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TMI Blog2018 (5) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... l not leave the country without prior permission of the Trial Court and in case of change of residential address the same will be intimated by way of an affidavit to the Court concerned. - BAIL APPLN. 350/2018 and BAIL APPLN. 437/2018 - - - Dated:- 10-5-2018 - MS. MUKTA GUPTA J. Petitioner Represented by: Mr. Manoj Shri, Sr. Advocate with Mr. Vaibhav Tomar, Mr. Abhimanyu Singh and Mr. Rajeev Ranjan, Advocates, Mr. Arvind Nigam and Mr. Sudhir Nandrajog, Sr.Advocates with Mr. Manu Sharma, Mr. Mehtaab Singh Sandhu, Mr. Mikhil Sharma, and Mr. Abhir Datt, Advocates. Respondent Represented by: Mr. Sandeep Sethi, Additional Solicitor General, Mr. Amit Mahajan, CGSC, Mr. Nitesh Rana, SPP, Ms. Mallika Hiremath, Mr. Madhav Chitale and Mr. A.R. Aditya, Advocates with Rahul Verma, Investigating Officer. MS. MUKTA GUPTA J. 1. By way of the present bail applications, petitioners Rohit Tandon and Raj Kumar Goel, seek regular bail in ECIR No.18/DLZO-II/2016 dated 26th December, 2016 recorded by Enforcement Directorate, Delhi Zone under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (in short 'PMLA'). 2. The above-noted ECIR No.18/DLZO-II/2016 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f demonetized currency into monetized currency by depositing cash into the accounts of various companies in Kotak Mahindra Bank where cash in hand was available in the books of accounts and in furtherance of the conspiracy, demand drafts were issued in the names of fictitious persons from the said accounts. Those demand drafts were to be credited back into the accounts and the same would have been withdrawn/transferred in the form of monetized currency. It was also alleged that the funds actually pertaining to Rohit Tandon were carefully distanced away from him through calibrated planning and were deposited not into his own or his firms' accounts but in the bank accounts that were not at all related to him against payments of commission. 6. Qua Raj Kumar Goel it was alleged that Ashish Kumar, the Bank Manager got in touch with Raj Kumar Goel who had different accounts in his firms' names. Raj Kumar Goel agreed to the proposal of Ashish Kumar for getting the demonetized currency converted into monetized currency at a commission fixed @35% of net converted amount. Cash deposits were facilitated by Ashish Kumar in connivance with Raj Kumar Goel and accused persons. 7. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons in writing to believe that the person is guilty of offence defined under Section 3 of PMLA and punishable under Section 4 of PMLA. As the three necessary ingredients for offence defined under Section 3 PMLA i.e. firstly, the material with the investigating agency investigating the scheduled offence, secondly the proceeds of the crime and thirdly laundering of the proceeds of the crime, were not available with the authorized officer of the respondent, thus no satisfaction that the petitioners were guilty of offence punishable under Section 4 PMLA should be arrived at. . 9. Learned counsels for the petitioner Rohit Tandon further contend that FIR No.205/2016 was registered by the Crime Branch on 25th December, 2016 and a consequential ECIR was recorded on 26th December, 2016 and Rohit Tandon was arrested on 28th December, 2016. Thus, the respondent proceeded to arrest the petitioner without arriving at a satisfaction in terms of Section 19 of PMLA. Learned counsels relying upon the decision of the Division Bench of this Court reported as 246 (2018) DLT 610 J. Sekar Ors. vs. Union of India Ors. contend that reasons to believe cannot be a rubber stamping of an opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employees of Rohit Tandon were prepared. In the first complaint five accused were named namely Rohit Tandon, Ashish Kumar, Raj Kumar Goel, Dinesh Bhola and Kamal Jain. Dinesh Bhola and Kamal Jain, Personal Assistant and Chartered Accountant respectively of Rohit Tandon who had a far more serious role were not even arrested and the charge-sheet was filed qua them without arrest. Further first supplementary complaint was filed against Yogesh Mittal who has since been granted bail though on technical reasons and in the second supplementary complaint Ramesh Chandra Sharma was implicated as an accused who was also not arrested and complaint was filed without arrest. It is further submitted that the demand drafts from the money deposited in the account have already been recovered and only demand drafts for a sum of ₹2.65 crores have not been recovered and the complaint is categorical that the same could not be recovered due to non-cooperation of Ashish Kumar, the Bank Manager. 12. Learned Additional Solicitor General for Directorate of Enforcement at the outset fairly submits that as per notification dated 8th November, 2016 of the Ministry of Finance there was no limit on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends that the words used in Section 3 PMLA criminal activity connected with the proceeds of the crime including its concealment, possession, acquisition, use and breach and claiming it as untainted property are of wide ambit and would include the offence committed by the petitioners. Raj Kumar Goel was arrested on 19th January, 2017 in the above ECIR and only thereafter he informed about the involvement of Yogesh Mittal whereafter investigation was carried out and first supplementary complaint was filed against Yogesh Mittal and second supplementary complaint against Ramesh Chandra Sharma. 14. Learned Additional Solicitor General refers to the statements of Rohit Tandon, Dinesh Bhola and Ashish Kumar recorded under Section 50 of PMLA and corroborative evidence in the form of CCTV footages and the mobile phone records. Learned Additional Solicitor General fairly submits that by the notification dated 8th November, 2016 no new offence was created however, the acts of the petitioners and their co-accused amounted to offences punishable under Sections 420/467/471/120B/109/34 IPC which are all scheduled offences. Referring to the decision of the Hon ble Supreme Court reported a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drafts have still not been encashed and the money is therefore, still lying with the banks. 