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TMI Blog2020 (12) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereafter the State cannot file further application for grant of Police custody and in respect of the said subject matter the order has become final - Thus, in view of the ratio laid down by this Court, the revision application is maintainable. Nexus of respondent No.2 as well as his knowledge and indulgence either directly or indirectly in the offence of money laundering as well as possessing or holding proceeds of crime - HELD THAT:- It appears that the learned Judge has taken a very casual and perfunctory approach by ignoring that it is not a simple crime but is so enormous and complex which requires a thorough probe and investigation by the Investigating Agency in view of the provisions of P.M.L Act. Merely because, the Investigating Officer could not answer the queries of the learned Judge does not ipso facto mean that the material collected and the statements recorded by the Investigating Agency are figments as there is no reason for the Enforcement Directorate to falsely implicate respondent No.2 when there is clinching material prima facie exhibiting nexus of respondent No.2 with the co-conspirators. Unless there is free, fair and full investigation of the crime of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sajal Yadav For the State : Ms. Jyoti Lohokare, A.P.P ORDER P.C: Rule, returnable forthwith. 2. Heard finally with the consent of the learned Additional Solicitor General appearing for the applicant and Mr. Rizvan Merchant, learned Counsel appearing for respondent No.2-original accused. 3. Mr. Merchant waives service of notice on behalf of respondent No.2 and learned A.P.P waives service of notice on behalf of respondent No.1-State. 4. Feeling aggrieved with an order of rejection of extension of custody of respondent No.2 with the applicant-Enforcement of Directorate (for short E.D ) on 29th November, 2020 passed by the learned Additional Sessions Judge (In-charge of Holiday Court) in Remand Application No.912 of 2020, revisional powers of this Court have been invoked impugning the said order, inter alia, seeking extension of the custody of the accused-respondent No.2 with the applicant for a period of 10 days. 5. Facts necessary for disposal of the revision application are as follows: One Shri Ramesh Ramkrishna Iyer (for short the complainant ) Ex-Vice Chairman of M/s. Tops Group Services and Solutions Limited (for short Tops Group ) filed a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Niraj Bijalani-Ex-C.E.O of Tops Group. In the financial year of 2017-2018, an amount of ₹ 92,00,000/- approximately was handed over to Mr. Niraj Bijalani. There was an arrangement with two persons namely one Mr. Sanket S. More and Amit Chandole-respondent No.2. As per the said arrangement, 50% of the profits (revenue billed to M.M.R.DA, less wages, P.F and E.S.I.C) were being regularly shared on monthly basis. In addition to it, a fixed commission of ₹ 50,000/- per month and ₹ 500/- per guard deployed is also being paid to Sanket More and respondent No.2. Those amounts were paid by Mr. Niraj Bijalani to Mr. Sanket More and respondent No.2. 9. The Statement of the complainant recorded on 2nd November, 2020 reveals that Rahul Nanda informed him that respondent No.2 is the close confidante of one Mr. Pratap Sarnaik, a sitting M.L.A and that they have to share monthly profit emerging from M.M.R.D.A with Mr. Pratap Sarnaik through respondent No.2. As such, from May, 2017 till June, 2020, an amount aggregating to ₹ 2.36 Crores has been shared as a commission. Out of the said amount, ₹ 90,00,000/- have been paid through a Bank transfer to Mr. Sanket Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d inadequate in view of the fact that custody of respondent No.2 was authorized only for three days, out of which 28th November and 29th November were holidays being 4th Saturday and Sunday. The Investigating Agency, therefore, could not interrogate respondent No.2 sufficiently in respect of details of bank transactions as well as investigation in respect of involvement of the public servants. The Investigating Agency, however, during those three days could recover some registers, files, hard disks of computer, computer data and mobiles. It is submitted that the custody of respondent No.2 is necessary for confrontation with accomplice/s and also for verifying the bank accounts in order to thoroughly probe into the scheduled offences and money laundering. Mr. Singh has also drawn my attention to the Whats App chat which is relevant in order to investigate the scheduled offences. Mr. Singh has placed reliance upon few judgments which shall be referred hereinafter. 15. Mr. Merchant, while strongly opposing the prayer of the applicant, at the outset, questioned the maintainability of the revision application, as according to him, it being an interlocutory order, revision is not tena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich cannot be considered as they were not raised in the remand application. 