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TMI Blog2023 (11) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... and further there must be justification for such faith or acceptance - It is well settled that expression reasons to believe must be conditioned on the existence of tangible material and that reasons must have a live link with the formation of the belief. In the instant case, even if the allegations levelled against the petitioner in the Prosecution Complaint are accepted at its face value and in their entirety; prima facie, the same do not make out a case under Section 3, punishable under Section 4 of the PMLA, inasmuch as, such allegations fall short of the essential ingredients for offence of money-laundering under Section 3 of the PMLA Act. With regard to noncompliance of section 19 of PMLA by the Enforcement Directorate and also on merits of the case, prima facie with the available records produced before this court it does not transpire that the petitioner has committed the crime under the Act and/or is likely to commit any offence while on bail as the prosecution has not produced any material which would impress this Court that the petitioner might commit a similar offence. Conditions of section 45 of the PMLA fulfilled or not - HELD THAT:- It has not been disputed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the mandate of Section 19 PMLA would vitiate the very arrest itself. On this issue he further relied the order passed in the case of V. Senthil Balaji Vs. State rep. by Deputy Director reported in 2023 SCC onLine SC 934 and reiterated that non-compliance of the mandate of Section 19 of the PMLA Act would vitiate the very arrest itself. 4. Learned senior counsel further draws attention of this court towards Section 45 of PMLA and submits that Section 45(1)(ii) stipulates that where the public prosecutor opposes the application, then if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail and only in that case the bail should be granted. Referring the aforesaid provision, he submits that the aforesaid provision of Section 45 (1)(ii) of PMLA has been clarified in the case of Vijay Madanlal Choudhary Ors versus Union of India, reported in 2022 SCC online SC 929, inasmuch as, no meticulous examination is required and only prima facie satisfaction that the accused is not guilty is to be invoked by the Court and in the instant case while going through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmy. Learned counsel strenuously contended that there is no mens rea on part of the petitioner while executing the sale-deed on behalf of M/s. Jagatbandhu Tea Estate Pvt. Ltd. being purchaser of the said property since neither the petitioner nor M/s. Jagatbandhu Tea Estate Pvt. Ltd. had any knowledge that the said Pradeep Bagchi was not the owner of the property and was claiming his ownership on the basis of forged documents. He further submitted that three cheques of Rs. 7.00 crore were issued by the company named M/s. Jagatbandhu Tea Estate Pvt. Ltd. in favour of accused Pradeep Bagchi, out of which one cheque of Rs.25.00 lakh was encashed and as per the mutual understanding the remaining amount was payable upon handing over the physical possession of the property in question. The fact remains that three legal notices were issued to the M/s. Jagatbandhu Tea Estate Pvt. Ltd. of which this petitioner is a director for payment of balance amount of Rs.6.75 crore but the same was duly replied by the company that unless and until the physical possession will not be handed over to the purchaser Company; the remaining part will not be paid. As a matter of fact, the petitioner and the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of Henceforth and submits that this is a word of futurity. He further submits that Section 45 of PMLA starts with non-obstante clause which starts with the word notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence under this Act shall be released on bail or on his own bond unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and the entire complaint case indicates that the petitioner was involved in the entire conspiracy and as such there is every likelihood that he will be declared guilty for the offence for which he has been charged. On merits of the case he relied upon the complaint itself and reiterated that the petitioner is involved in the entire conspiracy, as such the bail of the petitioner should be rejected and the judgment passed by the Hon ble Apex Court in the case of Pankaj Bansal (supra) shall not be taken into consideration by this court because in the case of Pankaj Bansal (supra) even the facts were entirely different and the Hon ble Apex Court has observed that there was colorable exercise of power and in that background the Enforcement Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tea Estate Pvt. Ltd (PAN AABCJ3705F, represented by its Director Dilip Kumar Ghosh having Aadhaar no. 912605787465) and it is registered at the office of the SRO Ranchi, bearing deed No 6888, Vol No 919, Page No 525-576, year 2021. From the sale deed