9911796707
TMI Blog2023 (6) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... Investments Pvt. Ltd. (hereinafter "Mayfair"). 4. The applicant is in custody since 04.10.2021. FACTUAL MATRIX 5. Between 2006 to 2022, 74 FIRs were registered by Delhi Police (EOW, Saket, Mandir Marg, Crime Branch Police Stations) and CBI, against Promoters of Unitech Group i.e. Ramesh Chandra, Ajay Chandra, and Sanjay Chandra and their associates under section 34, 201, 406, 409, 120B, 420, etc. of Indian Penal Code, 1860 (hereinafter "IPC") and under section 7, 7(A), 8,9,10,12 & 13 of Prevention of Corruption Act, 1988 (hereinafter "PC Act"). Most of the said FIRs were recorded based on complaints made by homebuyers who were cheated by the accused persons. The Chandra's promised the homebuyers that they will get their dream home and investors would get handsome return on their investment. Induced by this promise the homebuyers and investors invested huge amounts in the Unitech group. These amounts were misutilised and laundered. On the basis of numerous FIRs, an investigation was taken up to trace proceeds of crime and to investigate possible money laundering under Prevention of Money Laundering Act, 2002 (hereinafter "PMLA") by Delhi Zonal Office-II, ED on 06.06.2018 vide ECI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriated the same. He further states that prior to the arrest, the applicant has joined investigation on 4 occasions and her statements have been recorded. Post arrest, the applicant has been investigated on 9 occasions. 11. Mr. Aggarwal states that two imperative assumptions prevail in the present case: i. The first assumption is that in law one assumes that a person having/dealing with financial transactions cannot know at the outset that the funds involved in the financial transaction are proceeds of crime. ii. The second assumption which he says is relevant is that the applicant's knowledge that the person is an accused of a predicate offence and that the applicant is the wife of that accused does not lead to an automatic inference that the money given by that accused are proceeds of crime. 12. Mr. Aggarwal, learned senior counsel has made the following arguments: A. He states that the twin conditions of section 45 PMLA are not applicable to the Applicant as she is a woman and falls within the proviso to section 45(1) PMLA which appears to further the constitutional mandate of Article 15(3) of the Constitution. He states that Article 15(3) enables framing of laws for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Prakausali through its holding company Mayfair, he states that Prakausali was never the Applicant's company. Prakausali had multiple directors and shareholders, apart from the Applicant, including Pushpa Chandra (mother-in-law of the Applicant, who signed various documents of the Company). There were other directors in Prakausali such as Sanjay Chandra, Rekha Bawa, Sunil Keswani, Seema Manga and Pushpa Chandra, thus, it is wrong to allege that Prakausali is Applicant's company. I. The Applicant was never a bank signatory in Prakausali. In fact, for the relevant years when the Applicant was a director, the balance sheets, annual returns, board returns were signed by Pushpa Chandra, the Applicant's mother in law. J. He states the Applicant like other female members of the family was only made a nominee director in Prakausali from 16.06.2010 to 23.04.2013 in view of the MCA regulations. No funds came to the personal account of the Applicant from Prakausali. K. On 25.01.2011, Mayfair passed a resolution, allowing the transaction of transfer of Rs. 107.4 crores from Mayfair to Prakausali. As far as Mayfair is concerned, he states that the Applicant was only a paper director for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be tested at the stage of bail, more importantly when the intermediary companies were never made an accused in the present ECIR. The ultimate effect of their non-inclusion would be seen at the conclusion of trial. Further considering the order dated 03.09.2020 wherein all remaining co-accused in this ECIR were admitted to bail, this Court has every reason to say the petitioner has passed the test of broad probabilities. Admittedly twin conditions of Section 45 (supra) does not put an absolute restraint on grant of bail or require a positive finding qua guilt." (emphasis supplied) Rs. 43.70 Crores O. Regarding the allegation of Rs. 43.70 crores where the POC from transferred from Unitech Realty, Unitech Infracon, Shatiniketan to Unibild and then further transferred to Prakausali where the Applicant was a director, the learned counsel for the Applicant states that the Applicant had no association whatsoever with Unibild, Unitech Realty, Unitech Infracon or Shantiniketan. P. He states that Unibild belongs to one Mr. Praveen Gurnani and the Applicant has no relation or connection with the said person or said company, nor has Mr Gurnani attributed any role to the Applicant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was also executed in favour of Mr. Ajay Chandra to