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TMI Blog2021 (10) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial court if it comes to that stage; yet, to repeat, as regards this petition filed under the provisions of Section 438 of the Cr.P.C., there are no ground to admit the petitioner to 'anticipatory bail' with the aforesaid allegations made in the FIR itself, as also in the reply filed on behalf of the respondent-State. As regards all evidence being available by way of documents in the form of a power of attorney, the deed of assets and liabilities, and the loan transactions, though this court was swayed by that contention at first blush yet, with the learned Senior Deputy Advocate General, Punjab, having pointed out that 'Hawala'/ underground banking transactions have been time and again alleged to have been committed by Shivlal Pabbi in collusion with the petitioner, and the 'modus operandi' of such transactions needs to be disclosed by the petitioner, which may only be possible by way of custodial interrogation and not under the protection of even an interim bail in his favour. Petition dismissed. - CRM-M-31053-2021 - - - Dated:- 8-10-2021 - MR. AMOL RATTAN SINGH, J. For The Petitioner: Mr. Vikram Chaudhri, Senior Advocate, with Mr. Kesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of underground banking carried out by Shivlal Pabbi were transferred, via others, to Dubai and India, Pabbi having invested hugely in India, including in Cabbana Resorts, Ludhiana, and in real estate in Samanpur, etc; c) That Sh. Anil Chodha and Manoj Chodha had been appointed as shareholders in Cabbana Hotel but in reality had no powers and had received no profit distribution; and d) That Shivlal Pabbi worked as a Manager for M/s SM Fashions B.V., registered in the name of Sh. Mukesh Sharma (the petitioner) and that Sh. Mukesh Sharma gave a loan of Euro 2,00,000 to Sh. Pabbi and invested Euro 7,34,813.02 of his private means in M/s SM Fashion B.V., despite the fact that Sh. Mukesh did not have access to such huge amount of money on his own e.g. Sh. Mukesh Sharma was asking for money from Sh. Pabbi for his sons' marriage (surveillance by Dutch authority). The payment and repayment of the loan could not be found in Pabbis' account. (Emphasis applied in this order only). 5. The FIR further states that during the course of investigation into the offences punishable under the provisions of the Act, searches were conducted at the premises of M/s Cab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him to Pabbi and further, the petitioner also signed (on behalf of S.M.Fashion DV), a 'Deed of Sale of Assets and Liabilities' with Shivlal Pabbi and by virtue of that deed, purchased all the assets and liabilities of Pabbis' business concern, named Euro Mode. However, in reality there was found to be no money involved in the transactions shown in the books, on behalf of the petitioner, and the transactions shown against payments to creditors and the loan to Pabbi from the petitioner, was only a sham transaction for the purpose of book keeping. Thus, 'Hawala'/ underground banking operations in the Netherlands are alleged to have been run by Pabbi under the cover of business operations of S.M. Fashions BV, with the commission earned through this illegitimate 'Hawala' business, in cash, then transferred by Pabbi to his bank account in the State Bank of India, Phagwara, through Dubai. However, the proceeds of the 'Hawala'/ underground banking operations were not declared to the Netherlands authorities and were being laundered to India through Dubai and were invested in Cabanna Resorts situated at National Highway-I (at the Jalandhar-Lud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and Sections 120-B, 467 and 471 of the IPC. 13. It is to be noticed by this court, at this stage itself, that though towards the end of the FIR, Section 420 of the IPC has not been mentioned (with it also not having been referred to as an offence committed in the heading of the FIR), yet, as would also be seen from the reply filed on behalf of the respondent-State, and even as per a reading of the intermittent part of the FIR, offences punishable under the provisions of Sections 415 and 420 of the IPC (cheating) are also stated to have been committed, which prime facie at least, would also seem to be so by this court, once it is stated time and again in the FIR, as also in the reply filed on behalf of the respondent-State, that 'Hawala'/ underground banking transactions are stated to have been transacted. 