TaxTMI 
TaxTMI 
2021 (4) TMI 279
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....on of Corruption Act, 1988. FIR was registered against the following accused for causing loss to ICICI Bank by sanctioning loans to Videocon Group of Companies in contravention of the Rules and Policies of ICICI Bank. (i) M/s. Videocon International Electronic limited (VIEL) (ii) M/s. Videocon Industries Limited (VIL) (iii) Mr. V. N. Dhoot, M.D. Videocon Group (iv) Ms. Chanda Kochhar then M.D. & CEO of ICICI Bank. (v) Mr. Deepak Kochhar M.D. of M/s. NuPower Renewables Limited (NRL) which is now known as M/s. NuPower Renewables Pvt. Ltd (NRPL) (vii) M/s. Supreme Energy Pvt. Ltd. (SEPL). It was alleged that during June-2009 to October-2011, ICICI Bank had sanctioned 6 high value loans to various Videocon Group of Companies. On 26th August 2009, Rupee Term Loan (RTL) of 300 Crores was sanctioned to M/s. Videocon International Electronics Ltd and others (hereinafter referred to as "VIEL"). In contravention of Rules and Policy by Sanctioning Committee. Ms. Chanda Kochhar was one of the member of the Sanctioning Committee. She conspired with others to cheat ICICI Bank and abusing her official position sanctioned loan in favour of M/s. VIEL. On 07th September 2009, loan was disbursed to M....
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....f offence under Section 120-B read with Section 420 of IPC and read with Section 7 & 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 by M/s. VIEL, M/s. VIL, its Directors Mr. V. N. Dhoot, MD of Videocon Group, Ms. Chanda Kochhar, the then M.D. & CEO of ICICI Bank, Mr. Deepak Kochhar (Applicant), M.D. of M/s. NuPower Renewables Ltd (NRL), M/s. SEPL and others. 3. On the basis of the aforesaid FIR, respondent No.1 recorded ECIR/02/HIU/2019 on 31st January 2019 against same accused. It was alleged that FIR has been registered by CBI New Delhi in respect of criminal conspiracy, cheating, misconduct by public servant. The alleged offences were committed during the period from 2009 to 2012. In the FIR it is alleged that, during the period from June-2009 to October-2011, ICICI Bank sanctioned 6 high value loan to Videocon Group of Companies. On 26th August 2009, Rupee Term Loan (RTL) of Rs. 300 Crores was sanctioned by the Sanctioning Committee to M/s VIEL in contravention of rules and policy of the Bank. Loan was disbursed to VIEL on 7th September 2009. On 8th September 2009, Mr. V. N. Dhoot transferred amount of Rs. 64 Crores to M/s. NuPower Renewables Ltd (NRL....
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....in pursuant to that, he appeared before the Respondents from March 2019 till his arrest. He appeared on 2nd March 2019 at Mumbai and on 13th May 2019 to 17th May 2019 at Delhi. On 28th June 2019, 18th July 2019, 19th July 2019, 14th October 2019, 19th July 2020 and 7th September 2020 over the period of 18 months, the applicant submitted voluminous documents/information vide letters, e-mails dated 14th March 2019, 23rd April 2019, 13th May 2019, 29th May 2019, 8th June 2019, 28th June 2019, 10th October 2019, 14th October 2019, 14th January 2020, 18th January 2020, 28th January 2020, 29th January 2020, 6th February 2020, 17th July 2020, 19th July 2020 and 7th September 2020. 6. Statement of applicant and others were recorded under Section 50 of PML Act. 7. Applicant was arrested on 07.09.2020. Applicant was remanded to custody on 8th September 2020. His custody was obtained on 31st October 2020 till 11th November 2020. In the application dated 31st October 2020 filed by the respondent No.1 for extension of remand, it was stated that the investigation in the case of Money Laundering is still continuing and is in process of additional evidences, examination of voluminous records and....
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....ot was interrogated and his statement was recorded. On 12th February 2021, accused Ms. Chanda Kochhar had appeared before the Special Court. She has been released on bail on executing PR Bond in the sum of Rs. 5 lacs. (iii) The apprehension of the respondents is that the applicant may tamper with the evidence is without any basis. The applicant is permanent resident of Mumbai and there are no chances of his absconding. (iv) Complaint in accordance with Section 8 of the PML Act was filed. Adjudicating Authority has declined to confirm the provisional attachment. Original complaint has been dismissed. The observations of the Adjudicating Authority make it clear that the amount of Rs. 64 Crores or the subject flat are not proceeds of crime. (v) The loan of Rs. 300 Crores which was disbursed to Videocon Group of Companies has been repaid to ICICI Bank in 2012. There is no explanation initiating action under PMLA belatedly. (vi) The offence under Section 3 of PML Act is punishable with imprisonment upto 7 years. The applicant need not be kept in custody under the pretext of further investigation for indefinite period. (vii) The Adjudicating Authority has observed that the disb....
