TaxTMI 
TaxTMI 
2014 (12) TMI 1261
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....6062/6/ASI with M/s. Agustawestland International Ltd. (hereinafter referred to as 'AWIL') for the supply of 12 AW 101 VVIP/VIP Helicopters with Associated Engineering Package at an aggregated price of Euro 556.262 million (Rs.3726.96 crores @ Rs. 67 per Euro). M/s. Agustawestland started paying kickbacks to Mr. Haschke and Mr. Gerosa under the guise of several consultancy contracts executed between M/s. Agustawestland S.P.A. and M/s. Gordian Services Sarl, Tunisia. M/s. Agustawestland S.P.A. in one such contract also agreed to appoint M/s. Gordian Services Sarl as consultant in the matter of 12 VVIP Helicopters, if the deal with MoD, India was sealed. Subsequently, Mr. Giuseppe Orsi, CEO, M/s. Finmeccania, Italy and Mr. Bruno Spagnolini, CEO, M/s. Agustawestland, UK apparently with the purpose to pump these amounts in India and abroad, signed engineering contracts with IDS Infotech, India and IDS Tunisia which were established with the main purpose of providing illegal gratification to the concerned public officials and the intermediaries. Agustawestland paid kickbacks worth Euro 51 million out of which Mr. Christian Michael James (a British citizen) was allegedly paid Eur....
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.... raised bills amounting to Euro 24.37 million on M/s Agustawestland. However, M/s IDS Infotech, India and M/s Aeromatrix were paid only Euro 1.88 million and 3.8 million respectively for the same work for which M/s IDS, Tunisia raised bills on M/s Agustawestland amounting to Euro 24.37 million. Hence, M/s IDS, Tunisia inflated the invoices and this money was eventually brought to India through Mauritius route by Mr. Gautam Khaitan for payment of illegal gratification. 5. Based on the aforesaid allegations the Directorate of Enforcement arrested the petitioner on 23.09.2014. Thereafter, the petitioner was produced before learned Chief Metropolitan Magistrate, New Delhi and an application under Section 167(2) of Cr.P.C. read with Section 65 of PMLA seeking custody remand was filed and the custody remand for a period of 7 days was granted vide order dated 23.09.2014. The petitioner was produced before Duty Metropolitan Magistrate, New Delhi on 30.09.2014, the Directorate of Enforcement again moved an application seeking custody of the petitioner for further interrogation. Vide order dated 30.09.2014 Duty Metropolitan Magistrate, New Delhi remanded the petitioner to the custody of the....
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....s also submitted that the complaint has been filed and the petitioner is entitled to bail. In support of his submission he has also relied upon judgment in 'Anil Mahajan vs. Commissioner of Customs & Anr.', 84 (2000) DLT 854; 'Sanjay Chandra vs. Central Bureau of Investigation', AIR 2012 SC 830; 'Binoy Jacob vs. Central Bureau of Investigation', 49 (1993) DLT 640 and 'Gurcharan Singh and Ors. vs. State (Delhi Administration)', AIR 1978 SC 179. 11. Per contra, learned Additional Solicitor General appearing for respondent urged that CBI is an independent agency. The CBI registered the case for the offences under Sections 7/8/9/12/13 of PC Act. 12. Learned Additional Solicitor General also contended that as per Section 24 of PMLA burden of proof that the proceeds of crime are not involved in money laundering lies upon the accused. He had also submitted that according to Section 45 of the PMLA, the petitioner is not entitled to bail unless an opportunity is afforded to the public prosecutor to oppose the application and where the public prosecutor opposes the said application, the Court has to be satisfied that there are reasonable grounds for believin....
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....of Haschke's mother, which contained details of various payments made to several persons including the petitioner. The hard disk of laptop of Mr. Manish Jain, one of the employees of M/s O. P. Khaitan & Co. was also seized. Later on the said employee surrendered his laptop to the officers of Directorate of Enforcement. Copies of the documents, from the hard disk of Mr. Manish Jain's laptop were retrieved in his presence along with two independent witnesses. The retrieved documents are copies of various invoices raised by M/s Interstellar, Mauritius which is controlled by the petitioner, some invoices raised upon M/s Interstellar, Mauritius, some blank format of invoices belonging to M/s Interstellar, Mauritius and bank statements of Barclays Banks, Mauritius, and Bramer Banking Corporation, Mauritius of M/s Interstellar, Mauritius, which shows transfer of money through swift messages to the accounts of Ms. Ritu Khaitan w/o Mr. Gautam Khaitan. 15. It was further submitted that Ms. Nidhi Mathur, another employee of M/s O.P. Khaitan & Co. whose computer was seized and copies of documents were retrieved by the officers of Directorate of Enforcement in her presence and two othe....
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....ny other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering." 21. Section 45 of PMLA deals with offences to be cognizable and non-bailable, which reads as under: "45. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless - (i) The Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by - (i) The Dire....
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.... laid down by this Court in a case of Hari Narayan Rai v. Union of India & Other", W.P.(Cr.) No.325 of 2010. Learned counsel, in order to buttress his stand, has also referred to a decision rendered in a case of Sajjan Singh v. State of Punjab", MANU/SC/0085/1963 : AIR 1964 (SC) 464 and also in a case of Union of India v. Hassan Ali Khan and another", (2011) 10 SCC 235. Thus, it was submitted that this application is devoid of any merit and, hence, it is fit to be dismissed. 24. In Hassan Ali Khan's case (supra), the accused was arrested for having committed an offence punishable under Section 4 of PMLA and while cancelling the bail the Hon'ble Supreme Court of India observed as under: "23. Having carefully considered the submissions made on behalf of the respective parties and the enormous amounts of money which the Respondent No.1 had been handling through his various bank accounts and the contents of the note signed by the Respondent No.1 and notarized in London, this case has to be treated a little differently from other cases of similar nature. It is true that at present there is only a nebulous link between the huge sums of money handled by the Respondent No.1 and any ....
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....y of the country as a whole and thereby posing serious threat to the financial health of the country. 27. At this juncture, it is relevant to mention here that the economic offences have serious repercussions on the development of the country as a whole. The Apex Court in 'State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr.', (1987) 2 SCC 364, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under: "5. ....The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest........