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TMI Blog2024 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner 20-21 25-26 Analysis and Findings (i) Details of four subsequent FIRs (ii) Chart showing the details of the petitioner being Director of various companies of Mahira Group 22-50 25, 29-32 26 26-66 27, 30-34 28 BRIEF FACTS OF THE CASE:- 3. Briefly stated, the case of the prosecution is that M/s Sai Aaina Farms Pvt. Ltd. (presently known as M/s Mahira Infratech Pvt. Ltd and hereinafter referred to as "SAFPL") was controlled by Chhoker Family i.e. by the present petitioner and his sons Sikander Singh and Vikas Chhoker and the companies of the Chhoker family are known by the name "Mahira Group" and the said Mahira Group deals majorly in real estate / construction projects and that SAFPL is also one of the several companies under the Mahira group and the said company undertook the project of building flats at Sector 68, Gurugram, under the affordable group housing project and SAFPL applied for licences / permissions to the Department of Town and Country Planning, Haryana and were granted licence no. 106/2017 to build around 1500 flats in an area of about 10 acres and the project was required to be completed by 2021- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Its Directors, associate companies and authorized signatory for submitting forged and fabricated building plans 0175 dated 18.05.2022 and Chargesheet no. 1 dated 08.06.2023 (P-30) Pg 393 Rajendra park, Gurugram Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 For submission of fake bank guarantees and other documents by SAFPL regarding licence No. 106 of 2017. 4. As per the further case of the ED, after recording of the said ECIR, bank account statement, balance sheet and other relatable documents were received from various offices and statements were recorded under the provisions of Sections 16, 17 and 50 of PMLA to ascertain the proceeds of crime as defined under Sections 2 (1)(u) of the PMLA and to decipher the diversion of funds by SAFPL, M/s D S Home Constructions Pvt Ltd. (hereinafter referred to as "DSHCPL") and its associated concerns through its directors, ex-directors, key persons etc. and that search was also conducted and the ED filed a Provisional Attachment Order no. 01/2024 on 15.02.2024 before the Adjudicating Authority under sub section (1) of Section 5 of the PMLA in order to provisionally attach proceeds of crime identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as again challenged by Aditya Beri and another and the Coordinate Bench of this Court vide order dated 16.01.2024 again remanded the matter to the CJM for passing a fresh order and FIR no. 11 was stated to be a nullity in view of the earlier remand order. The complainant Neeraj Chaudhary thereafter withdrew the complaint vide order dated 09.02.2024, however, as stated hereinabove, 4 other FIRs were registered in the meantime. The petitioner along with other persons had filed CRM-M-37710-2023 in which several prayers were made including quashing of the present ECIR as well as quashing of the orders of the Special Judge issuing non-bailable warrants and also quashing of summons issued to the petitioner. During the course of said proceedings, an application was moved for restraining the ED from taking any coercive action. The said petition was dismissed vide order dated 26.02.2024 (Annexure P-13) and in the same it was observed that since there were other FIRs also registered in addition to FIR no. 11, thus, the proceeds of crime could not be ruled out and it could not be said that no offence of money laundering has been committed. All the arguments raised on behalf of petitioner were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of order dated 07.01.2021 (Annexure P-25) passed by the CJM, Gurugram as well as further proceedings in the consequential FIR No. 11 dated 14.01.2021 were stayed qua the petitioners therein and the same was disposed of vide order dated 05.07.2023 (Annexure P-5) and while doing so, the Coordinate Bench of this Court had remanded the matter for fresh decision in accordance with law. It is submitted that when the trial Court had again allowed the application under Section 156 (3) Cr. P.C. and had further directed the SHO to conduct proper investigation in the case and had further observed that the file be sent to the Incharge of the concerned Police Station for forming the part of FIR No. 11 dated 14.01.2021 vide order dated 26.10.2023 (Annexure P-9), one Aditya Beri along with another person had filed two petitions bearing CRM-M Nos. 56495 and 56496 of 2023 challenging the said orders, in which, the Coordinate Bench of this Court vide order dated 16.01.2024 was pleased to observe that since the matter was being remanded thus, consequential FIRs i.e. FIR Nos. 10 and 11 were held to be a nullity and the impugned orders dated 26.10.2023 were set aside and further direction was give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner had duly complied with the said directions and in order to fortify the said arguments, reference has been made to the order dated 