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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 ..... Hon ble Supreme Court of India in Vijay Madanlal Choudhary s case [ 2022 (7) TMI 1316 - SUPREME COURT ] 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 [ 2019 (9) TMI 286 - SUPREME COURT ], 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. It would also be relevant to note that in para 401 of the said judgment, the Hon ble Supreme had observed that the Court need not go deep into the merits of the case and is only required to place its view based on probability on the basis of reasonable material collected during investigation and the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Zoheb Hossain, Advocate (Through Video Conferencing) and Mr. Lokesh Narang, Advocate and Mr. Manish Jain, Advocate VIKAS BAHL, J. 1. This is the first petition under Section 438 read with Section 482 Cr. P.C. read with Section 45 of the Prevention of Money Laundering Act, 2022 (hereinafter referred to as PMLA ) and all other enabling provisions in this regard, for grant of anticipatory bail to the petitioner in ECIR/GNZO/20/2021 (hereinafter to be referred as ECIR ) dated 16.11.2021. 2. Table of contents:- Title Paras Pages Brief facts of the case 3-5 2-7 Arguments on behalf of the petitioner 6-10 7-12 Arguments on behalf of the respondent 11-19 12-25 Rebuttal arguments on behalf of 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 Sika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erienbelow:- FIR No. Police Station Offences Remarks 0151 dated 31.05.2023 (P-28) Pg 375 Rajendra park, Gurugram Section 420, 467, 468, 471 of IPC, 1860 M/s Mahira Buildtech Private Limited, and others regarding affixing forged and fabricated signatures of landowners for getting licences 0152 dated 01.06.2023 (P-31) Pg 396 Rajendra park, Gurugram Section 420, 467, 468, 471 of IPC, 1860 M/s CZAR Buildwell Pvt. Ltd. and others including petitioner for forgery to obtain licences. 0151 dated 05.07.2023 (P-29) Pg 386 Sushant Lok, Gurugram Section 120B, 420, 467, 468, 471 of IPC, 1860 M/s Mahira Homes Pvt. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 passed by the CJM, Gurugram, on an application filed by one Neeraj Chaudhry under Section 156 (3) Cr. P.C., Ashok Punia and others (accused in the said FIR) challenged the same by filing CRM-M-3823-2021 which was disposed of vide order dated 05.07.2023 (Annexure P-5) by observing that the order dated 07.01.2021 passed by the Chief Judicial Magistrate was non-speaking and needs to be revisited and direction was given to the CJM to pass a fresh order. The CJM passed a fresh order on 26.10.2023 (Annexure P-9) again allowing the application under Section 156 (3) Cr. P.C. and the said order was 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the other complaint filed by Neeraj Chaudhary, a similar order was passed by the Chief Judicial Magistrate, Gurugram and in pursuance of the same, FIR No. 10 dated 14.01.2021 (Annexure P-2) was also registered at Police Station Sushant Lok, Gurugram under Sections 406, 420, 467, 468, 471, 120-B of IPC. It is argued that the said order dated 07.01.2021 was challenged by the co-accused of the petitioner i.e. Ashok Punia and another and a Coordinate Bench of this Court vide order dated 27.01.2021 passed in CRM-M-3823-2021 (Annexure P-4) was pleased to issue notice of motion and operation 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the said order, the petitioner had appeared on 07.10.2023, 08.10.2023, 10.10.2023 and 11.10.2023 and had complied with the said interim orders. It is argued that when the petition filed by the petitioner was dismissed by the Division Bench of this Court vide order dated 26.02.2024 (Annexure P-13), the petitioner had filed Special Leave to Appeal (Criminal) No. 3867 of 2024 and the Hon ble Supreme Court vide order dated 10.04.2024 had directed the petitioner to appear before the office of Directorate of Enforcement at New Delhi on 12.04.2024 at 11:00 am. It is submitted that the 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 anticipat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Senior Counsel for the petitioner has pointed out that even as per the reply filed by the Enforcement Directorate (Annexure P-23) before the Special Judge in the anticipatory bail application filed before the Sessions Judge more so in para 46 of the same, the dates on which the petitioner was Director of several companies have been given. It is submitted that the name of the above two companies does not figure in the said list and even with respect to DS Homes Construction Private Limited, the petitioner had resigned on 10.07.2021 i.e. prior to the registration of the ECIR which 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directors in one or more companies for a short duration, whereas the arguments in the present case have been taken contrary to the arguments which had been raised before the Division Bench. Specific reference has been made to the findings/ observations of the Division Bench to show that all the said arguments were rejected and the Division Bench had taken note of the fact that apart from the two FIRs No. 10 and 11, there were other FIRs which were also there and the same were being investigated vide the present ECIR and thus, the two FIRs No. 10 and 11 having been declared a nullity 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 Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an offence and he is not likely to commit any offence while on bail. In view of the fact that the Division Bench of this Court found that a prima facie case was made out and did not accept the arguments of learned counsel for the petitioner to the effect that no prima facie case is made out and even the SLP against the same has been dismissed as withdrawn, the same in itself calls for dismissal of the present anticipatory bail. It is highlighted that the Enforcement Directorate had moved an application for seeking permission from the Hon'ble Supreme Court to arrest the petitioner 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been found that M/s Sai Aaina Farms Pvt. Ltd. had received an amount of Rs. 363 crores approximately from the home buyers and had further transferred an amount of Rs. 48 crores approximately to M/s D S Homes Construction Pvt. Ltd. in the guise of loans and advances, which was later on used by the petitioner and others for their personal gains. It is further argued that as has been averred in paragraph 52 of the said reply, proceeds of crime were generated by Mahira Group in form of advances / payments from home buyers in relation to delivery of flats in proposed projects and the funds 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the Enforcement Directorate has submitted that in the said application, it was specifically pleaded that the petitioner had held a position of authority in Companies associated / related with the accused company SAFPL and the other related company which ultimately received the proceeds of crime. It is submitted that a chart was prepared so as to show as to on what dates, the petitioner was holding the office of Director in various companies and has highlighted the fact that the petitioner was a Director in M/s D.S. Homes Construction Pvt. Ltd for two periods and 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner from the home buyers money and the said fact has also been mentioned in the balance sheet of M/s Sai Aaina Pvt. Ltd. for the year ending on 31.03.2018. It is submitted that the licence with respect to Sector 68, Gurugram was granted by the authorities on 22.12.2017 to M/s Sai Aaina Pvt. Ltd. which date is prior to date of said transfer. It is submitted that there is enough record with the Enforcement Directorate to show that money was received from the home buyers prior to the date on which the two transfers of March 2018 were made in favour of the petitioner. 