2024 (7) TMI 1318 - HC - Money Laundering

Seeking grant of regular bail - Money Laundering - scheduled offences - criminal conspiracy - huge amount of money was paid as kickbacks in advance to the public servants involved in the commission of alleged offences and in exchange of undue pecuniary benefits to the conspirators involved in the liquor trade - reasons to believe - mandatory twin condition of section 45 of PMLA satisfied or not - HELD THAT - Section 45(1) of PMLA lists the twin conditions that must be satisfied before an accused can be enlarged on bail in a case of money laundering. In this context, it will be relevant to take note of the observations of Hon‟ble Apex Court in case of Vijay Madanlal Choudhary v. Union of India 2022 (7) TMI 1316 - SUPREME COURT , on the satisfaction of mandatory twin conditions under Section 45 of PMLA, which held that ' The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial'. Thus, at the stage of consideration of bail of a person who is accused of commission of offence of money laundering under PMLA, the Court is not required to conduct a mini trial for the purpose of returning a finding of guilt, rather the material on record is to be examined to reach a conclusion as to whether there are reasonable grounds to believe that the accused is guilty of offence under PMLA. It is clear that the present applicant was part of preparation of the old excise policy and thereafter, the new excise policy was made to suit the co-accused(s) who were to pay kickbacks to the present applicant and co-accused(s) and the party concerned, from the profit so generated due to excise policy drafted to suit them and there are specific statements that Rs. 2 crores were paid to Sarvesh Mishra for Sh. Sanjay Singh at his official residence in lieu of the new excise policy made to suit them and generate profit for them, the role at this stage of the applicant cannot completely be ruled out. The specific allegations with time, place and manner when the meetings and conversations took place between Dinesh Arora, Vivek Tyagi, Sarvesh Mishra, Vijay Nair, Sh. Sisodia, Sh, Sanjay Singh etc. cannot be disregarded at this stage. Whether the applicant is entitled to bail on the ground that he is not an accused in the scheduled offence? - HELD THAT - Recently, in case of Pavana Dibbur v. Enforcement Directorate 2023 (12) TMI 49 - SUPREME COURT , the Hon‟ble Apex Court has held that it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. During the course of arguments, learned ASG representing the respondent had pointed out that the Directorate of Enforcement had already communicated and shared, via a letter dated 13.11.2023, under Section 66(2) of PMLA, information about the investigation regarding the facts of this case with the CBI. Further, the CBI had also written a letter dated 22.12.2023 to the ED, stating that the information shared by them has been taken on record for further investigation in the predicate offence case - this Court finds no merit in the argument that applicant herein has not been made an accused in the scheduled offence. Admissibility and an evidentiary value of statements recorded u/s 50 of PMLA - HELD THAT - At the present stage of deciding the bail application of the accused, when the trial has yet not commenced, this Court would be required to take into consideration the material collected by the investigating agency including statements of witnesses recorded under Section 50 of PMLA, statements under Section 50 of PMLA can make out a formidable case of money laundering against an accused. The approver has not come forward to any Court of law to state that the statements so recorded were made under any stress or pressure or threat. The approver and his statements will be put to test of cross-examination and the evidentiary value of the statement will be adjudged on the touchstone of the cross-examination itself. Therefore, a statement recorded by a Magistrate as per law of a person who has now turned approver, was earlier an accomplice or accused, cannot be disregarded at this stage on the ground that his statement is unworthy of credence or there are reasons or motives to falsely implicate the present applicant - This Court, therefore, notes that the sanctity attached to a statement recorded under Section 164 of Cr.P.C., now termed as a statement of the approver, cannot be thrown at the threshold or disregarded for the purpose of consideration as to whether there is material on record, which within the parameters of PMLA, will disentitle the accused to grant of bail when tested on the anvil of Section 45 of PMLA to pass the test of twin conditions for grant of bail. The law regarding such admissibility and the stage when such admissibility can be examined and adjudicated has not been carved out by this Court, but by the enactment of the provisions of Code of Criminal Procedure and Indian Evidence Act and catena of judgments of the Hon‟ble Apex Court in this regard. The court is bound by law and cannot be influenced by the position of any petitioner - HELD THAT - In the eyes of the law, it is of paramount importance to maintain impartiality and treat all individuals equally, regardless of their status as public figures or private citizens. While public figures may wield influence or hold positions of authority, their legal rights and obligations are subject to the same standards and principles as those of any other individual in society - The principle of equality before the law is based on the notion that justice should be blind to factors such as fame, wealth, or social standing. At the same time, orders are not passed only at the asking of the State but through legal proceedings and outcomes are determined solely based on the merits of the case and the application of relevant laws, without favouritism or discrimination. Thus, no ground for grant of bail is made out, at this stage - application disposed off.

