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2022 (10) TMI 518 - HC - Money LaunderingDemand of bribe by Insolvency Professional - Rejection of application for dispensing with the personal appearance of the petitioner - Section 205 of the Code of Criminal Procedure (Cr.P.C.) - Applicability of Section 44 and 45 of the PMLA Act, 2002 - HELD THAT - On perusal of the proviso of section 45 of the PMLA Act, it transpires that if the allegation is of money laundering of a sum of rupees less than rupees one crore, the learned special court can release on bail if the person is of age of 16 years or a woman or sick or infirm. In the case in hand, it has been submitted that the petitioner has suffered from Covid-19 twice and he is having ailments and on that ground, he has filed a petition before the learned court. In the petition filed under section 205 Cr.P.C before the learned court and certified copy of which is on the record, it has been disclosed in paragraph no.12 that the petitioner undertakes in it that he will not dispute his identify during trial if he is allowed exemption. The undertaking in that particular paragraph is also there to the effect that he will appear in person as and when deemed fit by the learned court. On the record, there is nothing to suggest that due to the petitioner at any point of time, the investigation has been delayed. It has been disclosed that the petitioner has cooperated under section 50 of the PMLA Act. Admittedly, the allegation against the petitioner is of taking bribe of Rs.5 lakhs and proviso to section 45 of the PMLA Act speaks of that if the proceed is less than of rupees one crore, the bail can be granted. The law is well settled that as per sub-section 1 of section 205 Cr.P.C., whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. As per sub-section 2 of section 205 of the Cr.P.C, the Magistrate in inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in a manner hereinbefore provided. Thus, the learned Magistrate has a discretion to dispense with the personal attendance of the accused and to permit him to appear by the pleader. The purpose of exemption under section 205 Cr.P.C is that the order of the learned magistrate should be such which does not make any unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant and the learned court is required to ensure that exemption from personal appearance granted to the accused is not an abuse or delay the trial. The order dated 09.05.2022 passed in Misc. Criminal Application No.362 of 2022 by learned Additional Judicial Commissioner-XVIII-cum-Special Judge, Prevention of Money Laundering Act, Ranchi whereby the petition filed by the petitioner under Section 205 of the Code of Criminal Procedure (Cr.P.C.) for dispensing with the personal appearance of the petitioner has been rejected in connection with ECIR 05/2021, corresponding to CNR-JHRN01-002561-2022, pending in the same learned court is set-aside. Application allowed.
Issues Involved:
1. Quashing of the order rejecting the petitioner's application under Section 205 Cr.P.C. 2. Allegations and proceedings under the Prevention of Money Laundering Act (PMLA), 2002. 3. Applicability and interpretation of Section 45 of the PMLA Act. 4. Application of Section 205 Cr.P.C. in serious offenses and its judicial discretion. Issue-wise Detailed Analysis: 1. Quashing of the Order Rejecting the Petitioner's Application under Section 205 Cr.P.C.: The petitioner filed a petition to quash the order dated 09.05.2022, which rejected his application under Section 205 of the Code of Criminal Procedure (Cr.P.C.) for dispensing with his personal appearance. The court examined whether the trial court's decision to reject the petition was justified. The petitioner argued that his personal appearance should be dispensed with due to his health issues and professional commitments. The court found that the petitioner's undertakings and the circumstances warranted setting aside the trial court's order, allowing the petitioner to be represented by his counsel under specific conditions. 2. Allegations and Proceedings under the Prevention of Money Laundering Act (PMLA), 2002: The petitioner was accused of money laundering based on an FIR filed by the CBI, alleging that he demanded bribes while acting as an Insolvency Professional. The Enforcement Directorate (ED) initiated proceedings under the PMLA against the petitioner. The court reviewed the allegations, which included the petitioner demanding bribes for favorable actions in the insolvency resolution process. The petitioner contended that no proceeds of crime were found in his possession and that he had cooperated with the investigation. 3. Applicability and Interpretation of Section 45 of the PMLA Act: Section 45 of the PMLA Act imposes stringent conditions for granting bail in money laundering cases. The petitioner argued that the amount involved was less than one crore rupees, making him eligible for bail under the proviso to Section 45. The court noted that the proviso allows for bail if the alleged amount is less than one crore rupees, and the petitioner had health issues. The court found that the petitioner's case fell within the exceptions provided under Section 45, supporting his claim for exemption from personal appearance. 4. Application of Section 205 Cr.P.C. in Serious Offenses and Judicial Discretion: The court examined the application of Section 205 Cr.P.C., which allows a magistrate to dispense with the personal attendance of an accused if it sees reason to do so. The petitioner cited several precedents, including the Supreme Court's judgment in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., which emphasized the court's discretion to grant such exemptions to avoid undue hardship to the accused. The court agreed that the petitioner's circumstances justified the exemption and that the trial court should have exercised its discretion in favor of the petitioner. Conclusion: The court set aside the order dated 09.05.2022, allowing the petitioner's application under Section 205 Cr.P.C. with specific conditions to ensure the trial's progress without unnecessary delays. The conditions included the petitioner's undertaking not to dispute his identity, the presence of his counsel on all hearing dates, and the petitioner's appearance when required by the trial court. The court emphasized that the exemption should not be abused or used to delay the trial. The petition was allowed, and the case was disposed of accordingly.
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