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TMI Blog2022 (12) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... et prices. It also provides a way to avoid taxation and, thus, deprive the country of income - the PMLA was promulgated to check money laundering and stringent provisions have been incorporated therein as money laundering cripples the economy of a nation. Section 24 of the PMLA provides that when a person is accused of having committed the offence under Section 3, the burden of proving that 'proceeds of crime' is untainted property shall be on the accused. Section 44 of the PMLA is another section in the string of strict provisions which provides for continuity of commission of offence as long as all the 'proceeds of crime' are not recovered and empowers the investigating agency to file supplementary complaints upon surfacing of any fresh evidence and such complaint is to be tried along with the initial complaint. The fetter imposed by Section 45 of the PMLA in the matter of grant of bail, having been restored, as is evident from the judgments referred to above and also that the said fetters are equally applicable while considering grant of anticipatory bail, it goes without saying that the twin conditions as regards the Courts satisfaction that there are reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igated by S.I.T. and charge-sheet no.2 dated 31.8.2019 was presented in FIR no. 859 and charge-sheet no. 4 dated 20.11.2019 in FIR no. 358 was presented. 9.10.2019 : During the course of investigation of the aforesaid cases, it had transpired that the accused involved in the said cases were also involved in some other FIRs lodged in the State of Telangana i.e. FIR No. 710/2018 dated 30.8.2018, Police Station Kukkatpally, Telangana, FIR No. 643/2018 dated 15.10.2018, Police Station Ramchandrapuram, Cyberbad, Telangana, FIR No. 541/2018 dated 4.9.2018 at Police Station Chandanagar, Telangana and FIR No. 768/2018 dated 14.9.2018, Police Station Mailardedpally, Telangana. The Directorate of Enforcement, Hyderabad, on the basis of FIR dated 30.08.2018, registered ECIR No.10/HYZO dated 20.03.2019 against Radhey Shyam, Bansi Lal, M/s FMLC M/s Global Marketing Pvt. Ltd. Subsequently, the Directorate of Enforcement, Hyderabad, on account of FIRs registered by Haryana Police and on the basis of the residential address and office address of the companies, transferred the investigation to the Chandigarh Zonal Office. The ECIR was renumbered as ECIR/03/CDZO-II/2019 dated 09.10.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to exercise powers conferred under Section 19 of the PMLA so as to arrest the accused, the issuance of non-bailable warrants at this stage by the trial Court was not justified. The petitioner also claims parity on the ground that 12 other co-accused have already been granted bail either immediately upon their appearance by the trial Court or have been granted regular bail by this Court. 5. On the other hand, the learned State counsel has submitted that in such like cases of 'white collar crime', it is always not possible to figure out the modus operandi in the first instance and that as the investigation progresses, the modus operandi is unearthed and the involvement of other accused can be known. The learned State counsel has submitted that it is on account of the said peculiarities and characteristics of 'white collar offences' that Section 44 has been provided in the PMLA, which widens the scope of filing supplementary complaints pursuant to further investigation that may have been conducted against any accused in respect of the offence for which complaint has already been filed, whether or not such person was named in the original complaint. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during investigation, including the information retrieved from co-accused Pranjil Batra s laptop, a major component of the amounts so collected by ponzi companies run by Radhe Shyam and Bansi Lal and also through their associates was transferred to various bogus entities/shell companies through bank transfers/RTGS/NEFT bank transactions, in the guise of business transactions or was withdrawn as cash. During investigation, it was revealed that the petitioner was instrumental in facilitating Pranjil Batra for purchasing/acquiring 10 dummy/paper/fictitious companies in cash consideration to the tune of Rs.42 crores through 'accommodation' entries and the petitioner being, a Chartered Accountant, was fully aware about conversion of cash through 'accommodation' entry. Further, the petitioner not only advised co-accused Pranjil Batra to purchase the paper/dummy companies but also facilitated him in acquiring the same and also transfer of funds from the accounts of Global Infocom Pvt. Ltd., Vishal International Pvt. Ltd., Deewan Financial Corporation Ltd., Nihantri Realtors Pvt. Ltd., Forrader Tradex (India) Pvt. Ltd. into companies acquired by co-accused Pranjil Batra in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely: - (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 12. The role of the petitioner when examined in light of the aforesaid definitions make it clearly apparent that he has indulged into money laundering by way of facilitating co-accused in execution of the fraud through dubious modus-operandi, as detailed above. 