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TMI Blog2024 (7) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that statements under Section 50 of PMLA cannot be considered at the stage of bail is without merit. The material evidence gathered during the course of the investigation by the Directorate of Enforcement reveals that Amanatullah Khan had hatched a criminal conspiracy along with his close associates i.e., the present applicants/accuseds and others and pursuant to the same, he had invested his ill-gotten money i.e. proceeds of crime, in the immovable properties through his associates namely Zeeshan Haider, Daud Nasir and others. As alleged, Amanatullah Khan had purchased immovable properties in the name of benamidars i.e. the present applicants Zeeshan Haider and Daud Nasir, by concealing and suppressing their actual value which is very nominal in comparison to their actual sale value and actively concealed amounts that were paid in cash to the seller, which are the proceeds of crime acquired by Amanatullah Khan out of his corrupt and illegal activities relating to the offences scheduled under PMLA. This Court further upon careful consideration of the submissions and documents presented by Sh. Zoheb Hossain learned Special Counsel for the Directorate of Enforcement, notes that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anatullah Khan, a Member of Legislative Assembly ( MLA ) of Delhi, as well as Mr. Mahboob Alam, the then CEO of Delhi Waqf Board ( DWB ) and other unknown persons, in relation to the predicate offence s case registered against the accused persons i.e. FIR No. 9(A) dated 23.11.2016, registered by the Central Bureau of Investigation ( CBI ), AC-III, New Delhi for offences punishable under Section 120B of Indian Penal Code, 1860 ( IPC ) and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ( PC Act ). Thereafter, the following cases were also clubbed in the present ECIR: (i) FIR no. 05, dated 28.01.2020, P.S. Anti-Corruption Bureau of Delhi Police, under Section 7 of the PC Act, read with Section 120B of IPC; (ii) FIR no. 378, dated 16.09.2022, P.S. Jamia Nagar, under Sections 25, 54 59 of The Arms Act, 1959, and (iii) FIR no. 380 dated 16.09.2022, PS Jamia Nagar, u/s 25, 54 59 of The Arms Act, 1959. 3. In the present ECIR, after investigation, the Directorate of Enforcement has filed a prosecution complaint against accused no. 1 i.e. Zeeshan Haider, accused no. 2 i.e. Daud Nasir, accused no. 3 i.e. Jawed Imam Siddiqui, accused no. 4 i.e. Kausar Imam S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... els. During investigation, his Income Tax Returns (ITRs) and Balance Sheets were also analyzed and it was revealed that he had declared a Gross Total Income of about Rs. 5 to 7 lacs only, and on the basis of this income, it was implausible that applicant Daud Nasir could have financed the acquisition of land valued at Rs. 36 crores. v. Further during investigation, it was revealed that co-accused Jawed Imam Siddiqui was the owner of properties in question, which were acquired in the name of his wife, Ms. Ayesha Quamar. It is also alleged that the accused persons had orchestrated a false and fabricated Agreement to Sell dated 17.09.2021, indicating a total sale consideration of Rs. 13.40 crores, with the intent to mislead the investigation. vi. It is also alleged that through the aforementioned agreement, the applicants Zeeshan Haider and Daud Nasir have allegedly acted as benamidars for Amanatullah Khan. With the intention to conceal the actual amount paid to the seller, applicants Zeeshan Haider and Daud Nasir, and co-accused Jawed Imam Siddiqui and Kausar Imam Siddiqui allegedly collaborated to launder the proceeds of crime of Amanatullah Khan. It is alleged that out of the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation done qua the predicate offence. It is also argued that the case of the Directorate of Enforcement is solely based on statements made by the witnesses or co-accused under Section 50 of PMLA and that the prosecution complaint filed by the Directorate of Enforcement does not put forth a single document which corroborates their statements. Further, the diary entries relied upon by the agency do not pass the test laid down in case of CBI v. V.C. Shukla (1998) 3 SCC 410 as diary entries are not admissible evidence. It is further argued that the recovery memo in this case has no mention of any white diary . 