TMI Blog2024 (3) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant had knowledge that the money he has received was derived from criminal activity related to a scheduled offence and did he knowingly assist accused Laxmikant Tiwari in concealing or transferring illicit proceeds of crime which is essential to constitute an offense under Section 3 of the PMLA, 2002. Therefore, the money obtained by the applicant is deemed to proceed of crime and as such, he has prima facie committed the crime under Section 3 of the PMLA, 2002 - Question is answered against the present applicant. Whether the twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available on record to release the applicant by granting anticipatory bail? - HELD THAT:- The material so collected by the investigation prima facie reflects that many hand written entries in the diaries, name of the present applicant exist. Thus, he was knowingly and actively obtained the proceeds of crime and committed the offence under Section 3 of the PMLA, 2002 - material collected by the Enforcement Directorate, prima facie, involvement of the applicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in criminal conspiracy to run a parallel system of collecting illegal levy on coal and were doing illegal and unaccounted cash movement as per instructions of Suryakant Tiwari. All the above-mentioned associates of Suryakant Tiwari had admitted in their statements recorded before the Income Tax officials that they were doing the illegal levy collection on the instructions of Suryakant Tiwari. The proceeds received from the above referred to action were being used for taking undue advantage and to influence public servants by corrupt and illegal means and by exercise of personal influence. 4. The role of the present applicant is that the present applicant has obtained a cash of Rs. 3 crore out of the proceed of crime. The applicant in his statement under Section 17 of the PMLA, 2002 has confirmed that Mr. Suryakant Tiwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne SC 929, Sumedh Singh Saini Vs. State of Punjab another [Crl. Appeal No. 827/2020, SLP (Crl.) No. 4336/2020) (decided on 07.05.2019)], Pawan Kumar Agrawal another Vs. Enforcement Directorate [ SLP(Crl.) No. 2106/2022) (decided on 01.02.2023)], Sangeeta Agrawal Vs. Enforcement Directorate [MCRCA No. 1162/2023) (decided on 04.10.2023)], Vimal Agrawal another Vs. Enforcement Directorate [MCRC(A) No. 1455/2021 (decided on 09.02.2023)], Shivam Vs. State of U.P. another [Crl. Misc. Anticipatory Bail Application under Section 438 of Cr.P.C. No. 2110 of 2023)(decided on 05.04.2021)], State of Rajasthan Vs. Balchand @ Baliya reported in 1977 AIR 244, Satender Antil Vs. CBI another, (2022) 10 SCC 51, Teesta Atul Setalwad Vs. State of Gujarat [Crl.A No. 2022/2023, SLP(Crl.) No. 8503/2023 (decided on 19.07.2023)], Directorate of Enforcement Vs. Gopla Reddy another [Crl. Appeal No. 534/2023, SLP (Crl.) No. 8260/2021 (decided on 24.02.2023)], Sumit Mehta Vs. State of NCT of Delhi [Crl. Appeal No. 1436/2013, SLP (Crl.) No. 02/2013 (decided on 12.09.2013)], State of Orissa Vs. Debendra Nath Padhi, reported in (2003) 2 SCC 711, Y. S. Jagan Mohan Reddy Vs. Central Bureau of Investigation [Crl. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri and other syndicate members etc. It has also been stated in the reply that part of collected illegal cash was also being transferred to house of Suryakant Tiwari and Laxmikant Tiwari in Mahasamund for safe keeping. It has also been contended that Laxmikant Tiwari, elder brother of Suryakant Tiwari is the main associate and confidant of Suryakant Tiwari. As per the findings of the investigation under the PMLA, 2002, he was the keeper of the accounts and cash for the entire scam, he is responsible for acquisition, possession, concealment, use of the proceeds of crime. He has been claiming assets purchased with the PoC as untainted assets. Therefore, he has directly indulged in the offence of Money Laundering as defined Section 3 of the PMLA, 2002. Statements by Nikhil Chandrakar, Laxmikant Tiwari and others would show that Rajnikant Tiwari used to handle cash payments for getting accommodation entries from various person also. 8. It has also been contended that complaint dated 30.01.2023 has been filed against Suryakant Tiwari and others for commission of offence under Money Laundering Act and the learned Special Judge (PMLA) Raipur has taken cognizance of the said prosecution com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d over to him through a person namely Nawaz near the house of minister Mohammad Akbar. 10. It is further contended that applicant s custodial interrogation may be required for questioning during the course of further investigation, as such, the grant of bail at this stage may impede the investigation being conducted by the Directorate and it will be detrimental effect on investigation being conducted by the Directorate. He would further submit that the applicant is Ex.-MLA and highly influenceable person, as such, in case present applicant is granted anticipatory bail, the applicant may influence the witnesses concerned in the present case. It has been further contended that various suspects in the present case have attempted to evade the process of law for a very long time. Thus, it has been prayed for dismissal of the present bail application. 11. I have heard learned counsel for the parties at length, perused the ECIR with utmost satisfaction. 