of this property registered on 01.10.2021 (RUD No. 7)., it is seen that the declared government value/Market value of the said property is Rs 20,75,84,200/whereas the said property has been sold for an amount of Rs 7,00,00,000 /which is highly undervalued as compared to the declared government rate. 3.4 The sale deed bearing no. 6888 of 2021 between the said Pradip Bagchi and M/s Jagatbandhu Tea Estate Pvt. Ltd, in respect of the above property was executed on 1st October, 2021 (RUD No. 7). The government value/Market Value of the said property in the sale deed is shown as Rs. 20,75,84,200/but the consideration amount of the property has been shown as Rs. 7 crores which are shown to be paid by 11 cheques of IDFC First Bank, account No 10060532973 of M/s Jagatbandhu Tea Estate Pvt. Ltd. Investigation has further revealed that only one part payment amounting to Rs 25,00,000/was made into State bank of India account number 10301956970 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing no. 450110110002549 (RUD No. 11 12). 3.6 As stated above that there were ongoing litigations regarding the possession of this property between Army and the purported claimant Jayant Karnad who had sold the land to 14 persons by way of 16 deeds (RUD No. 115 to KON 130) on strength of the order obtained from the High Court of Jharkhand by concealing and manipulating facts. The accused persons namely Afshar Ali Pradip Bagchi and his accomplices meanwhile prepared a fake deed from the office of the Registrar of Assurances, Kolkata. In the name of Prafulla aa Bagchi F/o Pradip Bagchi (RUD No. 108 113). It was projected that his father Prafulla Bagchi had given the land orally to the Army and as on day Pradeep Bagchi is the purported rightful claimant of the property. These persons contacted Prem Prakash for selling this land (Accused in illegal mining case and presently in judicial custody). Prem Prakash Is a power broker and a very influential person who was access to highly placed government officials and ministers in Jharkhand. Prem Prakash is also very close to Mr. Chhavi Ranjan, the Ex-D.C Ranchi and Amit Kumar Agarwal who is also a very influential person in Jharkhand. In conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n substances are as follows:- (i) Non-compliance of section 19 of PMLA by the Enforcement Directorate; (ii) The Petitioner has satisfied both the conditions of section 45(1)(ii) of the PMLA. (iii) The petitioner had no knowledge that the accused Pradeep Bagchi committed forgery in order to impersonate himself as owner of the property in question. (iv) It is the Company of which the petitioner is Director was the victim of cheating for which they also lodged complaint against Pradeep Bagchi; (v) Even assuming the entire allegation made in the complaint to be true, no case under section 3 punishable under section 4 PMLA is made out as the allegations fall short for essential ingredients for offence of money laundering under section 3 of PMLA Act. 10. So far as first contention of the petitioner is concerned with regard to non-compliance of Section 19 of PMLA by the Enforcement Directorate; it would be profitable to quote Section 19 of the Act itself:- 19. Power to arrest. (1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, in the event their grounds of arrest were equally voluminous, it would be wellnigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her. The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22(1) and the statutory mandate under Section 19(1) of the Act of 2002. 39. On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Apex Court held that the grounds of arrest would henceforth be furnished in writing to the accused but at the same time, it declared the arrest and the consequential remand of Pankaj Bansal and Basant Bansal to be illegal. Had the intention been to make the condition only prospective, the Hon ble Apex Court would not have declared the arrest of Pankaj Bansal and Basant Bansal to be illegal. 12. At this stage it is also pertinent to mention that the law is no more res integra, inasmuch as, the normal rule is that the judgment is always retrospective in nature unless it is declared prospective and amended provision of law is always prospective unless it is declared retrospective. By examining the relevant paragraph of the Hon ble Apex Court in the judgment rendered in the case of Pankaj Bansal (Supra) it appears that the word Henceforth has been used as a direction for the future cases but it cannot be construed by any imagination that the said judgment will not affect the cases in which the arrest has been done without service of grounds for arrest. The intention of the Hon ble Apex Court was not to condone the illegalities committed by the Enforcement Directorate prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as negotiated and purchased it in only 7 Crore. This allegation itself transpires that it is mere a suspicion as it is well established principle that the market value and the government value of any property cannot in every case be equal. Another allegation