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TMI Blog2024 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of crime and that the petitioner had no role in the creation of the false document, this Court is satisfied that there are reasons to believe that the petitioner is not guilty of an offence punishable under the PMLA. It needs to be iterated that materials on record do not establish, even prima facie, that the petitioner had the intention to commit an offence punishable under the PMLA. Likewise in view of the fact that with respect to lands situated at Mouza Pugru and Siram no scheduled offence has been reportedly committed and the criminal law has not been set in motion, in view of the judgment of the Supreme Court of India in Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT] no offence punishable under section 4 PMLA can be said to have to committed by the petitioner. Viewed thus, it can be held without any hesitance that the allegations qua the land situated at Pugru and Siram prima facie do not make out an offence of money laundering and thus this Court is satisfied that there are reasons to believe that the petitioner is not guilty of an offence punishable under the PMLA. The petitioner is in custody from 31.07.2023. The trial is yet to commence. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re required to be sent up for trial, as the concerned case was a civil dispute. The said Final Form was taken on record by Chief Judicial Magistrate, Ranchi and appropriate notice was issued to the Informant for his response. It has been submitted that in spite of the fact that in respect of aforesaid F.I.R., being F.I.R. No. 399 of 2022, Investigating Agency has submitted Final Form stating, inter alia, that as no case is made out, the Enforcement Directorate, on the basis of F.I.R. No. 399/2022 treating it to be a predicate offence registered an ECIR/RNZO/10/2023 dated 07.03.2023. It has been further submitted that the Petitioner, after registration of the aforesaid ECIR case, was summoned by Enforcement Directorate and he duly cooperated with the investigation. The Petitioner was summoned on several dates i.e. on 16.04.2023, 26.04.2023, 28.04.2023 and 08.05.2023 and even a search was conducted at the office and residential premises of the Petitioner. By placing reliance upon the Judgment of Hon ble Supreme Court in the case of Pankaj Bansal Vs. Union of India, reported in (2023) SCC OnLine 1244, it has been submitted that Petitioner all along cooperated with the investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner in judicial custody and, even otherwise, Petitioner s participation in trial is duly secured, as he is not at flight risk. 5. With regard to hardships being faced by the Petitioner while in judicial custody, it has been submitted that Petitioner has availed various financial facilities for residential and commercial projects being undertaken by him and equal monthly installment (EMI) of over Rs. 8.00 crores per month is being paid to various Banks and financial institutions and, as yet, Petitioner has neither defaulted in repayment of loans nor any complaint has been filed by any of the financial institutions for wrongful utilization of the loans availed. It has been emphatically submitted that due to judicial custody of the Petitioner, Petitioner s business is immensely suffering. The counsel for the Petitioner further highlighted medical condition of the Petitioner by stating, inter alia, that Petitioner is aged about 56 years of age and has undergone Hernia Surgery on 24.04.2023 due to which Petitioner is suffering from High Blood Pressure and Sugar and strictly directed by his Doctor to comply with substantial diet restriction. It has been further stated that Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of Md. Ibrahim Ors. Vs. State of Bihar Ors ., reported in (2009) 8 SCC 751 (Para-23). 7. While referring to the definition of proceeds of crime, as defined under Section 2(u) of PMLA Act, 2002, it has been submitted that proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence. In this regard, it has been submitted that Petitioner, out of his own legal sources, purchased the land in question and the payment made by Petitioner in respect of the said land cannot be treated to be proceeds of crime . Extensive reliance has been made to the decision of Hon ble Apex Court in the case of Vijay Madan Lal Choudhary Vs. Union of India Ors. reported in (2022) SCC OnLine SC 929, more particularly paragraphs 251, 253, 269, 271, 280, 281, 282, 283, 284, 290 and 295, to contend, inter alia, that merely because Petitioner purchased the property by paying valuable consideration which has been sold to him by certain persons by creating forged and fabricated documents, would not make the payment made by the Petitioner in respect of the said property as a proceeds of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased the said land in question. Refuting to aforesaid allegation levelled in the