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TMI Blog2025 (1) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 45 of the PMLA Act, but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence - Thus, inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India. It is an admitted position that both the cases will be tried simultaneously and trial has not yet commenced. Thus, this is a case where the trial is unlikely to conclude any time soon and is likely to take a considerably long time. As noted hereinabove, the Applicant has completed more than half of the punishment. The maximum punishment which can be imposed on the Applicant is 7 years and the Applicant has completed about 3 years and 10 months of imprisonment i.e. more than half of the punishment - the Applicant is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in B. A. No. 653 of 2023 8. Main grounds for seeking bail The Applicant has undergone 3 years 10 months in ECIR i. e. more than half of the punishment. The maximum punishment which can be awarded is 7 years. The Applicant is in custody for more than 4 years and 11 months. 3. Respondent - the Directorate of Enforcement ("ED") by filing affidavit-in-reply of Mr. Venkata Naren Garapaty, Assistant Director, Zonal Office-II, Mumbai, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India dated 03.01.2025 opposed the Bail Application. In the said affidavit, the prosecution case is set out in Paragraph Nos.6, 7 and 11 which read as under: "6. BRIEF FACTS OF THE CASE 6.1. That, On January 8, 2020, the Shivajinagar Police Station, Pune registered FIR No. 0026/2020 based on a complaint filed by Mr. Yogesh Rajgopa Lakde, Chartered Accountant (Partner ot Mis Torvi Pethe & Co.) against Mr. Anil Shivaji Rao Bhosale, Mr. Suryaji Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr. Shailesh Sampatrao Bhosale, Mr. Vishnu Tukaram Jagtap, Mr. Hanuman Babanrao Sorte, and others, invoking 420, 34, 406, 408, 409, 468, and 471 of the IPC, 1860. 6.2. That a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, Mr. Anil S Bhosale withdrawn Rs. 168.74 Lakhs in cash from Deccan Gymkhana branch of SBSBL. However, Rs 98.99 Lacs were paid back by Mr. Anil S Bhosale. In total, net cash of Rs. 69.75 Lacs was withdrawn from Deccan Gymkhana Branch on the instructions of Mr. Anil S Bhosale. 7.4. It is observed that RTGS transfers of Rs 2.75 Crore were made from Head Office of SBSBL on the instructions of Mr. Anil S Bhosale. 7.5. In total, 67 cheques of Rs 5,82,90,175/- on various dates during the period from 17.05.2017 to 11.04.2019 are paid on behalf of Anil Bhosale for his personal expenditure from Deccan Branch. 7.6. The said cheques were issued from the accounts No. 012001000000001 maintained with Deccan Gymkhana Branch of the bank to Prerna Cooperative Bank and Sarswat Cooperative Bank for repayment of loan dues. Even though there was insufficient balance in the said account, still the amount was used to be transferred to the other bank. 7.7. It was observed that, later all said cheques were paid by head office from its own funds (i.e. from depositor's fund) on behalf of Anil Bhosale. The Cashier and branch manager of Deccan Gymkhana Branch made bogus entries in books of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, and rules, regulations, guidelines issued by the RBI and rules made under Maharashtra Cooperative Societies Act, 1960. Consequently, most of the loan accounts slipped to NPA category. There was total 432 NPA accounts and outstanding principle amount was Rs 392 Crore. 7.14. Bank used to maintain bifurcated lists of 96 loan accounts in the name of Mr. Anil S Bhosale and Mr. Mangaldas Bandal. In the said lists, 44 loan accounts pertained to Mr Anil Shivajirao Bhosale in List A. Shri Rajaram Dhondkar, Liquidator of Shivajirao Bhosale Sahakari Bank vide email dated 01.11.2023, provided the said List A in respect of loans sanctioned on behalf of Mr. Anil S Bhosale. On perusal of said list, it is revealed that total principal amount used and utilized by Mr. Anil S Bhosale is Rs 113.147 Crore. 7.15. The breakdown of proceeds of crime used and utilized by Mr. Anil S Bhosale is as under: Particulars Amount (Rupees in crores) Deccan Branch pending Cheques 5.83 Shortage Cash at Shivaji Nagar Branch 23.89 Shortage Cash at Deccan Branch 0.69 Fake FDR at Vadgaon Sheri Branch 1.00 Payment through RTGS from Head Office 2.74 NPA Loan Amount 113.147 Total 147.307 11. