2017 (9) TMI 1358
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....mbai namely M/s.Yogeshwar Diamonds Pvt.Ltd., M/s. Charbhuja Diamonds Pvt. Ltd. and M/s.Kanika Gems Pvt.Ltd. were having Bank Account with ING Vysya Bank, Opera House Bank, Fort Mumbai by submitting forged bills of entry in respect of import of diamonds. They impelled to the IndusInd Bank to remit the Indian currency to the tune of Rs. 304,35,77,609/- illegally to abroad in the form of import advance and post import remittances, payment, manipulated as well as bills of entry having identical details of the original bills of entry were submitted to the Bank and remittance have been effected on the basis of such manipulated bills of entry. Signatures of the Customs Officer and the CHA were forged on the fake bills of entry. Original bills of entry obtained from Customs revealed that the documents were fictitious. Remittance were made in the form of import advance. However, repeated reminders by the bank, the accused companies were not furnished the requisite import documents to the concerned bank, even after expiry of prescribed limit. (b) Based on FIR registered with D.B. Marg police Station, the Enforcement Directorate registered ECIR/MBZO-II/05/16 on 11th May, 2016 under the prov....
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....uja Diamonds Pvt.Ltd. and M/s.Yogeshwar Diamonds Pvt. Ltd. M/s.Keshav Impex is the proprietorship firm of the applicant. It was also alleged that applicant had purchased residential flat at Borivali which was not revealed by him and he did not disclose that his wife has bank account at ICICI Bank. Scrutiny of bank account shows that huge amounts have been transferred. It is alleged that the applicant is incharge in sales and purchase of the property, bank balance etc., which are acquired as proceeds of crime. Properties of the wife of the applicant were also identified viz. Flat No.406 at Pushpa Niketan Co-operative Housing society, Bhyander, Flat No.304 purchased vide agreement dated 10th February, 2014 for Rs. 28,00,000/- and sold by agreement dated 27th June, 2016. Flat No.6-203 at Datta Pawda, Boriwali which was sold subsequently to M/s.Mangal Bullion Pvt.Ltd. He did not clarify the sources of funds acquired for purchase of property in the name of his wife. The applicant sold two premises in his wife's name against which he has not given any clarification. Money was diverted out of criminal activities related to scheduled offences. The applicant is actively involved and ass....
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....ttendance, the applicant was abused, threatened and humiliated. His statements were recorded on 20th February, 2017 and 21st February, 2017. Statement of the applicant was also recorded by Additional Director on 15th March, 2017 as he had made a written complaint to him about the conduct of the officers of the Enforcement Directorate. It is further submitted that the petitioner had preferred a Writ Petition No.1607 of 2017, seeking free, fair and impartial investigation. The petition was duly served upon the Enforcement Directorate and the same was listed on 24th April, 2017. However, the applicant was picked up from his residence on 20th April, 2017. Applicant's wife forwarded a representation on 21st April, 2017 that the applicant was detained beyond 24 hours without producing him before the Court. The petitioner was than shown arrested and he was produced before the Court for remand. Petition preferred by the petitioner was disposed off on accepting the statement that the investigation is in progress and the same would be completed expeditiously. It is submitted that the applicant is a whistle blower and has attended the office of E.D. more than 35 times and provided all the....
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....ourt. It is further submitted that even assuming that Section 45 is applicable, the Court has to be satisfied that there are reasonable ground for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is submitted that the offence enunciated under Section 3 of the said Act is punishable with maximum imprisonment of seven years and the minimum imprisonment of three years. Learned counsel relied upon the decision of this Court delivered in Criminal Bail Application No.174 of 2017. In the said decision, it was observed that the principles of Cr.P.C. are not inconsistent with the provisions of PML Act except section 45(2) of the latter Act. It is further observed that Hon'ble Apex Court has observed that it is not expected at this stage of bail that the guilt of the accused has to be established beyond reasonable doubt through evidence. "Reasonable" specified as contemplated under Section 45(2) would be construed as a similar offence contemplated under the same statue and not in another offence under the general statue or other statues. It is further submitted that the complaint has been filed by the Enforcement Direc....