prosecution complaint, it has been argued that in respect of Pugru Mauza land also, there is no criminal proceeding before any court of law in which Petitioner is an accused and it has been submitted that ED cannot conduct any investigation of scheduled offence, but it is only required to conduct investigation as to whether any proceeds of crime has been generated on commission of a scheduled offence. With regard to nature of land being Khas Mahal land, Mr. S.D. Sanjay, learned Sr. Counsel vehemently relied upon an order passed by a Coordinate Bench of this Court in M.A. No. 631 of 2017, being order dated 03.01.2023, though he fairly submitted that the said order has been stayed in a petition to Special Leave by the Hon ble Supreme Court of India. It was further submitted that in respect of the land at Pugru, a Special Investigating Team (SIT) was constituted by State of Jharkhand and SIT gave its clear opinion that the land in question is not a Khas Mahal land. It has been submitted that although the land in question was not a Khas Mahal land, the same was being included in the list of Khas Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Imtiaz Ahmad and Bharat Prasad and, on the basis of said Power of Attorney, he prepared forged Sale Deed and sold the above-mentioned parcel of land admeasuring an area of 1.00 Acre to one Punit Bhargav and, thereafter, Punit Bhargav sold the land to Bishnu Kumar Agarwal vide two Sale Deeds. While referring to aforesaid paragraphs, it has been submitted that the land admeasuring an area of 1.00 Acre at Cheshire Home Road was acquired in fraudulent manner by above persons including the Petitioner, who indulged in fabricating documents and forging records, on the basis of which, Power of Attorney was fraudulently executed and land was, subsequently, transferred to Punit Bhargav who immediately sold the land to Bishnu Kumar Agarwal. 12. With respect to Pugru Mauza land, reference was made to Para 9.11 onwards of the prosecution complaint, to contend, inter alia, that in the investigation, it has been established that the property situated at Khata No. 93, Plot No. 543, 544, 546, 547, having total area of 9.30 Acres, which was acquired by Petitioner-Bishnu Kumar Agarwal, was a government property i.e. Khas Mahal land. It has been submitted that although said land was Khas Mahal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded during the period of remand from 31.07.2023 to 13.08.2023. The investigating agency filed the prosecution complaint in ECIR No. ENZO/10/2023 making the petitioner accused before the Special Judge, PMLA, Ranchi on 01.09.2023. The special judge PMLA Ranchi took cognizance on 04.09.2023. The Petitioner applied for Bail which was rejected by PMLA Special Judge on 18.09.2023. 16. At the outset it is observed that this Court is not persuaded to consider the prayer for bail on the Medical grounds for two reasons: Firstly, the learned Senior Counsel for the Petitioner did not press this point at the time of arguments though the same has been averred in some detail in the application and briefly in the written submissions filed by the petitioner; and secondly, the PMLA does not provide for Bail, as a matter of right, solely on health grounds. As such, the prayer for Bail on medical grounds is not being considered. Further, the Directorate of Enforcement may be correct in stating in its affidavit that the ailments are not life threatening and are not of such a nature which would call for release on bail solely on health grounds. Further, this Court is also not impressed with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to the investigating agency (ED) the sources from which the amount was earned by AHPL and CRELLP. It has been contended on behalf of the petitioner that the said amounts were duly reflected in the books of accounts of AHPL as well as CRELLP and also featured in the respective audited balance sheets of both the companies. Admittedly, there is no cash transaction involved in the said sale of the property. Prior to the purchase of the aforesaid property, the Petitioner claims to have caused a due diligence to be carried out in respect of this property by getting the sale deeds/documents, mutation papers, possession etc. verified and cross checked, which is normally done by any prospective purchaser. No ordinary citizen can be expected to get a forensic investigation done with respect to a deed which is found in the records of Registrar. There is nothing to show that the petitioner was instrumental in getting the forged deed of 1948 prepared rather on the contrary it has been submitted on behalf of the petitioner that one Bharat Prasad in his statement recorded under section 50 PMLA has described that modus operandi for preparing the forged documents and has named the people inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he is a bonafide purchaser seems to be plausible. In respect of this land an FIR No. 399 of 2022 was registered by jurisdictional State