred from PVSP/SEPL to ACI was with an intention to generate cash without genuine business, and whatever cash that had been generated in this chain was handed over either to Yogesh Gupta or Mukul Agarwal (A.3), who approached Suresh Goyal for generation of cash. SEPL diverted some funds to company of Mukul Agarwal (A.3) viz. Knowledge Podium Systems Private Limited (KPSPL) and from there, the funds were diverted to personal account of Mukul Agarwal (A.3). The companies/entities which provided cash in lieu of receiving accommodated entries were identified. Apart from ACI, other entities viz. Inweb Services Private Limited, Patric Info Services Private Limited, IT Smith Solutions Private Limited, Provestment Services Limited, Bhartiya Global Infomedia Limited, etc. were used as bogus billing entry to divert funds received directly from SEPL, and so far, diversion of funds of Rs. 67.00 crores has been identified. It is further alleged that Government funds were diverted by DTSPL, belonging to Vikas Khanvelkar, through SEPL an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en registered by CBCID in crime No.29 of 2021 of C.I.D. p.s., A.P., Amarvathi, Mangalagiri, the petitioner has been shown as A.20. By an Order dated 14.03.2022, in Criminal Petition No.1275 of 2022, this Court granted anticipatory bail to the petitioner in the said crime. The petitioner is co-operating with the investigating agency and there is absolutely no accusation as against the petitioner that he is interfering with the investigation or tampering with the prosecution evidence, and further the conditions imposed while granting the bail, have been relaxed. The learned senior counsel further contended that Section 45 of the PMLA contemplates grant of regular bail when the petitioner satisfies the twin conditions prescribed therein viz. one is that he is not guilty of any offence punishable under the PMLA and the other is that is he not likely to commit any other offence while on bail. It is his submission that the case in crime No.29 of 2021 was registered on 09.12.2021 and till today, no charge sheet has been filed in the predicate offence, and in the absence of any charge sheet being filed, a presumption cannot be drawn as against the petitioner for commission of any schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, a case in crime No.29 of 2021of C.I.D. p.s., A.P., Amarvathi, Mangalagiri was registered on 09.12.2021 against one Ghanta Subba Rao, the then Special Secretary of Government, Skill Development, Entrepreneurship and Innovation Department, M/s. SISW, M/s. DTSPL and others for allegedly swindling of money invested by the Government in a dubious manner. The case was registered for the offences punishable under Sections 166, 167, 418, 420, 465, 468, 471, 409, 201, 109 read with 120B IPC and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988. As per the report, APSSDC entered into an MoA with SIEMENS (combination of SISW and DTSPL), to impart Hi-end technology training to the trainers of APSSDC, pursuant to which DTSPL had to provide training software development including various sub modules designed for the high-end software for advanced manufacturing CAD/CAM. As part of the SIEMENS project, 6 clusters at a cost of Rs.546.84 crores (per cluster) were to be formed in which 90% of the total project cost i.e. Rs. 2951.00 crores was supposed to be borne by M/s. SISW and M/s. DTSPL, and the remaining 10% i.e. Rs .330.00 crores was supposed to be borne by the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as A.20 in the crime registered by CBCID in crime No.29 of 2021 of C.I.D. p.s., A.P., Amarvathi, Mangalagiri, was granted anticipatory bail by this Court by an Order dated 14.03.2022, in Criminal Petition No.1275 of 2022. Now, it has to be seen whether arrest of the petitioner would meet up to the requirements of the PMLA or not. 9. Section 19 of the PMLA reads thus: "19. Power to arrest.-(1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and nonbailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised 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." A perusal of the abovesaid provision goes to show that the Public Prosecutor has to be given an opportunity to oppose the application for bail, and where the Public Prosecutor opposes the application for bail, duty cast on the Court is that it should be satisfied whether there are reasonable grounds to believe that the person accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The said provision is analogous to Section 37 of the NDPS Act, 1985. 11. A plain reading of the abovesaid provision contemplates that if the Court comes to conclusion that there are reasonable grounds for believing that the person accused is not gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucting investigation, there is absolutely no accusation to the extent of any monies flown into the account of the petitioner. Except stating that the petitioner was instrumental in assisting A.3 in diversion of funds to the shell companies, there is no other material to connect the petitioner to the crime. 13. In pursuance of the agreement, it is borne out of the record that 2,13,000 students were trained, and to that extent, certificates have been issued to all the students that they have been trained. The service certificates issued by the other companies would go to show that the monies are being spent on the training programmes. It is also submitted that 40 skill development units were established for training students at large. In connection with the programme done by the SIEMENS, an appreciation letter has been issued to that extent. 14. It is also submitted that the averments to the extent that monies have been transferred to SEPL and from SEPL to ACI, and from ACI to other shell companies. Learned senior counsel appearing for the petitioner submitted to the extent that money is transferred to the account of ACI and in turn ACI purchased certain keys, software expertise, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he is not involved in any process or activity connected with the proceeds of crime. In any case, in terms of Section 114556 of the Evidence Act, it is open to the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. Considering the above, the provision under consideration [Section 24(a)] by no standards can be said to be unreasonable much less manifestly arbitrary and unconstitutional. 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. While dealing with a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma, held as under: "44. The wording of Section 21(4), in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt. 406. It was urged that the scheduled offence in a given case may be a non-cognizable offence and yet rigors of Section 45 of the 2002 Act would result in denial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial." In Sanjay Raghunath Agarwal v. Directorate of Enforcement (3 supra), relied on by the learned senior counsel appearing for the petitioner, it is held thus: (paragraph 14). "14. Keeping in mind the specific role attributed to the appellant, let us now revert back to the facts pleaded and arguments advanced. At the outset, there is no controver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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