2024 (3) TMI 1233 - HC - Money Laundering

Seeking grant of regular bail - Money Laundering - Scheduled Offences - proceeds of crime - illegal transfer of the land - creation of fabricated documents - twin condition as per section 45 of PMLA satisfied or not - grounds of parity - HELD THAT - The Hon ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. 2022 (7) TMI 1316 - SUPREME COURT has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe , which is required to be recorded that the person is in possession of proceeds of crime . Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process. This court has reason to believe that prima-facie the involvement of the present petitioner is fully substantiated by the tangible and credible evidences which is indicative of involvement of the present petitioner in activity connected with the proceeds of crime. The conditions enumerated in Section 45 of P.M.L.A. will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. The offence of money-laundering means 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 with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever - on the basis of the discussion made the contention of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 4 of the P.M.L. Act, 2002, is totally misplaced in the light of accusation as mention in prosecution complaint dated 01.09.2023. Ground of parity - HELD THAT - Law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied - It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. The Hon ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement 2023 (11) TMI 904 - SUPREME COURT , where it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration - It has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. On comparative assessment of the allegation as per the material collected in course of investigation as referred hereinabove, it is evident that against the said Bishnu Kumar Agarwala, the allegation of purchase of the land in question has been alleged and further allegation against him is that he is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property. The twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner - Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Bishnu Kumar Agarwala, is quite different. Having regard to the facts and circumstances, as have been analyzed hereinabove as also taking into consideration the statements made in the counter affidavit, the applicant is failed to make out a prima-facie case for exercise of power to grant bail, hence, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail - this Court is of the view that the bail application is liable to be rejected. Bail application dismissed.

Summary

Issues Involved:

1. Grant of regular bail u/s 439 and 440 of CrPC.
2. Allegations under the Prevention of Money Laundering Act, 2002.
3. Jurisdiction of authorities to initiate proceedings.
4. Application of the principle of parity in granting bail.

Summary:

1. Grant of Regular Bail u/s 439 and 440 of CrPC:

The petitioner sought regular bail in connection with ECIR Case No. 05 of 2023, registered for alleged offences u/s 3 punishable u/s 4 of the Prevention of Money Laundering Act, 2002. The petitioner argued that no offence was committed to attract the ingredients of Sections 3 & 4 of the PMLA, 2002. The petitioner also contended that there was no direct involvement in the illegal transfer of land, and the ECIR was based on subsequent FIRs, making the prosecution version false.

2. Allegations under the Prevention of Money Laundering Act, 2002:

The prosecution alleged that the petitioner was involved in a conspiracy to fraudulently acquire land using forged documents. The investigation revealed that the petitioner, along with co-accused, prepared fake deeds and sold the land at a throwaway price without paying the full consideration amount. The petitioner was accused of exerting influence and assisting in the illegal transfer of land, with money being transferred to a firm where the petitioner was the beneficial owner.

3. Jurisdiction of Authorities to Initiate Proceedings:

The petitioner argued that the authorities in Jharkhand had no jurisdiction to initiate proceedings as the complaint was based on a criminal case instituted in Kolkata. The court held that the inquiry was based on the allegations in Sadar P.S. Case No. 399 of 2022, and the land was situated in Jharkhand, giving the authorities jurisdiction to initiate proceedings.

4. Application of the Principle of Parity in Granting Bail:

The petitioner sought bail on the ground of parity, citing that a co-accused, Bishnu Kumar Agarwala, had been granted bail. The court held that parity is not the law and must focus on the role attached to the accused. The court distinguished the petitioner's case from that of the co-accused, noting that the petitioner had a more significant role in the conspiracy, including exerting influence and having criminal antecedents. The court emphasized that economic offences require a different approach in bail matters and rejected the bail application.

Conclusion:

The court dismissed the bail application, stating that the petitioner failed to make a prima facie case for bail. The court emphasized that the observations made were only for the purpose of considering the bail issue and would not prejudice the trial's merits.