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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 ..... orcement Directorate Scheduled Offences Shivaji Nagar Police Station, Pune 4. Sections invoked (ECIR) Section 3 r/w. 70 of the Prevention of Money Laundering Act, 2002 Scheduled offences Sections 420 r/w. 34, 406, 408, 409, 465, 468 & 471 of the Indian Penal Code, 1860 5. Date of arrest of the Applicant in Scheduled Offence 25.02.2020 Date of arrest in ECIR 05.03.2021 6. Date of filing of Charge-sheet in Scheduled Offence Charge-sheet bearing No. 32/2020 dated 18th May 2020 ECIR Complaint April 2021 7. Status of Bail Application in scheduled offence Scheduled Offence - Bail granted on 19th August 2024 by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romoter of Shivajirao Bhosale Sahakari Bank Limited. Shivajirao Bhosale Sahakari Bank Limited (SBSBL) is a family-oriented bank which Mr. Anil S Bhosale inherited from his father. He had the sole authority to take decisions and dictate terms to staff and Board of Directors. 7.2. On the instructions of Mr. Anil S Bhosale Rs. 27,13,70,000/- in cash were withdrawn from 24 Nationalized and Co-operative banks where the account of Shivajirao Bhosale Sahakari Bank Limited was maintained. Out of the said Rs. 27.13 Crores Rs. 23.89 Crore was withdrawn by Anil Bhosale. The remaining amount was available with SBSBL 7.3. Further, 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 Anil S Bhosale withdrawn Rs. 168.74 Lakhs in cash from Deccan Gymkhana branch of SBSBL.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 In total, net cash of Rs. 69.75 Lacs was withdrawn from Deccan Gymkhana Branch on the instructions of Mr.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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to the depositors of the bank and to increase profit as on 31st March 2017 7.12. Commission income of Rs 31.90 Lacs from the account of Amar Jadhav and Rs 24.81 Lacs from Aruna Amar Jadhav is taken to income General Ledger. This has led to manipulation of accounts by overstating profit of Rs 56.71 Lacs. 7.13. Mr. Anil S Bhosale, in conspiracy with Mr. Mangaldas Bandal and officials of the bank sanctioned several fraudulent loans for their personal benefit. It is revealed during investigation that during sanctioning loan to various borrowers, the bank had failed to comply with By-laws of the Cooperative Bank, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia 2022 SCC OnLine SC 929; (iii) Manish Sisodia vs. Directorate of Enforcement 2024 SCC OnLine SC 1920; (iv) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari vs. The State of Uttar Pradesh 2024 SCC OnLine SC 1755. 5. He submitted that it is well established that speedy trial is a right guaranteed to the Applicant under Article 21 of the Constitution of India. He submitted that the factual position on record clearly shows that the said fundamental right of the Applicant is violated. In support of the said contention, he also relied on Section 436A of the Cr.P.C.. He submitted that he is seeking bail only on 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 pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A) 96 NPA Account - 247 Crores (@pg 133 of B.A) 44 NPA Accounts attributed to Mr. Anil Bhosale 113.14 crore TOTAL ATTRIBUTABLE 146.63 Crore 2. ACTUAL RECOVERY AGAINST LIABILITY ATTRIBUTABLE: 1. Amount Recovered from Applicant by auctioning land by Shivaji Rao Bhosale Sahakari Bank Ltd. u/s 101 of MCS Act. 53.17 Crore (@pg 21 of CoD) 2. Amount recovered out of 02 NPA Accounts from 44 NPA Accounts. 10.88 Lakh (@OTS chart) TOTAL Rs. 53.27 Crore 3. AMOUNT RECEIVABLE Sr. no Receivable Amount Amount Reference 1. OTS offer proposed in 13 NPA Accounts out of 44 NPA Accounts. (Sanction pending) 43.21 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able which is as under:- Sr.No. Receivable Amount Amount Reference 1 OTS offer proposed in 13 NPA Accounts out of 44 NPA Accounts (Sanction pending) 43.21 Crore @ Correspondence to Registrar of Co-operative 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 Crores (Approx.) @ Valuation reports 3 Govt Valuation (as per IGR) of properties mortgaged and attached in lieu of loan in balance 31 NPA Accounts out of 44 NPA accounts received 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rs.34.16 Cr + 113.14 Cr + 43.51 Cr (Interest Amount)) As regards the actual realisation, details have been submitted in preceding paragraphs. This is subject to the condition that the petitioner clears the outstanding on 5 OTS NPA accounts and also clears the OTS once sanctioned in case of the other NPA accounts. A chart of the present status is enclosed herewith for the sake of clarity. A) Amount recovered from applicant by Shivajirao Bhosale Co Op Bank Ltd, Pune Sr.No Particulars Amount (in Crores) 1 Amount recovered from applicant by auctioning land by Shivajirao Bhosale Sahakari Bank ltd u/s 101 53.17 Crore 2 Amount recovered out of 01 NPA Accounts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing 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 [** *] subsection (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. [Explanation.-For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non-bailable" shall mean 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be detained, held that Section 436A of the Cr. P .C. has come into effect on 23.06.2006 and the said provision is the subsequent law enacted by the Parliament and the same will prevail and will apply in spite of rigors of Section 45 of the PMLA Act. The relevant part of the said paragraphs 412 to 421 read as under : "412. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception 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. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh V. State of Punjab. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak, release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not 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 assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate conditions, including to secure his/her presence during the trial. 418. Learned Solicitor General was at pains to persuade us that this view would impact the objectives of the 2002 Act and is in the nature of super imposition of Section 436A of the 1973 Code over Section 45 of the 2002 Act. He has also expressed concern that the same logic may be invoked in respect of other serious offences, including terrorist offences which would be 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. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 1973 Code could be invoked by accused arrested for offence punishable under the 2002 Act, being a statutory bail." (Emphasis added) 17. The Supreme Court in the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari (supra) held in paragraph 32 as under : "32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on applies irrespective of the nature of the crime." 52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: "10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose (1898)18 Cox]: "I observe that in this case bail was refused for the 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " (Emphasis added) 21. Following position emerges from the analysis of the above decisions of the Supreme Court:- A) The underlying principles and rigors of Section 45 of the PMLA must come into play and without exception ought to be reckoned to uphold the objectives of the PMLA which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. B) There is, however, an exception carved out to the strict compliance of the twin conditions in the form of Section 436A of the CrPC, which has come into being on 23.6.2006 vide Act 25 of 2005. Section 436A of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions like Section 45 of the PMLA would not come in the way. H) The presence of statutory restrictions like Section 45 of the PMLA 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 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 fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well-settled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception." These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time." Thus, what has been held by the Supreme Court that the expeditious disposal of the trial is also warranted under PMLA considering the 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Directorate on his furnishing P. R. Bond of Rs. 10,00,000/- with one or two solvent sureties in the like amount; (b) The Applicant shall not enter District - Pune after being released on bail, except for reporting to the Investigating Officer, if called and for attending the trial; (c) On being released on bail, the Applicant shall furnish his cell phone number and residential address to the Investigating Officer and shall keep the same updated, in case of any change thereto; (d) The Applicant shall report to the office of Director of Enforcement, Government of India, Mumbai Zonal Office-II, 301-303, Ceejay House, Dr. Annie Besant Road, Worli, Mumbai 400018 twice in a month on the first and third Wednesday between 11:00 a.m. and 1:00 p.m. till the conclusion of the trial; (e) The Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such a person from disclosing the facts to the Court or to any Police personnel; (f) The Applicant shall not tamper with the prosecution evidence and shall not contact or influence the Complainant or any witness in any manner; (g) The Appli ..... 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