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TMI Blog2022 (4) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... s a valid legislative exercise provided it does not transgress any other constitutional limitation. The twin conditions under Section 45 (1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah. Subsequently, the Section 45 of the Act, 2002 has been amended by Amendment Act 13 of 2008, whereby the words imprisonment for a terms of imprisonment of more than three years under Part A of the schedule has been substituted with accused of an offence under this Act. Keeping in view the documentary evidence collected by the E.D., it is found that the conduct of the applicant in transferring the huge amount which was proceeds of the crime to the several bank accounts and also purchasing 53 vehicles revealed that there are reasonable ground to believe that the applicant is guilty of the offence of money laundering and he is likely to commit the offence, if enlarged on bail - Bail application dismissed. - SUBHASH CHAND, J. For the Petitioner : Mr. Anil Kumar, Sr. Advocate, Ms. Chandana Kumari, Advocate For the Opposite Party : Mr. Amit Kumar Das, Advocate ORDER Heard learned counsel for the applicant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred to other bank accounts. Accordingly, Rs.20.29 crores were transferred to different SBI accounts on 5th August, 2017 by debiting the aforesaid saving bank account of Jharkhand Rajya Madhyan Bhojan Pradhikaran. Four bulk transfer through RTGS/NEFT, Rs.100.01 crores were debited from the said account of Jharkhand Rajya Madhyan Bhojan Pradhikaran and temporarily parked in office/suspense account of the branch but due to failure in transaction, the entire amount got returned to the office/suspense account of the branch. It was revealed that the then Deputy Manager (Business Development Department) SBI instead of crediting back the amount of Rs.100.01 crores to the saving bank account of Jharkhand Rajya Madhyan Bhojan Pradhikaran authorized the transfer of entire amount to the current account no.36310149578 of M/s. Bhanu Construction on 5th August, 2017. The accused/applicant Sanjay Kumar Tiwari, one of the partners of M/s. Bhanu Construction began to transfer the amount to different accounts from the account of M/s. Bhanu Construction from 11th August, 2017 till 19th September, 2017 i.e., the date of detection of fraud. Further out of Rs.100.01 crores, SBI Hatia Branch, Ranc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction Pvt. Ltd. to the account of applicant, therefore, he utilized the money for his business purpose under the bona fide belief. It is further submitted that the bank account with SBI of M/s. Bhanu Construction did not have the facility of SMS alert activated and on account of same reason he could not get any intimation of credit made to his account through SMS. On 21st September, 2017, the applicant was apprised that on 5th August, 2017, an amount of Rs.100.01 crores had recently been transferred to the applicant s account which belonged to Jharkhand Rajya Madhyan Bhojan Pradhikaran and he was also asked to return the same immediately. It is also submitted that the applicant made several efforts to transfer the amount, however, all the transfer were reversed to the applicant purporting as wrong credits. The State Bank of India, Hatia Branch, Ranchi had also unilaterally directed all other banks to freeze and suspend the operation of the account of the applicant. Consequently, the applicant was unable to transact any banking business. Moreover, the vehicles and the machineries purchased by the applicant on behalf of the M/s. Bhanu Construction had been seized by the State Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and materials on the record, the applicant may not be given the privilege of bail. In support of his contention, the learned counsel for the ED placed reliance on the following judgments:- i. Cr. O.P. Nos.3381, 3383 and 3385 of 2021 (N. Umashankar @ N.M. Umashankar and Ors. Vs. The Assistant Director, Directorate of Enforcement, Government of India. Judgment dated 03.01.2022 (High Court of Judicature at Madras). ii. Order dated 25.02.2022 passed in the case of N. Umashankar @ N.M. Umasangarr vs. The Assistant Director, Directorate of Enforcement in SLP (Crl.) Nos.620-622 of 2022 by the Hon ble Supreme Court of India. 8. For disposal of this bail application, the following provisions of the Act, 2002 are being reproduced as under:- Section 2(p) of the Act, 2002 provides:- (p) money-laundering has the meaning assigned to it in Section 3. Sections 2(y) of the Act, 2002 provides:- (y) scheduled offence means (i) the offences specified under Part A of the Schedule; or [(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or (iii) the offences specified under Part C of the Schedule;] Sections 3 and 4 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 45 of the Act, 2002 prior to judgment of Hon ble Apex Court in the case of Nikesh Tarachand Shah (supra) was declared unconstitutional, the defects of provisions of the said act was cured by the Parliament by way of Amendment Act 13 of 2018 and consequently, the twin conditions of Section 45 while disposing of the bail applicant under the Act, 2002 stood revived. 12. The Hon ble Apex Court in the case of Cheviti Venkanna Yadav vs. State of Telangana reported in 2017 (1) SCC 283 has held as under :- 27. In State of Himachal Pradesh v. Narain Singh while dealing with the validation of statute the court ruled that:- It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. 13. The twin conditions under Section 45 (1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah (supra). Subsequently, the Section 45 of the Act, 2002 has been amended by Amendment Act 13 of 2008, whereby the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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