29.04.2024 (Annexure P-19) passed by the Special Judge to highlight the fact that proclamation proceedings against the petitioner were not being pursued as the counsel for the Enforcement Directorate had submitted that the petitioner had joined the investigation as directed by the Hon'ble Supreme Court. It is submitted that the petitioner has in every way cooperated with the Enforcement Directorate and thus, the petitioner deserves the concession of anticipatory bail on the said ground also. 8. Learned Senior Counsel for the petitioner has further submitted that although both the initial FIRs i.e. FIR Nos. 10 and 11 were held to be a nullity and complaints regarding the same were withdrawn subsequently but four other FIRs were registered i.e. FIR No. 151 dated 31.05.2023 (Annexure P-28), FIR No. 151 dated 05.07.2023 (Annexure P-29), FIR No. 175 dated 18.05.2022 (Annexure P-30) and FIR No. 152 dated 01.06.2023 (Annexure P-31) and it is the case of the Enforcement Directorate that the said FIRs are also a part of the investigation in the ECIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was registered on 16.11.2021 and with respect to Mahira Homes Private Limited, the petitioner had resigned on 15.11.2017 i.e. much prior to the grant of licences in questions which were granted on 22.12.2017. It is submitted that the petitioner is a sitting MLA of Haryana Legislative Assembly from Samalkha constituency since the year 2019 and in case the petitioner is granted the concession of anticipatory bail, since he has deep roots in the society, he would not abscond or commit any further offence. It is further submitted that on an earlier occasion when the arrest warrants were stayed, the petitioner never misused the said concession. ARGUMENTS ON BEHALF OF THE RESPONDENTS 11. Learned counsel appearing for the Enforcement Directorate, on the other hand, has vehemently opposed the present petition for anticipatory bail. It is submitted that prior to the filing of the present anticipatory bail, the petitioner had filed CRM-M-37710-2023 which was dismissed by the Division Bench of this Court vide order dated 26.02.2024 (Annexure P-13). The said order has been highlighted and reference has been made to the prayers which had been made in the same including the prayer for quashin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not make much difference to the case. It is highlighted that the Division Bench had taken note of judgment of the Hon'ble Supreme Court in which it was observed that merely because there was a restraint order in a criminal matter with respect to the FIR, the same would not affect the proceedings under the PMLA moreso, when the Enforcement Directorate was not a party to the said proceedings, since money laundering was an independent offence. Even the arguments to the effect that the petitioner was not the Director of the company in question was rejected in paragraph 16 thereof by the Division Bench and reliance was placed upon the judgment of the Hon'ble Supreme Court in Pavana Dibbur vs. Directorate of Enforcement (Criminal Appeal no. 2779 of 2023 decided on 29.11.2023) and it was observed that even in case the petitioner was not shown to be an accused, he could still be prosecuted under the PMLA. It is further pointed out that when the matter was pending before the Division Bench, an application was moved by the petitioner with the prayer that no coercive action be taken, and with the dismissal of the said writ petition, the said application also stands rejected. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner and had annexed sufficient material to show that the petitioner was involved in offence of money laundering and thereafter the petitioner had withdrawn his SLP. 13. Learned counsel has next contended that FIR No. 175 dated 18.05.2022 (Annexure P-30) registered under Section 10 of the Haryana Development and Regulation Urban Area Act 1975 has not been annexed by the petitioner in its entirety and the relevant portion of the FIR has purposely been concealed and thus, the petition deserves to be dismissed on the ground of suppression of material facts. It is submitted that in the said FIR, the petitioner is shown as accused no. 6 and the subsequent portion of the FIR which has not been produced, would show that it has been alleged in the said FIR that Czar Buildwell Pvt. Ltd. and Mahira Buildtech Pvt. Ltd. are the subsidiary companies of Mahira Homes Pvt. Ltd. and that the FIR was registered on account of collusion of all the directors, share holders / authorised signatories of the said companies and accused persons, who were jointly and severally responsible for submission of forged bank guarantees in the office of the District Town Planner, on whose complaint the said FIR ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds were not utilized for construction of the proposed project and the construction of all the projects of Mahira Group has not been completed till date and no flat has been delivered to any home buyer and rather the money has been diverted and siphoned off through the company of which the petitioner was the