9911796707
TMI Blog2022 (12) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... FC, New Delhi from Oriental Bank of Commerce through Manohar Dhingra, Assistant General Manager, Meerut regarding alleged offences of criminal conspiracy, criminal breach of trust, cheating and criminal misconduct by public servants and private persons, namely, Simbhaoli Sugars Limited, its Directors, unknown Bank officials and other unknown persons, including their accomplices and abettors, whereby the Oriental Bank of Commerce was cheated to the tune of Rs.97.85 Crores. 3. It is alleged that M/s Simbhaoli Sugars Limited, Hapur (hereinafter referred to as the ''company') had fraudulently induced the Oriental Bank of Commerce (for short ''bank') to sanction the loan of Rs.148.60 Crores and misappropriated the loan amount, which was limited to the tune of Rs.97.85 Crores (outstanding principal of loan) and again got sanctioned a fresh corporate loan of Rs.110 Crores to get the previous loan adjusted, the latter being still outstanding to be repaid to the bank. The company and its directors and other managerial persons between the period from 8.11.2011 to 25.02.2018 and unknown bank officials of the bank entrusted with the responsibility of causing due dilige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the petitioner as Chief Executive Officer. 7. In pursuance to the RBI Master Circular dated 01.07.2011, a scheme for financing individual/JLGS/SHGs/sugarcane farmers was approved by the bank and in pursuance to it, a proposal was submitted by the company to the erstwhile regional office of the bank at Ghaziabad on 08.11.2011 for financing individual/JLGS/SHS/sugarcane farmers (representing 5762 farmers) under the tie-up arrangement with the company (maximum limit of Rs.3,00,000/- per farmer) within the overall exposure cap of Rs.150 Crores, which was approved by the bank on 19.12.2011. 8. After approval of the scheme, the company supplied the names of Individual farmers along with their details of land holding and cane supplied by them in the previous season to the erstwhile regional office of the bank at Meerut. As per the tie-up arrangement, the company was also required to submit the KYC and other requisite documents along with the loan application of individual farmers. All the loan applications were submitted by the company directly to the erstwhile regional office of the bank at Meerut, where the same were processed. After processing of the loan applications at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order for disposing of the case filed by the bank. On the basis of the joint application stating that the matter was settled between the parties and the bank wanted to withdraw the original application, the Tribunal disposed of the matter in terms of the joint compromise application vide order dated 16.03.2016. 11. Thereafter, the total liability of Rs.112,93,99,471/- was finally adjusted on 30.06.2016 by way of deposit of corporate loan of Rs.110 Crores sanctioned on 28.01.2015 by the bank by way of depositing Rs.2,93,99,471/- by the company from their own sources. The said corporate loan of Rs.110 Crores advanced by the bank under multiple banking arrangements led by SBI slipped into Non Performing Asset on 29.11.2016 due to non-payment of installments by the company and Rs.109.08 Crores became the outstanding dues. 12. For the lapses committed by the bank officials regarding failure to complete the KYC compliance etc. while sanctioning the loans, disciplinary actions have been taken against the bank officials in accordance with Officer Employees (Discipline and Appeal) Regulations, 1982. 13. On the basis of the said complaint, an FIR at RCBD1/2018/E/0002 was registered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the proceeds of crime in the form of the loan funds received from the bank in 2012 and 2013 as defined under Section 3 of the PMLA, 2002 and punishable under Section 4 of the said Act. 18. The PMLA Court vide order dated 3.12.2021 had taken cognizance and summoned the petitioner for facing trial for offence under Section 3 of the PMLA, 2002. 19. Before filing this petition, the petitioner had filed Criminal Revision No.2529 of 2018 before this Court against the judgment and order passed by the learned trial court, whereby it rejected the application of the petitioner for release of his seized assets. The said revision was allowed by this Court vide order dated 07.03.2019 with some conditions. 20. Thereafter, petitioner filed Criminal Revision No.3333 of 2018 before this Court with a prayer to permit him to visit Philippines in connection with the business. The said revision was dismissed by this Court vide judgment and order dated 26.09.2018. 21. Aggrieved by the said judgement and order dated 26.09.2018 passed by this Court, the petitioner went to Supreme Court by filing Criminal Appeal No.245 of 2019. The said appeal was allowed by the Supreme Court and the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o role in the present case. 25. Learned counsel for the petitioner also submits that not a single document has been discovered by the CBI or by the Enforcement Directorate, which was signed by the petitioner for the company for availing the aforesaid loan and neither he had signed the MoU executed between the company and the bank. The Promoter Directors, Gurmit Singh Mann, Gurpal Singh and others had taken the corporate loan of Rs.110 Crores from the bank by pledging their shares and executing personal guarantees. The promoter Directors in the present case have been allowed to go scot-free and the complaint has been filed merely against the employees of the company. 26. Learned counsel for the petitioner also submits that in the complaint itself, it has been stated that co-accused, Mr. Sanjay Taparia, Chief Financial Officer of the company was liable for entire financial function, which invariably included the proper and mandatory utilization of the loan funds received from the bank under the farmer financing loan. The petitioner was neither authorized for payment from the Escrow account nor operated the Escrow account, where the loan amount from the bank had been received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry or trial under this Act, is not dependent upon any orders passed in respect of the scheduled offence and the trial of both sets of offences by the same court shall not be construed as a joint trial. He has placed reliance on Section 44(1)(d) PMLA, 2002 and explanation in the said provision, which was inserted by way of amendment in the year 2019 in PMLA, 2002. He has further submitted that the petitioner was Chief Executive Officer of the company at the relevant time and was responsible for the day-to-day affairs of the company. The company had issued improper KYC certificates of the farmers and further transferred the funds to other accounts and misappropriated the money towards purposes other than those stipulated in the MoU and thus committed the offences of fraud, cheating and criminal breach of trust under various sections of IPC. 30. Learned counsel for the Directorate of Enforcement has further submitted that "scheduled offences" and "offence of money laundering" are mutually exclusive and independent of each other. Section 3 of PMLA, 2002 deals with the offence of money laundering punishable under Section 4 of the said Act, whereas the offences under the ''sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder:- "4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine." 37. In view of the detailed facts and the submissions, I am of the view that prima facie the offence of money laundering is made out against the petitioner, he being the Chief Executive Officer of the company when the corporate loans were obtained and which were diverted for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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