9. It is also argued that the Directorate of Enforcement has no jurisdiction to commence or continue the investigation against the applicant herein, as the instant ECIR is nothing but gross abuse of process of law. The offence punishable under Section 3 of the PMLA is dependent upon the illegal gain of property derived as a result of criminal activity relating to a scheduled offence, which in the present matter is missing as there are no pecuniary benefits alleged to have been involved in the predicate offence. It is argued that there is no material or allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. The alleged laundered amount has no nexus with the predicate offence cases and proceeds of crime is a sine qua non for the commission of the offence of money laundering. It is further argued that as per case of the Directorate of Enforcement, the applicant s role has been limited to his act of purchasing the property bearing no. 275 and 276. As per the investigating agency, the diary seized from the premises of co-accused Kausar Imam Siddiqui had revealed that a sum of Rs. 36 crores, out of which Rs. 27 crores had been paid in cash and Rs. 9 crores had been paid through bank, was involved in the alleged transaction. On the other hand, it is alleged that the applicant i.e., Daud Nasir had paid Rs. 4.52 crores in cash and co-accused Zeeshan Haider had paid an amount of Rs. 8.9 crores in cash. Thus, the total cash involved, as per the diary is Rs 13.42 crores, which in itself casts doubts on the admissibility and genuineness of the diary. The Directorate of Enforcement has failed to provide material on record as to how they came to the conclusion that the agreement to sell having a sale consideration of Rs 13.14 is forged and fabricated and the agreement to sell with the sale con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after referring to the said transaction in the seized diary, it cannot be concluded that there was any connection between the applicant and the alleged main conspirator, Amanatullah Khan. Therefore, the applicant is wrongly associated with money laundering involving the proceeds of crime generated through the alleged misuse of Delhi Waqf Board funds. Furthermore, it is submitted that the record clearly shows there is no link whatsoever between the allegations made by the Directorate of Enforcement and the predicate offence thoroughly investigated by the Central Bureau of Investigation. 14. It is further argued that this Court is only required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and he is not likely to commit any offence while on bail. Thus in light of the same, the applicant herein fulfils the twin conditions of Section 45 of the PMLA. It is further submitted that there is no likelihood of the applicant committing a similar offence if released on bail, as he has a clean record. It is argued that all the records related to the alleged transaction, both physical and electronic, have already been seized by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Aadhyal Multispecialty Hospital which instead was related to dermoid cyst at lumbosacral region which is a minor surgery. Moreover, the surgery was performed at the Aadhyal Multispecialty Hospital which was also concealed from this Court. It is submitted that the applicant Daud Nasir had deliberately and maliciously suppressed and concealed the material facts from this Court on the basis of which accused Daud Nasir had sought release on Interim Bail. Therefore, on this ground alone his regular bail application be dismissed. 16. Even otherwise, it is argued that the material placed on record by the Directorate of Enforcement is sufficient to persuade this court that no satisfaction, as required under Section 45 of the PMLA, can be reached. It is argued that at this stage, the Court is not required to render a finding of guilt, nor it is required to conduct a mini-trial or meticulously examine the evidence. Rather, it has to examine whether the accused persons i.e., Zeeshan Haider and Daud Nasir have made out reasonable grounds for believing that they are not guilty of money laundering. 17. It is argued that as far as merits of the case are concerned, the property in question was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents of the seized diary which show that the total amount of consideration for purchasing the property in question was Rs. 36 crores, and therefore, the agreement showing the sale consideration amount as Rs. 13.4 crore was a false and fabricated agreement, which had been created at a later stage to mislead the investigation and to conceal the actual sale transaction value, so that the cash amounting to Rs. 27 crore could be infused in the property. It is also pointed out that the seizure memo in this case clearly mentions about recovery/seizure of one executive diary which is the white diary in this case. In conclusion, it is argued that in the present case, ample evidence has been presented to prima facie establish that both the applicants have engaged themselves in money laundering activities by participating in processes or activities related to scheduled offences and actively concealing material facts. It is thus prayed that the regular bail application moved by both the applicant/accused i.e., Zeeshan Haider and Daud Nasir be dismissed. 