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 452. Further reference has further been made to a judgment of the Hon'ble Supreme Court in case of P. Chidambaram Vs. Directorate of Enforcement , reported as 2019(9) SCC 24, to contend that inherent jurisdiction to issue directions and interfering with the investigation is exercised only where there is abuse of process or non-compliance of the provisions of Cr. P.C. and that the investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency, whose powers are unfettered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-8) of Sikandar Singh, son of the petitioner who in para 6 had stated that for completing and delivering the entire project, a sum of Rs. 65-75 crores was required whereas the company still had an unsold inventory of Rs. 200 crores. It is submitted that in case the project had moved forward, the construction would have been completed. 21. Learned Senior Counsel for the petitioner has further submitted that the order dated 06.05.2024 passed by the Hon ble Supreme Court specifically clarifies that the observations made in the judgment of the Division Bench would 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 prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others including petitioner for forgery to obtain licences. 0151 dated 05.07.2023 (P-29) Pg 386 Sushant Lok, Gurugram Section 120B, 420, 467, 468, 471 of IPC, 1860 M/s Mahira Homes Pvt. 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share would belong to the landowners/complainants. It was stated in the said FIR that the accused persons including the petitioner under a premeditated conspiracy and with an intention to cause loss to the landowners had sold flats of 35% stake belonging to the landowners without their permission and also received advance money from the people and further had even obtained the licence/permit of the said affordable housing project by forging the signatures of the landowners/complainants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2023. In the said FIR, it was alleged that the building plans with respect to the said licences were being considered by the Building Plan Approval Committee for the total area but however, the same was not sanctioned/released and it came to the notice of the Department that Mahira Homes Private Limited had applied for approval of Service Plan Estimates (SPE) for the Affordable Group Housing Colony alongwith its Board Resolution and plans which were forged and fabricated as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said company on 22.12.2017, an amount of Rs. 50 lacs had been transferred in favour of the petitioner and similarly on 28.03.2018, another amount of Rs. 20 lacs had been transferred to the petitioner through RTGS. Further even on 05.12.2017, an amount of Rs. 31 lacs had been transferred in favour of the petitioner. From the said bank statement, it is apparent that a total amount of Rs. 1,01,00,000/- had been transferred by M/s SAFPL in favour of the petitioner and the same 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 am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Farms pvt Ltd for F.Y. 2017-18, also shows the above amount of Rs. 1,01,00,000/- as Loans to the Petitioner. In addition to the above, an amount of Rs. 10,00,000/- was transferred in the account of the Petitioner from the accounts of M/s Sai Aaina Farms Pvt Ltd. No amount was given by the Petitioner to M/s Sai Aaina Farms Pvt Ltd earlier. Further, the Petitioner failed to give any supportive documents regarding the above amounts received by the Petitioner from M/s Sai 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the affairs of the company. In this regard, the below mentioned payments were made to M/s Hazoorilal Jewellers Pvt Ltd from the account of M/s D S Home Construction Pvt Ltd (Account no. 50200003495224, maintained with HDFC Bank) during the directorship period of Dharam Singh Chhoker: 11. It is further submitted that the bogus purchases were done to the tune of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. 1,32,65,820 5. M/s Neelmahadev Builders Pvt. Ltd. 3,86,22,082 (vii) As per the forensic audit report dated 27.06.2022 in respect of real estate project of M/s Czar Buildwell Pvt Ltd. an associate Company, situated at sector 104, Gurugram. the company collected amount of Rs. 90 Crore (approx.) from the home buyers for their 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year and five months and which company is accused in FIR No. 151 dated 31.05.2023 had diverted a total fund of Rs. 68 crores out of an amount of Rs. 160 crores received from 781 allottees into the account of M/s DS Homes Construction Private Limited of which the petitioner was a Director for a substantial term as has 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 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of attempts made by police authorities 20.03.2024 Made attempts on 28.03.2024 and 04.04.2024, not found at home as he was not there since 26.02.2024. Report dated 03.04.2024, not found at residence even after multiple attempts. 06.04.2024 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 Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner under Section 482 Cr.P.C for interim/ad-interim relief which included the prayer for directing the respondents not to take coercive action against the petitioners therein, which included the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein below: - 16. As regards the argument that petitioner Dharam Singh Chhoker had never been the director and, therefore, no proceedings could have been issued against them, the same is also 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by the respondents that the observations made by the Hon ble Supreme Court while permitting the petitioner to withdraw the SLP are generally recorded by every Court while deciding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing investigation and the said view will not be taken into consideration by the Trial Court in recording its finding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. 18.11.2022 The department carries out search and seizure in terms of Section 17(1) 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, unli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the department to investigate 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nected 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;] 48. Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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