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TMI Blog2020 (7) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... at presence of knowledge is not the only criteria making the accused culpable under the Act. The offence of Money Laundering is nothing but an act of financial terrorism that poses a serious threat not only to the financial system of the country but also to the integrity and sovereignty of a nation. The International Monetary Fund estimates that laundered money generates about $590 billion to $1.5 trillion per year, which constitutes approximately two to five percent of the world s gross domestic product - The offences, such as this, are committed with a deliberate design with an eye on personal profit and often shown to be given scant regard for a sordid residuum left behind to be borne by the unfortunate starry eyed petty investors. The perpetrators of such deviant schemes, including the petitioner herein, who promise utopia to their unsuspecting investors seem to have entered in a proverbial Faustian bargain and are grossly unmindful of untold miseries of the faceless multitudes who are left high and dry and consigned to the flames of suffering. The issue of retrospective application of penal laws/scheduled offences which has been vehemently raised by the petitioner, but for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney. Thus, he requested for an investigation regarding the money circulation scheme which culminated into registration of a case by the said police station. Subsequently, the investigation of the aforesaid P.S. Case No.118/2009 dt. 17.07.2009 got transferred to CB, CID of Odisha as per order No.189/CID dated 18.07.2009 by registering CB, CID Case No.17 dated 18.07.2009 against officials of M/s. FIPL under the aforesaid sections. 3. On 12.12.2012, this Court while hearing W.P.(C) No.7693/2011 All India Networkers Welfare Trust and another vs. Superintendent of Police, CID and Others, W.P.(C) No.7693/2011., directed that looking at the massive financial impact in the case, the investigation of the aforesaid case be handed over to the CBI. In compliance with the said direction, the Central Bureau of Investigation (hereinafter referred to as "CBI") 1 All India Networkers Welfare Trust and another vs. Superintendent of Police, CID and Others, W.P.(C) No.7693/2011. took over the investigation. Accordingly, CBI Economic Offence Wing, Kolkata registered a case vide No.-RC 02/E/2013-KOL on 01.03.2013 after duly taking over the FIR of CB, CID, Odisha Case No.17/2009 registered U/s. 406/420/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um of ill-gotten wealth with the singular intention of concealing the original source of funds and to project the tainted money as untainted ex facie constitute the offence of money laundering. 7. Scrutiny of the books of account of FIPL further reveals that about ₹ 152 Crores were transferred to one M/s. Eve Industries which were further layered by laundering the same to one M/s. Great Entertainments and further to the accounts of M/s. Lemon Entertainment Ltd. where the petitioner was also a Director at the relevant point of time (financial year 2009-10). In this way, the complicity of the petitioner in the instant case is quite visible. This money was transferred to the Bank A/c No.00421300000134 of M/s. Lemon Entertainment Ltd. whose account was being maintained in DCB Bank, Andheri, Mumbai and A/c. No.020010200044907 maintained in Axis Bank, Lokhandwala Branch, Mumbai. The details of cheques through which the money was transferred from the accounts of M/s. Great Entertainments to the above accounts of M/s. Lemon Entertainment Ltd. are as under: Sl.No. Name of Bank and Branch of M/s. Great Entertainment A/C A/c. No. of M/s. Great Entertainment Cheque No. M/s. Lemon E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said errant company during that point in time when the "proceeds of crime" were laundered into the books of the Company. 8. During the said relevant period, the Petitioner Mohammad Arif and his father Zaheer Ahmed collectively held 934820 shares between themselves out of the total of 945860 subscribed shares of the company, which is virtually the wholeshares of the company. Thus, it is apparent that the present petitioner Mohammad Arif held around 8.83% of shares and as his father Zaheer Ahmed held around 89.99% of shares of M/s. Lemon Entertainment Ltd. as on 30.09.2009. Thus, the contention of the petitioner in paragraph-6 of the instant application that he was holding only 0.078% of the total shares of M/s. Lemon Entertainment Ltd. is mischievously misleading. 9. Another material fact evident from the records and pertinent for the purpose of consideration of the instant application is that as many as 11 summons have been issued to the petitioner prior to his arrest in connection with this case U/s. 50 of PML Act, 2002 but he appeared only once. The details of summons are given hereunder: Date of Summons Date fixed for appearance Whether appeared Date of Statement rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " The petitioner has played a key role in masking the tainted money as untainted hence a specific role is attributable to the petitioner herein. Investigation so far has revealed that there is no written agreement between M/s. Great Entertainments and M/s.Lemon Entertainment. The contention of the petitioner that ₹ 25 crores was transferred for the purpose of production of a movie and for acquiring a satellite channel named 'Lemon TV' is an afterthought and an imaginary vehicle to cover up the offence of money laundering. He further submitted that petitioner is alleged to have been engaged in sham transfer of shares, which ex facie appears to be bogus transactions. Curiously, no money was transferred to the account of the original share holder i.e. Zaheer Ahmed. It appears quite absurd that when the shares held by Zaheer Ahmed were claimed to have been transferred in the name of one Shamshad Alam [Accused No.4 in C.M.C. (PMLA) No.47 of 2017], there was no reason for transfer of monies, therefore, to the account of the company. The said transaction on first blush appears to defy good logic but a closer scrutiny shows that the same is a well hatched conspiracy and an act of sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 14 crores has been transferred to the accounts of M/s. Hamra Samay TV News Network Pvt. Ltd, which in turn has transferred, approximately ₹ 11 crores to the bank account of M/s. Ruby Buildwell Pvt. Ltd. Further about ₹ 2.75 crores have been transferred to the bank account of M/s. Pal News Media Pvt. Ltd. Thus, the amount appears to have been layered further after its placement which constitutes an important stage of money laundering. 