13. Money laundering criminals use shell companies because shell companies are commercial companies that appear legitimate but are actually controlled by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel, in order to hammer forth his aforesaid statement, places reliance upon a judgment rendered by H on ble Supreme Court in 2022 SCC OnLine SC 825 Satender Kumar Antil Versus Central Bureau of Investigation and Another and also a judgment of Hon ble Delhi High Court rendered in Bail Appln. 559/2022 Rana Kapoor Vs. Directorate of Enforcement. 16. This Court has considered the aforesaid contentions and has also gone through the judgments relied upon by learned counsel for the petitioner. This Court is unable to accept the aforesaid contentions, particularly in view of recent judgment of Hon ble Supreme Court (by three Hon ble Judges) in Vijay Madanlal Choudhary s case (supra), the relevant extracts from which are reproduced herein under :- 407. Another incidental issue that had been raised is about the non- application of rigors of Section 45 of the 2002 Act in respect of anticipatory bail filed under Section 438 of the 1973 Code. This submission presumably is linked to the observation in paragraph 42 in the case of Nikesh Tarachand Shah. Similar argument was considered in The Asst. Director Enforcement Directorate vs. Dr. V.C. Mohan . We are in agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f arrest could be moved by the accused at a stage before an FIR is filed or at a stage when FIR is registered but the charge sheet has not been filed and the investigation is in progress or at a stage after the investigation is concluded. Power to grant anticipatory bail under Section 438 of the CrPC vests only with the Court of Session or the High Court. Therefore, ultimately it is for the court concerned to consider the application for anticipatory bail and while granting the anticipatory bail it is ultimately for the court concerned to impose conditions including the limited period of anticipatory bail , depends upon the stages at which the application for anticipatory bail is moved. A person in whose favour a pre-arrest bail order is made under Section 438 of the CrPC has to be arrested. However, once there is an order of pre-arrest bail/anticipatory bail, as and when he is arrested he has to be released on bail. Otherwise, there is no distinction or difference between the pre-arrest bail order under Section 438 and the bail order under Section 437 439 CrPC. The only difference between the prearrest bail order under Section 438 and the bail order under Sections 437 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... somewhat extra-ordinary in character. Hon'ble Supreme Court, in P. Chidambaram vrs. Directorate of Enforcement, reported in (2019) 9 SCC 24, observed that the power of anticipatory bail should be sparingly exercised in economic offences and held thus: 77. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar, the Supreme Court held as under: (SCC p.386, para 19) 19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain , it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicable with full force even while considering anticipatory bail. When stringent conditions have been imposed in a case where a person has already been subjected to custodial interrogation and is in custody, it furnishes all the more reasons to apply the said stringent twin conditions in case of grant of anticipatory bail. As such, the contentions raised on behalf of counsel for the petitioner in this regard cannot be accepted. 20. It may here be mentioned that the constitutional validity of provisions of Section 45 of the PMLA-2002, imposing twin conditions for grant of bail, which were also there before amendment of Section 45 PMLA in 2018, was questioned before Hon'ble the Supreme Court in Nikesh Tarachand Shah vs. Union of India (2018)11 SCC 1 and the Hon ble Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution of India, declared Section 45(1) of the PMLA, to that extent, to be unconstitutional. Subsequently, Section 45(1) of the PMLA was amended w.e.f. 19.04.2018. whereby the words punishable for a term of imprisonment of more than three years under Part-A of the Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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