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2024 (2) TMI 912 - HC - Money LaunderingSeeking grant of anticipatory bail - Money laundering - predicate offence - proceeds of crime - petitioner knowingly assisted Veerendra Kumar Ram who is accused in the first prosecution complaint for laundering of bribed money which was accumulated by him from the commission/bribe amount being a public servant - said money was getting routed by the petitioner who is Delhi based CA, to the bank accounts of family members of Veerendra Kumar Ram with the help of bank accounts of petitioner's employees/relatives - HELD THAT - As per the para 5.2 of the prosecution complaint various records, documents, digital devices, cash, jewellery, vehicles were recovered and seized during course of search conducted on 21.02.2023. The case record depicts that it was the petitioner who assisted the prime accused, Veerendra Kumar Ram, in the commission of the offence of money laundering with the help of his employees by depositing the crime proceeds in different bank accounts opened by fake names or companies, and later on the transfer of money to the prime accused in the bank accounts of his relatives to remove the taint. The material collected by the Enforcement Directorate had also not been rebutted, which prima facie reflected the involvement of the petitioner in the alleged offence. It is evident that the petitioner happens to be a Chartered Accountant and he used to divert the money which has been obtained by way of illegal means. It is required to refer herein that the Hon'ble Apex Court in the case of Pavana Dibbur vs. The Directorate of Enforcement passed in Criminal Appeal No. 2779 of 2023 2023 (12) TMI 49 - SUPREME COURT has considered the effect of the appellant not being shown as an accused in the predicate offence by taking into consideration the Section 3 of the Act, 2002 - The Hon'ble Apex Court by interpreting the provision of Section 3 of the Act, 2002 has come out with the finding that on a plain reading of Section 3, unless proceeds of crime exist, there cannot be any money laundering offence. Based upon the definition Clause (u) of sub-section (1) of Section 2 of the Act 2002 which defines proceeds of crime , the Hon'ble Apex Court at paragraph-12 has been pleased to observe that clause (v) of sub-section (1) of Section 2 of PMLA defines property to mean any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible. This Court, in view of the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. 2022 (7) TMI 1316 - SUPREME COURT and Pavana Dibbur vs. The Directorate of Enforcement wherein it is evident from paragraph-16 therefrom that if the prosecution for the scheduled offence ends in the acquittal of all the accused or discharge of all the accused or the proceedings of the scheduled offence are quashed in its entirety, the scheduled offence will not exist, and therefore, no one can be prosecuted for the offence punishable under Section 3 of the PMLA as there will not be any proceeds of crime. It is further evident from the discussion so made in both the judgments as would appear from paragraph-27 of the judgment rendered in Pavana Dibbur vs. The Directorate of Enforcement that the issue of whether the appellant has used tainted money forming part of the proceeds of crime for acquiring the second property can be decided only at the time of trial. The offence becomes schedule offence by virtue of clause-3 of Part-C of the Schedule if the offence has crossed border implication as per the offence included in Part-A and B of the Schedule while the offences referred in Part-C of the Schedule will be said to be punishable under Section 3 of the Act, 2002 if the offences has crossed border implication. It needs to refer herein, the judgment rendered by the Hon'ble Apex Court in Pavana Dibbur vs. The Directorate of Enforcement is with respect to quashing of the proceeding filed by the concerned accused person invoking the inherent jurisdiction of the High Court under Section 482 of Cr.P.C. The aforesaid judgment therefore, has examined the availability of the ingredient of offence said to be committed under the Act, 2002 wherein the aforesaid judgment has been pleased taking note of the penal provision of the Act, 2002 as contained under Section 3 of the Act, 2002 and the offences enumerated under the Schedule thereof. Applying the principle to consider the application for pre-arrest bail is required to be considered by passing an order for grant of pre-arrest bail if prima facie case is not made out. Here, in the instant case, prima-facie it appears that the present petitioner is involved in concealment and diversification of the property/money of Veerendra Kumar Ram as would appear from the ECIR which is having cross-border implication since the money was concealed and diversified in Delhi which has been procured by Veerendra Kumar Ram while working as Engineer in Jamshedpur in the State of Jharkhand - This Court, in view of the aforesaid material available against the petitioner, is of the view, that in such a grave nature of offence, which is available on the face of the material, applying the principle of grant of anticipatory bail wherein the principle of having prima facie case is to be followed, the nature of allegation since is grave and as such, it is not a fit case of grant of anticipatory bail. The applicant failed to make out a special case for exercise of power to grant bail and considering the facts and parameters, necessary to be considered for adjudication of anticipatory bail, without commenting on the merits of the case, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438 of the Code of Criminal Procedure to grant anticipatory bail. Therefore, this Court is of the view that the anticipatory bail applications are liable to be rejected. This Court is of the view that the instant application is fit to be dismissed and as such, stands dismissed.
Issues Involved:
1. Application for anticipatory bail under Section 438 read with Section 440 of the Code of Criminal Procedure, 1973. 2. Allegations under the Prevention of Money Laundering Act, 2002 (PMLA). 3. Jurisdiction and powers of the Enforcement Directorate under Section 19(1) of PMLA. 4. Applicability of Section 45 of PMLA for granting bail. 5. Consideration of anticipatory bail in economic offences. Summary of Judgment: 1. Application for Anticipatory Bail: The petitioner filed an application under Section 438 read with Section 440 of the Code of Criminal Procedure, 1973, seeking anticipatory bail in ECIR Case No. 2 of 2023 arising out of ECIR-RNZO/16/2020. The case involves allegations under Sections 120B, 420, 471, 473, 476, and 484 of IPC and Sections 3 and 70 of the Prevention of Money Laundering Act, 2002 (PMLA). 2. Allegations under PMLA: The prosecution alleged that the petitioner, a Chartered Accountant, was involved in laundering proceeds of crime acquired by Veerendra Kumar Ram, a Chief Engineer in the Rural Work Department, Jharkhand. It was found that the petitioner facilitated the transfer of bribe money to the bank accounts of Veerendra Kumar Ram's family members using accounts of his employees and relatives. 3. Jurisdiction and Powers of the Enforcement Directorate: The petitioner's counsel argued that the investigation was complete and the stage of Section 19(1) of PMLA, which confers power to arrest, had passed. However, the court held that Section 19(1) does not restrict the power to arrest post-investigation and that the Enforcement Directorate retains the authority to arrest based on the reason to believe that an offence has been committed. 4. Applicability of Section 45 of PMLA for Granting Bail: The court emphasized the twin conditions under Section 45 of PMLA, which require the Public Prosecutor to oppose the bail application and the court to be satisfied that the accused is not guilty and is unlikely to commit any offence while on bail. The court referred to the judgments in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., and Tarun Kumar vs. Assistant Director Directorate of Enforcement, reinforcing the mandatory nature of these conditions. 5. Consideration of Anticipatory Bail in Economic Offences: The court noted that anticipatory bail should be granted sparingly in economic offences, as they pose a serious threat to society. The court cited the judgment in P. Chidambaram vs. Directorate of Enforcement, highlighting that granting anticipatory bail in such cases could hamper effective investigation. Conclusion: The court concluded that the petitioner failed to make out a special case for the exercise of discretion to grant anticipatory bail. The material on record indicated the petitioner's direct involvement in laundering proceeds of crime. Considering the gravity of the allegations and the principles governing anticipatory bail, the court dismissed the anticipatory bail application. The court clarified that the views expressed are prima facie and do not delve into the merits of the case.
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