13. The bank account statement of M/s. Ruby Buildwell Pvt. Ltd. further reveals that a self cheque bearing No.519851 was issued on 17.05.2010 from A/c No.1579417 of ABN - AMRO Bank (now RBS Bank) and against this cheque, cash of ₹ 1.5 Crores was withdrawn under the signature of the petitioner herein. Statements of accounts of M/s. Ruby Buildwell Pvt. Ltd. as well as M/s. Pal News Media Pvt. Ltd also reveals that cash has been withdrawn on several occasions through self cheques under the signatures of the petitioner herein. Another telling aspect of the matter is that the petitioner has stated categorically in a statement that he knew Wali Mohammad since the last 15 to 20 years and that he was earlier working as an Ola Cab Driver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheduled crime and (b) the laundering of the "proceeds of crime" so generated. The Act, is amply clear, that even though a person may not have actually committed a scheduled offence as provided under the Act but upon subsequent participation in the laundering of such monies will nonetheless render him culpable under the Act. Money Laundering is an independent as well as continuing offence, which can be inferred from its very definition under Section 2(p) of the Act. The offence is treated as continued offence as long as accused remains in possession, causes concealment of the nature of the money or continues to mask the tainted money as untainted. Enforcement Directorate, is not investigating the Scheduled offences but the offence of money laundering which is a distinct and separate offence committed "after the commission" of Scheduled offence and which continues to be committed as long as the possession, acquisition and the projection of tainted money as untainted continues. 17. In the instant case, the petitioner has been in possession of the "proceeds of crime" and it appears that he along with others have attempted to project the same as untainted money by transferring the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant." 19. While deciding a bail application, the provisions of Section 45 read with Section 24 which reverses the burden of proof and creates presumption of guilt required to be dislodged by the accused, will mandatorily apply. A similar view of the matter has been reiterated in Rohit Tandon vs. Directorate of Enforcement.(2018) 11 SCC 46. It may further be held that the reliance placed by the petitioner on Nikesh Tarachand Shah vs. Union of India (2018) 10 SCC 753. is untenable in view of the fact that Section 45 has been amended (by the Amendment Act 13 of 2018) whereby the original expression "imprisonment for a term of more than three years under Part A of the Schedule"(pre-amendment) now stands substituted by the expression "no person accused of an offence under this Act shall be released on bail or on his own bond". Thus, the contention raised by the petitioner with regard to Section 45 of the Act does not hold good. A similar sentiment has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not." Though this clarificatory explanation has come into force at a subsequent time but it makes the issue clear and any submission to the contrary by the Petitioner cannot be countenanced. In view of the judicial pronouncements and the aforestated amendment to the Act it is clear that this issue is no longer res intergra. 21. Another material fact which has been suppressed by the Petitioner herein and which warrants a serious view of the Court is that the he had filed a bail application before the learned Special Court (PMLA) on 25.11.2019 but the District and Sessions Judge, Khurda rejected on 4.12.2019 returning a finding that, materials on record disclose a prima facie case against the Petitioner for commission of the offence of money laundering. The said order dated 4.12.2019 challenged by way of a Special Leave Petition10 before the Hon'ble Supreme Court of India and suffered dismissal. Subsequently, the petitioner fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case, has great potential to negatively impact a country's macro economic performance and may also adversely impact its cross-border externalities. Further, such actions by the petitioner can inflict reputational damage of the country in the world of business and commerce both inside the country and abroad. The act of money laundering is done in an exotic fashion encompassing a series of actions by the proverbial renting of credibility from the innocent investors. The offenders often target the unsuspecting, rural and economically distressed populations of our state who while hoping for a dreamy return, part with their hard-earned monies. The Apex Court has taken a very serious view in cases involving large scale white collar economic offences such as State of Bihar vs. Amit Kumar, (2017) 13 SCC 751. NimmagaddaPrasad vs. CBI (2013) 7 SCC 466., CBI vs. Ramendu Chattopadhyay, Crl Appeal. No. 1711 of 2019. Seniors Fraud Investigation Office vs. NittinJohari, (2019) 9 SCC 165. Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439. State of Gujarat vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364. CBI vs. V. Vijay Sai Reddy, 2017 (13) SCC 751. Subrata Chattoraj vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on its facts and circumstances and on its own merits. However, the discretion of the Court has to be exercised judiciously sans any element of arbitrariness. Even if the "bail is the rule and jail is the exception" the basic bail jurisprudence remains unaltered but in the instant case, the conduct of the accused even at the stage of pre-arrest summons, have been very evasive and non-cooperative. At this backdrop, the possibility of 'flight risk' and tampering the evidence or influencing/intimidating the witnesses cannot be ruled out.
26. Considering the aforesaid discussion, submissions made and taking into account a holistic view of the facts and circumstances in instant case, this Court is not inclined to release the accused Petitioner on bail. Accordingly, the bail petition filed on behalf of the accused/petitioner stands rejected. It is, however, clarified that the above observations shall not come in the way of a fair trial before the Ld. Trial Court and it will proceed to decide the matter on its own merits, uninfluenced by any of the observation made hereinabove. The Bail Application under Section 439 Cr.P.C. and the connected I.A. are accordingly dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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