2024 (4) TMI 174 - HC - Money Laundering

Seeking grant of anticipatory bail - Money Laundering - scheduled offence - Proceeds of crime - execution of Joint Venture Agreement and also a supplementary Agreement, according to which, a sum of Rs. 46 Crores was transferred to Suresh Narayan Vijaywargiya - existence of reasonable grounds to believe that applicant is guilty or not - seeking anticipatory bail on the ground that as Section 447 of the Companies Act was included in the schedule appended to the PMLA by way of amendment dated 19.4.2018 - HELD THAT - A perusal of Explanation (ii) to Section 3, reflects that 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. The aforesaid section covers all the activities within its scope till the person is being directly or indirectly benefitted by the proceeds of crime - The Apex Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others 2022 (7) TMI 1316 - SUPREME COURT has also held that provision of Section 45 are applicable to the bail applications under Sections 438 and 439 of Cr.P.C. Section 45 of the PMLA specifically provides that the offences under the Act are non-bailable and cognizable and no person accused of an offence under the Act is entitled for bail unless the Public Prosecutor is given a liberty to oppose the application and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail - In the present case, the complaint prima facie discloses commission of offence by the applicant as well as co-accused, therefore, this Court does not find any reasonable ground to believe that the present applicant is not guilty of crime. The present applicant cannot claim parity only on the ground that the present applicant also cooperated with the Investigating Agency. This contention of the applicant is also liable to be rejected, inasmuch as, upon filing of the complaint, when the applicant was issued a bailable warrant to appear before the trial Court, the applicant did not appear before the trial Court and therefore, the trial Court rejected the application of the applicant for anticipatory bail - merely because the applicant appeared before the Investigating Agency on a singular date, the same does not entitle him to be released on anticipatory bail while claiming parity with co-accused S.N. Vijaywargiya. As this Court is not satisfied that there is no reasonable ground to believe that the applicant is guilty, no case for grant of anticipatory bail to the applicant is made out taking into consideration the nature of accusation against the applicant - application dismissed.

Summary

Issues Involved:

1. Grant of anticipatory bail under Section 438 of Cr.P.C.
2. Allegations under Section 3 read with Section 4 of the PMLA.
3. Applicability of Section 447 of the Companies Act, 2013.
4. Compliance with Section 45 of the PMLA.
5. Parity with co-accused in granting bail.

Summary:

1. Grant of anticipatory bail under Section 438 of Cr.P.C.:
The applicant sought anticipatory bail under Section 438 of the Cr.P.C., apprehending arrest in connection with ECIR/08/INSZO/2022 by the Directorate of Enforcement for offences under Sections 3 and 4 of the PMLA.

2. Allegations under Section 3 read with Section 4 of the PMLA:
The prosecution alleged that the applicant, as CEO of M/s PGH International Pvt. Ltd., signed a Joint Venture Agreement and a supplementary agreement, transferring Rs. 46 Crores to Suresh Narayan Vijaywargiya. The applicant contended he had no nexus with the transactions detailed in the complaint and that his role was limited to signing the agreements as authorized by the Board.

3. Applicability of Section 447 of the Companies Act, 2013:
The applicant argued that Section 447 of the Companies Act, 2013, which deals with fraud, was included in the PMLA schedule only by an amendment dated 19/04/2018. Thus, the provisions could not apply to actions taken in 2008. The court noted that the process or activity connected with proceeds of crime is a continuing activity under Section 3 of the PMLA and continues till the person enjoys the proceeds of crime.

4. Compliance with Section 45 of the PMLA:
The respondent argued that Section 45 of the PMLA imposes an embargo on granting bail unless the accused satisfies the twin conditions of proving prima facie innocence and that they are unlikely to commit any offence while on bail. The court observed that the applicant failed to demonstrate these conditions and that the complaint disclosed a prima facie case of money laundering.

5. Parity with co-accused in granting bail:
The applicant sought bail on the ground of parity with co-accused Suresh Narayan Vijaywargiya, who was granted bail due to health conditions. The court distinguished the cases, noting that Vijaywargiya's bail was granted considering his severe health issues, which were not applicable to the present applicant.

Conclusion:
The court dismissed the application for anticipatory bail, concluding that there were no reasonable grounds to believe that the applicant was not guilty of the alleged offences under the PMLA. The court emphasized the ongoing nature of the alleged offence and the applicant's failure to appear before the trial court despite being issued a bailable warrant.