director. It is submitted that a large number of flat owners have given written complaints on the said aspect. It is submitted that the petitioner along with other accused persons have forged bank guarantees in order to get licences issued and further forged signatures of the farmers / land owners for getting the same issued and also for selling 35% flats which were the share of the said land owners / farmers and various FIRs on the said aspect have been registered. It is submitted that the arguments made on behalf of the petitioner to the effect that two FIRs i.e, FIR No. 10 and 11 are not in existence and that the complaint regarding the same was withdrawn on 09.02.2024, also does not further the case of the petitioner in any manner. It is submitted that apart from the fact that the said argument was rejected by the Division Bench of this Court, it is a matter of record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the subsequent period being 02.12.2019 till 10.07.2021. It has further been highlighted that the petitioner was also a Director for some period in Mahira Homes Pvt. Ltd. It is argued that it was specifically averred therein that as per the Forensic Audit Report, SAFPL had diverted an amount to the tune of Rs. 31,57,73,653/- belonging to home buyers for other purposes which were not connected with the construction of flats at Sector 68, Gurugram and further as per the Forensic Report dated 22.07.2022 which was got conducted by HRERA in respect of real estate projects, M/s Mahira Buildtech Pvt. Ltd., which company is an accused in FIR No. 151 dated 31.05.2023, had collected an amount of Rs. 160 crores approximately from 781 allottees and have diverted the total amount of Rs. 68 crores to M/s D S Home Construction Pvt. Ltd. of which the petitioner was a director for the relevant period. It is argued that specific reference was made to the balance sheet of M/s Mahira Buildtech Pvt. Ltd. for the financial year 2021-22 and the payments, which have been made to M/s D S Home Construction Ltd., M/s Mahira Home Pvt. Ltd., which is an accused in FIR No. 151 dated 05.07.2023 (Annexure P-29) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 17. Learned counsel for the respondent has further referred to the independent audit report with respect to Company M/s D.S. Home Construction Pvt. Ltd., which has been prepared by Raheja & Company Chartered Accountant and has highlighted that all the documents annexed along with the said report including the statement of profit and loss account, balance sheet etc., have been signed by the petitioner as Director and his son Sikandar Singh also as Director. It is submitted that the same clearly shows that the petitioner was one of the main Directors of the said Company and was actively involved in day to day functioning of the company. It is further submitted that an amount of Rs.40 crores from the RERA account of M/s Sai Aaina Farms Pvt. Ltd. has been transferred into the account of M/s D.S. Home Construction Pvt. Ltd and that the Special Judge, after taking into consideration all the aspects, had rejected the anticipatory bail of the petitioner and had even taken a note of the fact that the balance sheet of M/s D.S. Home Construction Pvt. Ltd. for the year 2020-2021 bore the signatures of the petitioner as a Director and also the fact that the amount was transferred to the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered and that the economic offences stand as a different class in itself and the powers under Section 438 Cr.PC. are to be exercised sparingly, more so, in cases of economic offences. Further reliance has been placed upon a judgment of Hon'ble Supreme Court in case of "Pavana Dibbur Vs. The Directorate of Enforcement in Criminal Appeal No. 2779 of 2023, decided on 29.11.2023, in which, it has been held that it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as an accused in the scheduled offence. 18. Learned counsel for the Enforcement Directorate has further submitted that an amount of Rs. 141 crores which has been paid by M/s Sai Aaina Pvt. Ltd. to M/s D S Constructions Pvt. Ltd., was under the heading of construction and the amount of Rs. 48 crores which as per the case of the Enforcement Directorate has been siphoned off, has been paid by M/s Sai Aaina Pvt. Ltd to M/s D S Construction by giving bogus loans and advances and it was recorded as loan in the books of account. It is further submitted that even though the deadline was extended but not even a single flat has been delivered to the home buyers. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be treated as binding findings on merits and thus, it is open to the petitioner to raise all the pleas on merits and the argument raised on behalf of the respondent that the petitioner be estopped from raising the said pleas is misconceived and deserves to be rejected. ANALYSIS AND FINDINGS:- 22. This Court has heard learned counsel for the parties and has perused the paper book and is of the considered opinion that the petitioner does not deserve the concession of anticipatory bail and the present petition deserves to be dismissed for the reasons detailed hereinafter. 