14. Mr. Chaudhri has essentially raised the following arguments:- (i)That the three documents as are essentially referred to in the FIR, i.e. the power of attorney dated 09.05.2005, the loan agreement signed with Shivlal Pabbi for extending a loan for an amount of Euro 2,00,000 to Pabbi, and the deed of sale of assets and liability dated 31.12.2007 (all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the prosecution, Section 225 of the Dutch Penal Code corresponds to Section 467 of the IPC with Section 327 of the Dutch Penal Code corresponding to Sections 415 and 420 of the IPC and though the petitioner denies any such parity between the said provisions of the two Codes, even if that contention of the prosecution is to be accepted for the sake of argument, then the trial qua Pabbi is already over in the Netherlands (though with his appeal pending), with no proceedings in India therefore maintainable under the provisions of the IPC, the only alleged offence in India being under the provisions of the Act (as contended by learned senior counsel) Mr. Chaudhri further submits that in fact Section 225 of the Dutch Penal Code is not equivalent to any provision in the IPC as regards the commission of any offence pertaining to forgery and consequently, the FIR itself is non-est; (iv)That the respondent Directorate has lodged a separate complaint under the provisions of the Act against the petitioner as also Pabbi at Mohali; and the competent court has taken cognizance of the said offence already and consequently, an FIR based on a similar complaint of the Enforcement Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following judgments to submit that the petitioner, especially in the context of a petition filed under the provisions of Section 438 of the Cr.P.C., cannot seek the extra-ordinary relief of 'pre-arrest bail' with more than a prime facie case made out against him even as regards 'Hawala' transactions (as contended):- (i) State of Bihar vs. Murad Ali Khan and others (1988) 4 SCC 655; (ii) Monica Bedi vs. State of Andhra Pradesh (2011) 1 SCC 284 and (iii) Abdul Salam vs. State of Karela 2002 OnLine Ker 546 19. Having considered the matter, first of course it is to be observed by this court that it is not understood at all as to how learned senior counsel for the petitioner can submit that there is not even an allegation of any 'Hawala' transaction having taken place qua the petitioner, because, as already noticed, in the FIR itself, it has been stated at least thrice that illegitimate 'Hawala'/ underground banking operations were run by Shivlal Pabbi in the Netherlands, under the cover of business operations of S.M. Fashion BV (with the allegation against the petitioner being that the said operation is being run in his name even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/ underground banking are alleged to have been transacted as per the FIR itself, which prime facie (at least for the purpose of this petition seeking the extra-ordinary relief of pre-arrest bail), would seem to amount to cheating. 21. Hence, in good conscience, I find it, in the face of the allegations made in the FIR and the contents of the affidavit filed on behalf of the respondent-State, impossible to accept that no offence of cheating is even alleged to have been committed. Whether or not any such 'Hawala' transactions amounting to cheating eventually are proved, naturally would be a matter of evidence gathered and eventually submitted to the trial court if it comes to that stage; yet, to repeat, as regards this petition filed under the provisions of Section 438 of the Cr.P.C., I find no ground to admit the petitioner to 'anticipatory bail' with the aforesaid allegations made in the FIR itself, as also in the reply filed on behalf of the respondent-State. 22. As regards the contention of Mr. Chaudhri that the FIR itself is not maintainable, it is to be noticed that no petition seeking quashing of the FIR on any ground has been even referred to, as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rground banking transactions having taken place. 25. Last, as regards the contention that the petitioner being 63 years old and all evidence already being available by way of documentary any evidence, with the transactions themselves stated to be above 15 years old (as contended by learned senior counsel); firstly, it is to be noticed that none of the offences that the petitioner is alleged to have committed, (punishable under the provisions of Sections 467 and 471 of the IPC, or the one which is not specifically mentioned in the FIR but would prime facie seem be made out, i.e. under Section 420 of the IPC), is an offence that is punishable for a maximum sentence of less than 03 years, and hence, very obviously there would be no bar by way of limitation in terms of Sections 468 and 469 of the Cr.P.C., for any competent court to take cognizance of such an offence, if the proceedings in the FIR reach such a stage. As regards all evidence being available by way of documents in the form of a power of attorney, the deed of assets and liabilities, and the loan transactions, though this court was swayed by that contention at first blush yet, with the learned Senior Deputy Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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