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Money Laundering - Case Laws
Showing 201 to 220 of 2025 Records
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2024 (9) TMI 1664
Money Laundering - postponement of commencement of trial - respondent would mainly contend that the Criminal Revision Petition is not maintainable and beyond the scope of Section 397 (2) of Cr.P.C. - HELD THAT:- Sub-Section (2) to Section 309 of Cr.P.C stipulates that " If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, any may by a warrant remand the accused if in custody."
In the present case, an application filed under Section 309 Cr.P.C. was allowed. The powers conferred on the High Court under Section 397 (1) would be sufficient to entertain the criminal revision petition against the order passed under Section 309 Cr.P.C. When the High Court is conferred with the powers to verify the correctness and legality of the order, the revision petition would lie. Thus, the maintainability point raised deserves to be rejected.
“Proceeds of Crime” is the focal point for an ECIR, whereas scheduled offence is dealt with under the FIR. Further reliance may be relevant with reference to the judgment in the case of Vijay Madanlal Choudhary vs. Union of India and Others [2022 (7) TMI 1316 - SUPREME COURT] and Rajinder Singh Chada vs. Union of India [2023 (11) TMI 1085 - DELHI HIGH COURT]. Both these judgments have noted the distinction between FIR and ECIR. More so, ECIR is treated as an internal document.
In the present case, PMLA proceedings are set in motion and prima facie findings have already made, investigation completed and complaint was filed. The Court has to frame charges and proceed with the trial. At this stage, it is not a viable ground to take a view that pendency of criminal appeal against an order of conviction is a bar for the continuance of trial with reference to offence under PMLA - A blanket application of the observations made by the Apex Court in Vijay Madhanlal Choudhary's case [2022 (7) TMI 1316 - SUPREME COURT] will not advance the object set out under PMLA, 2002 and in turn will defeat its primary object. The Vijay Madhanlal Choudhary's case is a binding precedent for all Courts below and on careful application of the judgement, analysing on a case to case basis, the output shall defer for each case and not render the same result.
The impugned order dated 30.04.2024 in Crl.M.P.No.4236 of 2023 in Special C.C.No.02 of 2022 on the file of the learned Principal Sessions Judge, Puducherry is quashed and the criminal Revision Petition stands allowed.
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2024 (9) TMI 1651
Seeking grant of Interim Bail - HELD THAT:- The fact must be noticed that, in the past, the petitioner was ordered to be released on interim bail on health grounds. It was further pointed out to us that charge-sheet came to be filed way back in August 2023 but till this date, the Special Court has not even framed charge.
Issue notice returnable within four weeks.
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2024 (9) TMI 1603
Seeking withdrawal of SLP - HELD THAT:- The Directorate of Enforcement does not want to press these petitions, and he may be permitted to withdraw the same.
The Special Leave Petitions are, accordingly, dismissed as withdrawn.
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2024 (9) TMI 1602
Money Laundering - proceeds of crime - Legality of petitioner's arrest - illegal mining - HELD THAT:- A bare perusal of the “grounds of arrest” as well as “reasons to believe” reveals that the entire case of E.D is based on “illegal mining” by fabricating e-rawana bills. In first eight FIRs, petitioner was not an accused. In 9th FIR also, he has not been named; rather E.D has tried to implicate him on the premise that he is the Director of DSPL, but there is no material to substantiate that petitioner is either the Director of said company; or a person in-charge of the affairs of the company; rather the information obtained from the website of Ministry of Corporate Affairs clearly indicates that petitioner ceased to be the Director of DSPL w.e.f. 07.11.2013. It is specifically observed that E.D has not placed on record any material to the contrary in this regard.
Although, E.D tried to justify the arrest on the premise that petitioner is a beneficiary of the syndicate running “illegal mining” as well as of G.M. Co., but again there is no material to substantiate that petitioner is having any relationship and/or concern as Director, Promoter or share-holder of the so-called G.M. Co. Even, the E.D has failed to show that such a company is in existence and/or registered with the Registrar of Companies; or there is any such legal entity in operation under any law?
As on today, prima facie, there is no material with the E.D to substantiate that petitioner has directly or indirectly, indulged in any process or activity connected with the proceeds of crime, in any manner whatsoever and/or projected the same as untainted by any means; hence there was/is no reason to believe; nor any ground of arrest is made out against him on the premise that petitioner is guilty of an offence under the PMLA.
The petitioner has not been found involved in any illegal activity, in any manner whatsoever, attracting the offence of money laundering under PMLA - there is no option, except to allow the petition - the petitioner be released forthwith, if not required in any other case - Petition allowed.
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2024 (9) TMI 1551
Legality of the bail granted to the respondent - Large-scale money laundering - public money was looted through apps such as Power Bank App, Tesla Power Bank App, Ezplan, etc., by luring people with the promise of doubling their money in a short period - proceeds of crime - Petitioner have emphatically argued that the learned trial court has not discussed the entire material on record and has made certain observations which are contrary to the facts - violation of principles of natural justice.
