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TMI Blog2024 (2) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... . He was remanded to the judicial custody on 05.12.2023. He has been in judicial custody since then. 4. The petitioner is a builder and developer of real estate. He is also running an educational institution. He is the Managing Director of M/s Heera Constructions Company Private Limited (hereinafter referred to as 'HCCPL'). 5. The CBI, Anti-Corruption Bureau, Kochi registered FIR No.RC3(A)/2019 on 10.04.2019. In the FIR, it is revealed that HCCPL having its registered office at City Centre, Patto of Plaza, Goa and Regional Office at Heera Park, M.P Appan road, Vazhuthacaud, Thycaud Village, Thiruvananthapuram availed credit facilities from Kowdiar Branch of erstwhile State Bank of Travancore (now State Bank of India) to the tune of about Rs.9.90 Crores and alienated the property mortgaged as primary security and collateral security without the consent of the bank. A project loan of Rs.15 Crores was sanctioned to HCCPL for the project "Heera Lake Front" at Akulam on 27.09.2013 through Kowdiar branch of SBT, which was to be paid by 23.12.2016. The project was not completed as scheduled. At the request of HCCPL, the credit limit was reviewed on 22.03.2017 and continuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank. The total dues in the said loan account is Rs. 12.08 crores as on 25.03.2019. It is alleged that the HCCPL and its Directors, with dishonest intention to cheat the Bank, had diverted the funds/sale proceeds of the collateral as well as primary security offered to the Bank and thereby caused wrongful loss to the Bank. The bank declared the account as fraud on 17.07.2018. 7. The CBI, Anti-Corruption Bureau, Kochi filed charge sheet on 16.03.2022 before the Special Judge, CBI, Thiruvananthapuram in FIR No.RC 03(A)/2019 alleging offences under Section 120B r/w Section 420 and Section 406 r/w Section 405 of the Indian Penal Code against the petitioner and others. 8. Based on the FIR registered by CBI, an Enforcement Case Information Report bearing No. ECIR/08/KCZO/2021 dated 05.02.2021 was recorded at the Cochin Zonal Office and the investigation was initiated under the provisions of the Act. 9. I have heard Sri.C.S.Manu the learned counsel appearing for the petitioner and Sri.Jaishankar.V.Nair, the learned Standing Counsel appearing for the respondent Enforcement Director. 10. The learned counsel for the petitioner made the following submissions: (i) The allegations agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted to prevent laundering and to provide for confiscation of property derived from, or involved in, money laundering and for the matters connected therewith and incidental thereto. 13. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force on granting of bail. " 15. A plain reading of the provision would show that the embargo imposed by Section 45(1) of the Act on grant of bail took the form of twin conditions - (i) that the Public Prosecutor shall be given an opportunity to oppose the application for release, and (ii) where the Public Prosecutor opposes such application, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. The limitations so imposed were in addition to those imposed under Cr.P.C. and had an overriding effect over the provisions of the Code, in case there occurred any inconsistency between the provisions of the two. Though stringent, they were held by the Supreme Court to be mandatory {Vide: Raj Singh Gehlot v. Directorate of Enforcement [2022 SCC OnLine Del 643]}. 16. As regards the twin conditions for the grant of bail contained in Section 45(1) of the said Act, it has been held in Vijay Madanlal Choudhary v. Union of India [2022 SCC OnLine SC 929] as under: "412. As a result, we have no hesitation in observing that in whatever form the relief is couch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anker. (V) The petitioner sold the mortgaged property at Kollam for an amount of Rs. 1,15,00,000/- without the NOC issued by the banker. But the sale proceeds were not deposited in the loan account at SBT, which is evident from the statement dated 15.02.2023. (VI) The proceeds of the crime based on the material collected by the Investigating agency would come to approximately 34.82 Crores as per the following split up: a) Rs. 21.50 Crores approximately (Outstanding loan amount as on 30.09.2022). b) Rs. 1.15 Crores (Sale proceeds of mortgaged property). c) Rs. 12.17 Crores (Net sale proceeds in the hands of business entity calculated as the difference amount of total sale proceeds of the project flats of Rs.37,16,08,262/- from the buyers of flats minus sum of amount of Rs. 2,82,91,537/- deposited in the loan account No.67257646567, maintained with SBT, Kowdiar Branch and project cost of Rs.22,76,54,658.82/-). 19. Relying on the materials collected during the investigation, it is alleged that the petitioner with deliberate intention tactfully layered the proceeds of crime to the third party entities as well as his educational trust namely- Heera Education and Charitable Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded under Section 50 of the Act and the other materials collected in the form of documents, prima facie shows complicity of the petitioner in the alleged offences. The conditions specified under Section 45 of the Act are mandatory while considering, the bail plea of the petitioner. This Court is required to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and he is not likely to commit any offence while on bail. As per Section 24 of the Act, in the case of a person charged with the offence of money-laundering under Section 3, the Authority/Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in moneylaundering. The conditions enumerated in Section 45 of the Act are to be complied with even in respect of an application for bail under Section 439 Cr.PC in view of the overriding effect given to the Act over the other loss for the time being in force, under Section 71 of the Act. 23. The learned counsel for the petitioner relied on Thomas Daniel v. Enforcement Directorate, Ernakulam [2023 (6) KHC 40] to contend that the presumption under Section 24 of the Act cannot be extended t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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