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TMI Blog2021 (11) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... der his direct influence. The applicant/accused being a qualified Chartered Accountant and an influential man in all likelihood would attempt to wipe off his footsteps to jeopardize not only the fair trial but the crucial aspects of pending investigations - Since the charge-sheet in the instant matter has already been filed, merely because ED is still further investigating the matter on some counts, the statutory right of bail u/s 167 CrPC is not available to the accused. The indefeasible right of the accused to claim statutory bail comes to an end once the charge-sheet is filed. Considering the nature of offence, seriousness of allegations and a strong possibility of applicant/accused attempting to influence the course of trial by influencing the witnesses and tampering with the evidence, the bail application is bereft of any merits - Application dismissed. - Ct. Cases/87/2021 ECIR/14/HQ-STF/2019 - - - Dated:- 27-10-2021 - DHARMENDER RANA ASJ-02/NDD/PHC/NEW DELHI Present: Sh. Zoheb Hussain, Ld. Special Counsel for ED through VC. Sh. N. K. Matta, Ld. SPP with Sh. Rahul Rai, Sh. Vivek Gurnani and Sh. Atul Sharma, for ED with IO Bhoopesh Rathi. Sh. Vijay Aggarwal wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials, if any for which the expenses have been shown in the books of M/s AHPL and also regarding verification of quantum of promoter's contribution brought in M/s AHPL and its sources. It is further submitted that in the instant matter, investigation qua the higher bank authorities, B. L. Yadav and Achal Kumar is still pending; investigation qua the Karta in the individual capacity and also regarding the role of auditors/CAs is still pending and pendency of further investigation is not a relevant factor to keep the accused into prolonged and indefinite custody as the same is against the principles governing bail and against Article 21 of the Constitution of India. It is submitted by Ld. defence counsel that in alternative, applicant/accused is entitled to statutory bail u/s 167(2) CrPC as incomplete complaint has been filed by the investigating agency. It is submitted that ACB filed the charge-sheet in the scheduled offence without the arrest of the applicant/accused though the offence alleged in the same is punishable with a maximum sentence of life imprisonment, so there is no reason to keep the applicant/accused behind bars for an offence punishable with seven years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating agency did not investigate the version of the accused. It is submitted that even if the case of ED is presumed to be true, even then there is no benefit that has accrued to him and ₹ 1204.79 crores have been spent on the said project. It is submitted that the promoters have themselves contributed crores of rupees in the project not only prior to sanctioning and disbursement of the loan by the bank during the period of its construction and development of the hotel but also during the period of construction and development of the hotel and even after completion of the project, the promoters invested ₹ 245 crores towards the running of the project and payment of interest prior to restructuring, SDR and OTS. It is submitted that the promoters have kept the hotel running and operational during the worst period of Covid-19 by infusing further funds despite the fact that numbers of hotels were closed due to lockdown and its after effects. It is further submitted that the twin conditions of Section 45 PMLA are not applicable in the case of the applicant/accused as per the law laid down in Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1, Sameer M. Bhujbal v. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by it and also of repaying the loans availed from various banks without any loss to the lenders. It is submitted that due to continued judicial custody of the applicant/accused, the business of the applicant/accused got impacted which is detrimental to the interest of various stakeholders and banks and the business of the applicant/accused is suffering low productivity. It is submitted that presently there are 2000 direct and indirect employees in the group and the entire families of the said employees are also dependent upon the working of the organization of the applicant/accused. And due to continued incarceration, the said dependent employees and their families are also suffering. It is forcefully argued that post filing of the charge-sheet, courts have been granting bail to the accused persons. It is submitted that pre-trial detention is infact violative of fundamental rights of the accused. It is submitted that the accused is presumed to be innocent till the conclusion of the trial and pre-trial detention under such circumstances is infact punitive in nature which is not permissible under the law. It is further submitted by Ld. defence counsel that