HELD THAT:- To start with the order granting bail is only a prima facie view being expressed by the court and such observations are not taken into consideration while deciding the matter finally. Generally, any observations made at the stage of bail are not taken into account after the parties lead their evidence and the matter is appreciated by the learned trial court. The case of the ED is based on the fact that the entity of the respondent has received the funds from the first, second and third layer entities.
It is to be kept in mind that even as per Vijay Madan Lal Chaudhary [2022 (7) TMI 1316 - SUPREME COURT] it has categorically been held that ingredients constituting the offence of money laundering needs to be construed strictly. It is also no longer a matter of debate that the probative value of statement under section 50 of PMLA is to be considered at the stage of trial. The bail cannot be denied merely on the assumption that the property recovered from the respondent must be proceed of crime.
The ED has also sought cancellation of bail on the ground of certain WhatsApp chat of Mr. Saurin Shah another director in M/s Sagar Diamond Ltd. indicates that he was in touch of Vaibhav Shah for preparing legal declaration/affidavit of Akash Corporation. The criminality regarding transfer of funds is something which is to be considered at the stage of trial. The least discussion at the time on the merits of the case is desirable so as not to prejudice either of the parties.
The apprehension of the ED that if the petitioner is allowed to be remain on bail he may derail the investigation or is a flight risk are mere apprehension and no substantial reason has been given. The E.D. may always move the court for imposing more stringent condition. The facts of the case may be very serious in nature but that has to be tested and examined during the course of trial. The defence being put up is that all the transactions between the firm of the respondent with other entities are the genuine sale transactions in the normal course of business. It is also a matter of record that alleged proceeds of crime of Rs.7.10 crore has already been deposited by Mr. Vaibhav Deepak Shah.
The frequent rotation of funds disproportionate to the nature of business of Mr. Akash Panchal and the authenticity of statement under Section 50 of PMLA is required to be examined during the trial. The investigation has already been completed and the complaint has already been filed - there is no material on record to allow the application of ED for cancellation of bail. This Court considers that there is nothing on record to indicate that the bail has been granted on the irrelevant considerations.
Petition dismissed.
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2024 (9) TMI 1550
Money Laundering - scheduled offence - proceeds of crime - gravamen of the prosecution allegation against the petitioner is that he influenced the Bank and got loans sanctioned to Kiran.P.P, out of which the petitioner took Rs.14/- Crore - HELD THAT:- Section 45 of PMLA starts with a non- obstante clause, which has an overriding effect on the general provisions of the Code of Criminal Procedure (Cr. P.C). There is a specific embargo to grant of bail to a person accused of an offence under the Act, which are: (i) that the Public Prosecutor must be given an opportunity to oppose the application for bail, and (ii) the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while he is on bail.
Section 65 of the Act mandates that the provisions of the Cr. P.C shall apply in so far as they are not inconsistent with the provisions of the Act. Also, Section 71 of the Act states that the provisions of the Act shall have an overriding effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore, the conditions enumerated in Section 45 of the Act have to be complied with even in respect of an application for bail made under Section 439 of Cr. P.C. Consequently, the power to grant bail to a person accused of having committed an offence under the Act is not only subject to the limitations imposed under Section 439 of Cr. P.C., but also subject to the rigour imposed by the twin conditions under sub-section (1) of Section 45 of Act.
In Gautam Kundu v. Directorate of Enforcement [2015 (12) TMI 1133 - SUPREME COURT], the Hon’ble Supreme Court has held that the compliance of Section 45 of the Act is mandatory to grant bail to an accused person.
In Directorate of Enforcement Versus Aditya Tripathi [2023 (5) TMI 527 - SUPREME COURT] the Honourable Supreme Court has held that merely because the chargesheet is filed, it cannot be a ground to release the accused on bail in connection with the scheduled offences under the Act. Investigation for the predicate offences and the investigation by the Enforcement Directorate for the scheduled offence under the PML Act are different and distinct.
The petitioner has raised a specific ground that the written grounds of arrest were not served on him. On an appreciation of the materials on record, it is found that in the arrest order dated 04.09.2023, the Authorised Officer has specifically recorded that he has reason to believe that the petitioner is guilty of an offence under the Act. The grounds of arrest were duly prepared, served, read over and understood by the petitioner at the time of his arrest. Hence, it is concluded that the said contention is untenable.
