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TMI Blog2024 (10) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (4) TMI 775 - SUPREME COURT] , the Hon ble Supreme Court has held that at the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail, it cannot go into the question of credibility and reliability of witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during trial. The criminal activity of opening bogus/benami bank accounts and utilizing them for illegal online betting therefore the illegal funds belonging to Mahadev Online Book being transferred through the bogus bank account is the proceeds of crime as defined under Section 2 (1) (u) of PMLA, 2002. The digital record seized in the case and from the statements recorded under Section 50 of the PMLA, 2002 clearly establishes the link of the present applicant with the illegal betting website Sky Exchange and the generation of proceeds of crime through it. In the statement of Prashant Bagari recorded under Section 50 of the PMLA, 2002, the involvement of the present applicant Nitin Tibrewal at the highest level of Sky Exchange clearly appeared which corroborates the statement Smt. Preeti Rathi and Kam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against various accused persons by the Enforcement Directorate (in short the ED ). Initially, the name of the present applicant was not there in ECIR dated 06-10-2022 and 02-09-2023 as accused. Total 6 FIRs have been registered against various accused persons for the offence of cheating and criminal conspiracy which relates to Online betting App by the name of Mahadev App. The final reports/FIRs have been annexed by the ED along with its complaint dated 20-10-2023 in its first prosecution complaint. The search was conducted at the premises of Vikas Chhapariya in Kolkata and Mr. Govind Kediya. It is alleged that Sourabh Chandrakar and Ravi Uppal shown to be promoters of the said Mahadev Online betting App and Vikas Chhapariya is having a strong link with the said promoters Sourabh Chandrakar and Ravi Uppal. At the time when Sourabh Chandrakar got married outside India, the said Vikas Chhapariya had made payments to the vendors of the wedding, therefore, Vikas Chhapariya had a strong link with the promoters. When the premises of Govind Kediya was searched, from his laptop it was found that certain information was shared by him with Vikas Chhapariya. It is also found that among many o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 44 and 45 of the PMLA, 2002 for the offence under Sections 3 and 4 of the PMLA, 2002 against three accused persons and in this supplementary prosecution complaint the applicant is also arrayed as an accused. In the supplementary prosecution complaint dated 11-03-2024 it is alleged against the applicant that the applicant Nitin Tibrewal was the majority shareholder in the company M/s Techpro IT Solutions LLC., Vikas Chhapariya had invested the proceeds of crime in the Indian stock market under the Foreign Portfolio Investment route through various companies including M/s Techpro IT Solutions LLC. As per the bank account statement of M/s Techpro IT Solutions LLC. for the period between 01-03-2020 to 23-01-2021, M/s Techpro IT Solutions LLC. has paid Nitin Tibrewal approximately 20,70,000 AED. The applicant has also stated in his statement that he has not purchased any property, whereas, on being searched online on the Government website of Land Records Department, UAE by his passport No.R0466309 it revealed that the applicant owns a property in UAE. The involvement of the present applicant with the proceeds of crime is also corroborated by his attempt to disassociate himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA, 2002. Prashant Bagariya and Kamal Kishore are co-accused persons in the present case and their statements were recorded under Section 50 of the PMLA, 2002 since they are accomplish, their statements are not admissible and are not qualified as evidence under Section 3 of the Indian Evidence Act. Further, Preeti Rathi is neither an accused nor a witness in the case. Further, Kamal Kishore Rathi and Preeti Rathi have retracted their statement by filing their affidavit before the learned Special Judge, PMLA, 2002, Raipur and thus, the retracted statement cannot be considered to be evidence against the applicant. It is further argued by the learned counsel for the applicant that ED cannot proceed with the pick and chose method in arraying the applicant as accused in the present case when M/s Techpro IT Solutions LLC. and Govind Kediya who have allegedly dealt with the proceeds of crime from Mahadev Online Book App have not been arrayed as accused and Prashant Bagariya and Kamal Kishore Rathi have not been arrested. The applicant was illegally detained/restrained on 11-01-2024 without any formal arrest and furnished the ground of arrest on 12-01-2024 only. Without there being any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vijay Madan Lal Choudhari s case (supra). ED has failed to demonstrate that the property in question has been derived or obtained directly or indirectly by the present applicant as result of that criminal activity as they have failed to prove any nexus between such proceeds of crime and the applicant. There is no evidence on record to show that the proceeds of crime generated through predicated offence have been concealed, possessed, acquired or used and claimed as untainted property by the applicant. The ED has made some vague allegations against the applicant that he is in association with another App namely Sky Exchange. However, there is no evidence on record that the applicant actually has a nexus with Sky Exchange. In the first prosecution complaint, the ED has projected Vikas Chhapariya as the owner of M/s Techpro IT Solutions LLC. whereas, in the second prosecution complaint the