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....s to NRL as undue benefit. (xx) Statements recorded under Section 50 of PML Act are to be tested during trial. There is no tangible evidence against applicant to connect him with offence under Section 3 of Act. 11. Learned Additional Solicitor General Mr. S. V. Raju opposed application for bail. He submits as follows: - (a) There is voluminous evidence against the applicant. The offence is of serious nature. The applicant is involved in economic offence. Investigation is still in progress. (b) The Enforcement Directorate has initiated investigation under the PML Act to investigate the offence of Money Laundering on the basis of FIR registered by CBI. The FIR and the ECIR would indicate that during 2009 to 2011 ICICI Bank had sanctioned 6 high value loan to Videocon Group Companies. RTL of Rs. 300 Crores was sanctioned to VIEL. The wife of the applicant was one of the members of Sanctioning Committee. Amount of Rs. 64 Crores was transferred to NRPL managed by applicant. Ms. Chanda Kochhar got illegal gratification and undue benefit through applicant from VIL for sanctioning RTL of Rs. 300 Crores to VIEL. (c) Mr. Deepak Kochhar (Applicant), Mr. V.N. Dhoot and Mr. Saurabh Dho....
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....h) On 6th September 1995, Board of CFL authorized its Directors, applicant and brother of the applicant to negotiate and hold 5 fully paid shares of CCI Chamber Premises for consideration of Rs. 5.25 lacs to purchase of property on behalf of company in their individual names in view of the inability and unwillingness of the society to recognize any corporate entity as members thereof and to transfer the shares. The applicant and Rajiv Kochhar entered into the agreement for sale with owner of the property (flat) located at 45, CCI Chambers, CCI Club Churchgate for purchase price of Rs. 5,25,00,000/-. Earnest money of Rs. 75 lacs was paid by cheque dated 7th September 1995. Vide Deed of Conveyance dated 19th February 1996, CFL purchased flat from Bilquis Begum. The remaining amount of Rs. 4.5 Crore was paid by CFL (pre-merger). Vide cheque drawn from account of CFL. The applicant submitted letter dated 4th March 2004 to CCI Chambers Society which reveal that CFL was owner of the flat and share certificates for the flat were held in the name of the applicant and Rajiv Kochhar. (i) The applicant had indulged in pressuring and influencing the witness and even ensuring that he submits ....
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....ai, Learned Counsel for applicant submitted in rejoinder that, submissions of respondents are contrary to record. Statement of Mr. Dhoot is contrary to what is asserted by respondents. The twin condition does not stand revived. The question of handing over sealed envelope allegedly with regards to tampering evidence does not arise. The applicant had appeared before respondent on several occasions before his arrest. He is in custody from date of his arrest, since last six months. When the applicant was produced for remand after arrest, allegations of tampering evidence were not made in the remand applications. The investigation proceeded. At this stage handing over sealed envelope, without affording opportunity to peruse the contents is violative of Article 21 of Constitution of India. 13. The ECIR was registered on 31st January 2019 and the investigation had commenced. The applicant had appeared before the respondents on several occasions pursuant to receipt of summons. Although, investigation proceeded in January 2019, the respondents felt it necessary to arrest the applicant on 7th September 2020 after period of 18 months. Statements of witnesses were recorded. Documents were co....
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....n respect to movable and immovable properties. In accordance with Section 5 (5) of PML Act, complaint was filed before Adjudicating Authority, vide order dated 06.11.2020. The complaint under Section 5 (5) was dismissed by Adjudicating Authority. 17. The order of Adjudicating Authority was challenged by preferring appeal under Section 26 of PML Act. Interim order was passed by Appellate Authority on 03.12.2020. The order records that, learned counsel representing respondents before the Authority made statement that, the respondents therein could not part with properties involved in the appeal till next date of hearing. The Appellate Authority directed that; all parties to maintain status quo with respect to properties involved in appeal till the next date of hearing. During this period neither parties to change the nature and character of the properties involved in appeal and respondents are prohibited to create any third party right or dispose of the properties involved in the appeal in any manner and that no encumbrance shall be created by respondents in respect of properties involved in appeal till next date of hearing. On the question that, respondents would take advantage of ....
