TMI Blog2024 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... s of crime - The Apex Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others [ 2022 (7) TMI 1316 - SUPREME COURT] has also held that provision of Section 45 are applicable to the bail applications under Sections 438 and 439 of Cr.P.C. Section 45 of the PMLA specifically provides that the offences under the Act are non-bailable and cognizable and no person accused of an offence under the Act is entitled for bail unless the Public Prosecutor is given a liberty to oppose the application and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail - In the present case, the complaint prima facie discloses commission of offence by the applicant as well as co-accused, therefore, this Court does not find any reasonable ground to believe that the present applicant is not guilty of crime. The present applicant cannot claim parity only on the ground that the present applicant also cooperated with the Investigating Agency. This contention of the applicant is also liable to be rejected, inasmuch as, upon filing of the complaint, when the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, M/s PGH International Private Limited. An amount of Rs. 187.77 Crores as FDI was received by M/s PGH International Pvt. Ltd. The present applicant by a resolution of Board dated 22/02/2008 was authorized by the Board to sign a Joint Venture Agreement. The Joint Venture Agreement was signed by the present applicant on behalf of PGH International Pvt. Ltd on 01/04/2008 and had agreed to transfer Rs. 40 Crore to Suresh Narayan Vijaywargiya who is one of the accused in the complaint case. Thereafter again vide resolution dated 06/11/2008, the applicant as a CEO of M/s PGH International Pvt. Ltd also signed a supplementary agreement whereby M/s PGH International Pvt. Ltd. agreed to transfer Rs. 6 Crore to Suresh Narayan Vijaywargiya in addition to Rs. 40 Crore as agreed in Joint Venture Agreement. 4. The prosecution commenced investigation against the present applicant, M/s People International and Service Limited, M/s PGH International Pvt. Ltd., M/s People General Hospital Pvt. Ltd. M/s PG Infrastructure Service Ltd., Sarjanik Jal Kalyan Prathmik Nyas, Suresh Narayan Vijaywargiya, Ishteyaq Hussain Siddiquee, Ram Vilas Vijaywargiya. The present applicant has been implicated only on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 447 of the Companies Act, was included in Schedule, but the said insertion was made in the schedule vide an amendment dated 19/04/2018. Before insertion of Section 447 of Companies Act, in the Schedule appended to the PMLA, offence under Section 447 of the Companies Act, was not a scheduled offence within the meaning of Section 2(y) of the PMLA. It is contended by the counsel that undisputedly in the Companies Act, 1956, there were no provisions akin to Section 447 of the Companies Act, 2013. The Companies Act, 2013 came into effect from 29/08/2013, yet Section 447 of the Companies Act was added in the schedule to PMLA only vide notification dated 19/04/2018. It is thus contended by the counsel that at the time of signing of Joint Venture Agreement on 01/04/2008 or supplementary Agreement on 06/11/2008, the Section 447 of the Companies Act, 2013 was not in existence, as the Companies Act, 2013 was subsequently enacted. 7. It is further contended by the counsel that the arrest of the applicant is not at all warranted inasmuch, the applicant upon receipt of summon issued by the respondent, he appeared before the investigating agency and the said fact is evident from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27/10/2023. It is contended by the counsel that the present applicant has also co-operated with the investigation and appeared as well pursuant to summons and thus the same ground is also available with the present applicant. 8. Per contra, learned counsel for the respondent submits that the application for anticipatory bail deserves to be dismissed. It is contended by the counsel that Section 45 of the PMLA puts an embargo on exercise of powers for grant of bail under Section 438 and 439 of Cr.P.C.. It is contended by the counsel that while seeking anticipatory bail, the accused is required to satisfy the twin test as stipulated in Section 45 of thee PMLA. In the present case, there is a complete failure on the part of the applicant to demonstrate that there are no reasonable grounds to believe that he is guilty. The complaint reflects direct allegation against the applicant, therefore, the application deserves to be dismissed. It is contended by the counsel that the provisions of PMLA came up for consideration before the Apex Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others - 2022 SCC Online SC 929 wherein the Apex Court while dealing with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated in Section 45 of the PMLA. 10. It is also contended by the counsel that in the present case after filing of complaint the trial Court issued a bailable warrant against the present applicant, however, despite opportunity, the applicant did not appear before the trial Court, therefore, the trial Court rightly dismissed the application filed by the applicant for grant of bail under Section 438 of Cr.P.C. It is also submitted that the present applicant in his statement has stated that he has signed the Joint Venture and the supplementary Agreements under the instructions of co-accused Suresh Narayan Vijaywargiya. Learned counsel contends that the present applicant cannot escape from his liability as colossal amount was siphoned off and the present applicant was an active participant in the process and therefore, the truth is still to be unearthed. 