Whether this Court is convinced that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged against him and he is not likely to commit any offence while he is on bail? - HELD THAT:- The essence of the accusation is that, out of Rs.24.56/- Crore obtained by Kiran P.P as loan from the Bank, Rs.14/- Crore was paid to the petitioner both through bank transfer and in cash. In the statement recorded on 04-09- 2023, the petitioner has stated that he had received only Rs.2,15,50,000/- from the Bank through Kiran P.P. Conversely, Kiran.P.P has asserted that he handed over Rs.1.25/- Crore to the petitioner in cash in 2014, and an additional Rs.3/-Crore in 2016. Kiran P.P has further stated that cash loans of Rs.14/- Crore were given to the petitioner and to other persons as instructed by the petitioner on multiple occasions. Jijor has corroborated these cash transactions in his statement. Furthermore, the petitioner’s Chartered Accountant had noticed an additional capital of Rs.4,08,65,254/- in the financial statement of the petitioner’s proprietary concern, which was not reflected in his income tax returns. Although the petitioner submitted a letter of Jayarajan P, claiming that he had invested Rs.4/- Crore in cash in the petitioner’s business, Jayarajan. P has denied making such a payment. This prima facie shows that Rs. 4/- Crore is unaccounted money. Additionally, a total of Rs.44.50/- lakh was deposited and Rs.15.50 lakh was withdrawn in the petitioner’s Bank account No.103100010035463 at the Varadliam Service Co-operative Bank Ltd. The petitioner was maintaining forty-four accounts in various Banks. The cash credits in the petitioner’s ten bank accounts for the financial years 2014-15 to 2016-17 is Rs.1,35,87,612/-, Rs.1,52,92,407/- and Rs.87,93,532/-, respectively. These materials, particularly the above cash credits, prima facie lends support to the prosecution allegation against the petitioner regarding layering of the proceeds of the crime. Collectively, these factors prima facie appear to substantiate the prosecution case.
In Manish Sisodia’s case [2024 (8) TMI 614 - SUPREME COURT], the Honourable Supreme Court granted bail to the appellant in that case, considering the prolonged period of incarceration, the trial in the case had not commenced despite the assurance given by the respondents in the earlier round of litigations and the Trial Court had not followed the directions in paragraphs 28 and 29 of its first order regarding the right of the appellant to speedy trial - In the case on hand, the principles laid down in Manish Sisodia’s case are not applicable. Therefore, the petitioner cannot draw analogy or parallels to the precedent set forth in the said case.
On a careful analysis of the facts and circumstances of the case, the materials placed on record, the rival submission made across the Bar, and on considering the parameters under Section 45 of the Act, there are no reasonable grounds for believing that the petitioner is not guilty of the offences alleged and that he is not likely to commit the offences if he is enlarged on bail.
In the light of the serious nature, gravity and severity of the accusations levelled against the petitioner, without expressing anything on the merits of the case, the petitioner is not entitled to be released on bail at this stage - the bail application is dismissed.
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2024 (9) TMI 1497
Rejection of bail application - Money Laundering - collection of large amounts by promising job opportunities to several persons in various positions in the Transport Department - offences u/s 120B, 419, 420, 467 and 471 of the Indian Penal Code and Sections 7, 12, 13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 - main document relied upon by the ED showing incriminatory material against the appellant is a part of the pen drive seized by the State police from the appellant's premises in connection with scheduled offences.
HELD THAT:- There is also prima facie material to show a deposit of cash amount of Rs. 1.34 crores in the appellant's bank account. At this stage, the contention of the appellant regarding the deposit of remuneration received as MLA and agriculture income cannot be accepted in the absence of any prima facie evidence to show the existence of the appellant's cash income as MLA and the appellant's agriculture income. Therefore, at this stage, it will be very difficult to hold that there is no prima facie case against the appellant in the complaint under Section 44 (1) (b) of the PMLA and material relied upon therein.
Effect of delay in disposal of cases - HELD THAT:- In the offence under the PMLA, the charge has not been framed. In view of Clause (d) of subsection (1) of Section 44 of PMLA, the procedure for sessions trial will have to be followed for the prosecution of an offence punishable under Section 4 of the PMLA. In view of clause (c) of subsection (1) of Section 44, it is possible to transfer the trial of the scheduled offences to the Special Court under the PMLA.
The existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of the trial of the offence under Section 3 of PMLA can be proved only if the scheduled offence is established in the prosecution of the scheduled offence. Therefore, even if the trial of the case under the PMLA proceeds, it cannot be finally decided unless the trial of scheduled offences concludes. In the facts of the case, there is no possibility of the trial of the scheduled offences commencing in the near future - there are no possibility of both trials concluding within a few years.
There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail - reference made to Section 45 (1) (ii) of PMLA, proviso to Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The provisions regarding bail in some of such statutes start with a nonobstante clause for overriding the provisions of Sections 437 to 439 of the CrPC. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45 (1) (ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty.
Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail - It is a well-settled principle of our criminal jurisprudence that “bail is the rule, and jail is the exception.” These stringent provisions regarding the grant of bail, such as Section 45 (1) (iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.
The appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial.
The appellant shall be enlarged on bail subject to fulfilment of conditions imposed - appeal allowed.