transaction in the M/s Techpro IT Solutions LLC. is said to be by the present applicant, which is self-contradictory. As per the case of the ED, Vikas Chhapariya is the beneficiary owner of M/s Techpro IT Solutions LLC. and not the applicant and the said M/s Techpro IT Solutions LLC. was being utili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present applicant in UAE is in fact to obtain Amirat s card, however, the said property was sold by the applicant in March 2023 and sale proceeds were deposited by the applicant into the account of M/s Techpro IT Solutions LLC. It was purchased only to obtain a Visa and to obtain Amirat s ID to travel to UAE. Only on the basis of a search in the Government website of the Revenue Department of UAE, it would not be sufficient to hold that the applicant has purchased the property in UAE. Since the applicant had sold the property in the month of March 2023 in UAE for an amount of 37,50,750 AED, an amount of 20,70,000 AED was deposited in the bank account of M/s Techpro IT Solutions LLC. Further, the son of the applicant who is suffering from dyslexia was no longer interested in pursuing his business in UAE, so the said amount was returned to the bank account of M/s Techpro IT Solutions LLC. The ED has miserably failed to connect the applicant with the investment along with Vikas Chhapariya and therefore, a concocted story was developed by the ED that the applicant is involved in another betting App namely Sky Exchange. None of the predicate offences are related to any transaction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o constitute the alleged offence, therefore, there are reasonable grounds to believe that the applicant is not guilty of an offence under Section 3 of the PMLA, 2002. The applicant has not played any role with respect to the Mahadev Online Book App or with the proceeds of crime. The present applicant had no role in either the creation or management of the Mahadev Online Book App or any incidental activity of online betting. He was neither the main perpetrator of the crime nor even incidentally connected to the alleged proceeds of crime generated by the Mahadev App. The allegation against the applicant made in the complaint dated 11-03-2024 is surrounded by a cloud of doubt and except for assumptions there is no clinching and cogent evidence produced by the ED against the applicant that he has dealt with the proceeds of crime in any manner. It is also submitted that the arrest of the applicant is illegal and malafide as the statement of the applicant has been recorded six times before the filing of first prosecution complaint dated 20-10-2023 and till that day the applicant was not made as an accused. The applicant has been made an accused only on the frustration that the main perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter under the PMLA, Act 2002 on the basis of charge sheet No. 157/2022 dated 29-07-2022 filed by police station Mohan Nagar, District Durg against Alok Singh Rajput, Rampravesh Sahu, Kharag @ Raja Singh and others for the offence under Section 120B and 420 of the IPC alleging in it that the accused persons are involved in online betting in live ludo, football, casino game and amass through Mahadev book. On being secret information, the raid was conducted and aforesaid accused persons were taken into custody who had prepared a set-up with laptops by which they collected money by creating an Online ID and then the said money was put in bet for others through Mahadev Online book on online cricket match, horse racing, greyhound racing and Kabaddi etc. Various laptops, mobile phones, passbooks of various banks, debit/credit cards, sim cards, chequebooks and cash were seized from the premises and an investigation under the PMLA, 2002 was undertaken after recording of the ECIR. During the course of the investigation, it came into knowledge that various FIRs have also been registered all over the country for illegal online betting through Mahadev book and one of the FIRs of Crime No.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides an online platform for illegal betting in different live games like cricket, badminton, tennis, football etc. and also provides facilities for playing a number of card games like teen patti, poker, dragon tiger, virtual cricket game etc. To create an appearance of genuineness for this illegal betting racket Mahadev Online Book the promoters have a company registered in the name M/s Mahadev Book Market Limited in the country of Sent Vincent and the Grenadines under the directorship in the name of Shubham Soni who is part of top management of Mahadev Online book. Sourabh Chandrakar and Ravi Uppal are the main promoters and beneficiary owners of this betting syndicate. The Mahadev online book operates from abroad and provides WhatsApp contact numbers on the websites. Once a user contacts the number, he will be provided two separate contact numbers. One contact number is to be utilized for depositing money and collecting points in IDs and the second number is for contacting the website to encash points accumulated in the designated IDs. The IDs are generally created on multiple websites depending on the needs and preferences of the betters. The betting app is operated by various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant Nitin Tibrewal was the majority shareholder in the company M/s Techpro IT Solutions LLC. Vikas Chhapariya was investing the proceeds of crime emanating out of the betting operations of Mahadev Online Book in the Indian stock market under Foreign Portfolio Investment (FBI) route various companies including M/s Techpro IT Solutions LLC. The applicant Nitin Tibrewal has admitted that Vikas Chhapariya has amassed significant wealth due to his association with Mahadev Online Book. As per the bank account statement of M/s Techpro IT Solutions