2024 (4) TMI 117 - HC - Money Laundering

Money Laundering - seeking grant of bail - offence of fraud and forgery of valuable securities etc. - twin conditions u/s 45 of PMLA satisfied or not - HELD THAT - It is not in dispute that applicant has no role in fraud etc. committed by M/s Garvit Innovative Promoters Ltd. through BIKEBOT scheme. The applicant is neither named in 55 FIRs lodged by the investors nor charge-sheeted in those cases. After registration of ECIR by the Enforcement Directorate the complicity of Mr. Dhirendra Pal Solanki had come at initial stage of investigation in the statement dated 22.11.2019 and 23.11.2019 of Sanjay Bhati (Chief Managing Director of M/s Garvit Innovative Promoters Ltd.) in which he has disclosed inter alia that Rs. 20 crores out of proceed of crime was transferred in the account of Mr. Dhirendra Pal Solanki but till date Enforcement Directorate has neither arrested Mr. Dhirendra Pal Solanki nor made him accused - The Enforcement Directorate in compliance of order of this Court filed an affidavit dated 15.03.2024 mentioning inter-alia that the role of Mr. Dhirendra Pal Solanki is also being investigated and efforts are being made to finalize the investigation with regard to transfer of proceeds of crime generated in this case by various entities. So far as the twin conditions as provided in Section 45 of the PML Act 2002 is concerned it is well settled that Court is not required to record a positive finding that accused has not committed an offence under the PML Act 2002 and while releasing him on bail he will not commit an offence. The Court has to maintain a balance between the subsequent judgement of conviction or acquittal and is required to record reasonable reasons of satisfaction on the basis of facts and circumstances of the each case with broad probabilities as to whether there is possibility of the accused committing a crime after grant of bail - There is no positive evidence of cash transaction also between the applicant and Mr. Dhidrena Pal Solanki except statement of Mr. Dhidrena Pal Solanki and presumption against the applicant hence this Court is prima-facie satisfied that twin conditions provided in Section 45 of the PML Act 2002 stand satisfied under the facts of this case in favour of the accused-applicant. Applicant is languishing in jail since 21.07.2023 having no criminal history and maximum sentence for the alleged offence is up to seven years. It is well settled that judicial custody should be purposeful and cannot be punitive. Keeping in view the nature of the offence evidence complicity of the accused detention period present status of trial of the applicant submissions of the learned counsel for the parties as noted above and the fact that there is no apprehension of absconding the applicant the applicant has made out a case for bail - Bail application allowed.

Summary

Issues Involved:
1. Enlargement on bail u/s 439 Cr.P.C.
2. Allegations and involvement of the applicant in the BIKEBOT scheme.
3. Transfer of proceeds of crime and applicant's connection to the funds.
4. Twin conditions u/s 45 of the PML Act, 2002.
5. Previous bail orders for co-accused.

Summary:

1. Enlargement on Bail u/s 439 Cr.P.C.:
The applicant, Dinesh Kumar Singh @ Dinesh Gujjar, sought enlargement on bail in ECIR No. ECIR/LKZO/05/2019 u/s 3 and 4 of the Prevention of Money Laundering Act, 2002. The court heard submissions from both parties and reviewed the case records.

2. Allegations and Involvement in BIKEBOT Scheme:
The BIKEBOT scheme was introduced by M/s Garvit Innovative Promoters Ltd. (GIPL) and its promoter, Mr. Sanjay Bhati, in 2017-2018. Investors were promised assured monthly returns for investing in the scheme. However, the company stopped giving returns in December 2018, leading to multiple FIRs against GIPL and its associates. The applicant claimed no involvement with the BIKEBOT scheme, was not named in any FIRs, and had no official position in GIPL.

3. Transfer of Proceeds of Crime:
The Enforcement Directorate's case against the applicant involved the transfer of funds from GIPL to various entities, including Rs. 17.94 crores to Mr. Dhirendra Pal Solanki. Out of this, Rs. 1.7 crores were transferred to the applicant's account, and Rs. 5.23 crores were allegedly given in cash. The applicant argued that these funds were repayments of loans given to Mr. Solanki before the BIKEBOT scheme existed, and there was no evidence of proceeds of crime being transferred to his account.

4. Twin Conditions u/s 45 of the PML Act, 2002:
The court noted that the applicant had no role in the fraud committed by GIPL and was not named in the FIRs. The Enforcement Directorate had not arrested Mr. Solanki despite evidence against him. The court found no corroborative material to establish that the applicant received cash from Mr. Solanki. The court was satisfied that the twin conditions u/s 45 of the PML Act were met, as there was no positive evidence of the applicant's involvement in the proceeds of crime.

5. Previous Bail Orders for Co-Accused:
The court observed that several co-accused had been granted bail or anticipatory bail, and these orders had not been challenged by the Enforcement Directorate. The court considered the applicant's detention period, lack of criminal history, and the nature of the offence.

Conclusion:
The court concluded that the applicant had made out a case for bail. The bail application was allowed with specific conditions to ensure the applicant's cooperation with the trial and prevent any tampering with evidence or involvement in criminal activities. The observations in the order were confined to the issue of bail and would not affect the trial's merits.