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TMI Blog2024 (2) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to be set out first before coming to deal with the facts and circumstances of the present case in light of which the petitioner is pressing for and seeking bail under section 439 of Criminal Procedure Code, 1973 read with section 44(2) of the Prevention of Money Laundering Act, 2002. 5. The petitioner is claimed to have been elected to be on the Board of Directors of the J&K State Cooperative Bank, Srinagar in December 2018. The tenure of the elected Board of Directors of the J&K State Cooperative Bank, Srinagar was for three (3) years to expire in December 2021. 6. However, the elected Board of Directors of the J&K State Cooperative Bank, Srinagaris said to have been prematurely dislodged on 15.05.2020 when the Government, in purported exercise of its statutory power under the J&K Cooperative Societies Act, 1989, came to nominate a governing body of the J&K State Cooperative Bank, Srinagar. Thus, only from December 2018 to May, 2020, the petitioner purportedly served as Chairman of the J&K State Cooperative Bank, Srinagar. 7. An alleged registered cooperative society in the name of 'River Jhelum Cooperative House Building Society', purported to be a registered and governed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged commission of offences under section 465, 467, 468, 471, 120-B RPC read with section 5(i)(d) and section 5(2) of J&K Prevention of Corruption Act, Samvat 2006 regarding illegalities and irregularities with respect to the entire matter of availing and grant of loan by the River Jhelum Cooperative House Building Society from the J&K State Cooperative Bank, Srinagar. In fact, it was upon registration of this FIR that the elected Board of Directors of the J&K State Cooperative Bank, Srinagar had come to be superseded by the Government as a fall out. 12. The petitioner came to be arrested by the Anti-Corruption Bureau (ACB) in connection with said FIR no. 04/2020 on 03.6.2020 when he is said to have made a voluntary surrender and remained under the police and judicial custody lasting up to 15.12.2020 when the petitioner came to be granted bail by this court in a bail application no. 66/2020 vide a judgment dated 15.12.2020. 13. In furtherance to the investigation of FIR no. 04/2020, the Anti-Corruption Bureau (ACB), Srinagar, came to present a final Police Report dated 11.8.2020 followed by a Supplementary Police Report dated 17.11.2020 before the Court of Special Judge (Anti-Corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be acquired by the River Jhelum Cooperative House Building Society. 19. In purported exercise of its authority under the Prevention of Money Laundering Act, 2002 the ED came to attach the land parcels so acquired by the River Jhelum Cooperative House Building Society from 18 landowners which is said to be worth value of Rs. 193.46 crore and attachment was carried out by way of provisional attachment order no. 01/2023 dated 14.12.2023 issued under section 5 of Prevention of Money Laundering Act, 2002. 20. The tone and tenor of the formative narrative of the ED is as if the entire exercise involving River Jhelum Cooperative House Building Society coming forward with the loan proposal to the J&K State Cooperative Bank, Srinagar with indulgence of the Registrar of Cooperative Societies as being the statutory authority under J&K Cooperative Societies Act, 1989 was a sham exercise to siphon off bank money to become and turn into proceeds of crime in the hands of petitioner and co-actors. 21. It is an admitted case that the ED originally initiated its investigative action against the petitioner and the co-actor namely Hilal Ahmad Mir against whom along with the petitioner the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of India came up with an observation to the effect that the standpoint of the respondents in matter before the Hon'ble Supreme Court of India was a contradiction in itself by observing that it cannot be said that the petitioners, as Kashmiri Pandit migrants had sold the land at less than market rate. 27. So much so, with respect to some of the concerned landowners who had come to receive inquiry call from the ED's end, the Hon'ble Supreme Court of India came to restrain the ED proceeding against the said landowners with respect to whose lands the deal had been made with the River Jhelum Cooperative House Building Society for the purpose of development of satellite township by use of bank loan from J&K State Cooperative Bank, Srinagar. Thus complicity of the landowners in the alleged scam was not endorsed by the Hon'ble Supreme Court thereby at least confirming the fact that land deals were actual, whether legal or not, a different matter. 