take all decisions. Rs. 84,00,000 Z. Regarding the allegation of Rs. 84,00,000/- being used to purchase Lamborghini car for the Applicant pursuant to outward remittance of USD 2,00,000/- on 10.05.2007, learned counsel states the said car was purchased from funds of Mr. Sanjay Chandra and was used by him. Even the sale proceeds of the said car have not been received by the Applicant. Moreover, there cannot be any POC from such time as no allegations of predicate offence were made homebuyers from that time period. TRIKAR GROUP AA. The allegation against the Applicant is that she incorporated and was managing and controlling a benami group with the name Trikar Group with her husband, Mr Sanjay Chandra. POC stashed in foreign accounts of Trikar Group (through Cayman Islands, 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 Mr. Indrajit Zaveri, Pandora Papers leak and Indian Express, a newspaper. Mr. Indrajit Zaveri has co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Mahajan vs Commissioner Of Customs & Anr2000 SCC OnLine Del 119 wherein it was observed: "14. The legal position emerging from the above discussion can be summarised as follows: ...... (o) Law does not authorise or permit any discrimination between a foreign National and an Indian National in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions which are necessary to ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national." HH. He states the Applicant will not tamper with the evidence in the present case as all documents relating to the Applicant are already in the custody of ED. The Applicant duly cooperated with the investigating agency by providing documents/ appearing before the ED on 10.03.2021, 19.04.2021, 03.08.2021, and on 04.10.2021. II. There is no evidence of any attempt to contact/influence witnesses. The Applicant is not an accused in the FIR relating to Tihar incidents and she was not even in India for a large period of time during which alleged Tihar incidents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of recording her statements. The Applicant is in the process of acquiring citizenship and passport of India and adhere to the applicable laws and regulations, and therefore also submitting herself to the jurisdiction of the Hon'ble Courts, and investigating agencies in India. Most importantly, the Ld. Special Judge while dismissing the bail application has otherwise held that the Applicant cannot be considered as a flight risk. b) Tampering with Evidence: The Respondent has already filed a complaint and a supplementary complaint in the present case. Documentary evidence as well, has been either seized or already brought on record along with complaints. There is no possibility of tampering with the evidence, and the Applicant also undertakes not to indulge in the same. c) Influencing witnesses: The investigating agency has already recorded statements of various witnesses and the same have also been brought on record. Most importantly, the Applicant has not been in touch much less be associated with such witnesses who were involved in management of Unitech and its associated entities. As such there is no possibility of the Applicant influencing any witness. 13. Mr. Hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no. 30279430078) extended Rs. 107.40 Crores to Prakausali (through its holding company, Mayfair) as Inter Corporate Deposit (ICD). H. He states that on 25.01.2011, Mayfair passed a resolution allowing the transaction of transfer of Rs. 107.4 crores from Mayfair to Prakausali and the board resolution shows the Applicant's participation in the said board resolution for transfer of POC from Mayfair to Prakausali. I. He submits that the Applicant was involved in laundering Rs. 43.70 crores also. The POC from 3 subsidiaries was transferred from Unitech Realty, Unitech Infracon, Shatiniketan to Unibild Engineering. In February 2011, from Unibild, these POC of Rs. 43.70 Crores were laundered to the accounts of Prakausali (Rs. 27 Crores on 01.02.2011 & Rs. 16.70 Crores on 10.02.2021) where the Applicant was a director. J. He states that the an analysis of the seized records reveals that during the period of July 2014 to March 2015, Rs. 38 lakhs were credited to the Applicant's personal account no. 00441930000074 held with HDFC Bank from Bengal Universal (subsidiary of Unitech Ltd.). This amount was received by the Applicant as rent (50%) from the property at Unit No. 002, 003 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and India. Q. He states that Indrajit Zaveri (a family friend of the Applicant and a benami /dummy director of Trikar Group in Dubai) in his statement u/s 50 of PMLA, 2002 on 23.03.2021 has deposed that the Applicant and her husband Sanjay Chandra frequently visited Dubai and discussed things related to their benami entity Trikar Group. Indrajit Zaveri in his statement has said that the Applicant called him and made him sign documents (2-3 times) relating to companies in which he was being made a dummy director. The statement of Mr. Zaveri is reproduced below: "Initially, I met her socially