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TMI Blog2021 (12) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the Central Bureau of Investigation (for short CBI) lodged F.I.R (No. RC0062007A0008) dated 31.03.2007 against accused-applicant and several other persons U/s 120-B, 420,467,468,471 IPC and section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 (for short 'PC Act') with the allegations that during 14.11.2005 to 07.11.2006 Sri V.K. Srivastava, Senior Manager, Shri R. K. Mishra, Senior Manager, Shri Naresh Chandra Bhardwaj, Senior Manager, Dinesh Kumar Clerk, all the employees of Bank of India, Harsh Nagar Branch, Kanpur and Shri Vikram Dixit entered into a criminal conspiracy with some other unknown persons and got sanctioned 08 housing loans on the basis of false and fictitious documents such as I.T.R., PAN, Sale Deeds, Voter ID. etc. and the loan turned bad NPA in the name of non existing/pseudonymous borrowers without adhering to the prescribed norms and guidelines of the Bank and causing wrongfull loss to the tune of Rs. 1.17 Crores approx. to the Bank of India and Corresponding wrongful gain to themselves during the period of 14.11.2005 to 07.11.2006. The property relating on the creation of mortgage/secuirity in the above-mentioned loands have been found fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. In support of his contention he relied upon Judgment of Hon'ble Supreme court in case of P. Chidambaram vs CBI (Crl. Appeal no. 1603/2019) wherein it was observed that at the stage of granting bail an elaborating examination of evidence and detailed reasoning touching upon the merit of the case, which may prejudice the accused, should be avoided. 10. It is submitted that learned Session Court committed grave error in reaching conclusion that "prima facie the accusation under section 3/4 of PML Act seems to have been made out against accused". Section 3 of PML Act, offence of money laundering requires firstly, direct or indirect involvement in criminal activities specified in part A, B, C of schedule offences given under PML Act and secondly, projecting or claiming the property so derived. Section 2(1)(y) of the Act provided that scheduled offence means the offence specified under part -B of the schedule, if the total value of allegation involved in such offence is thirty lakhs rupees or more. The schedule was amended by Act 2 of 2013 and enforced on 15.02.2013. Aggregate value of allegation i.e 28,15,888 against accused is not fulfilling the requirement of rupees 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed the contention of applicant and sought dismissal of present anticipatory bail application and submitted that in terms of the twin conditions prescribed in Section 45 of PML Act, this Court could grant anticipatory bail to the applicant only after recording a satisfaction that there were reasonable grounds for believing that the applicant was not guilty of the alleged offence and that while on bail he was not likely to commit any offence. It is further submitted that though in Nikesh Tarachand Shah v. Union of India and Anr. - (2018) 11 SCC 1, Section 45(1) of PML Act had been declared unconstitutional by the Hon'ble Supreme Court but the defect pointed out by the Hon'ble Supreme Court, which formed the basis to declare Section 45(1) as unconstitutional, had been cured by the Legislature through its Act No.13 of 2018. As per Act No.13 of 2018 the offending expression "punishable for a term of an imprisonment of more than three years under Part A of the Schedule" has been substituted with "under this Act". In view of the aforesaid amendment the twin conditions prescribed under Section 45(1) of the PML Act stood revived, so the applicant as well as Court is bound by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, I am of the view that PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. From aforesaid view it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision is given in PML Act, 2002. 19. In order to examine the contentions it would be useful to advert to section 45 of PML Act, 2002. The same read thus:- "45. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngthened by the provisions of Section 65 and also Section 71 of PML Act. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PML Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PML Act has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 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." 21. In case of Union of India v. Varinder Singh 2017 SCC OnLine SC 1314, Supreme court observed that Sec 45 of PML Act imposes conditions for grant of bail. Bail cannot be granted without complying with requirements of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. " 26. Socio-economic criminals are economically sound, therefore, in releasing them on anticipatory bail there is probability of abscondance not only within country but also beyond country. Usually socio-economic offenders abscond to some other country in order to escape themselves from Criminal Prosecution. The status and position of offenders provides opportunity to influence investigation and prosecution. 27. For the discussions made herein above and keeping in view the principles settled by the Hon'ble Supreme Court, this Court finds no merit in the application under Section 438 Cr.P.C. filed by the applicant. Consequently, the instant anticipatory bail a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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