TMI Blog2023 (7) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has been arrested in money laundering case along with co-accused, therefore, even if it is presumed (not accepting it in absence of any better material on record or order from the competent court) that no predicate offence has been levelled, therefore, the applicant is entitled to get bail under PMLA, 2002, is not acceptable and deserves to be rejected and also considering the case diary and other material placed on record, which prima facie shows involvement of the applicant in crime in question, therefore, considering entirety of the matter, this Court is of the opinion that the applicant is unable to satisfy twin conditions for grant of bail under Section 45 of the PMLA, 2002, as such, it is not a fit case for grant of bail to the applicant. The bail application filed under Section 439 of the Cr.P.C. is liable to be and is hereby rejected. - MCRC No. 1735 of 2023 - - - Dated:- 17-7-2023 - Hon'ble Shri Justice Narendra Kumar Vyas For the Applicant : Mr. Siddharth Aggarwal, Sr. Advocate with Ms. Arshiya Ghose, Mr. Harshwardhan Parganiha, Ms. Saloni Verma Mr. Harshit Sharma, Advocate. For the Respondent : Mr. Sourabh Kumar Pande, Advocate. CAV ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means and by exercise of personal influence. 4. The role of the present applicant is that he has handled the proceeds of crime as per the instructions of Suryakant Tiwari. He has admitted that on a daily basis, the collected illegal cash amount was parked at his residence and as per the instructions of Suryakant Tiwari, he would pay/move the PoC. Further, as per the fund trail investigation done by ED, it is clear that he used his wife children's name to take accommodation entries and layered the illegal cash and acquired landed assets for the purpose of laundering the PoC. He has also handled the proceeds of crime and helped Suryakant Tiwari in concealing of the same. As per the entries found in the diaries seized, it is clear that there are direct transactions worth Rs. 26 crore in his own name. He has also acquired some properties in his name to acquire immovable properties infusing the proceeds of crime over and above the registered value of property. The registered value of property identified so far, acquired out of proceeds of crime is estimated to be Rs. 13,36,000/- only. Unaccounted cash was layered in these purchases. Thus, the worth of these assets which were pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suryakant Tiwari. This fact has also been admitted by Laxmikant Tiwari in his statement recorded under Section 50 of PMLA, 2002 and is also evident from the entries in the diary seized from Rajnikant Tiwari, This also establishes that the entires in the diary seized by income tax department are true record of cash collected/moved/ handled by Suryakant Tiwari his associates. 7. It is also case of the prosecution that Laxmikant Tiwari knew that cash obtained by Suryakant Tiwari was out of illegal means, he still helped him in hiding it and also purchased prooperties in his and his family members name out of it. He has been loyally assisting Suryakant Tiwari is also evident from the fact even after the IT raids he had helped in disposing of cash amount of Rs. 1.5 crore belonging to Suryakant Tiwari. Thus, Laxmikant Tiwari has knowingly assisted Suryakant Tiwari in concealment of proceeds of crime and also projecting the same as untainted by purchasing property out of it and hence he is found guilty of offence under Section 3 of the PMLA, 2002 punishable under Section 4 of the said act. 8. Learned Senior counsel for the applicant would submit that it is a case where the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cash money between the applicant and the main accused Suryakant Tiwari and other accused persons like-Manish Upadhyay, the present applicant etc. who are said to be relatives of Suryakant Tiwari. 13. Learned Senior Advocate appearing for the applicant would submit that the charge-sheet has been filed by the prosecution on 16.06.2022 and there is no evidence with regard to conspiracy, therefore, there is no schedule offence neither at Karnataka nor at Chhattisgarh and there is no schedule offence as enumerated in PMLA, 2002 and the proceeding in this act is not maintainable and the investigation has already been completed, therefore, he may be enlarged on bail. He would further submit that on 16th June, 2023 charge-sheet is filed wherein predicated offence has not been mentioned, as such, the applicant is fulfilling the twin conditions which are required to be fulfilled for getting bail, thus, the applicant deserves to be enlarged on bail. He would further submit that in the charge-sheet, it has been clearly mentioned that since the applicant is accused