Summary

Issues Involved:
1. Evidence against the present applicant.
2. Whether the applicant is entitled to bail on the ground that he is not an accused in the scheduled offence.
3. Admissibility and evidentiary value of statements recorded under Section 50 of PMLA.
4. Finding regarding the argument of disregarding the approver's statement at this stage.
5. The court is bound by law and cannot be influenced by the position of any petitioner.

Detailed Analysis:

I. Evidence Against the Present Applicant
Statement of Approver Dinesh Arora:
The statement of Dinesh Arora, recorded under Section 50 of PMLA, revealed that he had given Rs. 2 crores to Sarvesh Mishra at the residence of the applicant in North Avenue, New Delhi. This amount was part of a bribe received from Sameer Mahendrau and Abhishek Boinpally. Arora confirmed that the applicant knew the money was related to the Delhi Excise Policy.

Statement of Witness Raman Chawla:
Raman Chawla, an employee of Dinesh Arora, corroborated Arora's statement by disclosing that he had delivered Rs. 1 crore to Sarvesh Mishra at the applicant's residence in August 2021 and another Rs. 1 crore in March-April 2022.

Statements of Harinder Singh Narula and Earla Chandan Reddy:
Harinder Singh Narula and Earla Chandan Reddy corroborated Dinesh Arora's claim of receiving Rs. 4 crores from Abhishek Boinpally, with Rs. 1 crore paid to the applicant.

Call Detail Location Chart Analysis:
The Directorate of Enforcement provided call detail records and location charts indicating that the phones of Raman Chawla and Sarvesh Mishra were near the applicant's residence on the day of the alleged delivery of Rs. 1 crore.

Role of Applicant in 2020-21 Delhi Liquor Policy:
Dinesh Arora's statement indicated that the applicant was involved in formulating the 2020-2021 excise policy to benefit certain businessmen, and a Memorandum of Understanding (MoU) was prepared to this effect. This was corroborated by statements from co-accused Amit Arora and witness Ankit Gupta.

II. Whether the Applicant is Entitled to Bail on the Ground that He is Not an Accused in the Scheduled Offence
The court noted that being named in the FIR of the scheduled offence is not a prerequisite for involvement in a money laundering case. The essential requirement is the commission of a scheduled offence and the generation of proceeds of crime. The court concurred with the Sessions Court's findings and cited judicial precedents, including Vijay Madanlal Choudhary and Pavana Dibbur, which clarified that the offence of money laundering is independent and does not require the accused to be named in the scheduled offence.

III. Admissibility and Evidentiary Value of Statements Recorded Under Section 50 of PMLA
The court referred to the Supreme Court's decisions in Rohit Tandon and Vijay Madanlal Choudhary, which upheld the admissibility of statements recorded under Section 50 of PMLA. Such statements are considered admissible and can make out a formidable case against the accused.

IV. Finding Regarding Argument of Disregarding Approver's Statement at This Stage
The court examined the law regarding the evidentiary value of an approver's testimony. It cited Sections 133 and 114 of the Indian Evidence Act, which allow for the testimony of an accomplice but suggest it should be corroborated. The court noted that the approver's statement in this case was recorded under Section 164 of Cr.P.C. and Section 50 of PMLA, both of which are legally admissible. The court rejected the argument that the approver's statement was made under duress, noting that the approver had not retracted his statement or complained of coercion.

V. The Court is Bound by Law, and Cannot Be Influenced by the Position of Any Petitioner
The court emphasized that it functions within the framework of law and its decisions are guided solely by legal principles and evidence, independent of the petitioner's or respondent's position or influence. The judiciary is committed to upholding the rule of law and ensuring impartiality in the administration of justice.

Conclusion
The court summarized the evidence against the applicant, including the approver's statement, corroborative witness statements, and call detail records. It concluded that there are specific allegations with time, place, and manner that cannot be disregarded at this stage. Therefore, no ground for granting bail was made out. The court directed the trial court to expedite the trial to ensure a fair and swift legal process. The observations made were solely for deciding the bail application and should not influence the merits of the case during the trial. The bail application was disposed of accordingly.