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TMI Blog2023 (7) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing and selling food items like wheat flour, rice, biscuits, cookies, dalia, gram flour, maida etc. under the established and well-known brand name of 'Shakti Bhog.'The company was managed through its Directors / Guarantors - Sh. Kewal Krishan Kumar, Sh. Siddharth Kumar and Smt. Sunanda Kumar. SBFL had around 250 regular employees. It is stated that the applicant was one such employee and was drawing renumeration as an employee. 3. An Investigation revealed that a bank fraud was committed by the active involvement of the Managing Directors, Directors and Guarantors of SBFL. Subsequently, in 2020, FIR No. RC0742020E0014 was registered by the CBI, Bank Securities & Fraud Cell, New Delhi on the basis of written complaints of bank officials against the SBFL and its Managing Director - Mr. Kewal Krishan Kumar, and its directors / guarantors - Mr. Siddharth Kumar and Mrs. Sunanda Kumar and unknown public servants, and other unknown persons for commission of offences u/s 13(2) r/w 13(1)(d) of Prevention of Corruption Act,1988 and u/s 120B r/w 420, 465, 467, 468 and 471 of IPC, 1860 4. During the course of the investigation the consortium of banks led by the State Bank of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SBFL. It is stated that the role of Applicant was limited to making purchases of raw and other ancillary materials for SBFL and especially only for wheat related purchases. 10. It is stated by the applicant, that Applicant was a mere shareholder and a director but was also not involved in any management or decision making. The Applicant was made a Director only for the purpose of meeting the quorum requirements under the Companies Act. Moreover, the Applicant has never drawn any salary, remuneration, incentive, perks whatsoever as a director which further substantiates that the Applicant has never acted in the capacity of a Director. 11. Applicant was not arrayed as an Accused in the ECIR or first three Complaints, neither was named in the FIR and was never summoned by CBI. 12. It is submitted that ED itself stated that the Applicant was made Director of group companies only to comply with quorum requirements under Companies Act. In order to complete the quorum some of the employees have also been made directors in the companies. ED also admitted that SBFL was managed through its main Directors and promoters Kewal Krishan Kumar, Siddharth Kumar and Sunanda Kumar, who are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -17 in SBFL and the authorized signatory of bank accounts of two sister concerns of SBFL, unlike all other persons with whom he claims parity, who were merely employees of the company. 21. As a result, a) the statements under section 50 PMLA of various employees of SBFL b) documents seized during investigation which contained signatures of applicant relating to transactions with fake entities. c) The loan funds which were siphoned off to various entities, in which the applicant is either Director or shareholder; makes it broadly probable that the applicant was actively involved with the process and activity relating to siphoning of the proceeds of crime. Analysis 22. I have heard both the parties. 23. Section 45 of the PMLA reads as under: (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence[under this Act] shall be released on bail or on his own bond unless--] (i) the Public Prosecutor has been given a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.]" 27. The role of the applicant has been highlighted in the 4th supplementary chargesheet. The SBFL group was nothing but a family-run business wherein the applicant was employed as Vice President (Purchases) between the years 2009 to 2017. 28. The role of the applicant can be ascertained from the various statements, emails and invoices. Investigations revealed that emails from and related to the shell entities (such as -M/s Lachhu Ram Aggarwal & Co. M/s Annpurna Trading Company. M/s Ganesha Overseas. M/s Sarthak Trading Company and M/s Mayank Enterprises) supplying fake invoices to SBFL were also marked to Applicant. 29. Email dt. 22.11.2013 sent by Ewin Ahuja to AH Ansari, Sandeep Misra and Gaurav and cc to the applicant and Vijay Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom bank accounts) were made to 05 vendors of SBFL. On verification of (TAN and PAN) numbers of these vendors and their transporters, 02 of these vendors were found having invalid TAN and PAN of the non-existent transporters. Truck numbers mentioned on transport challan were also not found real trucks but different Class of vehicles. It was observed that 54 of the vehicle numbers mentioned were registered as two wheeler (Bajaj Chetak, Royal Enfield Bullet, Honda Activa etc.), ambulance, school bus, low capacity transport vehicle etc. purporting to be carrying goods of weight ranging from 250-310 quintals. Transporters (Kamal Trading & Maa Durga Road lines) through which it operated do not exist at the address provided in its transport challan. 36. Statement of Sandeep Mishra under section 50 reveals that the transport was done under the applicant: "I used to collect fake invoices from entry operators; that myself or Shri Tarun Kumar used to convey details of amount, description, quantity, vehicle number etc to dummy operators as these details are required to be filled in fake invoices and transport documents provided by entry operators of dummy entities;.." 37. There are other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 02.07.2022 stated "I want to further state that Tarun Kumar in assistance of Sandeep Mishra used to coordinate with entry operators to receive fake invoices/transportability." c) The Statement of Vivek Prasad (he was an accommodation entry provider) Mr. Vivek used to provide fake bills to SBFL for commission and the money was transferred to one of the many dummy companies of Mr. Vivek, which was further given back in cash to Applicant. In this way, he collected Rs. 58.06 Crore in cash from shell entities operated by Vivek Prasad and Ashok Kumar Goel. Having asked by you, I am to state that the fund received from M/s Shakti Bhog Foods Limited was either return back to Sri Tarun Kumar in cash after withdrawing it from sister concerns by me. d) The statement dated 30.06.2022 of Mr. Ewin Ahuja (Employee SBFL) was recorded. "On being asked I want to state that banking of SBFL and group concerns was looked after by Tarun Kumar and he used to execute these transactions of SBFL with shell entities and group concerns in assistance of employees working under him." 40. As per the statements given by AH Ansari, Sandeep Mishra, Vijay Kumar Malhotra, Ewin Ahuja, I am of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulation predicated in Section 45 has not been overcome, the question of considering the efficacy of other points urged by the appellant to persuade the Court to favour the appellant with the relief of regular bail will be of no avail. In other words, the fact that the investigation in the predicate offence instituted in terms of FIR No. 205/2016 or that the investigation qua the appellant in the complaint CC No. 700 of 2017 is completed; and that the proceeds of crime are already in possession of the investigating agency and provisional attachment order in relation thereto passed on 13-22017 has been confirmed; or that charge-sheet has been filed in FIR No. 205/2016 against the appellant without his arrest; that the appellant has been lodged in judicial custody since 2-1-2017 and has not been interrogated or examined by the Enforcement Directorate thereafter; all these will be of no consequence." (emphasis supplied) 43. In Vijay Madanlal Choudhary (supra), the Hon'ble Supreme Court has also held: "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 delv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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