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....bmitted that the arguments advanced by the counsel for the applicant on the basis of the observations in Gorav Kathuria (Supra) case are misconceived. It is submitted that the object of act has to be looked into. It is not necessary to go to intent if the language of the statute is very clear. It is submitted that the embargo under Section 45 of the Act is very clear and do not require any interpretation. He relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Elphistone Spinning & Weaving Co.Ltd.(2001(1) Cr.L.J. 239),, in support of his submission. In the said decision, it was observed that while examining a particular statue for finding out the legislative intent, it is the attitude of judges in arriving at a solution by striking a balance between the letter and spirit of the suit without acknowledging that they have in any way supplement the statue would be the proper criteria. The duty of judges is to expound and not to legislate is a fundamental rule. Learned counsel for the respondents submitted that in the decision of Goutam Kundu Vs. Enforcement Directorate decided by the Supreme Court vide Criminal Appeal No.1706 of 2015 which has bee....
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....h M/s.Yogeshwar Diamonds Pvt.Ltd. and M/s. Shree Charbhuja Diamonds Pvt. Ltd. and he was not aware about he current status of the said companies. He also furnished details of Vijay Kothari and has assisting activities of Hawala committed by Shri Kothari. It is also stated that he is the kingpin behind all the three companies and that apart from the said companies he is running several other companies which import diamonds to facilitate his Hawala operation. The applicant also furnished details of business of associates of Shri. Kothari and the source of the funds received by the companies. The applicant had also furnished details about the assets/properties held by him in his name and the name of the family members. It was stated by him that he has two flats in Pushpa Niketan viz. Flat No.406 at Bhyender which was purchased in the year 2011 for Rs. 25,00,000/- by obtaining home loan of Rs. 21,60,000/- from Karnataka Bank and the second flat at Shatrujay Co-operative Housing Society, Bhyander viz. Flat No.304 which is also in the name of the wife and purchased in the year 2013-14 for Rs. 25,00,000/- by obtaining home loan of Rs. 21,20,000/- from Karnataka Bank Limited at Navi Mumbai....
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.... that Shri Kothari is the mastermind behind the entire criminal act of money laundering. It is established that Shri Vijay Kothari is the kingpin and mastermind in the entire money laundering and fraudulent laundering of the foreign exchange to the Hong Kong based company by submitting forged bills of entries and other import documents to the bank, huge funds have been transferred from companies of Kothari to the accused companies. He has indulged in criminal activities of diverting proceeds of crime by conspiracy, forgery of documents and fraudulent transactions creating fictitious companies by carrying out criminal activities relating to scheduled offences. He, has therefore, committed offence of money laundering under Section 3 of PML Act. From the aforesaid averments reflected in the complaint, it appears that the statement of the applicant was accepted by the investigating machinery and it is also established that Shri Kothari is kingpin and it is also accepted that he is mastermind in the entire crime. As far as the present applicant is concerned, it is stated in the complaint that the applicant is involved in the money laundering offence relating to M/s.Kanika Gems and M/s.K....
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....said petition was heard on 24th April, 2017. The petitioner was, however, arrested on 20th April, 2017 from his residence. 12 Section 19 of PML Act requires the following pre requisite before effecting arrest: (a) Authorized officer has material in his possession, reason to believe must be recorded in writing; (b) Reason to believe that any person is guilty of money laundering. The parameters contemplated under Section 19 of PML Act are required to be followed before exercising power to arrest. 13 Section 24 of the Act relates to burden of proof. As per the said provision, in any proceeding relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, the authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering and in the case of any other person the authority or Court, may presume that such proceeds of crime are involved in money laundering. The counsel for the applicant had relied upon the decision of Gujarat High Court in the case of Jafer Hasanfacta and Ors. Vs. Deputy Director delivered in Criminal Revision Application No.926 of 201....
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....portunity 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 Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1A) Notwithstanding anything 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 ....
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.... Section 45 of PML Act. In the present case, the applicant is in custody since 20th April, 2017. He had co-operated with the investigation. The complaint has been filed before the Special Court. The prosecution had admitted that the kingpin and mastermind is Vijay Kothari. Apparently, the explanation tendered by the applicant during the course of investigation that Shri Kothari is involved in money laundering and is main person has been accepted by the investigating machinery. The role of fabricating documents or remitting the funds abroad has not been attributed to the applicant. Inferences are drawn against the applicant attributing the knowledge about the money being tainted. There is no cogent evidence in that regard. The applicant has categorically stated that the companies were controlled by Vijay Kothari which is substantiated by evidence. Shri Kothari and other involved in the transactions are not arrested. The applicant was a whistle blower who lodged the complaint against Shri Kothari and others. He had visited the office of respondents on several occasions and after lodging complaint against the officers and filling a writ petition for fair investigation, the applicant w....
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.... be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract dis....