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TMI Blog2024 (9) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... person, against the loan limits set by the Bank, and by accepting the title deeds of the same property as collateral security, after forging the membership records by including persons who are not members of the Society, by furnishing false addresses and manipulating the software of the computer system, and by falsely disbursing loans in the names of property owners without their knowledge or consent and manipulating the inventory of supermarket run by the Bank. Accordingly, the accused have cheated and misappropriated Rs.100/- Crore from the Bank. The first informant, Smt.Sreekala, Secretary-in-Charge of the Bank, filed a complaint before the Irinjalakkuda Police Station and FIR No.0650/2021 was registered on 14.7.2021 against Sunil Kumar T.R, the former Secretary of the Bank (presently the thirty third accused); Biju. M.K, the former Branch Manager of the Bank (presently the thirty fourth accused); Jilse. C.K, the former Senior Accountant of the Bank (presently the sixteenth accused); Kiran.P.P., a member of the Society (presently the ninth accused); Bijoy. A.K, a Commission Agent (presently the first accused) and Reji Anil, the Accountant of the Supermarket for committing the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of Jijor K, the petitioner's agent; Suresh, the petitioner's friend; and Shaju, the petitioner's driver. In 2016, a cash loan of Rs.3/- crore was received by Kiran P.P. from the Bank, and the same was also handed over to the petitioner at the car parking of the Bank in three bags in the presence of Jijor; Shalini, the petitioner's friend; Shaju and Biju N.K, the then Manager of the Bank. Kiran P.P has further stated that cash loans of Rs.14/- Crore were handed over to the petitioner in cash on several occasions and transferred to the accounts of several persons as instructed by the petitioner. Jijor has confirmed in his statement regarding the cash transactions from Kiran P.P to the petitioner. The petitioner has abetted and facilitated Kiran P.P., to commit the scheduled offence and, thereby, acquired the proceeds of the crime. The proceeds of the crime acquired by Kiran P.P. have reached the hands of the petitioner, and he has invested the money in his business. The petitioner has unaccounted money from 2015-2016. While examining the audited financial statements of M/s.Devi Financiers, a proprietary concern of the petitioner, submitted by Sanil Kumar C.V, the petitioner's C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has introduced vast amounts of cash into his bank accounts. There have been cash withdrawals, which are a layering of the proceeds of crime received from Kiran P.P. The proceeds of the crime of Rs.4/- Crore parked in the business of Devi Financiers was given the colour of legitimate money by introducing bogus capital from Jayarajan.P. The bogus balance sheet was prepared to accommodate the entries in the books of account. The petitioner has received Rs.2.15/- Crore from the Bank through Kiran P.P. Likewise, Jijor K.A has stated that the petitioner has invested the illegally acquired funds in his business and purchased immovable properties in the names of himself and his family members. The petitioner is actively involved in committing and abetting the scheduled offence and acquiring the proceeds of the crime. 4. The principal contentions of the petitioner in the bail application are that, out of 55 accused included in the complaint, 45 are natural persons, and 10 are artificial persons. The Investigating Agency has chosen to arrest only four accused persons, i.e., accused nos.9, 14 (the petitioner), 15 and 16. The petitioner was arrested because the petitioner was unwilling to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onetary transactions between the petitioner and Kiran.P.P were through bank accounts. They were open and transparent transactions. The Investigating Agency has conducted itself unbecoming of an agency invested with such broad powers. The allegation that the petitioner has layered the proceeds of crime has no legal or factual basis. The allegation that the petitioner has indulged in money laundering is baseless and unsustainable in law. The statements produced along the complaint describing it as statements given by the petitioner are factually incorrect. The main effort of officers of ED was to compel the petitioner to name some political leaders. The petitioner, his sick mother and his family, consisting of two unmarried daughters, are put to hardship and irreparable injury. Hence, the application may be allowed. 5. The first respondent has filed a bail objection report through its Retainer Counsel reiterating the assertions in the complaint. In addition to the same, it is contended that the present loan scam is the biggest bank robbery in the Co- operative banking history in the State of Kerala. The Bank was one of the trustworthy service Co-operative societies till 2010. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icitor General of India assisted by Sri.Jaishankar V.Nair, at length. 7. The learned Senior Counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. He reiterated all the contentions raised in the bail application. He meticulously took this Court through the relevant statements of the witnesses and accused. He submitted that the petitioner is in judicial custody since 4.9.2023, which is nearly a year now. The Trial Court has erroneously dismissed the petitioner's bail application. The petitioner has no connection with the affairs of the Bank. It is only on 22.8.2023, a group of persons, assisted by the CRPF, went to the house of the petitioner and conducted a search as evident from Annexure A8 search list. The petitioner's statement was recorded. Thereafter, the petitioner was asked to appear on the following day, i.e. on 23.8.2023 and on subsequent dates with his Chartered Accountant. On 28.8.2023 and 1.9.2023 his statements were recorded. In the three statements nothing was asked about his involvement with the Bank. On 4.9.2023, the petitioner was again asked to appear before the Investigating Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Enforcement [2024 INSC 595], the decision of this Court in Thomas Daniel v. Enforcement Directorate [2023 SCC Online Ker 8214] and the decisions of the Delhi High Court in Ramesh Manglani v. Director of Enforcement [2023 SCC Online Del 3234] and Sanjay Jain v. Enforcement Directorate [B.A No.3807/2022] to support his contentions. An argument note is also filed. 8. The Additional Solicitor General of India strenuously opposed the application. He too reiterated the contention of the first respondent in the bail objection report. He contended that the petitioner along with the other accused have committed a grave economic offence. He argued that out of Rs.340/- Crore that was swindled by the accused from the Bank, the petitioner is a beneficiary of Rs.25/- Crore, which is the proceeds of the crime. Since the predicate offence under Sec.420 is incorporated, the rigour under Sec.45 of the Act applies to the facts of the case. He drew the attention of this Court to the statements in the complaint wherein the witnesses and accused have categorically stated the petitioner's involvement in the crime. He contended that the statements of the accused are acceptable in evidence in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by;- (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed; (2) The limitation on granting of bail specified in [***] of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." (emphasised) 11. Section 45 of the Act starts with a non- obstante clause, which has an overriding effect on the general provisions of the Code of Criminal Procedure (Cr. P.C). There is a specific embargo to grant of bail to a person accused of an offence under the Act, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and distinct. 16. In Y.S Jagan Mohan Reddy vs. CBI [(2013) 7 SCC 439], the Hon'ble Supreme Court has made the following observations: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations". 17. Keeping in mind the aforementioned legal principles, I will now examine the specifics of the present case. The petitioner has raised a specific ground that the written grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in the petitioner's Bank account No.103100010035463 at the Varadliam Service Co-operative Bank Ltd. The petitioner was maintaining forty-four accounts in various Banks. The cash credits in the petitioner's ten bank accounts for the financial years 2014-15 to 2016-17 is Rs.1,35,87,612/-, Rs.1,52,92,407/- and Rs.87,93,532/-, respectively. These materials, particularly the above cash credits, prima facie lends support to the prosecution allegation against the petitioner regarding layering of the proceeds of the crime. Collectively, these factors prima facie appear to substantiate the prosecution case. 20. After the conclusion of the arguments and the application was reserved for orders, the learned Senior Counsel for the petitioner submitted the decision in Manish Sisodia's case and contended that the petitioner is entitled to the principles enunciated in the decision. I find myself unable to concur with the said contention. 21. In Manish Sisodia's case, the Honourable Supreme Court granted bail to the appellant in that case, considering the prolonged period of incarceration, the trial in the case had not commenced despite the assurance given by the respondents in the earlier rou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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