of offence under Section 384 of the IPC with his henchmen at Chhattisgarh for which he would be prayed to Chhattisgarh Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Case No. 87/2021, decided 08.09.2022 (Tel HC), Rajeev Sharma Vs. ED, reported in 2022 SCC OnLine Del 47, Ashish Singh others Vs. State Ors, Crl.O.P. 30980 of 2019 (Mad HC), RKM Powergen Pvt. Ltd. Vs. ED another WP No 24700 of 2021 (Mad HC), Chintels India Ltd. Vs. Union of India, W.P. (Crl.) 979/2020, decided on 07.08.2020 (DHC), Yash Tuteja another Vs. Union of India others, WP (Crl) 153/2023, order dt. 28.04.2023 (SC), Southern Agrifurane Industries Pvt. Ltd. Vs. Asst. Director Directorate of Enforcement, SLP (Crl) No. 154-155/ 2023, order dt. 10.04.2023 (SC), Directorate of Enforcement Vs. M/s Obulapuram Mining Company Pvt. Ltd. Crl. A. No. 1269/2017, Order dt. 02.12.2022 (SC), Adjudicating Authority (PMLA) others Vs. Ajay Kumar Gupta, Crl. A. 391-392/2018, decided on 02.12.2022 (SC), Omkar Realtors Developers Vs. AA, PMLA WP (C) No. 11473/2022, decided on 16.02.2023, EMTA Coal Ltd. Vs. Deputy Director, Directorate of Enforcement, WP (C) No. 3821/2022, decided 10.01.2023 (DHC), Richa Saxena Vs. Directorate of Enforcement others WP 3901/2023 (GM-RES), decided on 30.05.2023 (Karnataka HC), Prakash Industries Ltd. Vs. Directorate of Enforcement, 2022 SCC OnLine De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of the charge-sheet and will produce the same in due course. In normal course, ED would have waited to get the certified copy of the charge-sheet, but seeing the attempts being made by the applicant to mislead the Hon'ble Court, leave is prayed from the Court to allow the respondent department to bring the succeeding facts to its knowledge on urgent basis. In absence of certified copy, the relevant para i.e. column No. 2 in charge-sheet is freely translated to english which reads as under:- (1) The accused is in judicial custody in the case registered by ED (Enforcement Directorate) and the accused is not arrested. (2) Since it is seen that the accused along with his associates have committed the offence under Section 384 of the IPC in the State of Chhattisgarh for taking action a report will be submitted through proper channel to Chhattisgarh Police. Section 120B of the IPC is dropped in charge-sheet for having no proof and due to lack of evidence. (3) The Section 186 of IPC and Section 195A(1) of Cr.P.C. are dropped in charge-sheet. 16. He would also submit that a plain reading of the above relevant charge, column No. 2 in the charge-sheet filed by Karnataka Police c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order dated 29.11.2022, has dismissed the same by recording its finding at paragraphs 19, 20, which reads as under:- 19. But here in this case, the name of the present petitioner has neither appeared in the first information nor in the complaint/first information or in the requisition of the police for investigating for the offence under Section 384 of IPC, in order to challenge the FIR and investigation in Crime No.129/2022 registered by Kadugodi police. This petitioner has no locus standi to question the investigation or quashing the FIR which was registered against the accused Surykanth Tiwari. 20. The police have not registered any case against this petitioner in Crime No.129/2022 and the prosecution initiated any proceedings based upon this crime number, this petitioner is not an accused in the Crime No.129/2022, therefore, he has no authority/right to question the same before this Court. If at all any action was taken by the prosecution and the petitioner aggrieved by that, he has to take the contention before the Court at Chhattisgarh and not in this case, before this Court. The matter requires to be investigated by the police to verify whether the accused/Suryakant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot take any advantage of not including the predicate offence for invoking the provisions of PMLA, 2002. He would further submit that the person who named as accused in the predicate offence, against whom the prosecution in the predicate offence is quashed or is discharged or acquitted, the benefit cannot be extended to a person who has not been arraigned as an accused in the predicate offence, because the offence under the PMLA is a stand alone offence and is different and distinct from predicate offence and would pray for rejection of the bail application. In support of his contention, learned counsel for the respondent would refer to the judgment rendered by Hon'ble the Supreme Court in the case of Lalita Kumari Vs. Govt. of U.P., reported in (2014) 2 SCC 1 wherein it has been held at paragraph 87 as under:- 87. The Code contemplates two kinds of FIRs the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat and evasion of tax on illegal extortion of levy from Coal transporters. This new predicate crime has been included in the ongoing Money laundering investigation in file No ECIR/RPZO/9/2022 and the same has been informed to PMLA Adjudicating Authority immediately. 