11. The counsel for the respondent submits that the present applicant has willfully avoided his appearance before the trial Court, which is evident from the rejection order passed by the trial Court. Hence in view of the decision of the Division Bench of this Court in Kishore Meena Vs. Union of India (through CBI), Misc. Criminal Case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas prevailing market rates at that time was around 6% - 8%. Thus, the company has extended wrongful gain to the other related party which includes the management of M/s PGH International Private Limited and wrongful loss to the shareholders/company of approximately more than 6% - 8% annually on the funds transferred to related concerns which amounted to fraud. 17 . It is further important to take note of Section 3 of the PMLA, which is reproduced as under:- 3 . Offence of money-laundering.- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untained property shall be guilty of offence of money-laundering. Explanation. - For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of money laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 438 and 439 of Cr.P.C. The Apex Court in Paragraph 187 (xiii)(d) as under:- 187 (xiii)(d) - As regards the prayer for grant of bail, irrespective of the nature of proceedings, including those under Section 438 of the 1973 Code or even upon invoking the jurisdiction of Constitutional Courts, the underlying principles and rigours of Section 45 may apply. 21. Thus, as per the allegations, which are levelled in the complaint, it is evident that there is prima facie case of money laundering within the ambit of PMLA. It is further evident from perusal of the complaint that the present applicant gave a statement before the investigating agency and stated that he was in the United States of America and came back to India in the year 2007 and thereafter started liasoning work of M/s PGH International Private Limited and was also looking after functioning of People's Samachar since 2020. As per Para 20.4.2 of the complaint, the present applicant was asked about the Joint Venture Agreement dated 1.4.2008 executed between M/s PGH International Private Limited and co-accused S.N. Vijaywargiya, through which proposal was made to pay Rs. 40 Crores to co-accused S.N. Vijaywargiya for his co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan to the tune of Rs. 45,01,10,043/- (interest free) and outstanding as per balance sheet for the year ending on 31.3.2022 was Rs. 33,16,02,562/-. 24. Thus, it is apparent that there is still outstanding of loan, which is to be recovered and the said outstanding of loan is an offshoot of Joint Venture Agreement as well as supplementary Agreement as per the allegations levelled in the complaint. Such outstanding of loan has caused recurring loss to shareholders of the Company. Hence, the complaint prima facie discloses recurring cause in terms of Section 3 of PMLA and hence the contention as regards prosecution being based on Ex Post Facto amendment, is unsustainable. 25. Section 45 of the PMLA specifically provides that the offences under the Act are non-bailable and cognizable and no person accused of an offence under the Act is entitled for bail unless the Public Prosecutor is given a liberty to oppose the application and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. 26. In the present case, the complaint prima facie discloses commission of offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court rejected the application of the applicant for anticipatory bail. 29. It is evident from perusal of the impugned order passed by the trial Court that on 7.12.2023, the applicant was issued a bailable warrant to appear before the trial Court on 22.12.2023. The applicant was again vide order dated 5.1.2024 called upon to appear but the present applicant did not appear, rather made efforts to demonstrate before the Court that as he was indisposed, he could not appear when the case was fixed before the trial Court. Since there was failure on the part of the applicant to appear before the trial Court despite service of bailable warrant, the trial Court issued arrest warrant against the applicant vide order dated 18.1.2024. It is thus clear that merely because the applicant appeared before the Investigating Agency on a singular date, the same does not entitle him to be released on anticipatory bail while claiming parity with co-accused S.N. Vijaywargiya. 30. As this Court is not satisfied that there is no reasonable ground to believe that the applicant is guilty, no case for grant of anticipatory bail to the applicant is made out taking into consideration the nature of accusatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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