18. First objection of Mr. Merchant is that the impugned order being interlocutory, revision application is not tenable to which Mr. Singh, the learned Additional Solicitor General has pressed into service a judgment of this Court in Criminal Application No.5342 of 2010 in case of Alim A Patel Vs. The State of Maharashtra and Criminal Application No.5345 of 2010 in case of Altaf Yusuf Naik Vs. State of Maharashtra decided on 16th December, 2020 (Coram: V.M. Kanade, J.). Facts of the said case in brief are that the petitioners were booked under sections 406, 420, 507 r/w 34 of the Indian Penal Code by Pen Police Station . It was alleged in the complaint that the complainant was induced by the petitioners/accused to deliver a huge amount of ₹ 65,71,000/- for purchase of land at Ambeghar, Taluka Pen. Despite receiving such a huge amount of consideration, the land was purchased in the name of the petitioners and their family members and thereby, the complainant was deceived as he was cheated and there was a criminal breach of the trust by the petitioners. After their arrest, the petitioners were produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m decided to check this delay by introducing subsection (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of section 397 also, shall be deemed to limit or affect the inherent powers of the High Court . But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in subsection (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither advisable, nor possible, to make a catalog of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The Court, therefore, has to consider the nature of the order and determine whether the said order becomes final or not and, accordingly, decide whether the revision application can be filed against it. The learned Single Judge of this Court in Ambarish Rangeshahi Patnigere (supra) considered this aspect in respect of refusal by the Magistrate to consider the request for police custody and, in my view, has rightly observed that observation of the Apex Court in N.M.T Joy Immaculate (supra) would not apply to the facts of that case since the question which fell for consideration before the Apex Court in the said case was whether the order passed by the Magistrate granting police custody for one day was an interlocutory order or not. 11. In the present case, the learned Magistrate has refused to grant police custody and, therefore the said order, in my view clearly had become a final order si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate before whom he was produced. The said order is challenged in these appeals. The Apex Court, thereafter, in view of the facts of the said case viz. that the accused was arrested and remanded to judicial custody after some time, held that the accused, thereafter, cannot be remanded to police custody after expiry of initial 15 days and in the light of the said facts the Apex Court came to the conclusion that such a course of action was not permissible in law. In my view, ratio of the said judgment would not apply to the facts of the present case. In the said case applicant was arrested and was remanded to judicial custody where he remained for more than 15 days. The Apex Court, therefore, held that the period of calculating the custody would commence from the date of order of remand which in the said case was 05/10/1991 and, thereafter, he remained in jail custody till 29/10/1991 continuously for a period of more than 15 days and, under these circumstances, the Apex Court has observed that thereafter an application for PCR could not be made . 20. It has been observed by this Court that when the Magistrate refuses to grant Police custody, the said order becomes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt went a step further and held as follows (at p.169 of Cri LJ) :- Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'. In vol.22 of the third Ed. of Halsbury's Laws of England at page 742, however, it has been stated in para 1606:- 'a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.' In para 1607 it is said : 'In general a judgment or order which determines the principal matter in question is termed 'final'.' In para 1608 at pages 744 and 745 we find the words : 'An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing proceeds of crime is concerned, statements of the complainant, Amar Panghal, Niraj Bijalani as well as respondent No.2 are quite relevant. The statements of these individuals came to be recorded under section 50 of sub-section 2 and 3 of the P.M.L Act. It would be apposite to refer only the relevant portion of the statements for the purpose of indicating nexus of respondent No.2 with the alleged crime. 26. Relevant portion of statement of the complainant-Ramesh Iyer reads thus; Statement of Mr. Ramesh Iyer (I) :- (p) Loans have been taken by Tops Group by making myself and Mr Amar Panghal as guarantors by appointing us as the directors. The said loans still have not been repaid by Tops Group. Also Corporate Credit cards are issued in the names of Company and are being utilised by Mr. Rahul Randhir Nanda and his family members and we are now being made scapegoats to take all blame of the Company. It is also learnt that Mr. Rahul Randhir Nanda and his family members have already left the country and are currently based in Dubai. (r) In the year 2014, a contract was signed with Mumbai Metropolitan Regional Development Authority (MMRDA) wherein there were about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pratap Sarnaik who is MLA and having business in the name and style of