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TMI Blog2023 (6) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Court is not to further sub-classify women into different categories and apply the twin condition of Section 45 to some category of women and to exclude some category of women from the twin condition of Section 45. Doing the same would be not only be violative of Article 14 of the Constitution but also be a great injustice to the intention of the Legislature - In Devki Nandan [ 2022 (9) TMI 1216 - DELHI HIGH COURT ] this Court has already held that the proviso to section 45(1) PMLA is an exception and once a person comes within the exception, the twin condition of Section 45 PMLA will not be applicable to such person. This court has observed in Kewal Krishan Kumar [ 2023 (3) TMI 746 - DELHI HIGH COURT ] that the legislature has carved out the proviso to section 45(1) as a lenient provision for persons below sixteen years of age, women or persons who are sick or infirm. Once an accused is a woman, the Proviso to Section 45(1) kicks in and the applicant would fall within the proviso - However, this does not mean that the applicant will not be required to satisfy the triple test for grant of bail. In order to prove mens rea, the respondent/prosecuting agency is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant is the wife of Mr. Sanjay Chandra who is in Police custody. The applicant is allowed meetings and regular jail visits. All these messages could very well have been put by her to Mr. Sanjay Chandra during these jail visits. There is nothing incriminating in the messages except the fact that Mr. Sanjay Chandra should not and could not have a telephone while in jail, for which, an FIR has already been registered. There are no messages which have been brought to my notice which show handling of money, monetary transactions, business decisions, siphoning off funds etc. Furthermore, as regarding tampering with evidence is concerned, it is already stated that all the documents are in the custody of the ED and therefore, the allegation of the Applicant tampering with the evidence or influencing the witnesses is not made out. The twin conditions of Section 45 of the PMLA will not be applicable to the applicant. The applicant has to satisfy the triple test which can be taken care of by imposing stringent conditions. The applicant has already been investigated for more than 13 occasions and has been in custody for more than 20 months. The application is allowed and the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res and were generated by diverting funds from home-buyers from the accounts of Unitech Limited or its associate company. The same were transferred to Carnoustie Management Pvt. Ltd. (hereinafter Carnoustie ). Between 01.02.2011 to 11.02.2011, out of Rs. 380.08 crores, Carnoustie (from SBI account no. 30279430078) extended Rs. 107.40 Crores to Prakausali, through its holding company, Mayfair, as Inter Corporate Deposit (ICD). It was alleged that Ms. Preeti Chandra i.e., the applicant was the Director of Prakausali and Mayfair and that she was present at the time of passing the resolution and authorized to conduct the transaction relating to POC of Rs. 107.40 Crores from Mayfair to Prakausali. 7. In addition, POC of Rs. 43.70 crores from 3 subsidiaries namely (i) Unitech Realty Projects Ltd. (hereinafter Unitech Realty ), (ii) Unitech Infracon Ltd. (hereinafter Unitech Infracon ), (iii) Shatiniketan Properties Ltd. (hereinafter Shatiniketan ) were transferred to M/s Unibild Engineering and Construction Company Pvt. Ltd.(hereinafter Unibild ). Further, in February 2011, these amounts were laundered to the account of Prakausali. 8. The Applicant is also accused of incorpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and against the constitutional spirit. B. He places reliance on the judgment of this Court viz., Devki Nandan Garg v. Directorate of Enforcement 2022 SCC Online Del 3086 (2022:DHC:4121) to contend that the proviso to section 45(1) has been incorporated as a relaxation for persons below sixteen years of age; a woman; or one who is sick or infirm. Reliance is also placed on the judgment of this Court in Kewal Krishan Kumar v. Enforcement Directorate BAIL APPLN. 