TaxTMI 
TaxTMI 
2020 (1) TMI 557
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....payment of kickbacks to influence the contract for procurement of 12 VVIP/VIP Helicopters by Indian Air Force, Ministry of Defence, Govt. of India from M/s Agusta Westland International Limited, UK, a subsidiary of M/s Finmeccanica, Italy. Accordingly, CBl registered a case FIR vide RC No. RC- 217 2013 A 0003 dated 12.03.2013 for commission of offences punishable u/s 120-B r/w 420 of IPC and Sections 7,8,9,12, 13(2) r/w 13(l)(d) of Prevention of Corruption Act, 1988. Since the said offences are scheduled offences under the Prevention of Money Laundering Act (PMLA) and since the case involved generation of proceeds of crime, ECIR DLZO/15/2014/AD(VM) was registered on 03.07.2014 and investigation was initiated by the Petitioner department. On 20.11.2014, a Prosecution Complaint arraying Gautam Khaitan, Ritu Khaitan, Gerosa Carlo Valentino Ferdinand, Haschke Guido Ralph & M/s Aeromatrix Info Solutions Pvt. Ltd. accused for commission of offences u/s 3, punishable u/s 4 of PMLA 2002 was filed and cognizance was taken by the Ld. Special Judge. On 10.06.2016, 1st supplementary complaint was filed wherein Christian Michel James, Media Exim Pvt. Ltd., R.K. Nanda and J.B. Subramanian were a....
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....as required to be taken to the Income Tax Department for cloning of his phone data. The Respondent thereafter became untraceable and despite the best efforts of the Petitioner, his whereabouts could not be ascertained. The very next day, an Anticipatory Bail Application was moved by the Respondent and he then appeared before the Petitioner under the protective umbrella of an interim Anticipatory Bail order. Thereafter, the Respondent further failed to join investigation and did not comply with the summons dated 28.07.2019, 30.07.2019, 31.07.2019. Sh. Navin Kapila, in response to the summons, sent an email stating that Respondent cannot join investigation, being busy in his bail matter. Once the Anticipatory Bail Application of the Respondent was dismissed by the Ld. Special Judge (PMLA) vide order dated 06.08.2019, he again became incommunicado and did not comply with the summons dated 06.08.2019 and 07.08.2019. In light of such a conduct, Ld. Special Judge (PMLA) was pleased to issue NBWs against him on 09.08.2019. Thereafter, the Respondent was granted interim protection from arrest by this Court on 14.08.2019, which protection stood vacated on 20.08.2019 and consequently his app....
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.... ridden and cannot come to the office of the ED. At the same time, his father was in Dehradun celebrating his birthday. The Respondent, with the active aid of Niamat Bakshi, is involved in the hiding/destruction of crucial evidence of the case and had got burnt certain documents. The written instructions for the same apart from the ashes of the burnt documents have been recovered, which has, also been corroborated by the evidence adduced in this regard. 12. Further, investigation has revealed that Rajiv Saxena was influenced by the Respondent not to disclose that the payments received by him from Global Services FZE, and not to give any information/documents/ statement linking his father or his uncle in any matter. He further influenced/pressurized him to give selective/no information to the Petitioner. However, investigation has revealed that the Respondent was in touch with Rajiv Saxena, directly and also through his lawyers. Further, Sandeep Narang was approached by the Respondent and all attempts were made to influence him to not make the full and true disclosures before the Petitioner's department. 13. Mr. Nataraj, Additional Solicitor General further submitted tha....
