2022 (12) TMI 1197 - HC - Money Laundering

Seeking grant of anticipatory bail - money laundering - scheduled offences - ponzi companies - petitioner is alleged to be instrumental in facilitating co-accused Pranjil Batra for purchasing/acquiring 10 dummy/paper/fictitious companies in cash consideration to the tune of Rs.42 crores through 'accommodation' entries - HELD THAT - The role of the petitioner when examined make it clearly apparent that he has indulged into money laundering by way of facilitating co-accused in execution of the fraud through dubious modus-operandi. Money laundering criminals use shell companies because shell companies are commercial companies that appear legitimate but are actually controlled by criminals. These shell companies mix illegal funds with legitimate funds to hide unfair income. Front companies are not only aiming to make a profit but also to protect illegal funds. By using shell companies and other investments in legitimate companies, money laundering proceeds are used to control industry or other sectors leading to monetary instability due to improper distortions in asset prices. It also provides a way to avoid taxation and, thus, deprive the country of income - the PMLA was promulgated to check money laundering and stringent provisions have been incorporated therein as money laundering cripples the economy of a nation. Section 24 of the PMLA provides that when a person is accused of having committed the offence under Section 3, the burden of proving that 'proceeds of crime' is untainted property shall be on the accused. Section 44 of the PMLA is another section in the string of strict provisions which provides for continuity of commission of offence as long as all the 'proceeds of crime' are not recovered and empowers the investigating agency to file supplementary complaints upon surfacing of any fresh evidence and such complaint is to be tried along with the initial complaint. The fetter imposed by Section 45 of the PMLA in the matter of grant of bail, having been restored, as is evident from the judgments referred to above and also that the said fetters are equally applicable while considering grant of anticipatory bail, it goes without saying that the twin conditions as regards the Courts satisfaction that there are reasonable grounds for believing that the accused is not guilty and also that the accused, if granted bail is not likely to commit similar offence again is sine-qua-non in the matter of grant of bail. At this stage, there is nothing to show that the petitioner is innocent or that in case granted bail, he will not flee from justice or that he will not commit similar offences again. As such, having regard to the facts and circumstances of the case, as discussed in earlier portion of this order, particularly the enormity of the scam wherein a substantial part of proceeds of crime is yet to be located and recovered, the custodial interrogation of the petitioner would be indispensable. Thus, no special case for grant of anticipatory bail to petitioner is made out. Petition dismissed.

Issues Involved:
1. Grant of anticipatory bail under Section 45 read with Section 44 of the Prevention of Money Laundering Act, 2002 (PMLA).
2. The sequence and basis of the petitioner's inclusion as an accused.
3. Evidentiary value of the co-accused's statement.
4. Applicability of Section 45 of the PMLA to anticipatory bail.
5. The necessity of custodial interrogation.
6. Parity with co-accused who were granted bail.

Issue-wise Detailed Analysis:

1. Grant of Anticipatory Bail under Section 45 read with Section 44 of the PMLA:
The petitioner sought anticipatory bail in relation to a complaint under Section 45 read with Section 44 of the PMLA for an offence under Section 3 punishable under Section 4. The court examined whether the petitioner's case warranted anticipatory bail, considering the stringent provisions of the PMLA designed to curb money laundering, which severely impacts the nation's economy.

2. Sequence and Basis of the Petitioner's Inclusion as an Accused:
Initially, the complaint was against Radhey Shyam, Bansi Lal, and others, with the petitioner not named. The petitioner was later included based on the statement of co-accused Pranjil Batra, who implicated the petitioner in facilitating the acquisition of dummy companies and handling proceeds of crime. The detailed timeline of FIRs and investigations revealed the petitioner's alleged role and the subsequent supplementary complaint filed against him.

3. Evidentiary Value of the Co-accused's Statement:
The petitioner's counsel argued that the petitioner's inclusion based on the co-accused's statement carried little evidentiary value. However, the court noted that the investigation had concluded, and a supplementary complaint was filed based on substantial evidence, including information from Batra's laptop, showing the petitioner's involvement in money laundering activities.

4. Applicability of Section 45 of the PMLA to Anticipatory Bail:
The court highlighted that Section 45 of the PMLA, with its twin conditions, applies to anticipatory bail. The Supreme Court's judgment in Vijay Madanlal Choudhary's case clarified that the stringent conditions of Section 45 are applicable even in anticipatory bail cases. The court emphasized that anticipatory bail should be granted sparingly, especially in economic offences, where custodial interrogation is crucial.

5. Necessity of Custodial Interrogation:
The State counsel argued that custodial interrogation of the petitioner was necessary to uncover further details of the scam and trace the proceeds of crime. The court agreed, noting that a substantial part of the proceeds, amounting to Rs.3000 crores, was yet to be recovered, and the petitioner's custodial interrogation could yield valuable information.

6. Parity with Co-accused who were Granted Bail:
The petitioner claimed parity with 12 co-accused who were granted bail. The court acknowledged this but noted that the orders granting bail to the co-accused were under challenge. Furthermore, the court emphasized that the petitioner's case involved significant allegations and the need for custodial interrogation, differentiating it from the co-accused's cases.

Conclusion:
The court dismissed the petition for anticipatory bail, emphasizing the petitioner's role in the money laundering activities, the necessity of custodial interrogation, and the applicability of Section 45's stringent conditions. The court concluded that no special case for granting anticipatory bail was made out, given the enormity of the scam and the need to recover the substantial proceeds of crime.

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