23. As stated hereinabove, the case of the prosecution is that M/s Sai Aaina Farms Pvt. Ltd. (presently M/s Mahira lnfratech Pvt. Ltd.) is controlled by the Chhoker family led by the petitioner and his sons Sikander Singh and Vikas Chhoker and the companies of the Chhoker family are known by the name of Mahira Group, (primarily dealing in Real Estate/Construction projects) and that SAFPL is one of the several companies under the Mahira Group and the said company SAFPL undertook the project of building flats at Sector-68, Gurugram under the Affordable Group Housing Project and applied for relevant licenses to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments by SAFPL regarding licence No. 106 of 2017. 26. As per the further case of the prosecution, during the course of investigation, it was found that the petitioner was Director of six companies belonging to "Mahira Group". The details of the same, which have been given in para 46 of the reply filed on behalf of the ED to the anticipatory bail application filed by the petitioner before the Special Judge, are given hereinbelow:- S.No. Company Name Designation Date of appointment at Current Date of Designation cessation (if applicable) 1. DS ESTATES & CONSTRUCTION PRIVATE LIMITED Director 02.07.2007 30.09.2009 2. MAHIRA HOMES PRIVATE LIMITED Director 17.11.2016 15.11.2017 3. D S HOME CONSTRUCTION PRIVATE LIMITED Director 31.08.2012 15.03.2017 Director 02.12.2019 10.07.2021 4. DSC ESTATE DEVELOPERS PRIVATE LIMITED Director 03.11.2010 18.12.2014 5. DS HOMES PRIVATE LIMITED Director 04.06.2020 10.07.2021 6. MAHIRA BUILDTECH PRIVATE LIMITED Director 17.11.2016 19.04.2018 27. It would be relevant to note that during the course of arguments, the abovesaid table has not been disputed on behalf of the petitioner. The respondent has placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainants and further that accused persons including the petitioner had issued cheques worth Rs. 20 crores on behalf of M/s Czar Buildwell Company which were dishonoured by the bank and that accused persons including the petitioner had abused the landowners and the petitioner had stated that he was an MLA and in case the complainants asked for their money then they would be killed. It was further stated in the said FIR that the complainants had come to know from newspaper reports that flat buyers and farmers had also given a lot of complaints against Mahira Group for the illegalities committed by them. 30. FIR No. 151 dated 31.05.2023 (Annexure P-28) was got registered by some farmers, first of whom was Sita Ram and in the said FIR, allegations have been made against M/s Mahira Buildtech Private Limited, of which company the petitioner was a Director for a limited time, as is apparent from the chart reproduced hereinabove and the allegations were to the effect that the licences had been obtained by the said company by forging the signatures of the landowners and they had committed misappropriation and cheating/fraud. In the said FIR, reference was also made to the Press Release dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s signatures of the members of the Building Plans Approval Committee were forged and for the same, it was observed that the Directors of Mahira Homes Private Limited, Associate Companies and Authorized Signatory and the Architect etc. were liable. 32. FIR No. 175 dated 18.05.2022 (Annexure P-30) was also registered by the District Town Planner against six persons including the present petitioner and his son Sikander Singh on the allegations that SAFP and the accused persons had got issued licence No. 106 of 2017 for setting up of Affordable Group Housing Colony by submitting bank guarantees and it was found that several bank guarantees were fake and upon confirmation made, it was found that the same were never issued by the concerned Bank which had purportedly issued the said bank guarantees. Similar allegations were also made in the FIR with respect to licence No. 66 of 2021 dated 07.09.2021. It would be relevant to note that challan in the present case has not been filed against the petitioner and it is the case of the petitioner that he has been declared innocent in the same. At any rate, the said FIR is alive. It would be further relevant to note that it has been submitted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is also apparent from the balance sheet of the said company which has been annexed as Annexure R-2 along with CRM-23673-2024. It has further specifically been averred in para 48 of reply filed by the ED to the anticipatory bail application filed by the petitioner (Annexure P-23) that as per ITRs of the petitioner for the Assessment Year 2021-22 (Financial Year 2020-21), an amount of Rs. 20 lacs had been shown as given by M/s DS Homes Construction Private Limited to the petitioner from the home buyers funds which had been diverted from M/s Sai Aaina Farms Private Limited to M/s DS Homes Construction Private Limited and further, it has been averred in para 50 of the said reply that M/s SAFPL had received an amount of Rs. 363 crores approximately from