17. It is further contended that the apprehension that Rohit Tandon is a man of influence and would thus tamper with the evidence is wholly unfounded for the reason, the entire evidence is documentary in nature and in any case in FIR No.205/2016 registered at PS Crime Branch, Rohit Tandon was not arrested and charge-sheet was filed without arresting him. When Rohit Tandon appeared in Court he was granted bail and the learned Trial Court has already noted its satisfaction that there is no possibility of tampering with the evidence. It is also stated that the reliance of learned Additional Solicitor General on the decision of Hon ble Supreme Court in the appeal filed by Rohit Tandon against rejection of his bail application is also misconceived, for the reason the Supreme Court clarified that the observations made in the decision were limited for considering the prayer of grant of bail. It is lastly contended that there being major change in circumstances; firstly that the twin conditions under Section 45 PMLA, which was the main reason for rejection of the bail till the Supreme Court, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve Bank or any branch of public sector banks, private sector banks, foreign banks, Regional Rural Banks, Urban Cooperative Banks and State Cooperative Banks for a period up to and including the 30th December, 2016, subject to the following conditions, namely:- (i) . (ii) .. (iii) there shall not be any limit on the quantity or value of the specified bank notes to be credited to the account maintained with the bank by a person, where the specified bank notes are tendered; however, where compliance with extant Know Your Customer (KYC) norms is not complete in an account, the maximum value of specified bank notes as may be deposited shall be ₹50,000/-; (Emphasis supplied) 19. Relevant extracts of provisions of the Specified Bank Notes (Cessation of Liabilities) Act, 2017 are as under: 3. Specified bank notes to cease to be liability of Reserve Bank or Central Government.- On and from the appointed day, notwithstanding anything contained in the Reserve Bank of India Act, 1934 or any other law for the time being in force, the specified bank notes which have ceased to be legal tender, in view of the notification of the Government of India in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention or default was committed without his knowledge or that he had exercised all due diligence to prevent the contravention or default. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the same was committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary, or other officer or employee of the company, such director, manager, secretary, other officer or employee shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Explanation .-For the purpose of this section,- (a) a company means anybody corporate and includes a firm, a trust, a cooperative society and other association of individuals; (b) director , in relation to a firm or trust, means a partner in the firm or a beneficiary in the trust. 20. As noted above the two FIRs, that is, FIR No.197/2016 and FIR No.205/2016 registered against Roh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of 15th November, 2016 till 19th November, 2016 from Dinesh Bhola, an employee of Rohit Tandon. Out of this amount of ₹51crores, ₹41.65 crores of money was converted in the form of demand drafts from Kotak Mahindra Bank, Bank of Baroda, ICICI Bank of which physical copies to the tune of ₹38 crores worth demand drafts have been recovered from Kamal Jain, however, demand drafts pertaining to commission of amount of ₹3.65 crores of Ashish Kumar s commission, physical copies could not be recovered as it is the case of the prosecution that Ashish Kumar had already destroyed the same. 22. As noted above vide notification dated 8th November, 2016 neither the possession nor deposit of demonetized currency in one s own account was an offence much less a scheduled offence. Further even as per the provisions of Specified Bank Notes (Cessation of Liabilities) Act, 2017 only provides for penalty for possession/transferring of demonetized currency notes after the appointed date. Further the claim of the prosecution that the money was deposited in fictitious accounts is also not fortified as the accounts were in operation earlier and had not been opened on 8th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors. set aside the twin conditions imposed under Section 45 PMLA on 23rd November, 2017 and declared that Section 45 (1) PMLA in so far as it imposed two further conditions for release on bail to be unconstitutional and violative of Articles 14 and 21 of the Constitution of India. Rohit Tandon had also filed a writ petition before the Hon ble Supreme Court challenging the constitutional validity of the twin conditions required for grant of bail under Section 45 of the PMLA. While disposing of the batch of writ petitions and appeals in the decision reported as Nikesh Tarachand Shah (supra) the Supreme Court noted that in all matters before it in which bail has been denied because of presence of twin conditions contained in Section 45 PMLA will now go back to respective Courts which denied bail and the respective Courts were directed to hear the applications on merits without application of the twin conditions contained in Section 45 PMLA. 25. Thus the major change which is required to be considered by this Court as per the decision of Supreme Court in Kalyan Chandra Sarkar (supra) referred to by Additional Solicitor General in the present case is the non-applicability of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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