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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 ..... or of River Jhelum Cooperative House Building Society and in return received the consideration amount. Thus, the use of the bank loan amount per se cannot be presumed to be meant for the purpose of generation and diversion of the proceeds of crime from the point of perspective of a banker. The transfer of land title on the basis of utilization of loan amount is supposed to be in the name of cooperative society i.e. River Jhelum Cooperative House Building Society and not in the name of any individual. The petitioner is well within his right to say and agitate that so long as the decision to grant loan on behalf of the J K State Cooperative Bank, Kashmir, Srinagar is to be reckoned as having been taken by the Board of Management then the liability and the responsibility for the said decision cannot be individualized to the petitioner alone and absolving the rest of the board members. 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 - There is no denying the fact that the petitioner is 63 years old person and at this stage of life any health deteriorating c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 under the J K State Cooperative Societies Act, 1989 had come to approach the J K Cooperative Bank, Srinagar with an application for loan routed through the end of the Registrar Cooperative Societies J K, for the purpose of availing a loan of rupees three hundred crores (Rs.300/- crores) for the purported purpose of development of a housing colony upon 300 kanals of land situated at Shivpora, Srinagar meant to be a satellite township. 8. The said loan case of the River Jhelum Cooperative House Building Society is reported to have been sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut. 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-Corruption), Srinagar wherein the trial of the case is reportedly going on. The petitioner along with other co-accused is facing trial. 14. The final police report read with supplementary police report under section 173 J K Cr.P.C, Svt. 1989 has named five persons as accused who being HilalAhmad Mir (Chairman, River Jhelum Cooperative House Building Society), Abdul Hamid Hajam (Secretary, River Jhelum Cooperative House Building Society), MohammadMujeeb Ur Rehman Ghassi (then Registrar, CooperativeSocieties, J K), Syed Ashiq Hussain (then Deputy Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rative 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 Anti-Corruption Bureau, Srinagar came up with final police report dated 11.8.2020 read with supplementary police report dated 17.11.2020 roping in three more persons as accused. 22. Before coming to deal with the plea of the petitioner, an intervening development of relevance and importance bearing needs to be referred to in examining the plea of the petitioner for grant of bail and the opposing plea of the ED to deny bail in favour of the petitioner. 23. In this regard, it is a matter of fact that the landowners/holders with whom the alleged River Jhelum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with the Bank and pay the loan amount with interest except seeking concession with interest for the period when the attachment order was in operation. 29. In its final order dated 10.10.2023, the Hon ble Supreme Court of India came to observe that in terms of various directions passed from time to time, the issue so far as the owners/sellers of the land are concerned stood closed by lifting the attachment of the bank accounts of the said landowners/sellers. 30. Thus prima facie even the Hon ble Supreme Court of India read the land deals in whatever form between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 justice system. The ED reckons the petitioner to be highly influential with the potentiality to tamper with the evidence. The gist of the opposition on the part of the ED to the bail application of the petitioner is that the entire networking of the crime leading to the registration of the FIR no. 04/2020 dated 8.3.2022 by the ACB, Srinagar is centered around the identified individuals and they being Hilal Ahmad Mir (chairman River Jhelum Cooperative House Building Society), Abdul Hamid Hajam (Secretary of River Jhelum Cooperative House Building Society), Mohammad Mujeeb Ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opportunity of filing its objections to the bail petition of the petitioner and that serves the very first requirement. 43. Now comes the question whether there are reasonable grounds for pleading before and impressing this court that the petitioner is not guilty of such offence, and he is not likely to commit any offence while on bail. 44. Obviously, the offence in perspective in context of section 45 of the Prevention of Money Laundering Act, 2002 is the offence of money laundering constituted by section 3 of the Prevention of Money Laundering Act, 2002. Section 3 is reproduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 headed by the petitioner as its chairman was an act of a prudent banking or not , with due diligence or not is surely a matter which can be looked from the criminal culpability view and that is why the Anti-Corruption Bureau ACB Kashmir has come to present a police challan against the culprits including the petitioner but still the advancement of a bank loan has taken place by disbursement of amount to the bank accounts of the beneficiaries who are said to be, and are not disputed to be, the actual landowners who willingly parted with their respective possession of the respective lands in favor of River Jhelum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fact that the petitioner is 63 years old person and at this stage of life any health deteriorating condition if neglected that too in a state of custody can cause complications and in the present case. There is a medical reference on record to prima facie establish that the petitioner is having heard related complication which the petitioner in exercise of his fundamental right to personal liberty is well within his right to get it treated to the best of his resources and discretion and in that regard the public exchequer can be absolved from bearing the burden of medically attending the petitioner in custody. 51. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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