20. This Court has heard arguments addressed by the learned counsels on behalf of the accused persons as well as the investigating ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly 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. (emphasis supplied) 22. Section 45 (1) of PMLA lists the twin conditions that must be satisfied before an accused can be enlarged on bail in a case of money laundering. In this context, it will also be relevant to take note of the observations of Hon ble Apex Court in case of Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, on the satisfaction of mandatory twin conditions under Section 45 of PMLA, which are extracted hereunder: 387. Having said thus, we must now address the challenge to the twin conditions as applicable post amendment of 2018. That challenge will have to be tested on its own merits and not in reference to the reasons weighed with this Court in declaring the provision, (as it existed at the relevant time), applicable only to offences punishable for a term of imprisonment of more than three years under Part A of the Schedule to the 2002 Act. Now, the provision (Section 45) including twin conditions would apply to the offence(s) under the 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during 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 Prasad Nimmagadda, 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. (Emphasis Supplied) 23. In case of Tarun Kumar v. Enforcement Directorate 2023 SCC OnLine SC 1486 , the Hon ble Apex Court had held as under: 17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004, both dated 12.04.2019. These properties were then transferred to both the applicants i.e., Zeeshan Haider and Daud Nasir, close associates of Amanatullah Khan, in 2021 through an Agreement to Sell dated 17.09.2021. According to the version of the accused persons, agreement dated 17.09.2021 was purportedly executed between the seller Ayesha Quamar and the purchaser i.e. M/s. Sky Powers i.e. a firm owned by applicant Zeeshan Haider, as well as Sara Constructions, a proprietorship of applicant Daud Nasir. In this agreement, the sale consideration was mentioned as Rs. 13.40 crores out of which Rs. 5 crores were shown to have been paid through bank transactions and rest of the amount was shown to be paid in future, without there being any further details. 26. In the present case, further searches were conducted by the Directorate of Enforcement at several locations, leading to the seizure of various incriminating records and digital evidence, including Zeeshan Haider s mobile phone and another sale agreement dated 17.09.2021. This was in addition to the agreement previously submitted by the accused for the same properties and executed between the same parties. In this new sale agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of present applicant/ accused Daud Nasir, who purportedly paid Rs. 6.54 crore (Rs. 2.2 crore via bank and Rs. 4.32 crore in cash), revealed that his firm had an annual income of only Rs. 5-7 lakh, making such a purchase impossible. Similarly, the other applicant/accused i.e., Zeeshan Haider, who had allegedly paid Rs. 12.3 crore (Rs. 3.4 crore via bank and Rs. 8.9 crore in cash), had a gross income of Rs. 3-4 lakh annually and Rs. 10 lakh in 2019-20. His firm, M/s. Sky Powers, had no income during the relevant period, making the property purchase impossible. The diary also shows applicant Zeeshan Haider s signature on the Rs. 36 crore transaction entries. 31. While the conclusive evidentiary value of the statements under Section 50 PMLA will be determined at the end of the trial, the Courts can rely on the statements under Section 50 of PMLA and other material collected by the prosecution to determine if a prima facie case is made out for the purpose of granting bail. Furthermore, if a contrary view is taken, it would mean disregarding or ignoring the collected materials on record when forming a prima facie view, which is essential before the filing of the chargesheet and some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion were purchased for about Rs. 36 crore out of which Rs. 27 crore were paid in cash out of the total amount of Rs. 36 crore. Furthermore, the recovery of one sale agreement which shows the sale consideration as Rs. 36 crores, as against one alleged false and fabricated agreement shows the sale consideration of Rs. 13.40 crore had been allegedly prepared to conceal the proceeds of crime and misguide the investigating agencies. The bank account statements of the sellers of the properties in question, prima facie corroborate the factum of the sale agreement having consideration of Rs. 36 crores being genuine and the agreement having Rs. 13.40 crores as sale consideration being false and fabricated. It is also noted that the bank account statements of purchasers i.e., the present applicant/accused Zeeshan Haider and Daud Nasir had purportedly paid money, which reflect that the cash amounts paid by both the applicants may be the proceeds of crime generated by Mr. Amanatullah Khan as a result of offence related to the scheduled offence. 34. Therefore, the material evidence gathered during the course of the investigation by the Directorate of Enforcement reveals that Amanatullah Khan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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