is that only one part of total payment amounting to Rs 25,00,000/- was made into State Bank of India account number 10301956970 of Pradip Bagchi through IDFC First Bank, Cheque No 461153 and rest of the money was falsely shown to be paid in the deed no. 6888 of 2021 through other cheques. However, in the complaint itself it is mentioned that no further payments were done. This allegation is also more of suspicion; rather than belief. Another allegation is that the property in question was litigated land. Thus, this court is of the view that the entire allegation as contained in the prosecution complaint is more of reason to suspect; rather of reason to belief. At this stage it is pertinent to mention that reason to suspect and reason to believe are two different things and one of the conditions in Section 19 speaks of reason to believe. Reason to suspect is subordinate to reason to believe and cannot be equated with reason to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in forging and manipulating the title deeds being Deed of Sale No. 4369 dated 11.10.1932 of the Property in question in the office of the Registrar of Assurances at Kolkata. Nor is there any allegation that the petitioner was party to the manipulation which took place in the Office of the Registrar of Assurances, Kolkata. (ii) There is no allegation that the petitioner was involved in obtaining certified copy of the title deeds being Deed of Sale No. 4369 dated 11.10.1932 from the Office of the Registrar of Assurances, Kolkata. (iii) There is no material on record to show that the petitioner was involved in obtaining holding numbers by accused Pradeep Bagchi by submitting forged Aadhaar Card, forged electricity bill and forged possession letter to the Office of the Ranchi Municipal Corporation. For such acts committed by Pradeep Bagchi, F.I.R. No. 141/2022 dated 04.06.2022 has been registered by the Police of Bariatu Police Station, Ranchi under Sections 420, 467, 471 IPC against Mr. Pradeep Bagchi (which are scheduled offences under the PMLA. It is pertinent to mention here that the petitioner is not named as an accused/suspect in the said FIR. It is trite that only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For better appreciation paragraph 467(d) is quoted hereinbelow: 467(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 with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of moneylaundering against him or any one claiming such property being the property linked to stated scheduled offence through him... Thus, in the instant case, even if the allegations levelled against the petitioner in the Prosecution Complaint are accepted at its face value and in their entirety; prima facie, the same do not make out a case under Section 3, punishable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail with respect to economic offences held that- 24. At this juncture, it must be noted that even as per Section 212(7) of the Companies Act, the limitation under Section 212(6) with respect to grant of bail is in addition to those already provided in the CrPC. Thus, it is necessary to advert to the principles governing the grant of bail under Section 439 of the CrPC. Specifically, heed must be paid to the stringent view taken by this Court towards grant of bail with respect of economic offences. In this regard, it is pertinent to refer to the following observations of this Court in Y.S. Jagan Mohan Reddy. 34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he future conduct of the petitioner, the lack of criminal antecedent, his propensities and the nature and manner of his involvement as demonstrated have been considered by this court to decide on the second limb of section 45 (1)(ii) of the PMLA {Refer Ranjit sing Brahmajeet Sing Sharma Versus State of Maharastra reported in (2005) 5 SCC 294 at paragraph 44}. 20. It goes without saying that this is only stage of bail and this Court is not sitting under its inherent power under section 482 for quashing the entire proceeding; further there are 31 charge-sheeted witnesses and the petitioner is in custody since 07.06.23. Reference may be made to the recent judgment dated 30.10.2023 of the Hon ble Apex Court of India rendered in the case of Manish Sisodia versus Central Bureau of Investigation, reported in 2023 SCC online SC 1393, wherein at paragraphs 27 and 29 it was held as under: 27. However, we are also concerned about the prolonged period of incarceration suffered by the appellant - Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement, the appellant therein was granted bail after being kept in custody for around 49 days, relying on the Constitution Bench in Shri Gurbaks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years. Having regard to the number of oral and the documentary evidences and the present stage of trial and the period of custody undergone, this court is inclined to grant this petitioner on bail. 21. Accordingly, the petitioner is directed to be released ..... X X X X Extracts X X X X X X X X Extracts X X X X
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