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TMI Blog2022 (9) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... rein he has stated that he had withdrawn a sum of Rs. 15 lakh cash from the Bank through his self cheque and paid this amount to the present applicant but there is no eye witness/witness/document of any kind whatsoever to suggest that the aforesaid sum of Rs. 15 lakh has been given to the present applicant. Since no material has been filed with the counter affidavit of the opposite party to suggest that the allegation so levelled against the present applicant by Sri Amit Yadav, the Contractor, has been verified or corroborated and during the course of the arguments, Sri Kuldeep Srivastava, learned counsel for the opposite party has been asked to demonstrate the Court that the E.D. is having any corroborative material or any piece of material suggesting the involvement of the present applicant in accepting a sum of Rs. 15 lakh, except the bald allegation of Sri Amit Yadav through his statement, Sri Kuldeep Srivastava could not demonstrate anything suggesting, prima facie, involvement of the present applicant. However, trial proceedings are going on and the allegations may be proved or disproved before the learned trial court by adducing the evidences from both the sides, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present applicant is a retired Chief Engineer. One FIR was lodged by the Central Bureau of Investigation (hereinafter referred to as CBI ) on 30.11.2017 at RC-26A/2017 against so many persons including the present applicant. The CBI has filed charge sheet against so many persons but no charge sheet has been filed against the present applicant as nothing incriminating has been found against him by the CBI. 5. As per Sri Chakravarty, the Enforcement Directorate (hereinafter referred to as E.D. ) lodged one ECIR No. 01/LKZO/2018 on 18.02.2018 pursuant to the FIR and investigation so carried out by the CBI in the year 2017. In such complaint, E.D. investigated the aspect relating to money laundering against all persons either have been charge sheeted by the CBI or have not been charge sheeted by the CBI. However, nothing incriminating has been received from the possession of the present applicant and nothing incriminating was found by the CBI against the present applicant, even then the E.D. summoned the present applicant couple of times for recording his statement and producing material. Specific recital to this effect has been given in para-16 of the application wherein the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te offence and no independent investigation has been conducted by the E.D. as the investigation conducted by the CBI is reiterated in the complaint filed by the E.D., the present applicant may not be implicated, only on the basis of statement of one co-accused Sri Amit Yadav against whom the CBI has filed charge sheet, in absence of any corroborative evidence. 7. Not only the above, when the present applicant has cooperated with the investigation so conducted by the CBI and never flouted the process of law, then no adverse inference of any kind whatsoever may be drawn against him. Despite being not charge sheeted by the CBI, the present applicant always appeared before the E.D. to record his statement on each and every date. The present applicant has not been confronted by the E.D. in respect of the statement so given by Sri Amit Yadav against the present applicant, therefore, the E.D. may not implicate the present applicant in the present case in any manner whatsoever. The present applicant is an old aged retired Government Officer, who is having no criminal history of any kind whatsoever and there is no possibility of the applicant to flee from justice, therefore, there may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted any independent investigation except to reiterate the charge sheet filed by the CBI; as to what material has been recovered by the E.D. to implicate the present applicant in the present case of E.D., Sri Srivastava has only reiterated the aforesaid submission that on the basis of the statement of Sri Amit Yadav, the Contractor, the present applicant has been implicated. However, he could not demonstrate any material/document to show that the present applicant has been confronted on the statement of Sri Amit Yadav, the Contractor. 10. Thereafter, Sri Srivastava has raised one legal submission referring Section 45 of the PMLA, 2002 wherein Sub Section (1) (i) (ii) lays down the following conditions:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has never flouted the process of law. Thereafter, on the basis of aforesaid investigation of the CBI, E.D. started recording statement of some persons including the present applicant as no independent investigation has been conducted by the E.D. and the present applicant has been summoned to record his statement under Section 50 of the PMLA, 2002 on various dates i.e. 25.05.2018, 07.06.2018, 26.06.2018, 23.07.2018 and 19.06.2019. It is not a case of the E.D. that the present applicant has ever flouted the process of the law or he did not appear to record his statement on the aforesaid dates. The present applicant has been implicated on the basis of statement of one Sri Amit Yadav, the Contractor, which was recorded by the E.D. on 29.01.2019 and 05.02.2019 wherein he has stated that he had withdrawn a sum of Rs. 15 lakh cash from the Bank through his self cheque and paid this amount to the present applicant but there is no eye witness/witness/document of any kind whatsoever to suggest that the aforesaid sum of Rs. 15 lakh has been given to the present applicant. Even after recording the aforesaid statement of Sri Amit Yadav on 29.01.2019 and 05.02.2019, the present applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are satisfied inasmuch as the Public Prosecutor has been given ample opportunity to establish his case as the counter affidavit so filed and his arguments so advanced have been considered. Further, since thorough investigation has been conducted by the CBI pursuant to one FIR wherein the present applicant was accused and when nothing incriminating has been found against the present applicant, he has not been charge sheeted. The E.D. has not conducted its independent investigation and has reiterated the investigation of the CBI, therefore, prima facie, it appears that the present applicant is not guilty of such offence and being an old aged retired employee, his liberty may be protected. It further appears that he may not likely to commit such offence while on anticipatory bail. 18. The Hon'ble Apex Court in re; Vijay Madanlal Choudhary Ors. vs. Union of India Ors. [Special Leave Petition (Criminal) No. 4634 of 2014], has observed as under:- 187 ............... (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case that the present applicant has cooperated with the investigation being conducted by the CBI and after completion of the investigation, no charge sheet has been filed against the present applicant. He has further cooperated with the Enforcement Directorate as he always appeared before the E.D. to record his statement under Section 50 of the PMLA, 2002, therefore, there is no need to take him into judicial custody inasmuch as liberty of a person may not be infringed mechanically. 24. In the judgment of Apex Court rendered in re: Joginder Kumar vs. State of Utter Pradesh, (1994) 4 SCC 260, wherein it has been observed that arrest is not mandatory if an accused person co-operates with the investigation as well as in the trial proceedings unless there is any specific or cogent reason to arrest him. The issuance of direction regarding arrest is the prerogative of the learned trial court concerned but such discretion should not be unreasoned inasmuch as the liberty of any person, which is guaranteed under Article 21 of the Constitution of India, may not be compromised in a cursory manner. Therefore, before issuing such order to arrest such person the settled proposition of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the settled legal proposition, I find it appropriate that liberty of the present applicant may be protected till conclusion of the trial proceedings in view of the dictum of the Hon'ble Apex Court in re; Sushila Aggarwal vs. State (NCT of Delhi), MANU/SC/0100/2020. 28. Therefore, it is directed that in the event of arrest, applicant- Siddh Narain Sharma shall be released on anticipatory bail in the aforesaid complaint case number till conclusion of trial on his furnishing a personal bond of Rs. 2,00,000/- with two sureties of Rs. 1,00,000/- each before the court concerned with the following conditions:- I. that the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence; II. that the applicant shall not leave India during pendency of the trial without prior permission from the concerned court and shall also surrender his passport, if any, before the concerned court forthwith; III. that the applicant shall not pressurize/intimidate the prosecution witness; IV. that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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