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TMI Blog2023 (7) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... certain incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section120B of the IPC which led to the registration of the FIR. Based up on the further investigation the Enforcement Directorate registered ECIR No. RPZO/09/2022 and further investigation was conducted. In the course of the investigation the present applicant was summoned and finally the applicant was arrested on 13.10.2022. 3. It is case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari, which would reveal transaction of cash money between Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnikant Tiwari and his associates Hemant Jaiswal, Jogendra Singh, Moinuddin Quaraishi, Nikhil Chandrakar, Roshan Singh and others were involved a criminal conspiracy to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary. He has also admitted that the land has been purchased in his name in Village- Kharora, Basonda etc. by showing unsecured loan by Shri Suryakant Tiwari. The agriculture income earned from these lands was used by Suryakant Tiwari. He has also admitted that he become partner in firm M/s Maa Bhadrakali and in M/s Bajrangbali Builders at the behest of Suryakant Tiwari and all the documents related to this firms are with Suryakant Tiwari. He also admitted that during IT raid, Rs. 6.5 crores in cash and jewelry worth Rs. 3.25 crores were recovered from his house which belongs to his nephew Suryakant Tiwari. 6. It is also case of the prosecution that Utkarsh Tiwari whose statement recorded under Section 50(2) & 50(3) of the PMLA, 2002, has admitted that Suryakant Tiwari spoke to him and his father- Laxmikant Tiwari night before the search carried out by the Enforcement Directorate asked to move the amount of Rs. 1.5 crores cash from the house of Roop Kumar Chaudhary. It is also case of the prosecution that in the statement given by Ved Prakash Sahu land broker recorded under Section 50(2) & 50(3) of PMLA, 2002 has admitted that Suryakant Tiwari has given him Rs. 15 lac cash which he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4 of the said Act appears to have been made out. 10. The role of the present applicant is also mentioned in the ECIR which provides that there is financial transaction between the present applicant and other associates of Surya Kant Tiwari. It has also been mentioned that Surya Kant Tiwari had purchased various immovable properties in his name and in the name of his family members at Mahasamund, Bemetara, Naya Raipur etc and the entire purchase considerations were provided by Suryakant Tiwari, but the details are not revealed like sale-deed, survey etc. of all these benami assets which have been purchased using proceeds of crime. The further interrogation and confrontation with records from the SRO/IGRS are necessary to trace out the proceeds of crime and hence, an extension of remand is required. The recording of statements under Section 50 of the PMLA, 2002 of various other associates of Suryakant Tiwari is under process, therefore, confrontation of those statements to the accused needs to be done. Hence, further Enforcement Directorate custody of the accused person is required. 11. It has been further stated that on the basis of investigation conducted, it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over, as such, no custodial remand is required and would pray for releasing the applicant on bail. To substantiate his submission, learned senior counsel for the applicant would refer to the judgment rendered in case of Vijay Madanlal Chaudhary & others Vs. Union of India & others, reported in 2022 SCC OnLine SC 929, Parvathi Kollur Vs. State by Directorate of Enforcement, Crl. A. No. 1254/2022 (decided on 16.08.2022, Indrani Patnaik & another Vs. Directorate of Enforcement & others WP(C) No. 368/2021 decided on 03.11.2022, M/s Deccan Mining Syndicate Pvt. Ltd. & another Vs. Asst. Director, Directorate of Enforcement WP No. 288/2022 decided on 22.04.2022, Asst. Director, Directorate of Enforcement Vs. M/s Deccan Mining Dyndicate Pvt. Ltd. & another SLP (Crl) Diary No. 34047/2022 decided on 05.12.2022, Directorate of Enforcement Vs. Gagandeep Singh & others SLP (Crl) Diary No. 42315/2022 decided on 10.02.2023, M. Nagarajan & Anr Vs. Directorate of Enforcement & Ors. SLP (Cr) 10917/2022, Order dt. 23.01.2023, Harish Fabiani & Ors. Vs. Enforcement Directorate & Ors. Reported in 2022 SCC OnLine Del 3121 (DHC), Sanjay Pandey Vs. Directorate of Enforcement, reported in 2022 SCC OnLine D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the applicant seeking to bring subsequent developments on record has been filed wherein merely the order dated 16.06.2023 of the Chief Judicial Magistrate (Rural), Bengaluru taking cognizance has been annexed without submitting the charge-sheet filed by Karnataka Police. He would further submit that the cognizance order has to be read in the light of the contents of the charge-sheet filed by Karnataka Police and merely reading the cognizance order without the charge-sheet would give an incomplete picture of the findings with respect to investigation conducted under scheduled offence by Karnataka Police. The cognizance order dated 16.06.2023 can at best be relied upon to claim the existence of a prima facie case of the offences submitted as part of the charge-sheet and nothing more. Nothing in this order is there to show that the investigation by Bengaluru Police is complete and has attained finality. 