LLC. for the period between 01-03-2020 to 23-01-2021, it is evident that M/s Techpro IT Solutions LLC. have paid the present applicant Nitin Tibrewal approximately 20,70,000 AED during the course of just four months. In his statement applicant, Nitin Tibrewal denied from purchase of any property in Dubai, however, from searching of the online Govt. website of the Land Record Department, UAE, by using his passport number, it was revealed that Nitin Tibrewal owned a property in UAE. He was also found to be associated at the highest level of Sky Exchange and he has been named by various persons to be associated with Sky Exchange. The digital re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting proceeds and investing it in the Indian share market. The digital records coupled with the statement recorded under Section 50 of the PMLA, 2002 of the applicant clearly establish the link of the applicant with the illegal betting website Sky Exchange and the generation of proceeds of crime through it. From the statement of Prashant Bagariya and other persons associated with Sky Exchange, the involvement of present applicant Nitin Tibrewal is clearly established. From the statement of Ms. Preeti Rathi who is sister of Nitin Tibrewal and her husband Kamal Kishore Rathi further confirmed that Nitin Tibrewal was engaged in Online betting through Sky Exchange. From the Excel sheet discovered from the premises of Govind Kediya it was found that the financial statement of the present applicant was shared with Vikas Chhapariya and the ED has discovered an association of the present applicant with M/s Techpro IT Solutions LLC. The role of the present applicant clearly reveals his involvement in the offence of money laundering which ultimately led to his arrest on 12-01-2024. In his statement during the remand proceeding the applicant has categorically stated that he never purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anmohan Reddy Vs. CBI, reported in (2013) 7 SCC 439 that the Hon ble Supreme Court has held that the economic offences constitute clause apart and need to be visited with a different approach in the matter of bail. The economic offences having deep routed conspiracy 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. It is further submitted that all the key persons involved in the scam are relocated to the UAE. There is every chance of the applicant seeking to defeat the process of law in India. The applicant has obtained an Amirates ID of UAE and there is every apprehension of fleeing from India. There is every possibility of tempering with the witnesses and evidence of the case as just before participating in the investigation the applicant lost his mobile phone which contains digital records relevant to the present matter. Further relying upon the judgment passed by the Hon ble Supreme Court in Gurvinder Singh Vs. State of Punjab in the order dated 07-02-2024 passed in CRA No.704/2024 submitted that the trial p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate) after relying upon the observations made in the case of Vijay Madanlal Choudhary (Supra) has observed in para 49 that:- 49. It thus, emerges that at the stage of considering a bail application under the PMLA, the Court has to bear in mind the following aspects: i. Wether the accused possessed the requisite mens rea. ii. 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. Iii. A positive finding that the accused had not committed an offence under the Act is not required to be recorded. A delicate balance between a judgment of acquittal/conviction and an order granting bail much before commencement of the trial is to be maintained. iv. The evidence is not to be weighed meticulously but a finding is to be arrived at on the basis of broad probabilities with reference to the material collected during investigation. The weighing of evidence to find the guilt of the accused is the work of Trial Court. V. A finding is also required to be recorded as to the possibility of the bail applicant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hared in the mobile chat are of the betting assistant App. which has been sent by her brother Nitin Tibrewal to maintain its record. She also admitted that her brother is engaged in Online gambling since 2021-22 and despite her efforts, he is not coming out from it and continuing with the gambling activity. He engaged in online betting through the Sky Exchange online App. She also stated about cash dealing with respect to her brother s business and further admitted the conversation between her and her brother Nitin Tibrewal that he will go to Dubai from where he will manage the work of betting. 11. The bank account statement of M/s Techpro IT Solutions LLC. shows that approximately, 20,70,000 AED have been paid to the present applicant by the M/s Techpro IT Solutions LLC. in just four months between 01-03-2020 to 23-01-2021. Since the statement of the present applicant that he has not purchased any property in Dubai, from the online website of the Land Records Department, it appears that he has owned property in UAE. The applicant is also found to be associated at the highest level of Sky Exchange betting website. The applicant has been named by various persons to be associated wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal activity relating to a scheduled offence or the value of any such property, or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad; Explanation :- For the removal of doubts, it is hereby clarified that proceeds of crime including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. 14. The Hon ble Supreme Court in the case of Y.S. Jagan Mohan Reddy Vs. CBI, reported in (2013) 7 SCC 439 has held in para 34 and 35 of its judgment that- 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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