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TMI Blog2022 (3) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... erers jail is the rule and bail is an exception - On prima facie reading of the material placed on record and considering the parameters of Section 45(1) PMLA as well as the gravity of the alleged offences, it cannot be held that the applicant was not guilty of the alleged offences or that he was not likely to commit any such offence while on bail. The anticipatory bail application is dismissed . - Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. - 307 of 2022 - - - Dated:- 21-3-2022 - Hon'ble Krishan Pahal, J. For the Applicant : Purnendu Chakravarty,Anuuj Taandon For the Opposite Party : A.S.G.I.,Shiv P. Shukla ORDER HON'BLE KRISHAN PAHAL, J. 1. Heard Sri Anuj Tandon, learned counsel for the applicant, Sri Shiv P. Shukla, learned counsel for the Enforcement Directorate and perused the material placed on record. 2. The present anticipatory bail application has been filed on behalf of the applicant in Complaint Case No.15 of 2019, E.C.I.R. No. ECIR/15/PMLA/LZO/2010, under Section 3/4 of Prevention of Money Laundering Act, 2002 at Police Station- Directorate Enforcement, District Lucknow with a prayer to enlarge him on an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he current account of the applicant on 06.11.2006, which was utilized in business and the same is stated to have been admitted by the applicant. Rival Contentions 7. Learned counsel for the applicant has stated that he has no previous criminal history except the present complaint cases and the predicate offence filed against him. There is no possibility of the applicant fleeing from justice or directly or indirectly inducing, threat or promise to any person. The present ECIR has been registered purely on the basis of predicate offence bearing F.I.R. No.RC-81/2007 dated 31.03.2007. The charge-sheet has been filed against the applicant and the other co-accused persons in the case filed by C.B.I. and the applicant is already on bail in it vide order dated 28.10.2010 passed by this Court in Bail No.8010 of 2010. 8. Learned counsel for the applicant has further stated that the predicate offence relates to OD mortgaged loan account opened in the name of his brother Ashwani Kumar Shukla with the Bank of India, Harsh Nagar, Kanpur. The property mortgage is found to be fake. The loan is alleged to have been applied by Ashwani Kumar Shukla along with the applicant. The only alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. No.12682 of 2021) dated 02.03.2022 and on the judgment of Orissa High Court in case of Jyoti Prakash Jay Prakash vs. Union of India (E.D.) (ABLAPL No.15091 of 2019) and also on the judgment of Supreme Court passed in the case of Siddharth vs. State of Uttar Pradesh Anr. Criminal Appeal No.838 of 2021 (Arising out of SLP (Crl. No.5442 of 2021) . 11. Per contra, Sri Shiv P. Shukla, learned counsel for the Enforcement Directorate has vehemently opposed the anticipatory bail application stating that the OD mortgaged loan account was opened in the name of Ashwani Kumar Shukla along with applicant with Bank of India, Harsh Nagar Branch on the basis of forged property documents made available by co-accused person Vikram Dixit through Ram Nath Sharma (Guarantor). This property situated at 122/212, Lajpat Nagar, Kanpur was not clear in title and the same was not in physical possession of Ram Nath Sharma as a Legal Suit No.1815 of 1996 is already pending in the court between Ram Nath Sharma and his sister in respect of ownership. 12. The brother of the applicant is stated to have admitted that ₹ 25,000/- was tainted money. The said amount of ₹ 25,000/- was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:- 42.......... In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of abscondance not within country but beyond country is more probable. Usually socio-economic offenders abscond to some other country and after that it becomes difficult to bring them back and complete the criminal proceeding against them. Further, their monetary sound condition particularly proceed of crime obtained not by honest working but by deceiving others causes more prone situation for influencing witnesses and other evidences. Furthermore, status and position of offender provides opportunity to influence investigation and prosecution. 16. Learned counsel for the Enforcement Directorate has further stated that the anticipatory bail application of the co-accused- Naresh Chandra Bhardwaj has already been dismissed vide order dated 24.12.2021 passed in Criminal Misc. Anticipatory Bail Application U/ S 438 Cr.P.C. No.11679 of 2021. Learned counsel for the Enforcement Directorate has further stated that the right of anticipatory bail is not part of Article 21 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding 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 grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by-- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (1-A) Notwithstanding anything contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 23. 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 section 45 of PML Act. Conclusion 24. In case of Y.S jagan Mohan Reddy v. CBI (2013) 7 SCC 439 , the Supreme Court observed as under:- 34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deeprooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 25. In State of Gujrat v. Mohanlal Jitamalji Porwal (1987) 2 SCC 364 , the Hon'ble Supreme Court observed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aundering being an offence is economic threat to national interest and it is committed by the white collar offenders who are deeply rooted in society and cannot be traced out easily. These kind of offences are committed with proper conspiracy, deliberate design with the motive of personal gain regardless of the consequences to the society and economy of Country. Hence, for money-launderers jail is the rule and bail is an exception . 29. The arguments tendered by the counsel for the applicant can be agitated at the stage of regular bail but not under Section 438 Cr.P.C. 30. On prima facie reading of the material placed on record and considering the parameters of Section 45(1) PMLA as well as the gravity of the alleged offences, it cannot be held that the applicant was not guilty of the alleged offences or that he was not likely to commit any such offence while on bail and accordingly the anticipatory bail application is dismissed . 31. However, it is made clear that the observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial or deciding the regular bail application. - - TaxTMI - TMITax - PMLA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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