applicant/accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Hargyan 2016 SCC OnLine Del 3730, Manish Gandhi v. State MCRC 15397/2017 DOD 21.12.2018, Ashok Dhingra v. NCT of Delhi 2001 (1) JCC (SC) 178, Anil Mahajan v. Commissioner of Customs 2000 (2) JCC (Delhi) 302, Court on its own motion v. State NCT of Delhi 2004 (1) JCC 308 (Delhi), Shameet Mukherjee v. CBI 2003 (70) DRJ 327, Ravi Singhal v. Union of India Anr 1993 JCC 306, Sushil Ansal v. CBI ors 1999 (I) JCC (Delhi) 12, Vinod Bhandari v. Assistant Director Directorate of Enforcement Madhya Pradesh High Court McrC. no. 34201/2018 DOD 29.08.2018, Deepak Virendra Kochhar v. ED High Court of Bombay Crl. Bail Application no. 1322/2020 DOD 25.03.2021, Rajat Sharma v. State NCT of Delhi Bail Application no. 278/15 DOD 21.04.2015, Anand Swaroop Arora v. State Bail Application no. 1077/15 DOD 22.12.2015, Manoranjan Singh v. CBI (2017) 5 SCC 218, Vaishali Vishal Mundale v. State of Maharashtra 2017 SCC OnLine Bombay 8892, Brahm Singh v. State NCT of Delhi 2010 (1) JCC 17, Santosh v. State of Maharashtra (2017) 9 SCC 714, Ishwar Singh Anr v. State (Delhi) 2008 (2) JCC 932, Preeti Gupta anr v. State of Jharkhand anr (2010) 7 SCC 667, Awanish Kumar Mishra v. State (Delhi) Bail Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horized signatory of most of these entities. It is submitted that immediately upon receipt of payment by these 25 entities, more than 95% of the aforesaid amount was transferred to the credit of two entities, namely M/s Raj Commercial and Agencies and M/s M N Commercial controlled by Raj Singh Gehlot which was again transferred to other companies of Ambience Group and diverted for other purposes such as to settle the loan of other companies of Ambience Group and making Fixed Deposit. It is submitted that applicant/accused entered into a criminal conspiracy with other persons to fraudulently siphon off the loan amount by diverting the funds for other purposes and money so siphoned off by him as a result of criminal conspiracy qualifies as proceeds of crime and thus, a case u/s 3 of PMLA is made out against the applicant/accused and the applicant/accused does not deserve to be released on bail. It is further submitted that it is a trite law that the court, while granting bail, has to keep in mind the nature of accusations, nature of evidence and gravity of offence has nothing to do with the punishment provided for the same. It is submitted that money laundering being a serious eco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aharashtra (2014) 16 SCC 623, Vishnu Traders v. State of Haryana Ors 1995 Supp (1) SCC 461, Municipal Committee Amritsar ors v. State of Punjab ors 1969 (1) SCC 475, Devi Dass Gopal Krishnan etc v. State of Punjab ors(1967) 3 SCR 557, Molar Mal through LRs v. Kay Iron Works ( P) Ltd. 2000 (4) SCC 285, Nagaland Senior government Employees Welfare Association Ors v. State of Nagaland Ors 2020 (7) SCC 643, Mohammad Arif v. Directorate of Enforcement Government of India 2020 SCC OnLine Ori 544, Moti Lal v. Union of India Crl. Miscellaneous No. 73052/2019 D.O. D 11.06.2020. I have heard the rival submissions and carefully perused the record. It would be germane to mention herein, at the very outset, that the bail application of the applicant/accused has recently been dismissed by this court vide a detailed order dated 10.09.2021 wherein, the contentions of the defence were dealt in detail by this court. Except for the change of counsel, though not cited as a change of circumstance, the only material change of circumstance claimed by the defence is the filing of the charge-sheet. However, mere filing of the charge-sheet is not sufficient in itself to consider the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct an incident of Fair Trial. There may be cases wherein releasing the accused would enable him to jeopardize the course of fair trial by attempting to wipe out the traces of crime. Therefore, in appropriate cases, pre-trial detention becomes indispensable to ensure a free and fair trial. The case in hand is one such case. All the material witnesses in the instant case are family members/relatives/friends/close acquaintance of the applicant/accused. They are apparently working under his direct influence. The applicant/accused being a qualified Chartered Accountant and an influential man in all likelihood would attempt to wipe off his footsteps to jeopardize not only the fair trial but the crucial aspects of pending investigations. Since the charge-sheet in the instant matter has already been filed, merely because ED is still further investigating the matter on some counts, the statutory right of bail u/s 167 CrPC is not available to the accused. The indefeasible right of the accused to claim statutory bail comes to an end once the charge-sheet is filed. Reliance is placed upon the judgment of Hon'ble Apex Court in the matter of Suresh Kumar Bhikamchand Jain v. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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