2024 (4) TMI 1184 - HC - Money Laundering

Regular bail denied in money laundering case involving illegal land acquisition worth Rs.4 crores under PMLA Sections 3-4

Talha Khan Versus Directorate of Enforcement

The Jharkhand HC dismissed a regular bail application in a money laundering case involving illegal acquisition of land worth Rs.4 crores. The court held ... Seeking grant of regular bail - Money laundering - illegal acquisition of a piece of land measuring 60 decimals situated at Plot no.668, Khata no.29, Mauja Gari, P.S. Bariatu, Ranchi frivolously showing for an amount of Rs.4 crores - proceeds of crime - principles of parity. HELD THAT:- The “offence of money-laundering” means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. Further, it is evident from the judicial pronouncement as discussed above that in order to constitute any property as proceeds of crime, it must be derived or obtained directly or indirectly by any person as a result of criminal activity relating to a scheduled offence. The explanation clarifies that the proceeds of crime include property, not only derived or obtained from 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. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime and in the instant case from perusal of paragraph of the prosecution complaint it is evident that the petitioner is not only involved rather his involvement is direct in procuring the proceeds of crime by way of connivance with the other accused persons. Thus, even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002, is totally misplaced in the light of accusation as mention in prosecution complaint. Principle of parity - HELD THAT:- The law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity will not be applied. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by simply saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. The Hon’ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement [2023 (11) TMI 904 - SUPREME COURT] has held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. This Court needs to go through the imputation of allegation as against the Dilip Kumar Ghosh, which has been mentioned in the prosecution complaint - This Court, on the basis of the different role committed by Dilip Kumar Ghosh, the accused person, who has been granted bail and comparing his accountability with the act of the present petitioner, is of the view that it cannot be said that what has been done by Dilip Kumar Ghosh is identical to that of the case of the present petitioner, as would be evident from the prosecution complaint, wherein, it has come on record that Dilip Kumar Ghosh was indulged in assisting the accused no.3, i.e., Amit Kumar Agarwal in acquiring the proceeds of crime in name of accused no.1, M/s Jagatbandhu Tea Estate Pvt. Ltd. which was completely under the control of Amit Kumar Agarwal. This Court, in order to come to the conclusion as to whether, the principle of parity is to be followed on the ground that the said Dilip Kumar Ghosh has been granted bail, has already considered the imputation against the present petitioner. The twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner - Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Dilip Kumar Ghosh, is quite different. The applicant/petitioner failed to make out a case for exercise of power to grant bail and considering the facts and parameters, this Court therefore does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail - this Court is of the view that the bail application is liable to be rejected. Bail application dismissed. Issues Involved:1. Grant of regular bail under Sections 439 and 440 of the Code of Criminal Procedure.2. Allegations under Section 3 punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA).3. Role of the petitioner in the alleged crime.4. Application of the principle of parity in granting bail.5. Compliance with the conditions specified under Section 45 of the PMLA.Detailed Analysis:1. Grant of Regular Bail:The petitioner sought regular bail under Sections 439 and 440 of the Code of Criminal Procedure in connection with ECIR Case No. 01 of 2023. The trial court had previously rejected the bail application on 25.08.2023.2. Allegations under PMLA:The petitioner was accused of being involved in a money laundering scheme, where a piece of land was illegally acquired using forged documents and sold at a significantly undervalued price. The proceeds of crime were allegedly credited to the petitioner's company, Confiar Projects Pvt. Ltd., and were used for placement, layering, and integration of the proceeds of crime.3. Role of the Petitioner:The petitioner, in connivance with other accused, allegedly acquired a piece of land fraudulently and sold it to obtain proceeds of crime. The investigation revealed that the petitioner was a part of a racket involved in illegal land dealings and money laundering activities. Significant cash deposits and withdrawals were traced to the petitioner's bank accounts, indicating his involvement in the crime.4. Application of the Principle of Parity:The petitioner argued for bail on the grounds of parity, citing that a co-accused, Dilip Kumar Ghosh, had been granted bail. However, the court noted that parity is not the law and that the role and involvement of each accused must be individually assessed. The court found that the petitioner's involvement in the crime was more direct and significant compared to Dilip Kumar Ghosh, who was granted bail.5. Compliance with Conditions under Section 45 of PMLA:The court emphasized that the conditions specified under Section 45 of the PMLA are mandatory and must be complied with. The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail. The court found that the petitioner failed to meet these conditions, as there was tangible and credible evidence of his involvement in the money laundering activities.Conclusion:The court, after considering the allegations, evidence, and legal provisions, concluded that the petitioner failed to make out a case for bail. The application of the principle of parity was not applicable due to the distinct roles and involvement of the petitioner compared to the co-accused. The court also highlighted that economic offences like money laundering are grave and require a stringent approach. Therefore, the bail application was dismissed.