the home buyers and had further transferred substantial amounts to M/s DS Homes Construction Private Limited in the guise of loans and advances which later on had been used by the petitioner and bogus purchases had been generated during the Directorship of the petitioner in M/s DSHC Private Limited and it has been stated in para 52 of the said reply that no flat has been delivered to any home buyers till date, which aspect (non-deliv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Aaina Farms Pvt Ltd. The above amount taken from M/s Sai Aaina Farms Pvt Ltd is the home buyers money and the same is squarely covered within the definition of proceeds of crime on account of Petitioner being beneficiary of the proceeds of crime as defined under section 2 (1) (u) of PMLA. 6. Further, M/s D S Home Construction Pvt Ltd transferred the above mentioned loans and advances to the other companies / persons associated with Shri Dharam Singh Chhoker only. The details of the same are as below: Name of person / entity As on 31.03.2020 As on 31.03.2021 As on 31.03.2022 Amit Chhoker, a family member of Dharam Singh, being his nephew 52,75,000 52,75,000 11,50,000 Dharam Singh 1,27,72,600 1,29,36,380 1,30,74,213 Ms. D S Homes Pvt. Ltd 9,21,50,000 9,32,64,200 Ms. Mahira Fuels, a prop. concern of Vikas Chhoker 2,48,95,400 6,42,57,117 9,42,92,405 Sikandar Sir 5,96,82,146 9,31,05,664 Ms. Neel Mahadev Buildtech Pvt Ltd, a group company of Mahira Group 1,68,82,000 1,73,82,000 Praveen Chhoker, a family member of Dharam Singh Chhoker, being his nephew 21,39,000 38,39,000 Vikas Chhoker, son of Dharam Singh Chhoker 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 56 Crore (approx.) by M/s Sai Aaina Farms Pvt Ltd and M/s D S Home Construction Pvt Ltd after receiving the payments from home buyers for Project Mahira Homes - 67, Gurugram. Wherein the payments were transferred to the entities through banking transactions and further cash amount were received back by Chhoker family. 12. In light of the above stated facts depicting role of the Petitioner, it is to be noted that the instant case involves serious economic offence of siphoning of huge amount of public money and the Petitioner is the beneficiary of proceeds of crime thereby being squarely covered within the ambit of offence of money laundering. Xxx xxx" 35. In addition to the above mentioned material which is against the petitioner, it would also be relevant to take note of the averments made in the application filed by the respondents before the Hon'ble Supreme Court in Special Leave to Appeal (Criminal) No. 3867 of 2024 (background of which would be given hereinafter), annexed as Annexure R-1 along with CRM-23673-2024, seeking permission to arrest the petitioner. In addition to the allegations levelled against the petitioner with respect to various periods when the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r project at Sector-104, Gurugram and most of the funds have been utilized by the developer and only 2% of the work has been done. Also, an amount of Rs. 21 Crore has been paid to M/s DS Home Construction Pvt Ltd. Further, as per the balance sheet of M/s Czar Buildwell Pvt Ltd for F.Y. 2021-22, an amount of Rs. 80 Crore (approx.) was paid to M/s DS Home Construction Pvt. Ltd. Alone. (viii) Furthermore, during investigation, it is revealed that SAFPL undertook the project Mahira Homes-68 of building flats at Sector 68, Gurugram, under the affordable group housing project and had applied for relevant licenses/permissions to Department of Town and Country Planning [DTCP), Haryana. DTCP granted license No. 106/2017 to SAFPL in 2017 based on the document/bank guarantees provided by SAFPL, some of which were found fake/forged later on. The license no. 106 of 2017 granted by DTCP to SAFPL was valid till 21.12.2022. The license permission was to build around 1500 flats in an area of about 10 acres. The project was to be completed by 2021-22. Based on the licenses/ permission granted by DTCP, SAFPL started bookings for the flats and collected around Rs. 363 crores from 1500 (approx.) home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been given in the abovesaid chart. Even M/s Czar Buildwell Private Limited, which project is the subject matter of FIR No. 152 dated 01.06.2023, is stated to have transferred a total amount of Rs. 80 crores to M/s DS Homes Construction Private Limited, (of which the petitioner was Director for a substantial time) as per the balance sheet of the year 2021-22. It has been specifically averred that although Rs.90 crores had been received from the home buyers with respect to the said project but only 2% of the work regarding the same had been done. In para 5(B), it has further been specifically averred that the investigation done by the Enforcement Directorate would show that SAFPL and its associated companies had debited several fake bogus expenditures in the books and have siphoned off the home buyers money for personal gains and even transferred an amount of Rs. 189 crores of home buyers to M/s DS Homes Construction Private Limited during the period when the petitioner and his sons