TMI Blog2023 (12) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... I 1316 - SUPREME COURT] that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering. Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences. The evidence relating to strong relations between the Appellant and Mr. Suryakant Tiwari, between the Appellant and Mr. Manish Upadhyay, and between the Appellant and Mr. Anurag Chaurasia; the evidences of movement of funds acquired out of extortion syndicate run by Mr. Suryakant Tiwari to Manish Upadhyay, proxy of the appellant; the utilization of proceeds of crime and acquisition of properties by the appellant in the name of her mother Shanti Devi and cousin Mr. Anurag Chaurasia along with the details of the said properties etc. have been detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Anand, Adv. For the Respondent : Mr. S.V. Raju, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hossain, Adv. Mr. Annam Venkatesh, Adv. Ms. Sairica Raju, Adv. Mr. Chandra Prakash, Adv. Mr. Arkaj Kumar, Adv. Mr. Vivek, Adv. Ms. Manisha Dubey, Adv. Mr. Ankit Bhatia, Adv. Mr. Hitarth Raja, Adv. Agrimaa Singh, Adv. Mr. Kshitiz Aggarwal, Adv. Mr. Harsh Paul Singh, Adv. Mr. Samrat Goswami, Adv. Bhavini Srivastava, Adv. Mr. Vinayak Sharma, Adv. Mr. Gaurav Sarkar, Adv. Ms. Sonali Sharma, Adv. JUDGMENT BELA M. TRIVEDI, J. 1. Leave granted. 2. The order dated 23.06.2023 passed by the High Court of Chhattisgarh at Bilaspur in Miscellaneous Criminal Case No. 1258/2023 is assailed by way of present Appeal, whereby the High Court has dismissed the bail application filed by the appellant under Section 439 of Cr.P.C. The appellant was arrested on 02.12.2022 in connection with the Crime No. ECIR/RPZ0/09/2022 dated 29.09.2022, registered at the Police Station/Investigating Agency - Directorate of Enforcement, Zonal Office Raipur, Chhattisgarh, for the offences punishable under Sections 186, 204, 353, 384, 120-B of IPC read with Sections 3 and 4 of Prevention of Money Lau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.01.2023 ED filed a supplementary complaint naming the appellant amongst others as the accused. 10.02.2023 The appellant filed a Bail Application being No. 1258 of 2023 before the High Court of Chhattisgarh at Bilaspur. 17.04.2023 The arguments were advanced by the learned counsels for the parties, and the bail application was reserved for orders by the High Court. 08.06.2023 When the judgment in the bail application was awaited in the High Court, the Karnataka Police filed the charge-sheet against the accused Suryakant Tiwari in respect of the FIR No. 129/2022 for the offence under Sections 204 and 353 of IPC, clarifying therein that accused found to have committed offence under Section 384 of IPC with his henchmen at Chhattisgarh State for which the report would be prayed to Chhattisgarh Police through proper channel .. . 16.06.2023 The Additional Chief Judicial Magistrate, Bengaluru, took cognizance under Sections 204 and 353 of the IPC on the charge-sheet submitted against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 08.06.2023 and the Cognizance order dated 16.06.2023 were produced and brought to the notice of the High Court. The Court at that time also brought to the notice of the learned counsel about the Certificate given by the Advocate-on-Record appearing for the appellant and the affidavit filed on behalf of the appellant at the end of the SLP. Since, the learned senior counsel stated that the said charge-sheet and the cognizance order were produced and were also brought to the notice of the High Court, this Court had directed that the appellant or her concerned advocate on her behalf may file an affidavit in that regard, by passing the order on 09.10.2023. 7. The appellant in compliance with the said order dated 09.10.2023 filed an affidavit stating inter-alia as under: - 4. Since, as stated above these facts had a bearing on the Petitioner s bail application, the same were sought to be placed before the Hon ble High Court by way of a covering memo dated 19.06.2023. 5. The said covering memorandum annexed the following documents: - A. Medical report of Myra Modi. B. Order sheets of the subsequent development which took place in the matter. A certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent necessary to answer, the question of law arising for consideration in the petition, or to make out the grounds urged in the SLP, as Annexures to the petition. 10. In the instant Appeal, as demonstrated hereinabove, though the documents, particularly the Chargesheet dated 08.06.2023 and the Cognizance order dated 16.06.2023 were neither part of pleadings nor were produced during the course of arguments before the High Court, the Certificate at the end of the SLP appears to have been given by the Advocate-on-Record appearing for the Appellant without verifying the facts which were otherwise very apparent from the record. The affidavit by the husband and pairokar of the petitioner Shri Saurabh also appears to have been filed at the bottom of the SLP without verifying the said facts. Even the affidavit sought to be filed pursuant to the query raised by the court was also not filed answering the query, rather was filed making vague statements. 