9911796707
TMI Blog2021 (3) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... having its office at DLF South, Saket, New Delhi, was engaged in business of procuring, processing etc. and dealing with all kinds of rice and value added rice products etc. The company was originally promoted by Mr. Virkaran Avasthi and his wife Mrs. Ritika Avasthi. Mr. Virkaran Avasthi was Managing Director of company and in-charge of affairs of company. 4. In 2011, Standard Chartered Private Equity (SCPE) acquired 29% shares of M/s Bush Foods and following the investments, SCPIE appointed Mr. Rahul Rai Surana, Namit Arora as nominee Directors on the Board of M/s Bush Foods and Mr. Vinod Sirohi as its Chicf Financial Officer. Around September, 2012 M/s KPMG India Pvt Ltd on behalf of M/s Bush Foods approached complainant company and invited it to invest into M/s Bush Foods as strategic partner. In the month of November, 2013, a meeting was held at KPMG office in Delhi which was attended by SCPE nominee directors, Mr. Avasthi and Mr. Sirohi. The proposal was made to complainant company that among others, SCPE Would sell its entire share holding of 29% to the complainant company. It was also represented to the complainant company that M/s Bush Foods has turnover of Rs. 1000 Crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any for further funding but failed to submit the business plans, consolidated financial statement etc. Ultimately, complainant company got suspicious and in the end of 2013, internal investigation for ascertaining actual financial position of M/s Bush Foods was carried out. The complainant company appointed Mr. Amin Controllers Pvt. Ltd. (surveyor) to survey raw-material inventory of M/s Bush Foods. The surveyor visited the various warehouses of M/s Bush Foods in Panipat, Murthal, Shahbad and found that warehouses were totally or partly empty. The substantial bags of stock were filled with husk, plant slippery material etc. and in some compartments wooden pallets were used to frame platform upto height of six feet. On top of this platforms, two layers of rice/ husk bags had been spread out to create the impression that compartments are totally filled. The surveyor evaluated the material in the range of USD 3-5 millions. It was further found that M/s Bush Foods has availed material working capital loan facility from various public Sector banks under the consortium agreement dated 19.10.2012 executed between company and consortium banks consisting of banks Bank of India, Allahabad Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the material on record. 9. It is submitted by the counsel for the petitioner that the complaint U/s 3/4, R/w Section 44 and 45 of PMLA 2002 pursuant to the investigation already stands filed and the investigation qua the petitioner is complete. It is further submitted that in the predicate offence, the charge sheet, supplementary charge sheet also stands filed. 10. It is further submitted by the counsel for the petitioner that further investigation cannot be a ground for continued incarceration and rejection of bail. It is further submitted that none of the evidences have been tampered ever since 2013 and the evidence in the present case is documentary in nature and the respondent vide panchnama dated 23.10.2020 has seized all the documents, digital devices like computers, hard drives, mobiles etc. which cannot be now tampered as they are in the possession of the respondent. It is further submitted that there is no possibility of influencing any witness as all the statements stands recorded U/s 50 of the PMLA and the ED authorities have not taken any steps under the Witness Protection Regime, therefore, it is evident that no witness has been influenced by the petitioner. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, it is submitted by the Ld. Standing Counsel that the petitioner was an employee of Hassad Food Company who colluded and conspired with Vikaran Awasthi, Ritika Awasthi and M/s Bush Foods Overseas Private Limited to cheat Hassad Netherlands B.V., a 100% subsidiary of Hassad Food Company, Qatar. It is submitted that the petitioner was responsible for Hassad's agri business investments in rice, sugar and other projects in South-East Asia, Middile East, Afirica, Europe and South America. It is submitted that his job responsibilities included determination and identification of new opportunities globally for mergers and acquisitions and for joint venture opportunities and to manage and coordinate the engagement of 3rd parties, monitor, evaluate, co-ordinate, due diligence process and to recommend to the management and the board potential investment opportunities, strategies and manner of execution. 14. It is submitted that the petitioner played a key role in negotiations and personally monitored the inventory verification and made comments on Hassad's concerns on the G.M. Kapadia & Co. report, a chartered accountant firm, which was engaged by M/s Hassad Neterlands to do stock count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hivender Mohan Singh Vs. Directorate of Enforcement 2020 SCC OnLine Del 766. (n) Order of the Hon'ble Supreme Court dated 31.07.2020 in SLP (Crl.) No. 3474/2020 titled Directorate of Enforcement Vs. Shivinder Mohan Singh. (o) Mohammad Arif Vs. Directorate of Enforcement 2020 SCC OnLine Ori 544. (p) Order of the Hon'ble Supreme Court dated 24.11.2020 in SLP (Crl) No. 4878/2020 titled Mohammad Arif Vs. Directorate of Enforcement. (q) Municipal Committee, Amritsar and Ors. Vs. State of Punjab & Ors. 1969 (1) SCC 475. (r) Devi Dass Gopal Krishnan Etc. Vs. State of Punjab & Ors. (1967) 3 SCR 557. (s) SFIO Vs. Nittin Johari & Anr. (2019) 9 SCC 165. 17. Twin conditions mentioned in Section 45 of the PML Act continue to be struck down as being unconstitutional in view of the judgment of the Apex Court in the case of Nikesh Tarachand Shah vs. Union of India (2018) 11 SCC 1. The amendment in Section 45 by the Finance Act 2018 is only with respect to substituting the term 'offence punishable for 3 years' with 'offence under this Act'. The said amendment does not revive the twin conditions already struck down by the aforesaid judgment. 18. Since the twin condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC." 22. In Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13, it was held as under:- "16. The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and basically they are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