were Directors. It is the case of the respondent that when the said application containing specific averments was filed before the Hon'ble Supreme Court in Criminal Appeal filed by the petitioner agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2024 Made attempts on 13.04.2024, not found at home as he was not there since 26.02.2024. Report dated 14.04.2024, not found at residence even after multiple attempts. It is also to be noted that Hon'ble Supreme Court of India directed Petitioner to appear before Respondent Directorate during hearing of SLP (Crl) No. 3867 of 2024 and the Petitioner appeared only twice in compliance thereof and thereafter deliberately chose not to appear before Respondent Directorate upon summons issued to the Petitioner after dismissal of SLP (Crl) No. 3867 of 2024 on 06.05.2024 and details of such summons are as follows- S.NO. DATE OF ISSUE DATE OF COMPLIANCE STATUS OF COMPLIANCE 1 07.05.2024 08.05.2024 No Compliance 2 10.05.2024 13.05.2024 No Compliance 3 17.05.2024 21.05.2024 No Compliance 38. It would also be relevant to note that the petitioner before filing the present petition for anticipatory bail had filed a petition bearing CRM-M-37710-2023 titled as "Dharam Singh Chhoker and another Vs. Directorate of Enforcement and another, in which, the following prayers were made: - 1. Quash the ECIR/GNZO/20/2021 and all consequential proceedings arising therefrom as the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present petitioner. The said application has been annexed as Annexure R-4 with CRM-M-26190-2024. Although, initially notice was issued and an interim order was passed on 05.10.2023 by the Division Bench of this Court, to the effect that till the next date of hearing, the arrest warrant be not implemented, but the said petition was finally dismissed by the Division Bench, vide a detailed judgment dated 26.02.2024. The said judgment has been annexed as Annexure P-13 along with the main petition. A perusal of the said judgment would show that the arguments which are sought to be raised before this Court for grant of anticipatory bail were also raised before the Division Bench, in which, the prayers which have been reproduced herein above were made. The Division Bench in para 4(i) had noticed that the primary issue raised by the petitioner in the case was to the effect that once the order on the basis of which the FIRs No. 10 & 11 were registered had been set aside and the FIRs were no longer in operation, there being no scheduled offence, no offence under the PMLA would remain and in para 7 of the judgment, the arguments in support of the said submissions were also noticed. In Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o devoid of merit. The argument that since Dharam Singh Chhoker was not arraigned as an accused in the complaints submitted by Neeraj Chaudhry, no proceedings could have been issued against him is also devoid of merit. Still further, once there were other FIRs pending against the petitioners, it cannot be said that there were no proceeds of crime and, therefore, no offence of money laundering, as defined under Section 3 of the PMLA, can be said to have been committed. xxx xxx xxx 17. A perusal of the aforesaid judgment shows that even if one of the petitioners was not shown to be an accused, he could be prosecuted under the PMLA so long as the scheduled offence exists. The scheduled offence, as already mentioned in the preceding paragraphs, is not only in FIR Nos. 10 & 11 dated 14.01.2021 but also in other FIRs referred to therein. It is also clear from a perusal of the aforesaid judgment that since there were other FIRs also, proceeds of crime cannot be ruled out and, therefore, it cannot be said that no offence of money laundering can be said to have been committed. As has been observed in the preceding paragraphs, the case is only at the stage of investigation and nothing ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iding a petition seeking quashing of proceedings or even seeking bail and the same is for the purpose of not prejudicing the case of the accused before the trial Court where the matter has to be finally adjudicated on the basis of the evidence produced before the trial Court and that the same cannot be construed to permit the petitioner to re-agitate the whole matter in the present petition. 41. This Court has considered the submissions of both the parties and observes that apart from having considered the judgment of the Division Bench, this Court has independently considered the material against the petitioner as well as the arguments of the petitioner and finds that even dehors the observations made by the Division Bench of this Court, it is not possible for this Court to opine that there are reasonable grounds for believing that the petitioner is not guilty of the offence and that he is not likely to commit any such offence while on bail and rather, as has been observed hereinabove, there is sufficient material to make out a prime facie case against the petitioner. Section 45 of the Prevention of Money-Laundering Act, 2002 is reproduced herein below: - 45. Offences