21. He would also submit that Section 420 of IPC being a scheduled offence under PMLA, 2002 and having been invoked by IT department, will also have to be investigated from the angle of possible generation of proceeds of crime and layering thereof in violation of Section 3 of PMLA, 2002. Thus, the contention of the accused that there is no predicate offence is factually far from the truth. It is submitted that in the light of the submissions made in the preceding paragraphs, at this stage it cannot be said that there is no existing scheduled offence, as claimed by the applicant. In this regard, attention is invited to the judgment of Hon'ble Supreme Court in Criminal Appeal No. 534 of 2023 (@SLP (Cr) No. 8260/2021) The Directorate of Enforcement Vs. M. Gopal Reddy another, wherein it has been observed at paragraph 6.1 as under:- 6.1 Now so far as the submissions on behalf of respondent No. 1 that responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 25. I have also considered the judgments submitted by learned senior counsel for the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners are enlarged on bail, there is every likelihood that the petitioners may flee the jurisdiction of this Court to avoid the process of law. In these circumstances, we are not inclined to grant bail to the petitioners. In the result, the Criminal Original Petitions are dismissed. No costs. 26. Against the judgment passed by Madras High Court, the accused- N. Umashankar has preferred SLP No. 620/2022 before Hon ble the Supreme Court, which has been dismissed on 25.02.2022. Hon ble the Supreme Court has passed by following order:- We are not inclined to interfere in these Special Leave Petitions. The Special Leave Petitions are dismissed accordingly. However, we direct the prosecution/Investigating Agency to ensure that the trial is concluded with utmost expedition. Pending applications, if any, stand disposed of. 27. Hon'ble the Supreme Court in Directorate of Enforcement Vs. Aditya Tripathi (Criminal Appeal No. 1401/2023) decided on 12.05.2023 has held at paragraph 6 7 as under:- 6. At the outset, it is required to be noted that respective respondent No. 1 accused are facing the investigation by the Enforcement Directorate for the scheduled of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting bail, the High Court has not considered the rigour of Section 45 of the PML Act, 2002. 6.1 Even otherwise, the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offences under the PML Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. 6.2 Now so far as the submissions on behalf of the respective respondent No. 1 that respective respondent No. 1 were not named in the FIR with respect to the scheduled offence(s) and/or that all the other accused are discharged/acquitted in so far as the predicated offences are concerned, merely because other accused are acquitted/discharged, it cannot be a ground not to continue the investigation in respect of respective respondent No. 1. An enquiry/investigation is going on against respective respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation for the scheduled offences itself is sufficient at this stage. 6.3 From the impugned judgment(s) and order(s) passed by the High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted in money laundering case along with co-accused, therefore, even if it is presumed (not accepting it in absence of any better material on record or order from the competent court) that no predicate offence has been levelled, therefore, the applicant is entitled to get bail under PMLA, 2002, is not acceptable and deserves to be rejected and also considering the case diary and other material placed on record, which prima facie shows involvement of the applicant in crime in question, therefore, considering entirety of the matter, this Court is of the opinion that the applicant is unable to satisfy twin conditions for grant of bail under Section 45 of the PMLA, 2002, as such, it is not a fit case for grant of bail to the applicant. 29. Accordingly, the bail application filed under Section 439 of the Cr.P.C. is liable to be and is hereby rejected. 30. The observation made by this Court is not bearing any effect on the trial of the case. The learned trial court will decide the criminal trial in accordance with evidence, material placed on record without being influenced by any of the observation made by this Court while deciding the present bail application. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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