3575/2022 dated 17.03.2023 (2023:DHC:1925) reiterating the above argument. C. Mr. Aggarwal thereafter states that in the present case, the allegation against the applicant is that the applicant was a beneficiary (directly or indirectly) in the affairs of Unitech Limited and has acquired proceeds of crime to the tune of Rs. 151.12 crores. He states that section 3 of PMLA requires mens rea in order to commit the offence under the said statute as it uses the word knowingly twice. He places reliance on the judgment of Vijay Madanlal Chaudhary v. Union of India 2022 SCC Online SC 929. D. He also states the Applicant could not have any mens rea in the present case. The ED has not demonstrated how the Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the resolution was passed and the same has not even been signed by the Applicant. In fact, it was Rajiv Virmani who signed the document. The Applicant was out of the country with her husband during the said time period. The Applicant s passport shows her departure from India on 24.01.2011 and return on 31.01.2011. L. He submits that none of the other persons who are shown to be present at the said meeting have been named as an accused in the ECIR, and hence, the respondents are following a pick and choose policy against the applicant. M. Additionally, there is no material to show that the board meeting of 25.01.2011 was not a physical meeting or that the resolution was passed by circulation. N. He states that the Applicant, who holds directorships in downstream, entities cannot be presumed to have requisite mens rea to commit the offence of money laundering and be denied bail. He places reliance on the judgment of this coordinate bench viz., Chandra Prakash Khandelwal v. Directorate of Enforcement 2023 SCC Online Del 1094 where it was observed: 34. Considering the submission of the petitioner, viz. the petitioner's claim he did not have knowledge if the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no meaning as, reiterating the earlier argument of the learned counsel, he states that Prakausali is not the Applicant s company as various other members of the Chandra family were responsible for the signing the transactions in Prakausali. Rs. 7 Crores R. Regarding the allegation of Rs. 7 crores which was POC that was transferred from Unitech Limited to Prakausali through Milennium Constructions Pvt. Ltd (hereinafter Millennium ) and transfer of Rs. 34.70 lakhs which was transferred from Prakausali to Motif Inc which was the Applicant s company in April 2008,the learned senior counsel states that the Applicant was never a director or authorised signatory either in Unitech Ltd. or Millennium. S. He further states that the Applicant was not a director of Prakausali on 02.04.2008 and had nothing to do with the said company at that point in time. T. The amount of Rs. 34.7 lakhs was returned from Motif to Prakausali in 2008-09 vide cheque numbers 429230, 000746, 005773, 005768. Rs. 2.5 lakhs U. Regarding the amount of Rs. 2.5 lakhs in Applicant s personal bank account between September 2013 to May 2015, learned counsel states that the said transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement that on the saying and direction of the Applicant, he had signed papers pertaining to companies where he was a dummy director. BB. As regards laundering in the Trikar Group is concerned, he states that the ED has not linked any transactions to the Applicant as Trikar Group was being managed by Ajay Chandra and Sanjay Chandra. Furthermore, the ED s reliance on a newspaper clipping to allege money laundering in Trikar Group is inadmissible in law under the Indian Evidence Act. CC. He submits that the Applicant is stated to be associated with entities named MNM International and Trikar General Trading. The alleged transactions relating to such entities date back to 2014-15 when the Company was being managed by a person named Mr Anuj Malik, who has been cited as a witness by the ED despite role attributable to him. DD. He submits that Mr Anuj Malik in his section 50 PMLA statement has said that the entire shareholding of the said company was transferred to the Applicant only in 2017. EE. He states that a perusal of statements of all independent witnesses including Govind Sharda, Anuj Malik, and Pranav Kumar, would demonstrate that the Trikar Group was be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged Tihar incidents occurred. Such FIR was registered after an inquiry by the Commissioner of Police, aided by senior police officers, which began on 27.08.2021 and concluded on 26.09.2021(under directions of the Supreme Court vide Order dated 26.08.2021). JJ. He submits that a perusal of the FIR would demonstrate that the investigating agency has found Ramesh Chandra, Ajay Chandra, Sanjay Chandra, Lakhbir and Ravinder responsible for the alleged incidents at Tihar. The Applicant had no role in the alleged misdemeanour at Tihar jail. KK. He states that the extracts of WhatsApp messages, which are between two alleged office runners, do not disclose any incriminating contents and if placed on record would indicate normal conversation between a husband and wife. LL. He states the Applicant, like all other persons (including well-known advocates whose names have been mentioned in the WhatsApp chats) was of that bona fide belief that her messages were being handed over to her husband legally. In fact, the jail manual itself permits handing over of reading material/ papers to a person who is incarcerated. MM. Statement of the Applicant was last recorded in September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possibility of the Applicant influencing any witness. 