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....(1) PMLA. It cannot be presumed that CBI after having recorded FIR based on allegations of commission of cognizable offences has found any prima facie substance in them, sufficient to file any charge-sheet against accused. No such charge-sheet is field. No cogent evidence of commission of scheduled offence. Investment of 64 Crores by Videocon group in its own group company NRL was neither an offence nor was the said amount any proceeds of crime. Videocon group owned 95% of NRL at the time when their equity investments of Rs. 64 Crore was made into NRL on 08.09.2009. Flat No.45 is not proceeds of crime. He is title holder and owner of flat since 1996. The transaction regarding Credential Finance Ltd., Quality Appliances Pvt. Ltd. and Quality Advisors Trust are wholly in consequential so far as title to said flat. 19. The Adjudicating Authority has observed that amount of Rs. 64 Crores invested by Videocon Group of Companies M/s. Supreme Energy Pvt. Ltd. in M/s. NuPower Renewables Pvt. Ltd. on 8th September 2009 can hardly be said to be any reciprocal arrangement in respect of the alleged disbursement of Rs. 300 Crores by ICICI Bank to M/s. VIEL quid pro quo may essentially require ....
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.... of the bank. It was also alleged as a part of quid pro quo Mr. Dhoot made investment of Rs. 64 Crores in M/s. NuPower Renewables Ltd. (NRL) through M/s. Supreme Energy Pvt. Ltd. (SEPL) and also transferred M/s. SEPL to Pinnacle Energy Trust managed by Deepak Kochhar (Applicant) through Circuitous Route between 2010-2012. The basic premises for allegation was substantially altered and it is alleged that during June-2009 to October-2011, ICICI had Sanctioned 6 high value loans to various Videocon group companies. On 26.08.2009, RTL of Rs. 300 Crores was sanctioned to M/s. VIEL in contravention of rules and policy by Sanctioning Committee. Ms. Chanda Kochhar was one of the member of Sanctioning Committee, who in criminal conspiracy to cheat ICICI Bank and in pursuance of criminal conspiracy. On 26.08.2009, dishonestly by using her official position sanctioned this loan in favour of VIEL. It is further revealed that on 07.09.2009, loan of Rs. 300 Crores was disbursed to VIEL. Thus, the companies in respect of which investigation had commenced has no reference in the FIR. The amount alleged earlier of Rs. 3250 Crore is not referred. It is alleged that on 08.09.2009, Mr. V.N. Dhoot tran....
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.... Daruwala, Rashi Sabharwal, K.V. Kamath and Homi Khusrokhan though known and identified were neither interrogated for the alleged scheduled offences by CBI nor interrogation if any, reveal by CBI or the Enforcement Directorate. The FIR alleges that M/s. NRL was being managed by Mr. Deepak Kochhar (applicant) it does not allege that M/s. NRL was owned by him. The Deputy Director issued Provisional Attachment Order invoking the second proviso of Section 5 (1) without forming justifiable reasonable belief as statutorily required. The Deputy Director has not placed any intelligence on record as claimed. The possibility of trial taking long time cannot justify apprehension that the assets are being concealed or transferred. The revelation of modus would not lead to frittering of proceeds of crime during the pendency of further investigation, as is nature of assets concerned and absence of attempt, cannot justify the invocation of emergency provision of second proviso of PMLA. For the reason discussed the flat No.45, CCI Chambers held in the name of Deepak Kochhar (applicant) is not involved in money laundering. Cash of Rs. 10.5 Crores seized on 01.03.2019 by Enforcement Directorate from....
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....February 1996, Bilquis Begum transferred the flat to applicant and Rajiv Kochhar vide transfer Deed dated February 1996 and the share certificate for said flat was transferred in the name of applicant and Rajiv Kochhar. These shares were of CCI Chambers society. The Flat is in his name since April 1996. His brother's name was dropped in 2009. The flat was purchased out of funds of Credential Finance a company promoted by applicant and his mother. Purchase price was paid out of earnings of the company. Since the purchase price was paid out of Kochhar's family retained earnings in Credential Finance Ltd.(pre-merger). The said property has remained in books of corporate entities. The merged company (post-merger) went into financial crises and exposed to litigation. Further statement of applicant was recorded on 02.03.2019. He provided details of corporate entities in whose books the apartment was mentioned. Applicant bought the apartment for Rs. 5.25 Crores in February 1996. Since Credential Finance Limited premerger was a closely held company with family members as the shareholders, therefore, as per consent, family company paid the funds to the seller and the apartment was conveyed ....