15. He would further submit that the applicant is trying to create a false narrative that the predicate crime has been quashed in this money laundering investigation. Even Hon'ble the Chief Minister of Chhattisgarh has gone through on record before the media proclaiming that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. Thus, it is clear that the applicant is painting a false narrative to mislead the Hon'ble Court to serve their own purposes. He would also submit that it is also learnt that the complainant in the FIR before the Income Tax Department, Bengaluru, is resorting to avail legal remedies at Bengaluru Court to challenge the removal of Section 120B of IPC and filing of charge-sheet hurriedly without completing full investigation. Hence, even in the case of removal of Section 120B IPC, no finality has been reached till now. He would further submit that the ED has made a detailed disclosure dated 24.03.2023 under Section 66(2) of the PMLA, 2002 against Sameer Vishnoi IAS and Saumya Chaurasia, one of the main accused persons, to Chhattisgarh State Government explaining findings of ED for the acts done by the aforesaid accused persons in facilitating the Coal Syndicate as well as receipt of the Proceeds of Crime generated by the Syndicate Chhattisgarh State Government should have immediately lodged an FIR & Investigated the disclosures made by ED. The letters of ED disclose very serious predicate allegations. Therefore, till this disclosure by ED is not investigated and dealt with, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this petitioner was arrested in the money laundering case as co-accused, therefore, he has to challenge the same before the Special Court at Chhattisgarh or before the High court of Chhattisgarh against registering of case by the ED by taking the offence committed at Bengaluru as predicate offence. Of course, the petitioner has no role in respect of the offence with respect to the offence under Section 204,186 and 354 of IPC at present, but Section 120B and 384 of IPC the matter requires to be investigated by the police. If no offence committed at Bengaluru in respect of 384 of IPC or 386 of IPC, then they can transfer the said case to the State of Chhattisgarh police who is having jurisdiction. Therefore, in view of the judgment relied by the learned ASG and principle laid down by the Hon'ble Supreme Court in Neeharikas's case stated supra and in Dharmaraj's case and Siddharth Mukehs's case, I am of the view when the petitioner is not an accused in crime No. 120/2022 and his name was neither found in the FIR or the first information statement or in the request made by the police for investigating the offence under Section 384 of IPC, this petitioner cannot ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause "proceeds of crime", as it obtains as of now." 20. He would further submit that the Income Tax Department is the main agency that is also investigating this case and on whose complaint the FIR 129/2022 registered by PS. Kadugodi, White field, Bengaluru had been registered. The Income Tax Department has also filed its Prosecution Complaint against Suryaknat Tiwari, Saumya Chaurasia, Rajnikant Tiwari, Laxmikant Tiwari (the Instant Applicant), Nikhil Chandrakar, Rahul Kumar Singh, Navneet Tiwari, Parekh Kumar Kurrey, Sheikh Moeenuddin Qureshi, Chandra Prakash Jaiswal, Roshan Kumar Singh, Hemant Jaiswal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay kindly be rejected. To substantiate his submission, he would also refer to the judgment in case of Pankaj Grover Vs. ED, Criminal Misc Anticipatory Bail Application under Section 438 of Cr.P.C. No. 7661/2021 (decided on 26.08.2021), Mohd. Arif Vs. Directorate of Enforcement, Govt. of India, BLAPL No. 2607/2020 (decided on 13.07.2020), Laxmikant Tiwari Vs. State of Karnataka & others, Writ Petition No. 21944/2022 (GM-RES) (decided on 29.11.2022), Radha Mohan Lakhotia Vs. The Deputy Director, PMLA, Department of Revenue, First Appeal No. 527/2010 (decided on 05.08.2010), Y.S. Jagan Mohan Reddy Vs. CBI, reported in (2013) 7 SCC 439. 23.I have heard learned counsel for the parties and perused the documents placed on record including case diary with utmost satisfaction 24.Before adverting to the facts of the case, it is expedient for this Court to extract Section 45 of the PML Act, 2002, which reads as under:- "Section 45 of PMLA, 2002- Offences to be cognizable and non-bailable.- (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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar Vs. The Assistant Director, Directorate of Enforcement, reported in MANU/SCOR/25324/2022, wherein Hon'ble Division Bench of Madras High Court has examined Section 45 of the PMLA, 2002 and has held at paragraph 18 as under:- "18. It is also brought to the notice of this Court by the respondent in the counter affidavit that the documents collected would prima facie disclose that all the accused have committed acts of money laundering under Section 3 of the Prevention of Money Laundering Act and punishable under Section 4 of the said Act and the petitioners, during police custody also, did not co-operate with them and despite the complaint has been filed, further investigation is also in progress. Even before the Hon'ble Supreme Court in S.L.P. (Crl.) Nos. 7563-7565 of 2021, the respondent submitted that the petitioners are not co-operating during the investigation. Even before this court the learned Special Pubic Prosecutor appearing for the respondent submitted that the petitioners never co-operated for the investigation and therefore, the petitioners should not be enlarged on bail. It is also brought to the notice of this Court by the learned Special Pubic Prosecutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless-] (i) the Public Prosecutor has been given an 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 he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has taken into consideration the irrelevant consideration. The investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is till going on. 7. As observed hereinabove, the High Court has neither considered the rigour of Section 45 of the PML Act, 2002 nor has considered the seriousness of the offences alleged against accused for the scheduled offences under the PML Act, 2002 and the High Court has not at all considered the fact that the investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is still going on and therefore, the impugned orders passed by the High Court enlarging respective respondent No. 1 on bail are unsustainable and the matters are required to be remitted back to the High Court for afresh decision on the bail applications after taking into consideration the observations made hereinabove." 28. Considering the judgment of High Court of Karnataka in case of Laxmikant Tiwari (present applicant) (supra), wherein Hon'ble High Court of Karnataka has categorically recorded its finding that no case has been registered against the petitioner in Crime No. 129/2022 and prosecution init ..... X X X X Extracts X X X X X X X X Extracts X X X X
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