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TMI Blog2019 (10) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... l application, it is not in dispute that three factors have to be seen viz. i) flight risk, ii) tampering evidence iii) influencing witnesses - Regarding the flight risk, neither argued by learned Additional Solicitor General nor placed any material on record, therefore, flight risk of the petition is ruled out - Regarding tampering with the evidence, it is not in dispute that the documents relating to the present case is in the custody of the prosecuting agency, Government of India and the Court. Moreover, presently, the petitioner is not in power except he is a Member of Legislative Assembly. Therefore, in my considered view, there is no chance of the petitioner to tamper with the evidence - On the issue of influencing the prosecution witnesses, the respondent has not placed any record to establish that either the petitioner or his family members or associates ever tried to contact any of the witnesses not to disclose any information regarding money earned by him for self and family members or associates. Moreover, petitioner has been examined extensively. All the 14 witnesses have already been examined - He was arrested on 3rd September, 2019 and remained 15 days in the custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Special Court, Bengaluru, u/s 200 Cr.P.C. alleging offences under the Income Tax Act. Pursuant thereto, the Income Tax Department proceeded to grant sanction to prosecute for offences punishable u/s 276C(1) and 277 of the Income Tax Act and section 120B of I.P.C and filed a 4th complaint against the Petitioner under section 200 Cr.P.C. Thereafter, the Special Court, Bengaluru took cognizance and proceeded to register a complaint against the Petitioner u/s 276C(1) and 277 of the IT Act and section 120B, 193 and 197 of I.P.C. 6. On 29.08.2018, an ECIR i.e ECIR/04/HQ/2018 was registered by the Enforcement Directorate, Delhi. Subsequently, on 17.01.2019, the respondent issued summons to the Petitioner u/s 50 of the Prevention of Money Laundering Act, 2002 on the basis of ECIR/04/HQ/2018. 7. Thereafter, the Petitioner challenged the summons issued u/s 50 of the Act, before the High Court of Karnataka at Bengaluru in W.P. No. 6210/2019. The High Court was pleased to dismiss the said writ petition vide judgment dated 29.08.2019. The respondent issued another summons u/s 50 of the Act on the same day i.e. 29.08.2019 at 9.40 PM at the residence of the Petitioner in Bengaluru, to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother offence or an agreement to conduct another offence, the offence of conspiracy can be said to be made out. In other words, a person cannot conspire to conspire. Section 120B is substantive for the purposes of punishment which is clear from Section 120-B (1) which says that punishment will be done in the same manner as the abetment of 'such offence'. Further, provides that whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as set out in Section 120-B(l) shall be punished with imprisonment of either description for a term not exceeding six months. 11. Learned senior counsel for petitioner, thus, further argued as under:- i) In the context of Prevention of Money Laundering Act,2002, the offence has to be read as Scheduled Offence. ii) An abettor has to be an abettor of an offence, and in the context of the Prevention of Money Laundering Act,2002, a scheduled offence. Reference in this regard may be made to Section 108, Indian Penal Code, 1860. iii) If it is an admitted position that none of the offences are scheduled offences, even if recourse is made to Section 120 -B (2) then the maximum punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the society and admittedly, is not a flight risk. Reliance is placed upon the judgment in the case of R.Vasudevan vs. CBI, BAIL APPLICATION NO. 2381/2009, wherein this High Court considering the high position and deep roots of the accused, granted bail. The present petitioner has no criminal antecedents and has never been convicted for any cognizable offence. Thus, there is no question of repeating the offence in any manner, whatsoever. There is no allegation in this case of tampering of evidence or influencing the witnesses. 15. Moreover, the offences punishable under Section 276C (1) and Section 277 of the Income Tax Act, 1961 are compoundable offences u/s 279(2) of the Act which shows that the offences are not serious in nature. The Delhi High Court in the case of Sitaram Aggarwal vs. Customs, (2005) 79 DRJ 554 held that, in case of compoundable offences, bail should be granted. 16. The Hon'ble Supreme Court in the case of Dataram Singh vs. State of Uttar Pradesh Ann, (2018) 3 SCC 22 held as under: i. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... running into at least ₹ 143 Crores. During course of search, statement of several persons including petitioner and his associates were recorded by the Income Tax Department. Details of cash seized during Search S. No Name and address of the premises Amount of cash seized Rs. a. Flat No.0l, Karnataka Govt. Staff Quarters, Sector-6, R.K. Puram New Delhi. 12,44,900 b. No. 17, B-4, Safdarjung Enclave, New Delhi. 1,37,36,500 c. No. 107, B-2, Safdarjung Enclave, New Delhi. 41,03,600 d. No.201,B-5, Safdarjung Enclave, New Delhi. a) From the room of Sh. D.K. Shivakumar b) From the room of Sh. Sunil Kumar Sharma Total 6,61,26,000 7,58,100 6,68,84,100 Grand Total Rs 8,59,69,100 22. Further submitted, the scrutiny of transactions recorded and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mother, wife, daughter have shown phenomenal growth in assets in the period when he was holding high position which has not come out of legitimate business which he is claiming. The petitioner has directly as well as indirectly been involved in the process, concealment, possession, acquisition and use of the proceeds of crime which was directly/indirectly derived as a result of criminal activity relating to schedule offence. 25. Further submitted, it has emerged from investigation conducted so far that he abused his official position to generate illegal money as is also evident from the increase in assets of the petitioner and his family members which are not in tune with the disclosed income of the family. 26. As per the information available at this point of time, petitioner and his family members are maintaining around 317bank accounts wherein deposits and transfers have been made, also it is evident from the details of deposits that during the period huge cash has been deposited/ transferred in the bank and the amount of transactions is varying every year disproportionately. Some part of the tainted cash was claimed as agricultural income and was directly invested in im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner was discharged by the Special Court, Bengaluru in 3 out of 4 complaints vide order dated 28.02.2019. however, the application seeking discharge in the 4th complaint was dismissed by the Special Court, Bengaluru, vide order dated 25.06.2019. The petitioner had challenged the said order in Revision Petition No. 955/2019 filed before the High Court of Karnataka which granted stay of further proceedings vide order dated 20.08.2019 in the said 4th complaint case pending before the Special Court, Bengaluru. 33. It is also not in dispute that the offences under Section 276C, 277 of the Income Tax Act alleged against the petitioner are compoundable offences and the only Scheduled Offence invoked against the petitioner is Section 120 B IPC. 34. It is also not in dispute that Anjaneya Hanumanthaiah who challenged order of the High Court of Karnataka in WP(Crl.) No. 281/2019 wherein the Hon ble Supreme Court issued notice and the Hon ble Court directed the respondents that no coercive action shall be taken against the petitioners. However, I am not giving any opinion on the merit of case of the prosecution. 35. While dealing with the bail application, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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