Police for investigating the alleged cheating and forgery upon the complaint of one Umesh Kumar Gope. On the basis of FIR No. 399 of 2022 ED registered the ECIR No. RNZO/10/2023 on 07.03.2023. The police after investigation filed Final Form in FIR No 399 of 2022 on 25.01.2023 inter alia stating that the same is a civil dispute. However further investigation is presently going on and ED in its investigation in Para 10.6.6 @Pg. 79 of Prosecution Complain has concluded that the said land does not even belong to the informant of FIR No 399 of 2022 i.e. Umesh Kumar Gope. The Learned Senior Counsel appearing on behalf of the petitioner further argued that the allegations made in the First Information Report lodged by Umesh Gope lacks substance and in the light of the judgment rendered in the case of Md. Ibrahim, (Supra) it can easily be inferred that the allegations therein do not constitute any offence. In effect the Senior Counsel for the petitioner seeks to contend that the very basis of the present prosecution being the above first information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention was raised by the Directorate of Enforcement with respect to the payment of consideration amount by the companies of the petitioner to Puneet Bhargav in lieu of execution of the sale deed being belated. It was argued that the two sale deeds were executed and registered on 1 April 2021 whereas payments were made subsequently on 05 April 2021 and 24 June 2021 by M/s Chalice Real Estate (Rs. 56,62,600/-) and Adarsh Heights Pvt Ltd (Rs. 1,01,57,400). Though such an allegation is not a part of the prosecution complaint, nor any statement has been brought through the notice of this court which makes such an allegation, suffice would it be to mention that such acts of commission and omission would by itself not attract the provisions of the Prevention of Money Laundering Act, 2002 and therefore according to this Court, these accusations are of no relevance and consequence. Having said that, it may be pertinent to refer to section 54 of the Transfer of Property Act, 1882 which defines sale as a transfer of ownership in exchange for a price paid or promised or part- paid and part- promised. Subsequent payment of the consideration amount therefore would not make the sale bad if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner have not been made accused in the present prosecution complaint. Both the properties are subject matter of litigation pending before this Court and the Hon ble Supreme Court. It is important to note that the Hon ble Supreme Court has consistently held starting from Vijay Madanlal Choudhary (Supra) that an acquittal, discharge from or quashment of the proceedings relating to the predicate offence will automatically result in dropping of the proceedings under PMLA and hence in absence of any predicate offence will result in denial of opportunity to the petitioner or other accused to prove their innocence in respect of the hypothetical predicate offence and thus the continuation of the proceedings in respect of these two properties appear to cause grave miscarriage of justice. This touches upon the jurisdiction of the Enforcement Directorate to investigate and prosecute the petitioner qua these two properties. Be that as it may. In view of the clear legal position, as set out above, this issue is not being dilated further. 21. In view of the discussions made above, it is now to be examined whether the petitioner has met the twin conditions laid down by section 45 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar offence. The petitioner does not have any criminal antecedent save and except Sadar P.S. Case No. 399 of 2022. Since it is difficult to predict the future conduct of the petitioner, the Court must necessarily consider this accept of the matter having regard to the antecedent of the petitioner, its propensities and the nature and manner in which the petitioner has alleged to have committed to offence. Reliance is placed on the judgment of Ranjit Singh Brahmajeetsing Sharma vs. State of Maharashtra and Another reported in (2005) 5 SCC 294, which was also noted in the Vijay Madanlal Choudhary (supra). 22. The petitioner is in custody from 31.07.2023. The trial is yet to commence. There are 34 witnesses and more than 6000 of documentary evidence. The scheduled offence in respect of Chesire Home Road property is still at the stage of investigation; whereas in respect of the other two properties no FIR / Complaint alleging commission of schedule offence has been registered till date. Prolonged detention will not serve any purpose. No material has been brought to the attention of this Court that the petitioner will hamper the trial in any manner and why his custody is im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ami v. State of Maharashtra, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be. 29. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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