2024 (5) TMI 569 - DELHI HIGH COURT

Seeking grant of Regular bail - Money Laundering - proceeds of crime - predicate offences - scheduled offences - loan was declared as fraud on account of fudging of balance sheets - diversion of funds and related party transactions - bogus transactions relating to inventories and receivables - proceeds from the sale of inventory and realization of receivables were diverted - misappropriation of legitimate fund obtained for working capital from the bank - HELD THAT:- The Hon’ble Supreme in Pavana Dibbur [2023 (12) TMI 49 - SUPREME COURT] was adjudicating upon an issue wherein the appellant had not been arrayed as accused in the chargesheet filed with respect to alleged scheduled offences, but was made an accused for offence punishable under Section 3 of the PMLA. The appellant therein relied upon the aforesaid paragraph of the Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] and it was submitted that the case of the appellant therein was on a better footing as she was not shown as accused in the scheduled/predicate office.

In any case, since the present applicant has been granted pardon in the scheduled/predicate offences, the evidence sought to be given at his instance in those proceedings cannot be used for the purposes of present proceedings under the PMLA. Even in the scheduled/predicate offence the status of the present applicant remains as a witness subject to his full and complete disclosure in terms of the Section 308 of the CrPC - This Court agrees with the judgment given by the learned Single-Judge of Allahabad High Court in Mohan Lal Rathi [2023 (9) TMI 1069 - ALLAHABAD HIGH COURT], that the grant of pardon would bring an accused in the category of witness however, the same, as pointed out hereinabove, is subject to certain conditions enshrined under Sections 306 and 307 of the CrPC and cannot be considered as absolute absolvement in the predicate offence.

The Hon’ble Supreme Court in Vijay Madanlal Choudhary has held that the Court at the stage of grant of bail is expected to consider the issue as to whether the accused had requisite ‘mens rea’. It was further observed by the Hon’ble Supreme Court that the Court is not required to record a positive finding that the accused has not committed an offence under the Act. In other words, the Court at the stage of bail can examine the case on the basis of broad probabilities and can give a finding on the basis of material on record for the purposes of bail.

In the present case, admittedly the applicant was not a key managerial personnel and was not holding any designation in M/s SBBEL which would indicate that he was responsible or in-charge of running day-to-day affairs of the said company. The thrust of allegation in the prosecution complaint is that the present applicant was involved in creating paper companies by allegedly inducing indigent persons in order to show sham sale and purchase of goods thereby diverting the loan amount received by the said company.

Whether the present applicant has the requisite mens rea demonstrating that he was having knowledge that the funds which are being routed through the paper companies were part of the loan amount extended to M/s SBBEL by the consortium of bank headed by SBI? - HELD THAT:- As per the case of the prosecution, the applicant was not key managerial personnel or person responsible for running day-to-day affairs of the company.

The applicant, like the other proprietors of the paper entities, have given the statement that all these transactions were being done on commission basis of 50 paise per quintal (out of Re. 1 per quintal) with some entities and on a fixed commission on monthly basis ranging between Rs. 7,000/- to Rs. 20,000/- with other entities. In the statements relied upon by prosecution, applicant has stated that all the actions taken by him were on the instructions of Shri Amar Chand Gupta and others and nowhere has it been stated that he was privy to the alleged objective behind the sham transactions. In other words, whether the applicant had the requisite knowledge that the transactions in which he is involved relates to proceeds of crime cannot be presumed at this stage. So far as the transactions from the applicant’s sister concerns are concerned, the same are similar to that of other paper entities and their proprietors who are either being arrayed as co-accused without arrest or cited as witnesses.

In the considered opinion of this Court, the applicant has been able to make out a case under Section 45 of the PMLA. Apart from the above, complaint in the present has been filed. The applicant has been in judicial custody since 25.08.2022 and has undergone incarceration for approximately one year and nine months. It is also not disputed that the applicant has been granted bail in the predicate/scheduled offence apart from the fact that he has now become an approver. It is a matter of record that the applicant had joined investigation as and when directed by the Investigating Officer till he was arrested in the present ECIR.

The applicant is directed to be released on bail upon his furnishing a personal bond in the sum of Rs. 50,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to the conditions imposed - application allowed.