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TMI Blog2024 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Hon ble Apex Court in CHINTAN JOSHI VERSUS NIRANJANA BEHERA [ 2023 (8) TMI 1458 - SC ORDER] , it is clear that the Bar under Section 45 of the PMLA Act, 2002 shall not stand in the way of the Trial Court while considering an application under Section 205 Cr. P.C. filed by the accused petitioner. Reverting back to the facts of the present case and on a plain reading of the complaint, it appears that the alleged amount involved in the present crime is Rs. 35 lakhs. Therefore, the same is admittedly less than Rs. 1 crore. In the present case, the accused-Petitioner filed an application under Section 205 Cr. P.C. to dispense with his personal attendance before the Court. It has been stated that the accused-Petitioner is now posted at Berhampur Municipal Corporation in Ganjam district under deputation in Foreign Service terms and conditions for which he is unable to appear before the Trial Court at Bhubaneswar in Khurda district on each date of posting. This Court is of the considered view that the impugned order passed by the learned Trial Court is unsustainable in law. Accordingly, the same is hereby set aside - matter is remanded back to the Court of Sessions Judge-cum-Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to any other law for the time being in force. 5. On the basis of the aforesaid Vigilance Case, PMLA Case No. 32 of 2017 was registered and the same is pending before the Sessions Judge, Special Court, Khurda at Bhubaneswar under PMLA Act, 2002 even 7 years after the F.I.R. was lodged by the Vigilance Police. Finally, cognizance was taken on 21.09.2017. Pursuant to the summons issued by the Sessions Judge, Bhubaneswar the petitioner appeared before the said Court. Initially, the Petitioner filed an application challenging the maintainability of the PMLA Case, however, the same was rejected by the learned Court below vide order dated 09.04.2018. While rejecting the prayer of the Petitioner, the learned Trial Court has also directed the Petitioner to appear before the Court and fixed the date of appearance to 30.04.2018. 6. While the matter stood thus, Assistant Director, E.D. lodged a complaint before the learned Adjudicating Authority, New Delhi under the PMLA Act, 2002. Pursuant to the summons by the Adjudicating Authority the Petitioner appeared before the learned Adjudicating Authority. The said case was disposed of on 11.07.2017. Against order dated 11.07.2017, the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing his application. 9. In course of his argument, learned counsel for the Petitioner by referring to the impugned order dated 16.08.2022 submitted before this Court that the learned Trial Court has dealt with the application under Section 205 Cr. P.C. in a mechanical manner. He further contended that while considering the application under Section 205 Cr. P.C., the learned Trial Court has referred to Section 45 of PMLA Act and has observed that keeping guard on release of the accused persons involved in such nature of offences and further keeping in view the gravity of the offences alleged and the nature of allegations made against the Petitioner and further keeping in view the restrictive provisions of the Act incorporated to secure the attendance of accused persons, the learned Trial Court has finally rejected the application of the Petitioner under Section 205 Cr. P.C. While challenging the aforesaid rejection order dated 16.08.2022 passed by the Sessions Judge-cum-Special Judge Khurda at BBSR learned counsel for the Petitioner submitted that Section 45 of the PMLA Act has no applicability to an application under Section 205 Cr. P.C. Therefore, it was contended that placin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rime involved in the case, the learned Trial Court considering the seriousness and gravity of the offence and that such offence would have a direct impact on the economy of the country has rightly rejected the application of the Petitioner in the above noted case which was filed under Section 205 Cr. P.C. It was also contended that Section 205 Cr. P.C. cannot be used as a substitute for bail and that the exemption from personal appearance is not a vested right conferred on the accused. A similar argument was also advanced by Mr. Agarwal in the present case. 13. The Coordinate Bench then proceeded to examine the provisions contained in Section 45 of the PMLA Act. Then the Coordinate Bench has recorded the relevant portion of the allegation made against present Petitioner in the complaint filed by the Assistant Director (PMLA), Bhubaneswar. Furthermore, the amount involved i.e. Rs. 3,19,100/- has been emphasized by the Coordinate Bench. In the ultimate analysis, the learned Coordinate Bench referring to the judgment in Bhaskar Industries Ltd. vs. Bhiwani Denim Apparels Ltd. reported in (2001) 7 SCC 401 came to a conclusion that the discretion conferred by Section 205 Cr. P.C. on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The allegation made and the offences alleged are almost similar. Thus, this Court has no hesitation in coming to a conclusion that although an application under Section 205 Cr. P.C. is maintainable in a case involving offences under the PMLA Act, 2002 and the bar under Section 45 would not be attracted to such an application, however, while exercising the discretion conferred upon the Court by Section 205 Cr. P.C., the Trial Court has to take a decision with lot of circumspection and caution. Particularly, while considering such application, the learned Trial Court is to satisfy itself with regard to availability of sufficient and cogent reasons and inability of the Petitioner to appear before the Trial Court. The learned Trial Court, in such eventuality, is duty bound to consider such application on its own merit and in accordance with law. That is, if the Trial Court is satisfied with regard to the sufficiency and cogentness of the reasons cited by the Petitioner and the grounds taken by the Petitioner expressing his inability to appear before the Trial Court and to pass an order strictly in accordance with law and basing on the materials placed on record from both sides. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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