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2024 (9) TMI 1420
Challenge to arrest order - violation of Section 19 (3) of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Section 65 of PMLA stipulates that “the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act”. PMLA being a special enactment will prevail over the general law and therefore, there are no hesitation in forming an opinion that the respondents have made arrest and thereafter, followed the procedures as contemplated under the provisions of PMLA and there are no infirmity as such.
In view of the settled legal position of law, if a person is already in judicial custody in connection with another case, can be formally arrested in respect of investigation of the subsequent case. Therefore, the requirements of Section 19(3) of the provisions of PMLA is complied with and thus, there is no violation.
The criminal original petition is devoid of merits and stands dismissed.
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2024 (9) TMI 1419
Seeking grant of regular bail - fake, forged and fictitious documents were used to obtain the holding numbers - offence under Sections 420, 467, and 471 of the Indian Penal Code - Section 45 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- When a serious offence of such a magnitude mere fact that accused was in jail for long time inconsequential besides such casual approach would undermine trust of public in integrity of Investigating Agency. Further, bail is the rule and jail is an exception but competing forces need to be carefully measured before enlarging the accused on bail. Socio economic offences constituted a class apart and need to be visited with different approach in the matter of bail since socio economic offences have deep-rooted conspiracies affecting moral fibre of society and causing irreparable harm. Moreover, investigating agency was in process of expediting the trial.
So far as the bail of Dilip kumar Ghosh is concerned, he was allowed bail as he was the purchaser and protected under Section 54 of the Transfer of Property Act as such the allowing the bail of Dilip kumar Ghosh @ Dilip Ghosh is on different footing.
There is no hard and fast rule regarding grant or refusal of bail, each case has to be considered on the facts and circumstances of each case and on its own merit. The discretion of court has to be exercised judiciously and not in an arbitrary manner.
This Court is unable to accept the argument of the learned counsel appearing for the petitioner that bail is the rule and the jail is an exception. In view of the above facts reasons and analysis, this Court finds that no case of regular bail is made out as such the prayer for the regular bail of the petitioner is, hereby, rejected.
Bail application dismissed.
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2024 (9) TMI 1361
Provisional attachment of certain immovable and movable properties of the appellants herein - money laundering - proceeds of crime - burden to prove - offences punishable under section 409,420,423,424,465 &120B of IPC,1860 and Section 7,10,11 and 13 of Prevention of Corruption Act, 1988 - disproportionate assets - HELD THAT:- There are no cogent evidence that the property was acquired out of known sources of income. The appellant has claimed various sources of income, including substantial agricultural income, rental income, contract work etc., but no reliable proof has been adduced in respect of any of these. ITRs have been filed belatedly, after investigations began and even considering the best case scenario of the returns being accepted at face value, the same are not sufficient to explain the actual purchase consideration for the subject land. The legal position is undisputed that once a notice under Section 8(1) of PMLA, 2002 is issued, it is for the noticee to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under Section 5(1), the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money laundering and confiscated by the Central Government. Further, the presumption in inter-connected transactions under Section 23 as also the presumption under Section 24 is against the appellant.
There are no merit in the contention that the Ld. AA has not considered the definition of "proceeds of crime" under PMLA, 2002. Even at the relevant time (prior to the amendments of 2015 and 2019), the definition of proceeds of crime took within its sweep any property derived or obtained, directly or indirectly, by any person "as a result of" criminal activity "relating to" a scheduled offence and even "the value of any such property". The term property was also very widely defined to mean property of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible. It also includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located.
Having perused the contents of the order carefully and the evidence of the written agreement on nonjudicial Stamp Paper, the value of the attached property should rightly be reflected as Rs. 60,00,000/- and not Rs. 4,37,500/- - there are no reason to interfere with the order of the Ld. Adjudicating Authority - appeal dismissed.
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2024 (9) TMI 1303
Seeking grant of Regular bail - Money Laundering - scheduled offence - Long incarceration - completion of 3 years and 6 months i. e. half of the punishment - right to speedy trial under Article 21 of the Constitution - HELD THAT:- It is required to be noted that the Supreme Court in the case of Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] considered the applicability of Section 436A of the Cr. P. C. which is concerning the maximum punishment for which an under trial prisoner can be detained. It has been held that Section 436A of the Cr. P .C. has come into effect on 23.06.2006 and the said provision is the subsequent law enacted by the Parliament and the same will prevail and will apply in spite of rigors of Section 45 of the PMLA Act.
As per the settled legal position whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail as enacted under Section 45 of the PMLA Act but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence - inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India.
It is also required to be noted that the Applicant is 72 years old and is suffering from cancer.
