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TMI Blog2018 (9) TMI 2150X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner along with other accused persons collected funds and laundered the proceeds of crime generated through cheating the public at large who were motivated to invest their money through agents of Rose Valley with high rate of interest. Bearing in mind the serious nature of the offence under section 45 of PMLA, 2002 and amended provision thereto, it is not required to enlarge the accused petitioner on bail even though the charge sheet has been submitted - application dismissed. - THE HON'BLE JUSTICE SHIVAKANT PRASAD For the Appellant : Tirthankar Ghosh, Debasis Mullick Chowdhury and Satadru Lahiri For the Respondent : Kaushik Chanda, Additional Solicitor General and Vipul Kundalia JUDGMENT SHIVAKANT PRASAD, J. 1. This is to consider an application under section 439 of the Code of Criminal Procedure in connection with ML case No. 03 of 2015 under section 4 of Prevention of Money Laundering Act, 2002 pending in the Court of learned Judge Special CBI Court No. 1 and Judge Special Court of PMLA Bichar Bhavan, Calcutta. This application has been preferred after the prayer for bail was turned down by the learned Judge vide order dated 28th December, 2017. 2. Mr. Tirthankar Gh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as responsible for day to day affairs as General manager. 5. Next, drawing my attention to the statement of the said N.C. Pillahi recorded on 28.4.2015, it is submitted that the petitioner and one Abir Kundu both are trustees. It reflects from the debenture deed dated 10 October, 2007 and 10 August, 2007 between the company and the trustees that the same was signed by Arun Mukherjee and Abir Kundu another debenture trustee, each for five crores between the Rose Valley Real Estate and Construction Ltd. The petitioner with Abir Kundu had signed on the said deeds although the witness was not aware of their credit worthiness which can be answered by the then company secretary B.K. Mallick. 6. This statement was brought to the notice of the Court annexed together with the charge sheet now placed by way of supplementary affidavit on behalf of the petitioner only to argue that there are other names being relatives of the chairman Goutam Kundu responsible for the affairs of the Rose Valley Group of Company. 7. Mr. Ghosh further submitted that the petitioner joined Rose Valley in the year 2001 as a field officer and he was made Debenture Trustee in 2007 without benefit in the service condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 3, therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as guilty under the said provision, the said person must not only be involved in any process or activity connected with proceeds of crime, but must also project or claim it as being untainted property. 12. Under section 4 of the Act, the offence of money laundering is punishable with rigorous imprisonment for a minimum period of three years which may extend to 7 years and fine. Also, under 24 the proviso, where the proceeds of crime involved in money laundering relate to a predicate offence under paragraph 2 of Part A of the Schedule, the sentence then gets extended from 7 years to 10 years. 13. Under section 5 of the Act, attachment of such property takes place so that such property may be brought back into the economy. Coming now to Chapter VII of the Act with which we are really concerned, section 43 lays down that Special Courts to try offences under the Act are to be designated for such area or areas or for such case or class or group of cases as may be specified by n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused person is not guilty of such offence being declared unconstitutional by the Hon'ble Apex Court in Nikesh Tarachand Shah case (Supra) will not apply in view of the amendment of section 45 of PMLA, 2002 by notification of the Ministry of Finance (Department of Revenue) being Notification No. 2/2018/F. No. M.11011/1/2015-S.O. (E.S. Cell) dated 19th April, 2018 because the said twin conditions were retained in respect of the money involved in the alleged offence for more than one crore and the said notification is subsisting and has not been challenged. It is therefore, submitted that the cited decision may not be applicable in the instant case particularly when the bail application was filed on 2nd May, 2018, much after the amendment made by the above Notification. 12. Raising objection to the prayer of the petitioner for his release on bail, Mr. Chanda urged that the petitioner is arrayed as one of the accused persons in connection with complaint case No. C-14214 of 2013 initiated under section 24 of the SEBI Act, 1992 on the basis of the complaint of the Security and Exchange Bureau of India (SEBI). Learned Chief Metropolitan Magistrate, Calcutta after taking cogniza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. [(1A) 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 29 [***] 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. Amended provision: (e) in section 45, in sub-section (1), (i) for the words punishable for a term of imprisonment of more than three years under Part A of the Schedule , the words under this Act shall be substituted; (ii) in the proviso, after the words sick and infirm , the words or is accused ei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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