2023 (11) TMI 616 - HC - Money Laundering

Seeking grant of bail - Money Laundering - predicate offence - taking bribes, illegal commissions and unaccounted monies etc. in the State of Chhattisgarh - discharge of burden to prove - admissibility of statement under Section 50 of the PMLA - twin conditions under Section 45 of the PMLA, satisfied or not - HELD THAT - On going through the statements recorded in various cases of Arunpati Tripathi and Vidhu Gupta wherein role of Arunpati Tripathi has been stated and specially in the statement of Vidhu Gupta the role of Arunpathi Tripathi has been elaborated. Likewise in the case of Nitesh Purohit, apart from the statement of Nitesh Purohit under Section 50 of the PMLA, Arvind Singh had stated the modus operandi which shows that for commission of Part A, B C, the money of the commission was distributed by nine shareholders, which shows that all the persons are influential one, few of them are part of system. In case of Trilok Singh Dhillon statement of Sanjhiv Fatehpuria Kamlesh Kumar Kesharwani was seen wherein the specific role played by Trilok Singh Dhillon has been explained - In respect of Anwar Dhebar all the witnesses have named him in their respective statements and attributed the role played. Section 45 of the PMLA envisages that when the Public Prosecutor opposes the application and the Court is satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence; and that he is not likely to commit any offence while on bail, the bail can be granted - after going through the statements of witnesses, filed with reply, the ways and means have been disclosed which inculpate the applicant, at this stage, the first part of condition of Section 45 that applicants are not guilty of offence of money laundering cannot be presumed. In the case in hand, the complaint has already been registered in pursuance of registration of scheduled offence, proceeds of crime has also been recovered and after enquiry the complaint has been filed and it is pending before the competent Court. Apart from it is not a case of defence that scheduled offence has not been registered with the jurisdictional police. Applicants have not been finally absolved of their offences by a Court of competent jurisdiction by an order of discharge, acquittal or quashing of a criminal case of a scheduled offence, therefore, the attempt to take a guard would be a misinterpretation. There is a legal presumption envisaged under Section 23 of the PMLA, which speaks that where money laundering involves two or more inter-connected transactions and one or more such transactions is or are proved to be involved in money laundering, then for the purposes of adjudication or confiscation under Section 8 or for the trial of the money laundering offence, it shall unless otherwise proved to the satisfaction of the Adjudicating Authority, be presumed that the remaining transactions form part of such inter-connected transactions - there is a reverse burden of proof under Section 24 of the PMLA that in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering. Thus, on the basis of conclusion laid down by the Supreme Court in the matter of Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT , it is evident that action taken under the PMLA falls under the definition of enquiry . The enquiry is like a judicial proceeding (Section 50 of the PMLA) and further since the authorities are not police officers, the statement of person including accused recorded during the enquiry can be seen at the stage of grant of bail and presumption can also be made by the Court if the statement so recorded contains facts constituting the offence of money laundering as envisaged under Section 3 of the PMLA. The present is not a fit case to grant bail to the applicants - all the bail applications are liable to be and are hereby rejected.

Summary

Issues Involved:
1. Allegations against Arunpati Tripathi.
2. Allegations against Nitesh Purohit.
3. Allegations against Trilok Singh Dhillon.
4. Allegations against Anwar Dhebar.
5. Arguments by the applicants' counsel.
6. Arguments by the Enforcement Directorate.
7. Legal principles and conclusions.

Summary:

1. Allegations against Arunpati Tripathi:
The allegations against Arunpati Tripathi include collusion with others to take bribes, illegal commissions, and unaccounted monies in Chhattisgarh. The Enforcement Directorate (ED) claims that the syndicate, including Tripathi, engaged in a systematic conspiracy to earn illegal commissions from the sale and licensing of liquor. The ED's investigation revealed that Tripathi played a significant role in maximizing bribe commissions and making arrangements for the sale of non-duty-paid liquor. His statement under Section 50 of the PMLA led to further revelations and investigations.

2. Allegations against Nitesh Purohit:
Nitesh Purohit's statement under Section 50 of the PMLA indicated that he gave Rs. 25 crores in cash as directed by Anwar Dhebar. The ED's investigation showed that money was distributed in three categories: Commission (Part A), Unaccounted Liquor (Part B), and percentage (Part C), benefiting nine shareholders. Purohit admitted to working closely with Anwar Dhebar.

3. Allegations against Trilok Singh Dhillon:
The ED's investigation revealed that Trilok Singh Dhillon knowingly participated in the syndicate's criminal acts, generating illegal earnings of Rs. 2000 crores. Dhillon was involved in safe-keeping and concealing illegal commissions, receiving part A commissions in his bank account. He also played a role in the syndicate's operations through his company, Petrosun Bio Refineries Pvt. Ltd.

4. Allegations against Anwar Dhebar:
Anwar Dhebar is accused of orchestrating a large-scale scam involving the sale of illicit liquor in Chhattisgarh, causing significant losses to the state exchequer. Dhebar, with political and bureaucratic support, controlled the liquor trade, collected commissions, and sold unaccounted illicit liquor. He also formed cartels and demanded commissions from distillers. The ED's investigation revealed Dhebar's extensive involvement and possession of proceeds of crime.

5. Arguments by the applicants' counsel:
The applicants' counsel argued that the offences under Section 120B IPC, being a scheduled offence, cannot stand alone, and the ECIR should not stand. They also highlighted that co-accused individuals were granted bail and that the charge sheet had been filed but cognizance had not been taken. They contended that the applicants should be released on bail.

6. Arguments by the Enforcement Directorate:
The ED opposed the bail applications, emphasizing the organized nature of the liquor scam and the significant loss to the state exchequer. They argued that the applicants were involved in money laundering and possessed proceeds of crime. The ED cited the Supreme Court's decision in Vijay Madanlal Choudhary & Ors. v Union of India & Ors., emphasizing that the applicants' involvement in money laundering could not be presumed to be innocent.

7. Legal principles and conclusions:
The court referred to the Supreme Court's decision in Vijay Madanlal Choudhary (supra), which clarified the expansive meaning of "proceedings" and "investigation" under the PMLA. The court noted that the ED's actions fell under the definition of "enquiry" and that the statements recorded during the enquiry could be considered at the bail stage. The court concluded that the applicants' involvement in money laundering and possession of proceeds of crime could be prima facie presumed. Therefore, the bail applications were rejected, and the interim order was discharged.