2022 (2) TMI 1173 - HC - Money Laundering

Anticipatory bail granted under Prevention of Money Laundering Act

The court granted anticipatory bail to the petitioner under the Prevention of Money Laundering Act, 2002, considering her cooperation with the ... Seeking grant of anticipatory bail - availment of ineligible VAT refund - forged and fabricated documents regarding export of garments - proceeds of crime - Applicability of Section 45 of PMLA 2002 - HELD THAT:- This Court does find that Section 44 of PMLA 2002 duly provides for filing of a supplementary complaint against any other person in case it comes across some evidence against such person. No doubt, it was in the knowledge of the complainant that an amount of ₹ 30 lacs had been credited into the account of the firm of the complainant but the complaint filed initially against the co-accused i.e. complaint dated 22.12.2017 (Annexure P-3) clearly shows there was specific recital therein to the fact that investigation of the case is still continuing and is in progress and that if the role of other co-accused is ascertained, who may have participated directly or indirectly in laundering of proceeds of crime, a separate supplementary complaint will be filed before the Court. Since it was only about a month prior to filing of the complaint (Annexure P-3) against other co-accused as the same had to be filed to avoid the expiry of period of 90 days from arrest of co-accused and consequently, the time afforded to the investigating agency to verify all the assertions against the petitioner was short, the omission to array the petitioner as an accused in complaint dated 22.12.2017 cannot be said to be any illegality. The contention of the petitioner that the attachment of property of the petitioner has been set aside by this Court vide order dated 6.3.2020 (Annexure P-4) and that the same would help the petitioner or reflect on her innocence cannot be accepted inasmuch as attachment proceedings initiated under Section 5 of PMLA 2002 are in the nature of civil consequences which follow upon commission of a criminal offence and are independent proceedings. Given the nature of proceedings, which are independent civil consequences, setting aside of such proceedings would not ipso-facto affect continuation of criminal proceedings. In the present case, the order dated 6.3.2020 (Annexure P-4) vide which the attachment had been set aside does not express anything as regards the veracity of the allegations against the petitioner. Rather it has been held therein that the property attached had been purchased much prior to the alleged commission of offence and that the impugned order is bad as no reasons had been recorded therein to the effect that the property in question was likely to be concealed or transferred or dealt with in any manner. Thus, setting aside of attachment proceedings can not operate as any kind of bar for initiating or continuation of criminal proceedings against the petitioner. Applicability of Section 45 of PMLA 2002 - HELD THAT:- A perusal of Section 45 of PMLA 2002 does show that some kind of fetters on grant of bail have been imposed inasmuch as before granting bail the Court is to be satisfied that there are reasonable grounds for believing that such person is not guilty of the offence alleged and that if released on bail such person is not likely to commit such offence again - the provisions of Section 45 of PMLA 2002 apply with full force to a petition filed for grant of anticipatory bail as well and would be applicable even to petition filed in High Court. However at the same time, a proviso to Section 45 of PMLA 2002 itself carves out some kind of exception for leniency in cases of women. It is not in dispute that the petitioner is a lady aged 61 years. It is a case where an amount of ₹ 30 lacs had been credited in the account of the firm of the petitioner by the firm of her son. It will be debatable as to whether the amount credited in the account of her firm was credited while she was fully aware that the said amount is part of 'proceeds' of crime committed by her son or as to whether she had connived and conspired with her son. It is otherwise not unnatural for a son to deposit amount or pass on some amount to his/her parents - There is nothing to suggest that the petitioner would flee from justice. As such, the case of the petitioner can safely be said to fall in the first proviso to Section 45(1) of PMLA 2002, being a lady, aged 61 years, so as to entitle her to grant of bail. This Court is of the opinion that it is a fit case for grant of anticipatory bail - Application allowed. Issues Involved:1. Grant of anticipatory bail under PMLA 2002.2. Allegations of VAT refund fraud.3. Transfer of proceeds of crime.4. Validity of supplementary complaint under PMLA 2002.5. Application of Section 45 of PMLA 2002.6. Previous court orders on property attachment.7. Conduct of the petitioner and co-accused.8. Provisions for leniency in cases of women under PMLA 2002.Detailed Analysis:1. Grant of Anticipatory Bail under PMLA 2002:The petitioner sought anticipatory bail in a complaint instituted by the Enforcement Directorate (E.D.) under Section 3, punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA 2002). The petitioner argued that she had associated with the investigation and that no new evidence had emerged to justify a supplementary complaint. The court noted that the petitioner had cooperated with the investigation and that her involvement in the alleged crime was debatable.2. Allegations of VAT Refund Fraud:The allegations against M/s Jaldhara Exports, Ludhiana, included forging documents to claim a VAT refund of approximately Rs. 1.56 crores based on non-existent exports. An FIR was registered against the main accused, and upon investigation, a challan was filed. The petitioner was implicated in a supplementary complaint filed later.3. Transfer of Proceeds of Crime:The accused transferred the VAT refund amount to various accounts, including the petitioner's firm. The court acknowledged that an amount of Rs. 30 lacs had been credited to the petitioner's account and withdrawn on the same day through self-cheques and a cheque to Umesh Kumar Garg.4. Validity of Supplementary Complaint under PMLA 2002:The petitioner challenged the supplementary complaint's validity, arguing that no new evidence had emerged. The court found that Section 44 of PMLA 2002 allows for supplementary complaints if new evidence is discovered. The initial complaint stated that the investigation was ongoing, and the supplementary complaint was filed within legal provisions.5. Application of Section 45 of PMLA 2002:The court examined Section 45, which imposes restrictions on granting bail unless the court believes the accused is not guilty and unlikely to commit the offence again. The court referred to a Supreme Court judgment clarifying that Section 45 applies to anticipatory bail applications under PMLA 2002. However, the proviso to Section 45(1) provides leniency for women, among others.6. Previous Court Orders on Property Attachment:The petitioner's property had been provisionally attached, but the attachment was set aside by the High Court and upheld by the Supreme Court. The court clarified that setting aside attachment proceedings, which have civil consequences, does not affect the continuation of criminal proceedings.7. Conduct of the Petitioner and Co-Accused:The state counsel argued that the petitioner's conduct, including evading summons, indicated a tendency to flee from justice. The court found no evidence of intentional evasion and noted that the investigating agency had also delayed proceeding against the petitioner.8. Provisions for Leniency in Cases of Women under PMLA 2002:The court considered the proviso to Section 45(1) of PMLA 2002, which allows for leniency in granting bail to women. The petitioner, a 61-year-old woman, had cooperated with the investigation, and there was no evidence suggesting she would flee from justice. The court found her case fit for anticipatory bail under this proviso.Conclusion:The court granted anticipatory bail to the petitioner, ordering her release upon arrest, subject to furnishing personal and surety bonds to the trial court's satisfaction. The court emphasized that the observations made were not to be taken as an expression on the merits of the main case.