but once I became dummy/benami director in Sanjay Chandra's company I also had professional and financial dealings with her. In this regard, I want to say that Smt. Preeti Chandra directed me to sign documents (2-3 times). These documents were pertaining to companies in which I was made a dummy/benami director. The name of these companies were Trikar, Redwood, etc... I don't remember her phone number from where she made calls to me. Smt. Preeti Chandra called me on my phone number +971506441378 and directed me to sign the documents of aforementioned companies 2-3 times. I don't remember ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation and wasted time of investigating agency. V. During the Applicant's interrogation in judicial custody, it was further revealed that the she had 3 more properties in Dubai that she previously had failed to disclose. It is also pertinent to mention herein that she has also failed to disclose the source of the money used to purchase the said properties. The said properties have already been attached vide provisional attachment order dated 25.08.2022. Triple Test W. Furthermore, the Applicant does not fulfil the Triple Test as she is found to be involved in illegal activities pertaining to destruction of evidence and helping inmates Ramesh Chandra and Sanjay Chandra. X. The Applicant had assisted her husband in influencing a witness namely Sh. Indrajit Zaveri. Considering the antecedents of the accused, it is submitted that if the accused is released on bail at this crucial juncture, the witnesses will be more prone to manipulation by her and adversely impact the investigation. Y. He states the 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 doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Section. The same would be amounting to supplanting the intention of the Legislature. 22. The Apex Court in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 observed as under: "25. The primary function of the judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by legislation. Patrick Devlin in The Judge (1979) refers to the role of the Judge as law-maker and states that there is no doubt that historically, Judges did make law, at least in the sense of formulating it. Even now when they are against innovation, they have never formally abrogated their powers; their attitude is: "We could if we would but we think it better not." But as a matter of history, did the English Judges of the golden age make law? They decided cases which worked up into principles. The Judges, as Lord Wright once put it in an unexpectedly picturesque phrase, proceeded "from case to 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 procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 26. The said judgment is also distinguishable as the Coordinate Bench in Shivani Rajiv Saxena (supra) had based its judgment on the triple test and consequently denied bail to the applicant therein. What had weighed with the coordinate bench in Shivani Rajiv Saxena (supra), was that the accused person/ applicant therein was a resident of Dubai for the last 25 years. Her husband was still residing in Dubai and had not participated in the investigation. The same is not the case here. 27. In addition, in Shivani Rajiv Saxena (supra), the applicant therein sought bail on account of sickness and for medical attention. The learned single judge held that the sickness of the applicant therein was not serious and she only needed physiotherapy. The single judge observed that she was being provided physiotherapy in jail. The reference of the applicant therein being a woman was only in passing. 28. Once the word 'woman' has been used in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 2018 for amending Section 45 of the PMLA reads as under:- "Clauses 204 and 205 of the Bill seeks to amend certain provisions of the Prevention of Money laundering Act, 2002, which include the following, namely:- -x-x-x-x- (v) to amend section 45 of the Act relating to offences to be cognizable and non-bailable and to amend sub-section (1) of section 45 to substitute the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" by the words "under this Act" so as to take a step further towards delinking the Scheduled offence and money laundering offence. Further, it seeks to amend the proviso in subsection (1) by inserting the words "or is accused either on his own or along with other co-accused of money laundering a sum of less than Rupees one crore", after the words "sick or infirm" to allow the Court to apply lenient bail provisions in case of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the money-laundering activities world over and the transnational impact thereof, coupled with the fact that the presumption that the Parliament understands and reacts to the needs of its own people as per the exigency and experience gained in the implementation of the law, the same must stand the test of fairness, reasonableness and having nexus with the purposes and objects sought to be achieved by the 2002 Act. Notably, there are several other legislations where such twin conditions have been provided for. Such twin conditions in the concerned provisions have been tested from time to time and have stood the challenge of the constitutional validity thereof. The successive decisions of this Court dealing with analogous provision have stated that the Court at the stage of considering the application for grant of bail, is expected to consider the 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the applicant was a nominee director in Prakausali from 16.06.2010 to 23.04.2013, like other female members of the Chandra family. Further, the said company was incorporated in 1981, way before the Applicant got married in the Chandra family. 