to be cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the conditions enshrined under this section.] " 42. The Hon'ble Supreme Court of India in Vijay Madanlal Choudhary's case (supra) had observed that it would not be logical to disregard the limitations imposed on granting bail under Section 45 of the 2002 Act, in the case of anticipatory bail as well. In the said judgment, reference was also made to the case of "P. Chidambaram Vs. Directorate of Enforcement", reported as 2019(9) SCC 24, in which, it has been observed that the power under Section 438 Cr.PC. has to be exercised sparingly, more so, in case of economic offences as economic offences stand as a different class as they affect the economic fabric of the society and in a case of money-laundering where it involves many stages, it requires systematic and analysed investigation and the success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. The relevant portion of the judgment of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 84. In a case of money-laundering where it involves many stages of "placement", "layering i.e. funds moved to other institutions to conceal origin" and "interrogation i.e. funds used to acquire various assets", it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt." 44. Thus, the rigors of Section 45 of the 2002 Act would also apply to an anticipatory bail and this Court after having considered the observations of the Hon'ble Supreme Court in the above-said judgment is of the opinion that the petitioner in the present case does not meet the twin test as contained in Section 45 of the PMLA to be granted the concession of anticipatory bail. 45. The argument raised on behalf of the petitioner to the effect that the ECIR was registered after the registration of the FIR No. 11 dated 14.01.2021 and once the said FIR ultimately does not survive, the ECIR itself does not survive even in case subsequently four FIRs have been taken on record in the said ECIR and are being investigated, is misconceived. In addition to the observations made by the Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the PMLA. vi. 19.11.2022, 22.11.2022 and 09.12.2022 - The department carries out follow-up searches and seizures. ix. 15.12.2022 - An application under Section 17 (4) of the PMLA is moved by the department for retention of records and digital devices seized on 18.11.2022, 19.11.2022, 22.11.2022 and 09.12.2022. x. 21.12.2022 - A show-cause notice under Section 8 (1) of the PMLA was issued by the Adjudicating Authority to the petitioner, for filing of a written response to the department's application under Section 17 (4) of the PMLA. vii. 22.12.2022 - FIR No. 49/2021 is quashed by a coordinate bench of this Court. viii. 10.07.2023 - FIR No. 55/2023 is registered at PS EOW under Sections 409/420/120B of the IPC and taken on record in impugned ECIR/09/HIU/2019. xxx xxx xxx xxx 29. Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra) has held that there is no corresponding provision to Section 154 of the CrPC in the PMLA requiring registration of an offence of money laundering. While observing the same, the Hon'ble Supreme Court held as under: "457....there is no need to formally register an ECIR, unlike registration of an FIR by the jurisdictional police in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by taking the said third FIR on record. The authorities cited by learned Senior Counsel for the petitioner are distinguishable with respect to the facts of the present cases. For the sake of repetition, it is noted that after the third FIR was taken on record, the impugned ECIR cannot be stated to be without a predicate offence xxx xxx xxx xxx 36. In view of the aforesaid discussion and in the peculiar facts and circumstances of the case, ECIR/09/HIU/2019 dated 27.06.2019 cannot be quashed in view of registration of FIR No. 55/2023 dated 10.07.2023 under Sections 409/420/120B of the IPC at PS EOW as this would constitute 'scheduled offences' legitimizing the existence of the said ECIR." A perusal of the said judgment would show that a reference had been made to para 457 of the judgment of Vijay Madanlal Choudhary (supra), in which, it was specifically recorded that there is no need to formally register an ECIR as the ECIR is an internal document created by the department before initiating penal action against a person involved in the process or activity connected with proceeds of crime and thus, ECIR is not a statutory document nor there is any provision in 2002 Act to furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.]" 47. Further the definition of proceeds of crime, as given in para 2 (u), is wide enough to fully cover the actions of the petitioner which have been alleged by the respondents. Section 2 (u) of the Act is reproduced hereinbelow: - "2 (u) "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 or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country] [or abroad]; [Explanation.--For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;]" ..... X X X X Extracts X X X X X X X X Extracts X X X X
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