Vihang Group. Mr. Rahul Nanda told me several times that Mr. Amit Chandole is the main man of Mr. Pratap Sarnaik and we have to share the monthly profit emerging from MMRDA contract with Mr. Pratap Sarnaik through Amit Chandole. As I earlier told you that as per contract between Tops Group AND MMRDA about 350 to 500 guards were agreed to be deployed at MMRDA sites on a monthly basis but only around 70% of guards were actually deployed. However, billing used to be done for all the guards as per contract. Mr. Rahul Nanda use to share good bonding with Mr. Pratap Sarnaik. I am submitting 12 pages of the whatsapp chats of Senior Management Group showing in support of the above. In the subject Group, myself, Mr. Rahul Nanda, Mr. Ayush Pasari, Mr. Jasmeet Reki, Mr. Amar Panghal, Mr. Shashidharan, Ms. Rasshi Nanda and Roohie Nanda. In Whatsapp chat dated 15 June 2019, Mr. Rahul Nanda specifically asked me to handle Amit properly as he is Pratap s main man. In the conversations, the word PO was used. I want to clarify that the word PO was a code word for carrying out cash transactions whenever. I w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract, profit sharing was used to be done between Tops Security and Mr. Pratap Sarnaik on 50:50 basis. For this, a profit sharing sheet was used to be prepared by Finance Department and approved by Director Finance, Mr. Amar Panghal. On the basis of this sheet, the said profit sharing used to be done. Being President of Guarding Business, once I have perused this sheet to ascertain the profitability of this business. Q.5 :- How was this profit used to be delivered to Mr. Pratap Sarnaik? Ans:- One Mr. Amit Chandole, the right hand man of Mr. Pratap Sarnaik used to coordinate for the same with the finance department. Mr. Amit Chandole used to collect the said profit share on behalf of Mr. Pratap Sarnaik. The funds mostly used to be delivered in cash. Either he used to collect the same or the finance staff used to deliver the same to him. Ms. Latika Randive used to maintain the records for the same and she mostly used to coordinate with Mr. Amit Chandole. Q.6 :- What was the reason for sharing the profit with Mr. Pratap Sarnaik? Ans:- Mr. Pratap Sarnaik used to have a good family bonding with Mr. Rahul Nanda. For the various events organized by Mr. Pratap Sarnaik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-payment of their dues. Every month such payments were made to Mr. Amit Chandole. Whenever, there was a delay, next month double payment used to be made. 31. It is, prima facie, apparent from the aforesaid statements the network and coterie of the concerned indulging in the offence of the money laundering. 32. The learned Holiday Judge in the impugned order failed to consider the documents and the material placed before him as has been rightly submitted by Mr. Singh, the learned Additional Solicitor General. It appears that the learned Judge has taken a very casual and perfunctory approach by ignoring that it is not a simple crime but is so enormous and complex which requires a thorough probe and investigation by the Investigating Agency in view of the provisions of P.M.L Act. Merely because, the Investigating Officer could not answer the queries of the learned Judge does not ipso facto mean that the material collected and the statements recorded by the Investigating Agency are figments as there is no reason for the Enforcement Directorate to falsely implicate respondent No.2 when there is clinching material prima facie exhibiting nexus of respondent No.2 with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oral communication of the grounds of arrests is not only a substantial but proper compliance of the provision. 36. Provision of Section 19 (1) also does not state that the grounds of arrest are to be informed to the person arrested immediately. The use of the word in the said provision as soon as may be , makes it clear that grounds of arrest are not to be supplied at the time of arrest itself or immediately on arrest, but as soon as may be . 37. Photostat copies of the Bank account of respondent No.2 with State Bank of India have been tendered at Exhibit R colly. A bare perusal of these extracts reveals about the transaction in the name of respondent No.2 in whose account, from time to time, huge amounts in lakhs appear to have been debited from the account of Tops Group. Respondent No.2 shall have to explain about the same. 38. The grounds (f) and (g) on page No.6 of the revision application as rightly been stated by Mr. Merchant, were not raised in the remand application and, therefore, these grounds cannot be considered for the first time in the revision application. 39. However, it would be important to read even the statement of respondent No.2 recorded on 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull investigation. Material placed on record, prima facie indicates complicity and nexus of respondent No.2 in the alleged crime. Mr. Singh has, therefore, pressed into service a judgment of the Hon ble Supreme Court in the case of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation, (2013) 7 SCC 439. It would be apposite to reproduce the relevant portion from the said judgment, which reads thus :- Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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