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2022 (3) TMI 1324 - HC - Money LaunderingSeeking grant of anticipatory bail - provisional attachment order - schedule offence - proceeds of crime - Sections 44 and 45 of PMLA 2002 - HELD THAT - The PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. Thus, it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision given in PML Act, 2002. Money Laundering being an offence is economic threat to national interest and it is committed by the white collar offenders who are deeply rooted in society and cannot be traced out easily. These kind of offences are committed with proper conspiracy, deliberate design with the motive of personal gain regardless of the consequences to the society and economy of Country. Hence, for money-launderers jail is the rule and bail is an exception - On prima facie reading of the material placed on record and considering the parameters of Section 45(1) PMLA as well as the gravity of the alleged offences, it cannot be held that the applicant was not guilty of the alleged offences or that he was not likely to commit any such offence while on bail. The anticipatory bail application is dismissed .
Issues Involved:
1. Application for anticipatory bail under the Prevention of Money Laundering Act (PMLA), 2002. 2. Allegations of criminal conspiracy and fraud involving bank loans. 3. Provisional attachment of property and proceeds of crime. 4. Applicability of Section 45 of PMLA for granting bail. 5. Arguments from both the applicant and the Enforcement Directorate (ED). Detailed Analysis: 1. Application for Anticipatory Bail: The applicant filed for anticipatory bail in Complaint Case No.15 of 2019 under Sections 3/4 of PMLA, 2002. The applicant had previously moved for anticipatory bail before the Special Judge, PMLA Lucknow, which was rejected on 07.01.2022. 2. Allegations of Criminal Conspiracy and Fraud: The Enforcement Directorate (ED) lodged an ECIR on 26.08.2010, following an FIR by CBI/A.C.B. Lucknow in 2007. The FIR alleged that several bank officials and others conspired to sanction housing loans based on false documents, causing a loss of approximately ?1.17 crores to the Bank of India. The applicant was implicated for conspiring with bank officials to sanction an overdraft limit using fake documents. Proceeds of crime amounting to ?19,49,000/- were attached and confirmed by the Adjudicating Authority. 3. Provisional Attachment of Property and Proceeds of Crime: The investigation revealed that ?25,000/- was transferred to the applicant’s account, which was used in business. The applicant contended that he had no previous criminal history and was unaware of the transactions, being a resident of Thane, Maharashtra. The ED argued that the applicant admitted to the crime in statements recorded under Section 50 of PMLA, and the provisional attachment order included the transaction of ?25,000/-. 4. Applicability of Section 45 of PMLA for Granting Bail: Section 45 of PMLA imposes stringent conditions for granting bail, requiring the court to be satisfied that the accused is not guilty of the offence and not likely to commit any offence while on bail. The applicant relied on the Supreme Court’s judgment in Nikesh Tarachand Shah vs. Union of India, which declared the twin conditions for bail under Section 45(1) of PMLA as unconstitutional. However, the ED cited the Supreme Court’s judgment in Assistant Director vs. Dr. V.C. Mohan, emphasizing that the rigors of Section 45 apply to anticipatory bail applications under PMLA. 5. Arguments from Both the Applicant and the Enforcement Directorate (ED): The applicant argued that there was no evidence of possession, acquisition, or use of proceeds of crime and that he had cooperated with the ED for eight years. He also cited various judgments to support his plea for anticipatory bail. The ED opposed the bail, highlighting the seriousness of economic offences and the applicant’s involvement in a criminal conspiracy. They argued that granting anticipatory bail could hamper societal and national interests. Conclusion: The court concluded that the applicant’s arguments could be considered at the stage of regular bail, not under Section 438 Cr.P.C. Given the gravity of the alleged offences and the parameters of Section 45(1) PMLA, the court found that the applicant did not satisfy the conditions for anticipatory bail. Thus, the anticipatory bail application was dismissed. However, the observations made were exclusive to the anticipatory bail application and would not affect the trial or regular bail application.
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