12. The point to be determined by this Court is (1) whether the applicant though not named in the FIR, prosecution complaint filed by the Income Tax Department nor named in the ECIR submitted by the Enforcement Directorate, t can be involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds of crime. In that case, he can be held guilty of committing an offence under Section 3 of the PMLA. To give a concrete example, the offences under Sections 384 to 389 of the IPC relating to extortion are scheduled offences included in Paragraph 1 of the Schedule to the PMLA. An accused may commit a crime of extortion covered by Sections 384 to 389 of IPC and extort money. Subsequently, a person unconnected with the offence of extortion may assist the said accused in the concealment of the proceeds of extortion. In such a case, the person who assists the accused in the scheduled offence for concealing the proceeds of the crime of extortion can be guilty of the offence of money laundering. Therefore, it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. What is held in paragraph 270 of the decision of this Court in the case of Vijay Madanlal Choudhary supports the above conclusion. The conditions precedent for attracting the offence under Section 3 of the PMLA are that there must be a scheduled offence and that there must be proceeds of crime in relation to the scheduled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(1)(u) of the 2002 Act - so long as the whole or some portion of the property has been derived or obtained by any person as a result of criminal activity relating to the stated scheduled offence. To be proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence. To put it differently, the vehicle used in commission of scheduled offence may be attached as property in the concerned case (crime), it may still not be proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act. Similarly, possession of unaccounted property acquired by legal means may be actionable for tax violation and yet, will not be regarded as proceeds of crime unless the concerned tax legislation prescribes such violation as an offence and such offence is included in the Schedule of the 2002 Act. For being regarded as proceeds of crime, the property associated with the scheduled offence must have been derived or obtained by a person as a result of criminal activity relating to the concerned scheduled offence. This distinction must be borne in mind while reckoning any property referred to in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above stated discussion and considering the provisions of Sections 3 4 of the PMLA, 2002, it is apparent from reading of Section 3, and the legal precedent established by the Court of Law with reference to the said provision is as follows:- (i) An individual, even if not directly involved in the criminal activity that generated the proceeds of the crime, can face prosecution for the offence under Section 3, and be punished under Section 4, if he knowingly participates in concealing or utilizing the proceeds of the crime. (ii) In case under the PMLA, an accused need not necessarily be implicated in the scheduled offence, he can still be prosecuted under the PMLA as long as the scheduled offence exists. 20. Therefore, the applicant can be subjected to prosecution under the PMLA, 2002 if it can be established that the applicant has prima facie committed an offence under Section 3 of the PMLA, 2002. 21. From the statement recorded as reflected in the ECIR that there is evidence to suggest that the applicant had knowledge that the money he has received was derived from criminal activity related to a scheduled offence and did he knowingly assist accused Laxmikant Tiwari in concealing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gopal Reddy Vs. Enforcement Directorate, Criminal Appeal No. 534 of 2023 and has held in paragraph 6.3 7, which are as under:- 6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC. 7. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 is unsustainable. Consequently, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is hereby quashed and set aside. Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he public/State and other similar considerations. 17. Taking note of all these facts and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheet(s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct the CBI to complete the investigation and file the charge sheet(s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 05.10.2012, the appellant is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal. 25. Hon ble the Supreme Court while considering the gravity of economic offence in case of P. Chidambaram Vs. Directorate of Enforcement, reported in (2019) 9 SCC 24 has held at paragraph 78 to 81 as under:- 78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory bail. 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 26. The judgments cited by learned counsel for the applicant are distinguishable from the facts of the present case as in the present case, prima facie the Enforcement Directorate has collected certain material against the applicant, particularly the statement of Nikhil Chandrakar recorded under Section 17 50 of the PMLA, 2002 and statement of the applicant recorded under Section 17 of the the PMLA, 2002 as well as the diary entry of 09.04.2022 wherein it has been mentioned that Rs. 35 lacs have been received ..... X X X X Extracts X X X X X X X X Extracts X X X X
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