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....virtue of Section 45 PMLA has placed stringent conditions on the grant of bail in offences concerning money laundering. The said twin conditions only highlight the gravity of the offence and the menace sought to be curbed. By mechanically granting bail to the Respondent, the Ld. Special Judge has failed to appreciate the object of the PMLA. The non-applicability of Section 45 of PMLA, as adjudged by the Ld. Special Judge, is misplaced, in light of the Amendment of 2018 and 2019 to Section 45 of PMLA. While upholding the constitutionality of such provisions, one of the most important parameters has been the satisfaction of the twin tests of classification. A perusal of the analogous provisions in other statutes, it would be demonstrated that in all such statutes imposing the twin conditions for grant of bail, the said conditions existed for offences punishable under the Act. Having addressed the said issue by way of the Amendment, the Legislature has brought the PMLA in consonance with the other Acts. Accordingly, keeping in mind the object of the Act and eliminating the discrimination being created because of the ambiguity, the Legislature has brought the said Section in consonance....
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....itted that as per the case of the prosecution a contract for supply of 12 VVIP/non VVIP, helicopters was awarded to M/s Agusta Westland International Ltd.. UK for an amount of Euro 556.262 million (3726.96 Crores) and an agreement to this effect was executed on 08.02.2010 between Ministry of Defence, Government of India and M/s Agusta Westland international Ltd. Co-accused S.P. Tyagi, during his tenure as Chief of Air Staff, during the period 2005 to 2007, accorded approval and with his approval, Air force conceded to service ceiling for VVIP helicopters to 4500 meters from its earlier stand of 6000 meters as mandatory operational requirements, in order to allow M/s Agusta Westland Intentional Ltd. into fray, though M/s Agusta Westland International Ltd., was disqualified in 2002. Since then, it was making attempt to enter the competition. It is also alleged that 3 cousins of Air chief Marshal S.P.Tyagi entered into a consultancy contract with M/s Gordian Services Sari, Tunisia in the year 2004. Mr. Bruno Spagnolini of M/s Agusta Westland International Ltd. started paying kickbacks to Mr. Guido Ralph Haschke and Mr. Carlo Valentino Ferdinando Gerosa under the guise of several consu....
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....ment Directorate, when he was examined by the petitioner department. The respondent neither refused to answer any question nor evaded thereto. Statements of the witnesses recorded under Section 50 of PMLA are to be tested during trial and are not credible evidence to deny bail. The petitioner cannot rely upon the statement of co-accused Rajiv Saxena recorded under Section 50 (2) and (3) PMLA, 2002. The petitioner has itself has filed an application for cancellation of bail of Rajiv Saxena on the ground that he has not disclosed the true and correct facts during investigation of the matter. The petitioner itself is not relying upon the statement of the said witness then how the statement of the said witness can be considered/relied upon for the purpose of cancelling the bail of the respondent. In addition, the statement recorded under Section 50 of PMLA is inadmissible if the same is recorded after arrest of the accused person. Even otherwise, disclosure statement of co-accused persons cannot be used against the respondent as their statements are inadmissible against him. 23. It is further argued that accused is not involved in dealing with proceeds of crime and the entire case o....
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....tements have already been recorded and are part of judicial record and also there is no apprehension of tampering of evidence / documents as the documents have already been collected by multiple agencies. 26. In addition to above, the twin conditions of Section 45 (1) of PMLA are not applicable in view of judgment passed by Hon'ble Supreme Court in "Nikesh Tarachand Shah's case, AIR 2017 SC 5500 wherein the Apex Court observed that "the twin conditions of Section 45 (1) of PMLA are violative of constitutional provisions and struck down the said twin conditions of Section 45 (1) PMLA." Further submitted that offence under Section 3 & 4 of PMLA is offence punishable upto 07 years in view of specific guidelines laid down by Hon'ble Supreme Court in case titled "Arnesh Kumar vs. State of Bihar" (2014) 8 SCC 273. 27. To strengthen his arguments, learned senior counsel for respondent has relied upon the cases of L K Advani & Ors vs CBI: 1997 JCC 294; CBI vs V. C, Shukla & Ors: 1998 (3) SCC 410; Common Cause and ors vs. UOI and Ors.: rendered in WP (Civil) No. 505/2015 dated 11.01.2017; Mohd. Akbar vs State of Chhattisgarh: 2006 SCC Online CHH-30; Sameer M. Bhujbai vs As....