2022 (11) TMI 154 - HC - Money Laundering

Seeking grant of anticipatory bail - Money Laundering - received huge donations/funds from the Government and other sources which have been siphoned off and concealed for acquiring properties - proceeds of crime - Scheduled Offences - compliance with the twin conditions of Section 45 of PMLA or not - HELD THAT - From a bare perusal of Section 45 of the Act, it is established that petitioner cannot claim anticipatory bail as above mentioned eventualities depends on the discretion of the learned Special Court and learned Special Court has rightly exercised its discretion and in the facts of the case has rejected the anticipatory bail of the petitioner as money laundering is an economic offence of grave nature and assisted the main accused in laundering proceeds of crime generated from criminal activities relating to scheduled offence. In SHYAM SUNDER BAJAJ, SON OF LATE JUGAL KISHORE BAJAJ VERSUS THE UNION OF INDIA, THROUGH THE ASSISTANT DIRECTOR (P.M.L.A.) ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA, PATNA 2022 (3) TMI 1436 - PATNA HIGH COURT , the Hon ble Patna High Court has refused to grant anticipatory bail and held that twin conditions have to be considered at the time of grant of anticipatory bail. The Court did not grant anticipatory bail in the light of the gravity of the offence of money laundering, facts of the case which reveals his complicity and the fact that trial could not proceed because of his non-appearance. The prayer for grant of anticipatory bail to the petitioner stands rejected.

Issues Involved:
1. Anticipatory bail under Section 45 of the Prevention of Money Laundering Act (PMLA), 2002.
2. Allegations of money laundering against the petitioner.
3. Involvement of the petitioner in the NGO's financial operations.
4. Legal arguments regarding the applicability of Section 3 and Section 45 of the PMLA.
5. Judicial precedents and their relevance to the case.

Detailed Analysis:

1. Anticipatory Bail under Section 45 of PMLA:
The petitioner sought anticipatory bail in connection with a case filed under Section 45 of the PMLA, 2002, arising from ECIR No. PTZO/08/2018. The court examined whether the petitioner could be granted anticipatory bail given the gravity of the alleged offences under the PMLA.

2. Allegations of Money Laundering:
The prosecution alleged that the petitioner, mother of the principal accused, Brajesh Thakur, received Rs. 47,14,458/- in her bank accounts from the NGO Sewa Sankalp Ewam Vikas Samiti. The funds were allegedly laundered through her account, and she created fixed deposits using illegal and unaccounted cash. Loans taken against these FDs were used to purchase vehicles, with repayments made in cash without supporting documents. The prosecution argued that the petitioner knowingly concealed proceeds of crime generated by her son.

3. Involvement in NGO's Financial Operations:
The petitioner argued that she was not associated with the NGO and was implicated solely due to her relationship with Brajesh Thakur. She claimed to be a retired government servant with no involvement in the alleged offences. The defense contended that mere transfer of money to her account did not constitute an offence under Section 3 of the PMLA unless it was shown that she was knowingly involved in money laundering activities.

4. Legal Arguments on Section 3 and Section 45 of PMLA:
The court examined Section 3 of the PMLA, which defines the offence of money laundering, and Section 45, which deals with the conditions for granting bail. The defense argued that the prosecution failed to provide evidence that the petitioner knowingly engaged in money laundering. They cited judicial precedents, including the case of Most. Ahilya Devi vs. The State of Bihar, asserting that the twin conditions for bail under Section 45 had been declared unconstitutional. The prosecution, however, emphasized the gravity of the offence and the petitioner's deliberate concealment of proceeds of crime.

5. Judicial Precedents and Relevance:
The court considered various judicial precedents, including the Supreme Court's decision in Vijay Madanlal Choudhary & Ors vs. Union of India & Ors, which clarified the interpretation of Section 3 of the PMLA. The court noted that the expression "and" in Section 3 should be construed as "or" to include every process or activity related to proceeds of crime. The court also referenced the decision in Shyam Sundar Bajaj vs. Union of India, which emphasized the seriousness of money laundering offences and the need to consider twin conditions for granting bail.

Conclusion:
The court concluded that the petitioner, being the mother of the main accused, received significant amounts in her bank accounts from the NGO, which were laundered. The petitioner created fixed deposits and took loans against them using illegal cash, with repayments made in cash without supporting documents. The court found that the petitioner deliberately concealed proceeds of crime and assisted in acquiring properties, projecting them as untainted.

Judgment:
The court rejected the petitioner's prayer for anticipatory bail, finding merit in the prosecution's arguments. The petitioner was advised to surrender before the lower court and apply for regular bail, which would be considered on its merits without prejudice from the current order.

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