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TMI Blog2024 (2) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the petitioner is not guilty of such offence and he is not likely to commit any offence while on bail. As per Section 24 of the Act, in the case of a person charged with the offence of money-laundering under Section 3, the Authority/Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in moneylaundering. The conditions enumerated in Section 45 of the Act are to be complied with even in respect of an application for bail under Section 439 Cr.PC in view of the overriding effect given to the Act over the other loss for the time being in force, under Section 71 of the Act. The Bail Application stands dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; located at Chinnakada Kollam having an undivided share of 30.995 cents in total extent of 52.153 cents along with 26 shop rooms in commercial building in Survey Numbers 28/2 to 28/7 and 35/5 in Block No.179 of Kollam East village (Heera Plaza, Kollam). The market value of the property at the time of sanction was Rs.5.40 Crores. iii. The Project loan is also secured by mortgage of three other collateral securities worth Rs. 2.43 crores, which are the properties held in the name of the company (HCCPL) and its Directors. 6. During 2013-2015 on various dates, at the request of HCCPL, the bank granted permission for part release of the mortgaged property measuring 8,513 Sq. Ft. of 12 shop rooms as the security available was sufficient to cover the Bank exposure to the company. On enquiry, it was revealed that HCCPL had sold the entire property which was the collateral security (Heera Plaza Kollam). HCCPL had not remitted the sale proceeds to the Bank to bring down the liability correspondingly. These properties which were sold by HCCPL without the permission of the bank are now physically occupied by third parties. Since the repayment of loan was not forthcoming, the loan account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the State Bank of India, Kowdiar Branch in the name of Heera Construction Company Private Limited for the period from 23.12.2013 to 30.01.2019 would reflect that the petitioner remitted substantial amounts to the loan account. The petitioner repaid an amount of Rs.16.90 Crores to the loan account. (vii) The petitioner has been co-operating with the Investigating Officer. (viii) The petitioner is aged 68 years. He is an acute type-1 diabetic patient. He has a dead pancreatic gland. An insulin pump has been connected to his body which regularly monitors and pumps required insulin from time to time. He is also suffering from ailments related to prostate and taking constant medication for high blood pressure. 11. Sri.Jaishankar.V.Nair, the learned Standing Counsel appearing for the respondent submitted the following: (1) The Investigating agency collected sufficient materials to establish that the petitioner and the other accused deliberately layered the proceeds of the crime to the third parties. (2) There are reasonable grounds for believing that the petitioner has committed the offences alleged. The economic offences constituting a class apart having deep-rooted conspira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' (i) the Public Prosecutor has been given an 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, or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by-- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. (1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant." 18. On the touchstone of the legal position discussed above let me consider the merits of the contentions raised on either side. The investigation so far conducted revealed the following: (I) The total amount of project cost was Rs.22,76,54,658.82/-, excluding the cost of the land. (II) 90% of the project `H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared NPA. Approximately Rs.9 crores received from the said loan amount were diverted to other projects. (b) He being the MD of the company violated the terms and conditions regarding diversion of funds to other projects. Altogether 68 apartments of 'Heera Lake Front' were sold to 68 buyers for a total amount of Rs.37,16,08,262/-. Part of this amount was utilised for the construction of other projects also and therefore could not remit the full amount in the project loan account. (c) He violated the terms and conditions regarding diversion of funds received as sale proceeds of 'Heera Lake Front' project to various other current accounts of HCCPL. (d) The sale realisations from the 'Heera Lake Front' project were not routed through the loan account and thereby admitted that he has violated the loan agreement with SBT. (e) He had availed two housing loans, one for an amount of around Rs.70 lakhs from SBI, Vazhutheadu against an apartment in Heera Highlife, Trivandrum. The loan account was closed in 2020. (f) Second housing loan was for an amount of Rs.1.2 crores from HDFC, Vazhuthecadu against his residential property named "Citadel" in Trivandrum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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