28. The Hon'ble Supreme Court of India, in its order dated 17.08.2022, came to take notice of submissions of the counsel representing the River Jhelum Cooperative House Building Society that it was willing to abide by its arrangement made wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Code, Svt. 1989 given the fact that the scheduled offences in the case registered against the petitioner and others are under Ranbir Penal Code (RPC) and J&K Prevention of Corruption Act, Svt. 2006, which are triable under J&K Criminal Procedure Code, Svt., 1989 given the time of occurrence/commission of said offences. 36. The ED, in its objection, to the present bail application of the petitioner has registered vehement opposition on the ground that the petitioner is prima facie guilty of commission of offences of money laundering and came to be arrested under section 9(1) of Prevention of Money Laundering Act, 2002 on 30.11.2023 when he was found evasive and non-cooperative in the investigation. By referring to the rejection of his bail application by the court of Special Judge Anti-Corruption (CBI cases) Srinagar, the ED in its objection is stating that the nature and gravity of the accusation against the petitioner is very serious and that the petitioner being an influential person and former chairman of J&K State Cooperative Bank, Srinagar has the potential to make adverse impact not only on the progress of the case but also on the trust of the people in the criminal justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the 'proceeds of crime' under the garb of loan to the non-existing society were utilized in acquisition of land parcels from various sellers to the tune of rupees 223 crores. 42. Towards examining the bail plea of the petitioner in the context of his arrest effected under the Prevention of Money Laundering Act, 2002, this court has to bear in mind that the set of conditions prescribed under section 45 of the Prevention of Money Laundering Act, 2002 in addition to the ones obtaining in the context of section 439 of the Criminal Procedure Code corresponding to section 498 of the J&K Criminal Procedure Code, Svt. 1989 requiring to be there for exercise of discretion. The set of conditions are grant of an opportunity to the ED to oppose the bail application and satisfaction that there are reasonable grounds for believing that the arrestee is not guilty of such offence and that he is not likely to commit any offence while on bail. Proviso to section 45 does provide a scope for grant of bail free of burden of the aforesaid conditions in case of an arrestee who is under 16 years of age, women or sick or infirm person. In the present case, the ED has come in opposition by availing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y risking a prejudice, for or against the prosecution or defense. 46. Bearing in mind the said extent and limitation in evaluating the present case for the purpose of considering the bail plea of the petitioner, this court would say and observe with surety as a fact that the petitioner was the chairman of a cooperative society doing banking business in the name of the J&K State Cooperative Bank Limited, Kashmir and as such it is a matter of routine for a cooperative bank to extend financial assistance in the form of a loan to its members or even to a cooperative society seeking loan. In the present case, it was perhaps not in the domain of the J&K State Cooperative Bank, Srinagar or its functionaries/officials to first get certified the status of the River Jhelum Cooperative House Building Society particularly when the official of govt. department and/or the Registrar Cooperative Societies, State of J&K as being the highest administrative and statutory authority under J&K Cooperative Societies Act, 1989 was/were recommending the case of the River Jhelum Cooperative House Building Society. 47. Whether or not the decision on the part of J&K State Cooperative Bank, Srinagar, Kashmir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner by force of his own discretion and dictate over ruling and making the rest of the Board of Management as non-participant in the decision making and the decision itself. 49. Examining the things from this angle, the petitioner can be said to have a prima facie case in his favor just for the sake of earning bail which by no stretch of reasoning and reference is going to earn him any reprieve from facing trial in a criminal case if the ED is able to find out legal basis for his complicity and culpability in money laundering along with other accused persons whomsoever in the case. 50. The petitioner has ceased to be the chairman of J&K State Cooperative Bank since 2020 and as such that denudes him from any position to influence any aspect relatable to the case. In addition, the sickness of the petitioner is also a ground persuading this court to grant him bail. The court of Special Judge Anti-Corruption (CBI cases) Srinagar, brushed aside the aspect of matter with respect to reported sickness of the petitioner saying that the heart related medical condition of the petitioner can be investigated even when the petitioner is suffering arrest custody. There is no denying the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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