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of long incarceration. He also submitted that the Applicant is senior citizen of 60 years. He, therefore, submitted that the Applicant is entitled to be enlarged on bail. 6. On the other hand, Mr. Venegavkar, learned PP for Respondent - ED strongly opposed the Bail Application. He submitted that the Applicant was the Chairman of the said Bank and therefore, he is the prime accused. He submitted that Mr. Anil S Bhosale had a major role to play in the frauds committed by SBSBL viz. misappropriation of cash, misappropriation of SBSBL funds through RTGS and pending cheques, sanction of illegal loans and cheque discounting. Hence, the applicant is actually involved and also knowingly facilitated the other co-accused persons in acquiring, concealing, misappropriating, utilizing and projecting & claiming to be untainted property, had committed the offence of money laundering under Section 3 of the PMLA which is punishable under Section 4 of the PMLA and therefore, he is not entitled to get bail. He submitted that the material on record shows that the Applicant is involved in a very serious crime. He submitted that therefore, the Applicant is not entitled to be released on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crore @Correspondence to Registrar of Cooperative Society. 2. Valuation of properties of Mr. Anil Bhosale attached by EOW/ED/Bank as on 2017. Applicant has no objection if sale of the attached properties is made absolute. 14.05 Crore (approx.) @valuation reports 3. Government Valuation (as per IGR) of properties mortgaged and attached in lieu of loan in balance 31 NPA Accounts out of 44 NPA accounts. Recovery certificate u/s 101 of MCS Act of 29 NPA Accounts out of 44 NPA Accounts received. 41.00 Crore (approx.) @Bank chart TOTAL Rs. 98.26 Crore 4. SUMMARY: Sr. no Particulars Amount (In Crores) 1. Liability attributed 146.63 2. Actual realisation and amount to be received 151.60" 6. In view of the above Chart, the learned Single Judge by Order dated 10th April 2023 directed the Respondent - State of Maharashtra to file the Additional Affidavit and in view thereof an Affidavit of Mr. Sanjay G. Chavan, Police Inspector, Economic Offences Wing, Pune City, Pune has been filed on 10th June 2024. In the said Affidavit, the role of the present Applicant is explained with respect to the said Chart submitted by Mr. Mundargi, learned Senior Counsel. The relevant po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 NPA accounts received 41.00 Crore (approx) @bank chart Total 98.26 Crore Explanation - 8.1 In pursuance of the aforesaid compilation submitted by the Applicant/Accused, it is submitted that the following are the details and particulars of the below-mentioned NPA Loan Accounts:- Sr. No. Particulars OTS Loan Amount 30% Amt. received against OTS by Applicant 1 WCTL-406 Kakade Palace Mangal Karyalaya 2,37,53,354/- 93,35,426/- 2 WCTL-408 Jons Holding Pvt. Ltd. 8,83,70,649/- 2,58,11,103/- 3 WCTL-409 Kakade Green Estate Pvt. Ltd. 8,87,53,205/- 2,56,80,954/- 4 WCTL-01 Pushpak Ply 7,49,36,336/- 2,22,68,104/- 5 WCTL-107 V.Y. Infra Structure Pvt. Ltd. 8,14,96,800/- 2,47,38,380/- Total 35,73,10,344/- 10,78,33,967/- I state that, in pursuance of above chart, OTS offer was proposed in 13 NPA Accounts out of 44 NPA Accounts out of which in above mentioned 5 loan accounts, One Time Settlement was done by Shivajirao Bhosale Co Op Bank, Pune, in which Applicant has paid 10.78 cr as on date 14/05/2024 and amount of 24.94 Cr is pending payment with monthly 11 installments fixed. Out of 13 NPA loan account 08 loan accounts is pending for sanction at the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts from 44 NPA accounts 10.78 lakhs 3 5 loan accounts, One Time Settlement was done by Shivajirao Bhosale Co Op Bank, Pune, (30% amount) 10.78 Cr Total 64.05 Cr B) Amount will be recover from applicant in future Sr.No Particulars Amount (in Crores) 1 Valuation of properties of Applicant attached by ED/EOW/Bank, 11.43 Cr 2 5 loan accounts, One Time Settlement was done by Shivajirao Bhosale Co Op Bank, Pune and pending payment with monthly 11 installments fixed. (70% amount) 24.94 Cr 3 Out of 13 NPA loan account 08 loan accounts is pending for sanction at the office of Commissioner of Co-operative, Pune for OTS. 17.40 Cr (Approx.) Total 53.77 Cr C) Valuation of mortgaged properties 30 NPA loan accounts Sr.No Particulars Amount (in Crores) 1 Valuation of mortgaged properties of remaining 30 NPA loan accounts 27.14 Cr" " Thus, it is clear that substantial amount which is subject matter of the crime is either recovered or secured. This is very relevant factor as the money involved in the crime is public money. 