The Applicant states that as several witnesses are residing in the same locality as that of the Applicant, the Applicant will therefore not reside within District - Pune and that the Applicant will reside at the residence of Mr. Shivajirao Patil, R/o. ‘Vikram’ Bungalow, Chintamani Nagar, Madhavnagar Road, Sangli – 416 416 and will attend the Sanjay Nagar Police Station, Sangli - The Applicant does not appear to be at risk of flight.
The Applicant can be enlarged on bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (9) TMI 1177
Seeking grant of regular bail - bail sought on medical grounds - Section 120B of the Indian Penal Code, 1860 read with Sections 7/7A/8 of Prevention of Corruption Act, 1988 - HELD THAT:- The Applicant has not retracted any statements till date and was the first accused to complete inspection of unrelied documents suggesting that his conduct has been cooperative in the investigation - The investigations qua the Applicant are complete in the present matter.
It is admitted that the Applicant has been behind bars since 29.11.2022, there are around 69,000 pages of documents involved in both CBI and ED matters. Moreover, there are 493 witnesses, who have to be examined on behalf of the prosecution. In the same case, the other accused persons, namely, Manish Sisodia, K.Kavitha, Vijay Nair, Sameer Mahendru, Abishek Boinpally have already been admitted to bail in similar circumstances.
In the case of Manish Sisodia v. Directorate of Enforcement [2024 (8) TMI 614 - SUPREME COURT] the Hon’ble Supreme Court observed that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that “bail is the rule and refusal is an exception”.
Insofar as the role of the Applicant in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail.
In the present case, the Applicant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing trial. Regardless, conditions can be imposed to ensure the Applicant’s attendance to face the trial.
The Applicant is directed to be released forthwith on bail subject to fulfilment of conditions imposed - bail application allowed.
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2024 (9) TMI 1176
Seeking grant of regular Bail - oney Laundering - large-scale malpractice and corruption in the framing and implementation of the Excise Policy for the Year 2021-22 - HELD THAT:- It is pertinent to observe that the prosecution Complaint has already been filed against the Applicant in which he has been summoned. The investigations qua the Applicant are complete in the present matter.
The Applicant is a highly-educated 50-year-old citizen of India who is holding B. Com. (Hons.) from Hindu College, University of Delhi with early training in the U.K. Graduate Honours and certifications from Harvard Business School, Masters of International Management and Stanford School of Business, Enterprise Program for Growing Companies (EPGC). The Applicant along with his family run M/s Brindco Sales Pvt. Ltd. (‘M/s Brindco’ hereinafter), that is engaged in the business of sale and distribution of alcoholic beverages for the last 55 years with strong relationship with leading Indian alcohol manufacturing Companies. The Applicant has deep roots in the society and is not a flight risk and has business and professions which are based in India and he is not likely to abscond from the country - Also, the evidence so collected in the ED case is documentary in nature and there is no likelihood of his tampering with the witnesses or influencing the witnesses. Regardless, conditions can be imposed to ensure the Applicant’s attendance to face the trial.
In the case of Manish Sisodia v. Directorate of Enforcement [2024 (8) TMI 614 - SUPREME COURT] the Hon’ble Supreme Court observed that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that “bail is the rule and refusal is an exception”.
Insofar as the role of the Applicant in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail - Insofar as the role of the Applicant in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail.
The Applicant is directed to be released subject to fulfilment of conditions imposed - bail application allowed.
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2024 (9) TMI 1175
Maintainability of application - Seeking permission to place on record the latest Medical Document dated 29.07.2024 - petitioner submits that he does not wish to press this application - HELD THAT:- For the reasons and grounds stated in the application, the application is allowed and disposed of.
Seeking interim bail during the pendency of the main bail petition on account of his medical condition - HELD THAT:- The medical condition of the applicant/petitioner has become precarious. Therefore, the interim bail has been sought on his medical grounds - Issue notice.
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2024 (9) TMI 1090
Seeking enlargement on Bail - Money Laundering - Scheduled offences - swindling of money invested by the Government in a dubious manner - discrepancies including diversion of APSSDC funds through various shell companies - diversion of Government funds - Section 45 of the PMLA - it was held by High Court that 'When time and again, petitioner is continuously attending before the investigating agency and co-operating with the investigation, this Court is of the opinion that it is not necessary to detain the petitioner in jail further. In view of the aforesaid facts and circumstances, this Court feels that request of the petitioner for grant of bail can be considered, however, on certain conditions.'
HELD THAT:- At this stage, no case for interference is made with the orders granting bail.
The Special Leave Petitions are accordingly dismissed.
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2024 (9) TMI 1089
Seeking grant of bail - money laundering - scheduled offences - HELD THAT:- Tthe appellant, Neeraj Singal, will be released from jail in connection with ECIR/DLZO-II/06/2019 dated 29.08.2019 for the offence(s) punishable under the Prevention of Money Laundering Act, 2002, in relation to the scheduled offence(s) under Sections 467, 471 and 120B of the Indian Penal Code, 1860 and Section 447 of the Companies Act, 2013, on terms and conditions to be fixed by the trial court - In addition to the conditions imposed by the trial court, the appellant, Neeraj Singal, shall comply with the conditions mentioned in Section 438(2) of the Code of Criminal Procedure, 1973.
In case there is a violation of any terms and conditions of release, it will be open to the prosecution to seek recall of this order before the trial court - The impugned judgment is set aside - Appeal allowed.
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2024 (9) TMI 1088
Seeking grant of regular bail - Indian National, has committed an offence under Foreign law - scheduled offence - stealing cryptocurrencies - MLA request and powers of the authority under the Act - non-compliance of procedural requirements - Judicial notice of corresponding law - Benefit of the first proviso to Section 45(1) of PMLA - Incriminating material.
MLA request and powers of the authority under the Act - HELD THAT:- The offences having cross border implications contemplated are of two categories. First, when any offence has been committed at a place outside India which would have constituted an offence specified in Part A, Part B or Part C of the Schedule had it been committed in India, and the proceeds have been transferred to India; and second when the Scheduled offence has occurred in India and the proceeds have travelled to a place outside India. For the purpose of present case, first category defined in sub-clause (i) of Section 2 (1) (ra) is of relevance, since the case of ED is that proceeds of crime have been transferred from the account of victim in U.S. to the account of petitioner/accused Vishal Moral in India.
In the second category described under sub-clause (ii) of Section 2 (1) (ra) there is no confusion as the predicate offence occurs inside the territory of India, therefore, the laws mentioned in the Schedule would directly be applicable. However, the conundrum needs to be resolved in case of first category specified under sub-clause (i) of Section 2 (1) (ra) as neither the offences enumerated under Part A, nor the IPC are globally enacted provisions, rather each foreign country has its own laws inside its territory, albeit they may have similarities with the laws in other jurisdictions.
There appears to be substance in the submission of respondent that the request of the U.S. Authorities in the MLA is to obtain evidence and when such a request is received, the ED is empowered to do everything required including arrest of accused post lodging of a case under section 3 and 4 of the PMLA, to gather all evidence that may be available.
Non-compliance of procedural requirements - HELD THAT:- The predicate offence has been committed in U.S. and the same is being tried there though it has cross border implications. It is only the offence under PMLA that is being tried in India. Since the proceeds of crime related to the predicate offence have travelled to India, the offence under PMLA being a standalone offence, has been committed in India in its entirety, therefore, no sanction as mandated under proviso to Section 188 CrPC is required for the said offence.
Judicial notice of corresponding law - HELD THAT:- Assuming that the MLA request is a certified copy as required under Section 78 (6) of the Evidence Act, 1872, the same is not a substitute for the statute or provision of a corresponding law (United States Code) enacted in the United States of America, which will have to be proved as a question of fact during the course of trial by examining experts on the subject. At this stage no judicial notice can be taken of corresponding law of U.S., therefore, in the absence of material on record in the form of a relevant statute supported by the opinion of experts, there is nothing to establish even prima facie that the alleged predicate offence corresponds to the offences mentioned in the Schedule of the PMLA. Incidentally, in the absence of commission of scheduled offence, there cannot be any proceeds of crime.
In the present case, the foundational facts that the alleged crime committed in U.S. is a scheduled offence and consequently the amount which has come to the account of petitioner/accused Vishal Moral is proceeds of crime have not been established even prima facie, therefore, the burden will not shift on petitioners/accused to convince the Court in terms of Section 45 that they are not guilty of an offence of money-laundering under the Act.
Non-speaking order of cognizance - HELD THAT:- In the present bail petitions, there is no challenge to the order vide which cognizance was taken by the learned Special Court, therefore, this Court need not delve deep into this submission, but certainly the absence of material to establish commission of scheduled offence in the United States of America, will enure to the benefit of the petitioners in the scheme of broad probabilities.
Benefit of the first proviso to Section 45(1) of PMLA - HELD THAT:- Without going into the question as to whether the proceeds from the second transaction have been obtained by way of fraud or theft or by commission of any other offence, suffice it to state that all the offences against the property under Chapter XVII of the IPC, which includes theft as well, are scheduled offences under Part C, if the same have cross border implications. Therefore, prima facie there is no force in petitioner's submission that twin conditions envisaged under Section 45 for grant of bail will not be applicable as the laundered amount is only to the extent of Rs. 80,000/- - Insofar as the contention that in the complaint the ED has not provided the basis of calculating the value of the subject matter, it may be observed that basis of calculation is a matter of trial and the same cannot be gone into while deciding the bail plea of the petitioners.
Incriminating material - HELD THAT:- In view of the prima facie opinion of this Court that there is a missing link to establish that the seized amount from WazirX account of petitioner/Vishal Moral are proceeds of crime from an offence committed in U.S. which corresponds to the scheduled offence(s), merely seizure of amount pursuant an MLA request is not sufficient for the petitioner/accused Vishal Moral to assume the burden to convince the Court in terms of Section 45 of the Act that there are reasonable grounds to believe that he is not guilty of an offence under the Act.
