TaxTMI 
TaxTMI 
2017 (4) TMI 475
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....e present petitioner, and other unknown persons. The FIR/RC alleges that Shri Virbhadra Singh while serving as Union Minister, Govt of India during the check period from 28.05.2009 to 26.06.2012, invested huge amounts of money in purchasing LIC policies in his own name and in the name of his family members through the present petitioner, who was then an LIC agent. As per prosecution this was done by Shri Virbhadra Singh by claiming to enter into a Memorandum of Understanding (MoU) dated 15.06.2008 with Shri Anand Chauhan for management of his apple orchard called Srikhand Orchard situated at Village Damrali, Rampur Bushar, Distt. Shimla, Himachal Pradesh. In the terms of the said MoU, the petitioner claimed to have sold the apple produce of Srikhand Orchard to one Shri Chunni Lal Chauhan of M/s Universal Apple Associates (UAA), Parwanoo and on that pretext he deposited huge amounts in cash in his bank accounts during the check period, which were used for purchasing LIC policies for Sh. Virbhadra Singh & his family members. It was further alleged that the petitioner, in connivance with Shri Chunni Lal Chauhan, brought the unaccounted money of Shri Virbhadra Singh back into regular b....
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....adra Singh and his family, and was actively involved in laundering of money. The learned Special Judge opined, on the basis of investigation, till that it cannot be said that petitioner is just at the periphery of the offence and, accordingly, the bail application of the petitioner was dismissed by the learned Special Judge, Patiala House Courts. 8. Respondent filed a detailed complaint under Section 45 on 05.09.2016 against the petitioner herein before Special Court (PMLA), Patiala House, New Delhi, alleging that Sh. Anand Chauhan - the petitioner has been actively involved in the offence of money laundering, as he deposited the illegitimate cash money/disproportionate assets of Shri Virbhadra Singh in his bank accounts with PNB, Sanjauli and HDFC Bank, Sanjauli and in other 2 bank accounts of Meghraj Sharma and Kanupriya Rathore. It was further alleged that the amount deposited was utilized for purchase of LIC policies. It was further alleged that in order to revise the return of income and to legitimise the proceeds of crime by projecting the same as agricultural income, a fabricated MoU was brought into existence which was shown to have been executed on 15.06.2008. It was fu....
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.... 13. The petitioner further submits that custody of applicant is in violation of Article 21 of the Constitution of India, since no trial under section 3 and 4 of PMLA Act can be proceeded without the charge sheet being filed in the case under Section 13(2) r/w Section 13(1)(e) of the PC Act-which is the scheduled offence in question. He further submits that amendment to section 44 PMLA, 2002 contemplates a joint trial by the Special Court of scheduled offence case, and the case relating to the offence under PMLA, to avoid conflicting and multiple opinion of courts, which is not possible as the charge-sheet in scheduled offence case is yet to be filed. 14. The petitioner further challenges the invocation of section 45 of PMLA in the present case. He submits that the said section is not applicable in the petitioner's case, as it applies only if a person is accused of an offence punishable for a term of imprisonment of more than 3 years under part A of the schedule. Petitioner submits that Sections 13(2) and 13(1)(e) of PC Act are only applicable to public servants and not to others, and the abettor of the said offence can only be prosecuted under section 109 IPC, which is punisha....
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.... an accused under section 109 of IPC for abatement alone. Respondent relies upon the judgment of the Supreme Court in Gautam Kundu Vs. Directorate of Enforcement, (2015) 16 SCC 1 and Union of India v Hassan Ali, (2011) 10 SCC 235. 19. In his rejoinder, learned senior counsel for petitioner further submits that the judgment relied by the respondent in Gautam Kundu (supra) is not applicable in the present case, as the complaint under PMLA in said case was an ECIR alleging commission of offence punishable under section 24 of the SEBI Act which, by itself, is a scheduled offence punishable under PMLA vide amendment Act 2009 - unlike in the petitioner 's case, wherein the offence alleged against petitioner is only under section 109 IPC which, admittedly is not a scheduled offence under the Act 20. At this stage, while considering the present bail application this Court is, therefore, not expected to delve into the merits of the defence that are available to the petitioner. 21. The petitioner submits that his arrest under section 19(1) PMLA is premature and in violation of Article 21 of Constitution of India. He submits that Section 45 is not applicable to the case of petiti....
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....o, because, the writ petition preferred by Shri Virbhadra Singh (which had been transferred to this Court by the Supreme Court and registered as W.P. (Crl.) No. 2757/2015) has been dismissed by this Court on 31.03.2017 and the interim orders passed therein stand vacated. Cognizance can be taken of the fact that the charge-sheet also stands filed - as widely reported in the press. Thus, it cannot be said as on date, that the main accused Shri Virbhadra Singh is being protected, while the petitioner herein has been arrested under the PMLA. 23. In support of his submission that the offence under section 109 IPC is punishable only in the context of other offences, and merely because the petitioner is charged with abetment under Section 109 IPC, he cannot be said to be guilty of the offence under Section 13(2) r/w section 13(1)(e) of the PC Act, learned counsel for the petitioner, adverted to Wakil Yadav and Another v State of Bihar, (2000) 10 SCC 500, wherein the Supreme Court observed : "2. Out of the two appellants before us, Guru Charan Yadav, the main accused has since died. His appeal therefore abates and is disposed of as such. The other, Wakil Yadav was originally charged ....
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....or knowingly assists or knowingly is a party or is actually involved in any process or activity connected 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". 26. The expression "proceeds of crime" is defined in Section 2(u) of the PMLA to mean "any property derived or obtained, directly or indirectly, by any person as result of criminal activity relating to a scheduled offence ... ... ...". As noticed hereinabove, the offence alleged against Sh. Vir Bhadra Singh in the FIR/ RC registered by the CBI under Section 13(2) read with Section 13(1)(e) of the PC Act is a scheduled offence and thus, the allegation against the petitioner is that the proceeds of crime of Sh. Vir Bhadra Singh have been laundered by him. 27. A reading of Section 3 shows that the person who commits the offence of money laundering need not necessarily be a one who may have been involved in the acquisition of the proceeds of crime. Thus, even if the petitioner herein is assumed to be not guilty of the offence under Section 13(2) read with Section 13(1)(e) of the PC Act, nevertheless, h....
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.... upon by the High Court as well, while considering an application under Section 439 Cr.P.C. In the present case, the prima facie finding returned by the trial court with regard to the petitioner's involvement in the scheduled offence is unexceptionable. 31. Reliance placed by learned senior counsel for the petitioner on Gurucharan Singh (supra) is not apposite in the facts of the present case. Firstly, the Division Bench in Gurucharan Singh (supra) was dealing with an application in writ proceedings whereas, in the present case, this Court is only concerned with an application seeking bail under Section 439 Cr.P.C. Thus, this Court is considering the present application within the boundaries of Section 45 of the PMLA as laid down in Gautam Kundu (supra). Secondly, in Gurucharan Singh (supra), the petitioner was not an accused in the scheduled offence. However, in the present case, the petitioner is an accused in the FIR/RC registered by the CBI under Section 13(2) read with Section 13(1)(e) of the PC Act and Section 109 IPC. 32. Reliance placed by the learned senior counsel for the petitioner on various decisions which deal with the considerations that the Court dealing with ....