9. Insofar as the present offence is concerned, the Applicant is incarcerated since 05.03.2021. Thus, the Applicant has completed 3 years and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under Section 19 and subject to the conditions enshrined under this section.]" (Emphasis added) 12. Thus, as per Section 45 of the PMLA Act, the following requirements are mandatory to be complied with before releasing the accused on bail: (i) The Public Prosecutor is to be given an opportunity to oppose the Application seeking bail; (ii) Where the Public Prosecutor opposes the Application : (a) The Court is required to record satisfaction that there are reasonable grounds for believing that the Applicant is not guilty of such offence; (b) The Court is required to record satisfaction that the Applicant is not likely to commit any offence while on bail. 13. In this Bail Application, the Respondent - ED filed affidavit opposing the Bail Application and Mr. Venegavkar, learned PP for Respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 413. There is, however, an exception carved out to the strict compliance of the twin conditions in the form of Section 436A of the 1973 Code, which has come into being on 23.6.2006 vide Act 25 of 2005. This, being the subsequent law enacted by the Parliament, must prevail. Section 436A of the 1973 Code reads as under: "[436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. …" 416. The Union of India also recognized the right to speedy trial and access to justice as fundamental right in their written submissions and, thus, submitted that in a limited situation righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counterproductive. So be it. We are not impressed by this submission. For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence. 419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very strong to say that under a particular statute, bail cannot be granted. It would run counter to the very gain of our constitutional jurisprudence. In any view of the matter, K. A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us." (Emphasis added) 18. The Supreme Court in the case of Union of India vs. K. A. Najeeb 2021(3) SCC 713 held in Paragraph No. 17 as under : "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."" 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 54. In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CrPC being the subsequent law enacted by the Parliament, must prevail over Section 45 of the PMLA. C) If the period of deprivation pending trial becomes unduly long, the fundamental right of Accused of the speady trial and fairness assured by Article 21 would receive a jolt. After the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. D) The provision in the form of Section 436A of the CrPC, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution. For, it is a sanguine hope of every accused, who is in custody in particular, that he/she should be tried expeditiously - so as to uphold the tenets of speedy justice. If the trial cannot proceed even after the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. I) If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. J) Notwithstanding the statutory embargo contained in Section 45 of the PMLA, the legislative policy against the grant of bail will melt down where there is no likelihood of trial being completed within a reasonable time. The courts would invariably bend towards 'liberty' with a flexible approach towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into statutes like PMLA. 27. Thus, it is necessary to consider this Bail Application on the touchstone of the above legal position and to consider whether the Applicant is entitled to be released on bail inspite of not fulfilling the twin conditions as contemplated by Section 45 of the PMLA. 28. In this case, as far as the scheduled offences are concerned i.e. C. R. No. 26 of 2020, there are about 256 witnesses proposed to be examined by the prosecution. Insofar as the present case i.e. ECIR case there are about 150 witnesses proposed to be examined by the prosecution. The Charge-sheet in both the cases is voluminous. 29. Mr. Mundargi, learned Counsel appearing for the Applicant submitted that in fact, in PMLA case the investigation is still going on and last supplementary charge-sheet has been filed on 16th October 2024. 30. Mr. Venegavkar, learned SPP submits that the investigation is still going on and the Respondent-ED is proposing to file further supplementary charge-sheet. Thus, it is clear that the investigation is not yet completed. 31. It is an admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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