Delay in trial - HELD THAT:- It is an admitted position that the petitioner/Vishal Moral is in custody since 26.04.2023, therefore, he has been incarcerated for more than 16 months, whereas co-accused/petitioners namely Adnan Nisar and Shivang Malkoti are in custody since 09.05.2023 and have likewise spent more than 16 months in custody, whereas the maximum sentence which can be awarded for the offence under the PMLA is 07 years in the event the petitioners are found guilty. The documents to be proved in the present case also runs into 2500 pages and there are various witnesses to be examined by the ED. However, the present status of the proceedings is that the trial has not commenced, inasmuch as, the charges have not yet been framed. On behalf of the petitioners, it is submitted that further investigations are pending which position was not disputed by the learned Special Counsel for the ED.
This Court is satisfied that there are reasonable grounds for believing that the petitioners are not guilty of the offence. Further, on a conspectus of the custody period, the delay in commencement of trial and no likelihood of conclusion of trial anytime in near future, the rigors of Section 45 of the Act deserve to be relaxed - the petitioners have made out a case for grant of regular bail, subject to fulfilment of conditions imposed.
Bail application allowed.
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2024 (9) TMI 1087
Seeking grant of Regular bail - Money Laundering - predicate offence - proceeds of crime - large-scale malpractice and corruption in the framing and implementation of the Excise Policy - multiple activities related to or connected with proceeds of crime of scheduled offences in regard to which the ED registered the case in terms of Section 3 of PMLA, 2002 - HELD THAT:- It is admitted by the parties that the CBI case was registered on 17.08.2022 under Section 120B of the Indian Penal Code, 1860 read with Sections 7/7A/8 of Prevention of Corruption Act, 1988 at Police Station CBI, ACB, New Delhi against Manish Sisodia and others [2024 (8) TMI 614 - SUPREME COURT], wherein the Applicant was named as an accused, but the Chargesheet in the CBI case (predicate offence) was filed without the arrest of the Applicant and he has been admitted to bail in the CBI case vide Order dated 28.02.2023.
Moreover, the Applicant is an experienced professional with various educational qualifications and had volunteered to work with Organisations such as UNICEF Canada to educate children about UNICEF’s work for children across the world, as well as with Afghans4tomorrow to help improve the business skills of students at the Kabul Education University. The Applicant despite being lodged in Tihar Jail No.4 as an under-trial prisoner, has volunteered as Horticulture Sahayak. The Applicant has deep roots in the society and is not a flight risk and has business and professions which are based in India and he is not likely to abscond from the country.
In Manish Sisodia v. Directorate of Enforcement [2024 (8) TMI 614 - SUPREME COURT], there is no possibility of tampering of evidence by the Applicant if the Applicant is granted bail as the case is primarily dependent on documentary evidence which is already seized by the prosecution. Similarly, the apprehension regarding influencing witnesses and that of being a flight risk can be diffused by imposing stringent conditions while granting bail. Therefore, the conditions of triple test are duly satisfied by the Applicant.
It is admitted that the Applicant has been behind bars since 06.03.2023, there are around 69,000 pages of documents involved in both CBI and ED matters. Moreover, there are 493 witnesses, who have to be examined on behalf of the prosecution. In the same case, the other accused persons, namely, Manish Sisodia, K. Kavitha, and Vijay Nair have already been admitted to bail in similar circumstances.
The Applicant is directed to be released forthwith on bail in connection with the ECIR No. ECIR/HIU-II/14/2022 dated 22.08.2022, registered by the Directorate of Enforcement, subject to furnishing a personal bond in the sum of Rs.10,00,000/- with two sureties of the like amount; to the satisfaction of the learned Special Judge/Trial Court - the Applicant is admitted to bail subject to fulfilment of conditions imposed.
Bail application allowed.
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2024 (9) TMI 1029
Seeking grant of Regular Bail - money laundering - proceeds of crime - Non-Compliance and Misuse of Subsidized Coal - offences u/s 3/4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The court has gone through the materials available on record and finds that admittedly there are various FIRs against Ram Binod Sinha in the year 2010-11, in which for the scheduled offence so far as the second ECIR is concerned, the FIR No. 10 of 2019 dated 20.01.2019. In the first ECIR, the petitioner was called upon and he has appeared on 18.05.2012 and on 09.03.2023 to 05.07.2023 i.e. eight times and the first search in light of Section 17 of the PML Act in the first ECIR was made on 03.03.2023. Second ECIR was registered on 12.12.2023, in which, 7 persons are named. The coal on truck bearing number JH-02-AR-6640 was to be delivered to M/s Om Coke Industry, Ramgarh, Jharkhand, however, the said truck was intercepted at Hesargarha on the allegation that Saiyyad Sulamani was taking the quantity of 19.56 MT coal from Toppa Colliery to Varanasi Mandi. It was pointed out that Varanasi is at the distance of 326 kms from the intercepted point and the Ramgarh is 11 Kms from the intercepted point.