45. In addition, the mother-in-law of the Applicant namely Ms. Pushpa Chandra who was also a director in Prakausali 16.06.2010 to 23.04.2013, has signed the balance sheets and accounts has not been named as an accused in the ECIR. 46. The Supreme Court in State of M.P. v. Sheetla Sahai, (2009) 8 SCC 617 observed as under: "49. It is also interesting to notice that the prosecution had proceeded against the officials in a pick-and-choose manner. We may notice the following statements made in the counter-affidavit which had not been denied or disputed to show that not only those 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li is of the year 2008 when the Applicant was not a director of Prakausali. 55. The amount of Rs. 34.7 lakhs, alleged POC has been returned by the Applicant's company Motif to Prakausli in 2008-09 via cheque numbers 429230, 000746, 005773, 005768 thereby, negating the allegation of laundering Rs. 34.7 lakhs. 56. As regards the amount of Rs. 2.5 lakhs in Applicant's personal bank account, the same is stated to be her fee as a fashioner designer. 57. Regarding allegation of laundering Rs. 38 lakhs, the Applicant has never been associated with Bengal Universal. She neither held a position as a director nor possessed shares in the company. The amounts received from Axis Bank were paid as rent by the tenants to M/s Unitech Ltd., the original property owner, on behalf of the new owners. These rental payments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity under the instructions of Mr. Sanjay Chandra in April 2017. iii. MNM International FZE (RAK)(new name :PC Global FZE) Established around mid 2015 on the instructions of Mr. Sanjay Chandra who had initially made me a 100% shareholder. My shareholding was entirely transferred to Preeti Chandra under the the instructions of Mr. Sanjay Chandra in April 2017. ...... 6. WHAT IS TRIKAR ? & WHO COINED THIS NAME TRIKAR? 7. WHAT IS THE RELATIONSHIP OF THE WORD TRIKAR WITH THE CHILDREN OF SANJAY & PREETI CHANDRA Formed in 2015, TRIKAR group was the brainchild of Mr. Sanjay Chandra. In his own words to me, TRIKAR name was coined by joining the first three letters of the names of his daughter TRISHA and son KARAN. ...... 12. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from all his company's Directorship. During the years of 2015-2019, I was a Director/ share holder in his various overseas companies. During this time, Sanjay Chandra also introduced me to Mr. Milko Sinko, a Swiss National in Dubai who he had hired to run his various overseas companies. After this, Mr. Milko Sinko and I were Joint Directors in most of his companies. ...... Q.5 What do you know about business/ profession of Preeti Chandra. Ans. 5. As far as I know, Preeti Chandra has a jewellery and fashion relation outlet in Dubai by the name of "Preeti Chandra Jewels & Fashion". I think she opened this store in Dubai between 2017-2018. 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 discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry which does not have an extradition treaty with India, thereby, rendering credence to the argument that the Applicant will flee the country if granted bail. 72. In response to the above argument, the learned senior counsel for the Applicant states that the Applicant took the citizenship of Dominican Republic in 2016 and has travelled more than 30 times in and out of India on the Dominican Republic Passport. Furthermore, Applicant's passport has been deposited with the ED since 28.03.2022. He states that had the Applicant intended to flee, she would have done so earlier when 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 Directora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test as she has already attempted to influence witnesses and tamper with the evidence. He has produced WhatsApp chats pertaining to illegal liaison of information pertaining to the criminal proceedings or otherwise between the members and associates of the Chandra family. He states that the chats show that the applicant was in constant touch with Sanjay Chandra through illegal means with the help of Mr. Lakhbir Sharma and Mr. Ravinder Kumar. He states the said activities were undertaken to tutor the applicant and show her involvement in influencing the investigation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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