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TMI Blog2022 (12) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... the company why the loan in question was not taken in the name of the said company whereas the private persons have been involved who are alleged to be the employee and close relatives of the petitioner. However, this fact has been disputed by the learned counsel appearing on behalf of the petitioner and has submitted that the loan in question was taken in the name of the company itself. There is no doubt as has been discussed by the Hon ble Supreme Court in the case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [ 2019 (12) TMI 186 - SUPREME COURT] , that even in economic offences the bail is a rule, however, the Court before granting the bail is required to come to the definite conditions and look into the graveness of the nature of the crime. Requirement to comply with twin conditions of section 45 of PMLA - HELD THAT:- Admittedly the petitioner is not under the age of sixteen years or is a woman or is sick or infirm and the proviso thereof speaks that if the money is below Rs.One crore the rigor can be relaxed. In the case in hand, there is allegation of Rs.77 crores of diversion of the loan amount - In the case of ROHIT TANDON VERSUS THE ENFORCEMENT DIRECTORATE [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sarawgi Builders and Promoters Pvt. Ltd. and unknown others for committing fraud amounting to Rs.12.84 crores with the Bank of India through their company M/s Shree Badri Kedar Udyog Pvt. Ltd. (ii) It has been further alleged that the amounts of fraud alleged in the aforesaid three FIRs amounted to Rs.31.24 crores, which were committed with the Bank of India, and in respect of all the aforesaid three FIRs, C.B.I filed its charge sheets bearing Charge Sheet Numbers, as under :- (a) Charge sheet No.20/2021 dated 16.07.2018 in FIR No.RC0932018S0007 dated 30.06.2021; (b) Charge Sheet No.24/2021 dated 30.09.2021 in FIR No.RC0932018S0008 dated 20.08.2018 and (c) Charge Sheet No.22/2021 dated 31.8.2021 in FIR No.RC0932019S0001 dated 10. 01.2019 (iii) Since offences u/s 120 B read with sections 420, 467, 471 of the Indian Penal Code, 1860, for which CBI registered FIRs were scheduled offences under the PMLA, 2002, Enforcement Directorate initiated inquiries against the accused persons and their associates after recording brief facts of scheduled offences in ECIR/RNSZO/02/2019 dated 06.02.2019 (iv) It has been further alleged that during the course of the inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd., represented through Amit Sarawgi (vii) Sriram Comtrade Pvt. Ltd., represented through Gyan Prakash Sarawgi (petitioner) (viii) M/s Global Traders (proprietorship firm), represented through Gyan Prakash Sarawgi (petitioner); (ix) Badri Kedar Udyog Pvt. Ltd., represented through Amit Sarawgi, and (x) M/s Dwarikadhish Udyog Pvt. Ltd., represented through Gyan Prakash Sarawgi (petitioner) Subsequently, the ECIR Case on the basis of the said CBI case was registered by the E.D. and the complaint petition was filed in which the cognizance has been taken under section 3 read with 70 of PMLA, 2002, and punishable under section 4 of the Act. Mr. Mr. Gadodia, the learned counsel appearing on behalf of the petitioner submits that three cases have been registered by the C.B.I. in which charge sheet has been submitted and allegation is made that 31.24 crores of the Bank amount are the proceeds of crime in terms of the section 2(1)(u) of the Act. He submits that the E.D. has registered ECIR Case on 06.02.2019 and the petitioner was taken into custody on 29.03.2022. The petitioner was produced before the Special Judge, PMLA seeking remand of the petitioner on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of section 45 of the Act is not attracted so far as this petitioner is concerned as he has cooperated in the investigation. He further submits that this Court while considering the bail application in another case has dealt elaborately about the section 45 of the Act as well as considering the other judgments have been pleased to grant bail on certain terms and conditions. He submits that in that case, the case of P.Chidambaram Versus Directorate of Enforcement , reported in (2020) 13 SCC 791 , was taken into consideration . He further submits that the Hon ble Supreme Court recently in the case of Siddharth v. State of U.P. Another reported in (2022)1 SCC 676 has said that if the accused has cooperated in the investigation, there is no need of taking into custody at the time of filing of the charge sheet. Further he put much emphasis on custody period of the petitioner and submits that the petitioner is in custody since last about 8 months with effect from 29.03.2022. On these grounds, he submits that the petitioner may kindly be enlarged on regular bail as the petitioner is not having any flight risk. Per contra, Mr. A.K.Das, the learned counsel appearing on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution is not required to prove the charge beyond reasonable doubt. 402. Sub-section (6) of Section 212 of the Companies Act imposes similar twin conditions, as envisaged under Section 45 of the 2002 Act on the grant of bail, when a person is accused of offence under Section 447 of the Companies Act which punishes fraud, with punishment of imprisonment not less than six months and extending up to 10 years, with fine not less than the amount involved in the fraud, and extending up to 3 times the fraud. The Court in Nittin Johari, while justifying the stringent view towards grant of bail with respect to economic offences held that- 24. At this juncture, it must be noted that even as per Section 212(7) of the Companies Act, the limitation under Section 212(6) with respect to grant of bail is in addition to those already provided in the CrPC. Thus, it is necessary to advert to the principles governing the grant of bail under Section 439 of the CrPC. Specifically, heed must be paid to the stringent view taken by this Court towards grant of bail with respect of economic offences. In this regard, it is pertinent to refer to the following observations of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also by imposing such terms and conditions so as to ensure that after release, the accused makes himself/herself available for expeditious completion of the trial. He further submits that so far as the case of one of the petitioner in which bail has been granted, that was on the facts and circumstances of that case. In that case, the amount was only about rupees Fifty lacs whereas in the case in hand the amount is to the tune as against Rs.77 Crores. He submits that in view of rigors of section 45 of the said Act, the petitioner does not deserve bail at this stage. In view of the above facts and submission of the learned counsels appearing for the parties, the Court has gone through the materials on record and finds that admittedly the petitioner is Director of five companies namely, M/s Dwarikadhish Udyog Pvt. Ltd., Sriram Comtrade Pvt. Ltd., represented through Gyan Prakash Sarawgi (petitioner), M/s Global Traders (proprietorship firm), Badri Kedar Udyog Pvt. Ltd. and Sunbeam Dealers Pvt. Ltd., represented through Amit Sarawgi and the C.B.I. has registered the case and subsequently the E.D. has c o me into the picture and registered the ECIR complaint against the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order made in this behalf by that Government. [(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. [Explanation For the removal of doubts, it is clarified that the expression Offences to be cognizable and non bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorized under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the conditions e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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