The second search was made on 16.01.2024 and allegations are made that 13 firms are non-operational / non-functional and further allegations are made that even the commission for getting the coal was at the subsidized rate. The search was conducted on 16.01.2024 and the petitioner was arrested on 07.50 PM on the same day.
In Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], the Hon’ble Supreme Court has explained the proceeds of crime saying that the property must be derived or obtained, directly or indirectly, “as a result of” criminal activity relating to a scheduled offence. It is further disclosed in the said judgment that the vehicle used in commission of scheduled offence may be attached as property in the concerned case (crime), it may still not be proceeds of crime within the meaning of Section 2 (1) (u) of the 2002 Act. Similarly, possession of unaccounted property acquired by legal means may be actionable for tax violation and yet, will not be regarded as proceeds of crime unless the concerned tax legislation prescribes such violation as an offence and such offence is included in the Schedule of the 2002 Act.
In view of this judgment, the property associated with the schedule offence must be derived or obtained by a person, as a result of criminal activity, relating to a scheduled offence. In para-8.2 of the prosecution complaint, it is clearly stated that the petitioner after investing Rs. 29,50,36,622.79/-, wherein the words ‘Paid and Purchase’ have been used, thus, prima facie it appears that that amount cannot be said to be the subject matter of amount used for the proceeds of crime.
The petitioner is directed to be released on regular bail, on furnishing bail bond of Rs.50,000/- with two sureties of the like amount each to the satisfaction of learned Special Judge, PMLA, Ranchi, in connection with ECIR Case No. 01 of 2024.
Bail application allowed.
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2024 (9) TMI 937
Seeking grant of regular bail - Money Laundering - allegation on petitioner is that he had projected and concealed the property which was a proceed of crime in relation to a Scheduled Offence and was a beneficiary thereof - principles of parity - twin conditions of Section 45 of PMLA, 2002 not satisfied - HELD THAT:- In the present case, it is evident that the proceeds of crime have been generated by one set of accused persons against whom the CBI case has been registered. However, the petitioner herein was roped in subsequently for laundering the proceeds of crime which had been generated by the accused persons in the predicate offence. Merely because those persons against whom the predicate offence has been registered, are also an accused under PMLA case would not in any way dilute or impact the involvement of the present petitioner whose role essentially has been determined to be in laundering the proceeds of crime. The argument, therefore, as projected by the petitioner, is not tenable.
There are 14 main accused persons who were Member of Parliament or Member of Legislative Assembly or beneficiaries, but none of them has been arrested, except the petitioner which shows the role assigned to him is only of acquiring the land parcel worth Rs. 10.83 lakhs and the subsequent transfer of the company to Rabri Devi and Tejaswi Yadav in 2014 for a meagre amount of Rs. 1,00,00,000/-. The petitioner’s role is miniscule essentially to the extent of Rs. 10.83 lakhs. While in this regard, it is pertinent to observe that while considering the grant of Bail, the parity is not so much essential considering as the role of the petitioner in the commission of offence.
It is not disputed that out of 17 accused in PMLA, none of the accused even though they are the main perpetrators/beneficiaries of the offence under PMLA, have not been arrested and the prosecution Complaint had been filed against them without their arrest.
Iit becomes significant and pertinent to examine the role of the petitioner in the present case. The allegations against him are that he had acquired a land valuing 10.83 lacs, which was the tainted money on the premise that the proceeds of sale are less than Rs. 1,00,00,000/-. It has been vehemently contended on behalf of the respondent that as per the prosecution, essentially the allegations made against the petitioner are that he had purchased the land parcel worth Rs. 10.83 lakhs which he transferred subsequently to the other main accused persons but actually the value of the land parcel was much more than its purchase value. Also, the Companies of the petitioner had been used for laundering the proceeds of crime - At no place has the respondent quantified the value of proceeds of crime to be more than that. Even if it is accepted as has been contended by the respondent, that the value of the land parcel was 3-4 times more than the value reflected but then too, it would be less than Rs. 1,00,00,000/-. The case of the petitioner is covered by the proviso thereby exempting him from satisfying the twin conditions under Section 45 of PMLA, 2002 for grant of bail.
It may be observed that he is not a flight risk, as he has all throughout been joining the investigations and at no point of time tried to evade the summons or to join the investigations. There has been no endeavour him to tamper with the evidence which is essentially documentary in nature or to influence the witnesses. The Triple Test for grant of bail is, therefore, satisfied by him.
The applicant is directed to be released forthwith on bail subject to fulfilment of conditions imposed - bail application allowed.
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