13. Mr. Hossain, learned SPP for the ED has made the following submissions: A. He states that the proviso to section 45 cannot be attracted in the present case only on account of the Applicant being a woman. He has drawn my attention to the judgment passed a coordinate bench of this court in Mrs Shivani Rajiv Saxena v. Directorate of Enforcement Anr. vide order dated 15.09.2017 in Bail Appln. 1518/2017 (2017:DHC:5507) wherein bail was denied to the accused, who was a woman, as the court observed that the application of discretion described in proviso to section 45(1) should consider the unique circumstances surrounding specific groups of individuals, rather than being applied universally as a standard rule that all those categories of people in the said proviso must be granted bail. B. Mr Hossain, learned counsel further draws an analogy with 437(1) CrPC and also the judgment of Meenu Dewan v. State in Bail Appln. No. 736/2008 (2009:DHC:56) wherein it was held that there is no absolute or unconditional rule that bail should be granted if the accused is woman, but the nature and gravity of the offence and hein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ech Ltd.). This amount was received by the Applicant as rent (50%) from the property at Unit No. 002, 003 and 004, 1865 Randanga Main Road, Kolkata. The Applicant informed that the property was provided to her by Ajay Chandra but did not give the source of funds required to purchase the said property. As Ajay Chandra had no other source of funds apart the POC from Unitech Ltd., there is high likelihood that the property was acquired from the diverted funds of homebuyers. K. He states that during the period September 2013 to May 2015, Proceeds of Crime of Rs. 2.50 Lacs were diverted from Unitech Limited s account No. 0442320000320 (homebuyer s project account held with HDFC bank) to Preeti Chandra s personal account No. 00441930000074 held with HDFC Bank. She did not disclose the nature, purpose and utilization of these POC of Rs. 2.50 Lacs. L. He states that on 02.04.2008, Proceeds of Crime of Rs. 7 Crores were laundered from Unitech Limited s account No. 0390201005452 (homebuyer s project account held with Canara Bank) to Prakausali through the accounts of M/s Millennium Constructions Pvt. Ltd. (Account No. 0390256001649 maintained at Canara Bank). M. During simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra called me on my phone number +971506441378 and directed me to sign the documents of aforementioned companies 2-3 times. I don t remember her phone number from where she made calls to me. R. He states POC stashed in foreign accounts of Trikar Group (through Cayman Island, Singapore and Mauritius) were laundered (to the tune of Rs. 401.07 crores) into the accounts of the Indian companies of Trikar Group during years 2015 to 2018 when the Applicant was putting up in UAE and managing affairs of Trikar Group as is highlighted by Indrajit Zaveri and Pandora Papers leak. He states the revelation of Indrajit Zaveri has further been corroborated by the independent investigation done by International Consortium of Investigative Journalists (ICIJ) in Pandora Papers. In the said expose, the Applicant has been found to be the beneficial owner of Trikar Group based in Tax heavens. The gist of the same published by The Indian Express on 10.10.2021. S. He states that Chandra s of Unitech Group were forced to divert funds of Trikar group from abroad to India because during 2015 16 the group was under great financial crunch, homebuyers were lodging complaints, no bank/ financial in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant was examined u/s 50 of PMLA on 10.03.2021 and it was revealed that applicant had acquired citizenship of Dominican Republic on 11.04.2016. He states that India does not have an extradition treaty with Dominican Republic and this is a tax heaven as well as a safe place of hiding for most global fugitive economic offenders. ANALYSIS 14. I have heard learned counsel for the parties. 15. The relevant portion of Section 45 of PMLA reads as under: 45. Offences to be cognizable and non-bailable. (1) 1[Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence 2[under this Act] shall be released on bail or on his own bond unless ] (i) the Public Prosecutor has been given a 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, 3[or is accused either on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, like the ancient Mediterranean mariners, hugging the coast from point to point and avoiding the dangers of the open sea of system and science . The golden age Judges were not rationalisers and, except in the devising of procedures, they were not innovators. They did not design a new machine capable of speeding ahead; they struggled with the aid of fictions and bits of procedural string to keep the machine on the road. ... 27. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proviso to Section 45(1) of PMLA, the Court is not to further sub-classify women into different categories and apply the twin condition of Section 45 to some category of women and to exclude some category of women from the twin condition of Section 45. Doing the same would be not only be violative of Article 14 of the Constitution but also be a great injustice to the intention of the Legislature. 29. I also rely upon a judgment of a coordinate bench in Komal Chadha v. SFIO 2022 SCC OnLine Del 4543 dated 21.12.2022 (2022/DHC/005738) wherein the learned single judge after noticing Shivani Rajiv Saxena (supra) held: 30.6. Most importantly, the proviso to section 212(6) of the Companies Act cannot be treated as nugatory or dead letter. By way of the proviso, the Legislature has specifically carved-out an exception to the otherwise strict provision for bail, to say that though the twin conditions in section 212(6)(i) and (ii) of the Companies Act must otherwise be satisfied before a person is released on bail, those conditions would not apply inter-alia to a woman. In view of the proviso, it would be anathema to the legislative intent to not grant the benefit of the relaxat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money laundering offence is not grave in nature. 19. The 2018 Finance Bill gives an insight into the bail provisions stating that the inclusion of sixteen years; woman; sick or infirm along with the addition of or is accused either on his own or along with other co-accused of money laundering a sum of less than Rupees one crore is a lenient bail provision encapsulated in PMLA. 32. For the aforesaid reasons, I am of the view that once an accused is a woman, the Proviso to Section 45(1) kicks in and the applicant would fall within the proviso. 33. However, this does not mean that the applicant will not be required to satisfy the triple test for grant of bail. Bail in predicate offence 34. Even on merits, the applicant has a good prima facie case. The allegations against the applicant are of money laundering and siphoning off funds belonging to homebuyers of Unitech Group. 35. As already stated, mens rea is an important ingredient in the offence of money laundering. The intention is of paramount importance. 36. Section 3 PMLA reads as under: Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act. The Court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail. (emphasis supplied) 38. The fact whether the applicant knew that she was dealing with proceeds of crime and whether the same was tainted money, can only be ascertained after evidence has been led. 39. The Applicant is not named in the ECIR dated 06.06.2018 and ECIR dated 31.08.2021. Nothing has been placed on record to show that the applicant was involved in day-to-day affairs of Mayfair, Prakausali and other Unitech companies and/or subsidiaries and was responsible for taking key managerial decisions, except the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the Government viz. M.N. Nadkarni who worked as Chief Engineer till 24-3-1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19-6-1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision viz. Shri J.R. Malhotra and Mr R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made. 47. The Applicant ceased to be a director in Mayfair on 28.09.2010 and the board resolution allowing the transaction of funds between Mayfair and Prakausali is dated 25.01.2011. Hence, the signature of the Applicant, if any, on the board resolution of Mayfair dated 25.01.2011 is meaningless. Whether the resolution dated 25.01.2011 was signed by the Applicant or not can only be ascertained once evidence has been led. 48. Additionally, the applicant was only a paper director in Mayfair for 3 months. She was not in India when the resolution was passed on 25.01.2011 and had no knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yments were duly reported in the Applicant's income tax returns. It was Mr. Ajay Chandra who purchased the property with a loan funded by ICICI Bank, with a 50% ownership share for his wife, Mrs. Upma Chandra, and 50% for the Applicant (who is the sister in-law). Mr. Ajay Chandra was responsible for managing the company's affairs, and PoA was also granted to him, authorizing him to make decisions on behalf of the Applicant. Hence, whether the applicant had the requisite mens rea that she was dealing with POC can only be ascertained after evidence has been led. 58. Since it was Ajay Chandra who was dealing with this property and had a Power of Attorney in his name, prima facie lends credence to the fact that the Applicant was not involved in laundering POC. TRIKAR GROUP 59. As regards the allegation of money laundering from the Trikar group is concerned, the alleged activities date back to 2014-15 when an individual named Mr Anuj Malik was handling the trading in Trikar group. Mr Malik has been cited as a witness by the ED. Though the entire shareholding was transferred to the Applicant in 2017, the same was being handled by Ajay Chandra and Sanjay Chandra. 60. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . KEY PERSONS IN TRIKAR GROUP AND THEIR ROLES(FORMAL AS WELL AS INFORMAL) IN THE GROUP Apart from Mr. Sanjay Chandra; Pranav Kumar and Manoj Popli (former CFO Unitech Ltd) in Gurgaon were the persons I used to get instructions from. Towards 2016-2017, instructions were also coming from Indrajit Zaveri and Milko Sinko. 64. The relevant extract of the statement of Mr. Pranav Kumar dated 06.01.2022 is reproduced below: Q. No 4 Please give details of your interactions with the Unitech group or its promoter s i.e. Chandra s. ...... Sanjay Chandra was actively involved in the operations of Trikar group post substantial Investment had come in the Indian entities. He was regularly updated on the operations and compliances of the group companies. Sanjay also instructed me to shift all the necessary documents related to Trikar land owning companies from Unitech office in to Trikar office, including all the compliance and secretarial records. My team members Shilpi and Dhananjay picked up the same from the concerned department at UL office on my advice. Sanjay used to call me and shilpi to regularly meet at the Unitech office to discuss the details of funds received f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2018. Q.6. Do you know about her relation with Unitech Group of Companies and its overseas subsidiaries? Ans. 6 I know that Sanjay Chandra had discussed the ease of transferring funds from a jewellery company to anywhere in the world. After this in 2017-2018, they opened Preeti Chandra Jewels and Fashion . I had overheard a conversation between Sanjay and Preeti Chandra regarding some transfer of funds from her jewellery company to some at Sanjay Chandra s Overseas companies. Q.7 Can you explain what Sanjay and Preeti Chandra were discussing about transfer of funds to Sanjay Chandra s overseas companies? Ans. 7. I had heard Preeti and Sanjay Chandra discuss the transferring of funds from her jewellery company to some of Sanjay Chandra s overseas companies. I am not sure which company the funds were transferred to but they had discussed the transfer while I was present. Now I am tired, I request you to kindly allow me to continue my statement on 24-3-21. I have tendered voluntarily without threat, pressure and duress in my full consciousness. It is true to the best of my knowledge. 23-03-21 Indrajit Zaveri I have seen all pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en she had the occasion. 73. As regards denial of Applicant s interim bail to attend the last rites of her grandmother is concerned, the learned senior counsel has brought to my attention the subsequent order passed by the Hon ble Supreme Court dated 10.08.2022 where the court permitted the Applicant to approach the Sessions Court for seeking regular bail once the conclusion of interrogation by the Sessions Court. The relevant paragraphs of the order dated 10.08.2022 read as under: 1. On 8 August 2022, the Additional Sessions Judge-06 at Patiala House Courts has allowed the application of the Directorate of Enforcement for interrogation of the applicant (Preeti Chandra) in Tihar Jail on three occasions within a period of forty days. The Court is apprised by the counsel appearing on behalf of the Directorate of Enforcement that the interrogation has commenced today. The days of the further interrogation would be determined after the conclusion of the interrogation today. 2. The application is for permitting the applicant to approach the Sessions Court, Patiala House to seek regular bail as per law in ECIR/04/DLZO-II/2018. The applicant is granted permission to move the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation thereby, not satisfying the triple test. 77. The learned senior counsel for the Applicant opposed the said allegation and stated that the extracts of WhatsApp messages, which are between two alleged office runners, only show normal conversation between a husband and wife. 78. A perusal of the chats show that the messages are with regard to settling of a counter affidavit, exchanging greetings, details of bank accounts asked for by the court, filling of bail bonds and so on and so forth. 79. It cannot be lost sight that the applicant is the wife of Mr. Sanjay Chandra who is in Police custody. The applicant is allowed meetings and regular jail visits. All these messages could very well have been put by her to Mr. Sanjay Chandra during these jail visits. There is nothing incriminating in the messages except the fact that Mr. Sanjay Chandra should not and could not have a telephone while in jail, for which, an FIR has already been registered. 80. There are no messages which have been brought to my notice which show handling of money, monetary transactions, business decisions, siphoning off funds etc. Furthermore, as regarding tampering with evidence is concerned, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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