11. Though the said Chargesheet and the Cognizance order were neither pleaded nor argued before the High Court, an impudent attempt was sought to be made by alleging all throughout in the synopsis, list of dates, questions of law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Such an attempt made by and on behalf of the appellant is strongly deprecated. As such, the appeal deserves to be dismissed on that ground alone. However, since the learned counsels for the parties have made their submissions at length, the Court deems it proper to deal with the appeal independently and on merits also. 16. Learned senior counsel, Mr. Siddharth Aggarwal, for the appellant made following submissions: - (i) The appellant was not named in the FIR dated 12.07.2022 nor in the ECIR dated 29.09.2022 registered against the accused- Suryakant Tiwari, yet the appellant was arrested on 02.12.2022, though she had co-operated during the course of interrogation by the ED. (ii) The charge-sheet in the FIR No. 129/2022 filed against the accused-Suryakant Tiwari having been filed by the Karnataka Police for the offence under Sections 204 and 353 only, the proceedings in relation to Sections 384 and 120-B, IPC could not be said to have survived as regards the said charge-sheet. (iii) The proceedings under the PMLA are contingent on the existence of the scheduled offence, and no proceedings under the PMLA can be continued against the person in absence or in isolation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e key persons in the creation of extortion racket run by Suryakant Tiwari and that approximately Rs.540 crores were extorted by Mr. Suryakant Tiwari. Further, Mr. Manish Upadhyay who was a relative of the Suryakant Tiwari, and who was a close associate of the appellant, was used as a layer of protection for the cash dealings between Suryakant Tiwari and the appellant. (v) The appellant had allegedly utilized the monies received from the extortion racket towards the purchase of properties in the names of her mother (Shanti Devi Chaurasia), her cousin (Anurag Chaurasia) and her husband (Sourabh Modi), the details of which have been given in the prosecution complaint. (vi) The use of the expression may be in the proviso to Section 45 of PMLA indicates that the benefit of the proviso cannot be extended mandatorily or automatically, and the discretion has to be exercised by the Courts depending upon the facts of each case. ANALYSIS 18. The object of the PMLA hardly needs to be delineated. The said Act has been enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for the matters connected therew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia is an officer of the Chhattisgarh State Civil Services who was posted as the Deputy Secretary in the Office of Chief Minister of Chhattisgarh and was working as an OSD to CM. Despite being relatively very junior in the bureaucratic hierarchy, she enjoyed unprecedented power control because of her direct access to higher political powers. Information shared by the Income Tax Department and analysis of documents and digital devices seized during the searches conducted u/s 17 of PMLA, 2002 revealed that Smt. Saumya Chaurasia, Deputy Secretary working in the Chief Minister's Office, is one of the key persons in creation of the syndicate headed by Shri Suryakant Tiwari. An extortion racket of this magnitude nature was possible only when multiple State agencies fell in place and everyone supported the illegal acts of Suryakant Tiwari. This was made possible by Saumya Chaurasia so that pliant officers were posted in the coal mining districts who would listen to Suryakant Tiwari. Also, it was an unwritten rule that instructions of Suryakant Tiwari meant the voice of Saumya Chaurasia and the powers to be. The fact that Suryakant Tiwari had personal close official dealings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Suryakant Tiwari to Manish Upadhyay, proxy of the appellant; the utilization of proceeds of crime and acquisition of properties by the appellant in the name of her mother Shanti Devi and cousin Mr. Anurag Chaurasia along with the details of the said properties etc. have been detailed in the said prosecution complaint, which leave no doubt in the mind of the Court that prima facie the appellant has been found involved in the commission of the offence of money laundering as defined in Section 3 of the said Act. 22. The next question that falls for consideration before the Court is whether the appellant being a woman should be granted the benefit of the first proviso to Section 45 of the PMLA, which reads as under: - 45. Offences to be cognizable and non-bailable. - (1) .. 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: (2) 23. Recently, a Three-Judge Bench of this Court in Enforcement Directorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating agency etc., would be material considerations. 25. In the instant case as discussed hereinabove, there is sufficient evidence collected by the respondent Enforcement Directorate to prima facie come to the conclusion that the appellant who was Deputy Secretary and OSD in the Office of the Chief Minister, was actively involved in the offence of Money Laundering as defined in Section 3 of the PMLA. As against that there is nothing on record to satisfy the conscience of the Court that the appellant is not guilty of the said offence and the special benefit as contemplated in the proviso to Section 45 should be granted to the appellant who is a lady. 26. The Court also does not find any substance in the submission of the learned Senior Counsel Mr. Siddharth Aggarwal for the Appellant that the scheduled offences i.e. Section 384 and 120 B having been dropped from the chargesheet submitted against the accused Suryakant Tiwari in connection with the FIR No. 129 of 2022 registered at Kadugodi Police Station Bengaluru, and the ACJM Bengaluru vide the order dated 16.06.2023 having taken cognizance for the offence punishable under Section 204 and 353 IPC only, which are not the sche ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
