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2019 (7) TMI 576 - HC - Money LaunderingMoney Laundering - proceeds of crime - alleged purchase of fleet of cars out of the ill-gotten money and received about ₹16 crores in one year from Shell companies for bribing/ fixing cases in income-tax department - Section 120B/420 IPC and Section 13(2) read with 13(1) PC Act - Grant of Regular Bail - HELD THAT - A bare perusal of the amended Section 45 would reveal that the introduction of the words under this Act would not revive the twin conditions as imposed in Section 45(1) PMLA which view has also been expressed by two other High Courts. A bare perusal of Section 24 reveals that in the case of a person charged with the offence of money laundering, the authority or the Court shall presume that such proceeds of crime are involved in money laundering unless the contrary is proved. The stage of raising the presumption or for the accused to rebut the said presumption would be during the course of trial. Even if assuming that at the stage of bail this Court is required to consider that the accused is prima facie required to rebut the presumption, the same would not have to be beyond reasonable doubt but on the basis of broad probabilities. In regard to the prima facie satisfaction of the Court in support of the charge in the two predicate offences on the basis of which ECIR stands recorded, the CBI has already clarified that in RC 0003 no pecuniary advantage has been received by the accused and thus there is no question of laundering the proceeds of the crime. In RC 0004 the complaint is by Kapil Wadhawan on behalf of M/s. White Lion Real Estate Developers Private Limited and it is alleged that a sum of ₹16,40,06,000/- has been extorted. There is no complaint from any of the entities noted in Para 25 above. Even otherwise as per the respondent, the total amount stated to have been laundered is approximately ₹52,55,00,000/- out of which ₹26,65,45,476/- stands attached - The maximum punishment provided for the offence punishable under Section 4 PMLA being 7 years imprisonment and the petitioner having undergone more than 1 year 1 month of custody and the trial likely to take some time, there being no material placed on record to show that the petitioner has been tampering of evidence and the statement of Alok Sharma which has been pressed in by the respondent stating that the petitioner forced him to remain associated with him, this Court finds it to be a fit case for grant of bail to the petitioner. The petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with one surety bond of the like amount to the satisfaction of the learned Trial Court and some conditions imposed - petition allowed in part.
Issues Involved:
1. Application for additional documents. 2. Regular bail application under PMLA. 3. Allegations and evidence against the petitioner. 4. Legal arguments for and against the bail application. 5. Applicability of Section 45 of PMLA post-amendment. 6. Consideration of Section 24 of PMLA. 7. Prima facie material and conditions for granting bail. Issue-Wise Detailed Analysis: 1. Application for Additional Documents: The court took on record additional documents, including the respondent's application before the Trial Court under Section 44(1)(c) PMLA and the CBI's reply. The application was disposed of. 2. Regular Bail Application under PMLA: The petitioner sought regular bail in connection with ECIR/03/HIU/2018 recorded by the Enforcement Directorate under Sections 3/4 of the Prevention of Money Laundering Act, 2002. 3. Allegations and Evidence Against the Petitioner: The ECIR was based on investigations revealing that the petitioner portrayed himself as a power broker and extorted money from various entities by claiming to have sensitive information from the Income Tax Department. Allegations included: - Extorting ?15,19,50,000 from M/s White Lion Real Estate Developers Private Limited. - Transactions involving ?79 crores and purchasing luxury items with ill-gotten money. - Fraudulently obtaining an Aero-drum Entry Pass (AEP) by deceiving the Bureau of Civil Aviation Security (BCAS). - Operating multiple bank accounts with voluminous transactions worth over ?100 crores. - Using proceeds of crime to purchase properties and repay loans. - Extorting a total of ?29,58,09,570 from various companies. - Laundering ?5,19,80,000 through a Chartered Accountant. 4. Legal Arguments for and Against the Bail Application: The respondent argued that the nature of the investigation under PMLA is distinct and the petitioner should not be granted bail despite bail being granted in predicate offences investigated by CBI. They highlighted the gravity of the offence and the potential for the petitioner to tamper with evidence. The petitioner countered that no sanction for prosecution was given in RC 0003, and the CBI had objected to clubbing its charge-sheet with the ECIR. The petitioner also argued that no complaints were received from other entities besides M/s White Lion Real Estate Developers Private Limited, and taxes were duly paid on all incomes. 5. Applicability of Section 45 of PMLA Post-Amendment: The court examined the amendment to Section 45 of PMLA, which introduced the words "under this Act." The Supreme Court in Nikesh Tarachand Shah v. Union of India had declared the twin conditions for bail under Section 45(1) unconstitutional. The court noted that the amendment did not revive the original Section 45(1)(ii) and referenced similar views from the Bombay High Court and Madhya Pradesh High Court. 6. Consideration of Section 24 of PMLA: Section 24 of PMLA shifts the burden of proof to the accused in money-laundering cases. The court clarified that this presumption arises during the trial, and at the bail stage, the accused needs to rebut the presumption based on broad probabilities. 7. Prima Facie Material and Conditions for Granting Bail: The court considered the prima facie material, gravity of the offence, severity of the punishment, and the likelihood of the petitioner tampering with evidence. The CBI clarified that no pecuniary advantage was received in RC 0003, and the complaint in RC 0004 was limited to M/s White Lion Real Estate Developers Private Limited. The court found no material indicating tampering of evidence by the petitioner and noted that the petitioner had already been in custody for over a year. Conclusion: The court granted bail to the petitioner, directing him to furnish a personal bond of ?1 lakh with one surety of the same amount. The petitioner was restricted from leaving the country without prior permission and required to inform the court of any change in residential address. The petition was disposed of, and the order was made available immediately (Order dasti).
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