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TMI Blog2019 (7) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... o RC-217-2018 A 0003 registered for offences punishable under Sections 120B/420 IPC and Section 13(2) read with Section 13 (1) (d) PC Act on 1st May 2018 and RC-217-2018 A 0004 registered for the offences punishable under Sections 120B/384 IPC and Section 8 PC Act on 5th May 2018 by the CBI. 3. Brief conspectus of facts as recorded in the ECIR against Upendra Rai, Rahul Sharma, unknown officials of Income Tax Department, Mumbai and other unknown public servants and private persons are that during the course of investigation in RC-217-2018 A 0004 under Sections 120B/384 IPC and under Section 8 PC Act it was revealed that in September 2017 Upendra Rai approached Mr. Kapil Wadhawan, a relative of the promoter of the company, M/s White Lion Real Estate Developers Private Limited (in short 'WLREDPL'), Mr. Hiten Sakhuja, potraying himself as a power broker of the Income Tax Department and various other Government Departments. He also impressed that he was a senior journalist having worked with Tehelka, Star TV and was connected to big media houses. In his conversation with Mr. Kapil Wadhawan he claimed that he had sensitive information from the Income Tax Department relating to raids to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R with the material that Upendra Rai was operating/controlling a large number of bank accounts either in his own names or in the names of his family members, close associates or entities under his control. A total sum of Rs.16,40,06,000/- was received by Upendra Rai through the crime reported vide RC-217-2018 A 0004 dated 5th May 2018 in his bank accounts bearing number 50200015024600, belonging to his firm M/s Upendra Rai & Associates with HDFC Bank Ltd. from the bank account bearing number 909020043463585 of M/s White Lion Real Estate Developers Private Limited with Axis Bank. The scrutiny of three accounts belonging to Upendra Rai bearing number 50200015024600 in the name of his firm M/s Upendra Rai & Associates, account number 13611930002043 in his own name and account number 13611930002043 owned jointly with Ms. Uma Rai revealed that voluminous transactions worth more than 100 crores were carried out by him within a period of three or four years. 8. Searches under Section 17(1) PMLA were carried out on different dates on 20 premises related to Upendra Rai and his associates which resulted in recoveries of details related to huge financial transactions. The search led to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. As per the investigation it is alleged that the petitioner through his CA and an accommodation entry operator laundered a sum of Rs.5,19,80,000/- against cash, which money was used to buy a property/ flat bearing No. 801, Ashadeep, 9 Haley Road and a forged and fabricated agreement to sell was prepared in this regard. 10. On 26th October 2018 the first supplementary complaint was filed by the Enforcement Directorate implicating Narendra Kumar Rai as the 2nd accused, Rajesh Mathur as the 3rd accused and Joginder Pal Gupta as the 4th accused. The supplementary complaint notes down the transactions in relation to M/s. Air One Aviation Private Limited, a sister concern of M/s. Air One Charters Private Limited and records statement of Alok Sharma, its Director who stated that the petitioner influenced him to issue an appointment letter to engage him as a consultant, however the terms and conditions of appointment were not clear and the work to be performed was unformulated. The work purportedly assigned to petitioner was to secure funds for planned scheduled airline's activities in addition to the banking and PR activities in respect of M/s. Air One Aviation Private Limited, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Relying upon the decision of the Supreme Court in (2004) 7 SCC 528 Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. it is contended that when earlier bail applications have been rejected there is a further onus on the Court to consider the subsequent application for grant of bail by noticing the ground on which earlier bail applications have been rejected. Learned counsel for the respondent also relies upon the amendment in Section 45 of the PMLA as also Sections 22 to 24 of the PMLA. 14. Learned counsel for the petitioner advancing his arguments for grant of bail and rebutting respondent's contentions contends that CBI registered RC-217-2018 A 0003 under Sections 420 IPC and Section 120B read with Section 13(2) and Section 13(1) of PC Act registered by the CBI on 1st May, 2018. The CBI also registered RC-217-2018 A 0004 under Section 120B read with Section 384 IPC and Section 8 PC Act on 1st May, 2018. In RC 0003 petitioner was arrested on 3rd May, 2018 and granted bail on 8th June, 2018. On the night when he was released from the jail on 8th June, 2018 at 9.45 PM the petitioner was immediately apprehended by the officers of the respondent and a summon under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has duly paid taxes on all the incomes reflected in his account and in any case it would be for the income-tax authorities to go into the same if required and not for the Enforcement Directorate. 17. The decision relied upon by the respondent in the case of Gautam Kundu (supra) has no application to the facts of the case as the said decision was rendered prior to the Supreme Court passed the judgment reported as (2018) 11 SCC 1 Nikesh Tarachand Shah Vs. Union of India & Anr. declaring Section 45 (1) of the PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Article 14 and 21 of the Constitution of India. Reliance of the learned counsel for the respondent on the decision in Kalyan Chandra Sarkar (supra) is also misconceived as the said decision was rendered under Section 437 (1) Cr.P.C. wherein the offence punishable is with death or imprisonment for life. In the present ECIR the maximum punishment which can be awarded after trial to the petitioner would be imprisonment for a period of 7 years out of which more than 1 year has already elapsed for the petitioner being in custody and no charge could be framed for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Government. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 19. By virtue of the amendment in the year 2018 the words "under this Act" have been inserted in sub-Section 1 of Section 45, as noted above. In Nikesh Tarachand Shah (supra) while dealing with the constitutional validity of the twin condition imposed under Section 45(1), the Supreme Court held: "54. Regard being had to the above, we declare Section 45(1) of the Prevention of Money-Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A read as under: "24. Burden of proof.- In any proceeding relating to proceeds of crime under this Act,- (a) 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; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering." 23. A bare perusal of Section 24 reveals that in the case of a person charged with the offence of money laundering, the authority or the Court shall presume that such proceeds of crime are involved in money laundering unless the contrary is proved. The stage of raising the presumption or for the accused to rebut the said presumption would be during the course of trial. Even if assuming that at the stage of bail this Court is required to consider that the accused is prima facie required to rebut the presumption, the same would not have to be beyond reasonable doubt but on the basis of broad probabilities. 24. As noted above, a reply has already been filed by the CBI in relation to one of the predicate offences bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the evidence or the witnesses. As noted above, in regard to the prima facie satisfaction of the Court in support of the charge in the two predicate offences on the basis of which ECIR stands recorded, the CBI has already clarified that in RC 0003 no pecuniary advantage has been received by the accused and thus there is no question of laundering the proceeds of the crime. In RC 0004 the complaint is by Kapil Wadhawan on behalf of M/s. White Lion Real Estate Developers Private Limited and it is alleged that a sum of Rs.16,40,06,000/- has been extorted. There is no complaint from any of the entities noted in Para 25 above. Even otherwise as per the respondent, the total amount stated to have been laundered is approximately Rs.52,55,00,000/- out of which Rs.26,65,45,476/- stands attached. The maximum punishment provided for the offence punishable under Section 4 PMLA being 7 years imprisonment and the petitioner having undergone more than 1 year 1 month of custody and the trial likely to take some time, there being no material placed on record to show that the petitioner has been tampering of evidence and the statement of Alok Sharma which has been pressed in by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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