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....om SBI Home Finance Ltd. and applicant on his personal guarantee, mortgaged property for availing loan. Subsequently, M/s. CFL incurred losses and the Company was liquidated in the year 1998. The flat was purchased by one of Group Company M/s. Quality Techno Advisors Pvt. Ltd. (QTPAL) and since Mr. Dhoot had given personal guarantee for the said property, the same continued in the name of applicant in society registration. It is utilized by the applicant and family. He also explained how and why M/s. Supreme Energy Pvt. Ltd. provided Rs. 64 Crores to NuPower Renewables Pvt. Ltd., a Company promoted by the applicant on 08.09.2019. He stated that on 07.09.2009 M/s. VIEL was disbursed loan of Rs. 283.45 Crore. Out of the said amount, Rs. 50 Crore was transferred by VIEL to SBI account of VIL. Out of the loan amount of Rs. 35 Crore was transferred by VIEL to Central Bank account of VIL. The amount of 50 Crore transferred in SBI account was latter transferred to Federal Bank account of VIL on 08.09.2019, Rs. 35 Crore transferred to account of Central Bank, Rs. 20 Crore was transferred to bank account of Federal Bank of VIL. The said Federal Bank received Rs. 80 Crore from other source, ....
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.... Renewables Energy Sector. In March 2009, he met Ms. Chanda Kochhar she told him that Mr. Deepak Kochhar is planning for a project in Wind Energy. The project is good. By Deed of transfer dated 04.08.2009 between M/s. Credential Finance Ltd and M/s. Quality Appliances Pvt. Ltd., the flat was transferred from CFL to QAPL. Document shows that Mr. Deepak Kochhar has paid Rs. 4.53 lakh of QAPL/QTAPL in January 2013 for obtaining 1% shareholding in the said flat. In the statement dated 12.09.2020, he stated that, I had diverted the loan funds obtained from ICICI Bank and gave money to company of M/s. NRPL. The proposal was initiated by Mr. Deepak Kochhar. He was about to start Wind Power Business. In January-February 2009, Mr. Deepak Kochhar approached him for financing his project. He was not interested. He was interested in telecom business and invested heavily in telecom sector. They made 3100 Crores investment for acquisition of telecom assets. They were in desperate need of money and looking for finances. Though Kochhar's proposal was of no interest to him, it was more important to get loan from ICICI Bank because of he being husband of Ms. Chanda Kochhar. Mr. Deepak Kochhar was in....
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....ly convertible debentures. The said debentures are convertible, at the option of debenture holder, on completion terms of 10 years during the date of issue of debentures or any other date (which date can be earlier date prior to completion of the term) mutually agreed between SEPL and debenture holder. He also stated that loan outstanding from VIEL in the books of VIL as on 6th September 2009 was Rs. 740.16 Crores. Out of which, Rs. 283.45 Crores was repaid by VIEL on 7th September 2009. Loan of Rs. 300 Crores was sanctioned to VIEL by ICICI Bank on 29th August 2009. Amount of Rs. 16.55 Crores deducted by ICICI Bank while disbursing loan. The net disbursed amount of Rs. 283.45 was utilized towards repayment of unsecured loan given by Videocon Industries Limited to Videocon International Electronics Limited amount of Rs. 283.45 Crore. The Director of VIEL at the time of applying for loan of Rs. 300 Crores were Mr. V.N. Dhoot, Mr. S.P. Dhoot and Pradipkumar Dhoot. VIEL was subsidiary of VIL. He provided details of flow of money from VIEL to VIL by stating that ICICI deducted amount of Rs. 16.55 Crores while disbursing the loan. The net amount was utilized towards repayment of unsecur....
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.... the nature of explanation to the charges levelled against them. The statements of applicant and co-accused are not in the nature of admission of guilt. The statements of some of the witnesses corroborates versions of applicant. 28. Provisional Attachment order was issued on 10.01.2020 in respect to properties on the ground that, applicant and others were in possession of proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating proceedings relating to confiscation of proceeds of crime. The schedule of property under attachment is Flat No.45, CCI Chambers, Churchgate, Mumbai. The respondent in the impugned proceedings has alleged that the aforesaid flat is acquired by family trust of applicant from Videocon group. The Adjudicating Authority has concluded that Flat No.45, CCI Chambers held in the name of Deepak Kochhar is not involved in money laundering. It is further held that sum of Rs. 300 Crores was in line with Credit Policy and loan has been repaid and no loss is caused to Bank. The transaction of Rs. 64 Crores is not linked in any way with FIR filed by CBI with fact of sanctioning RTL of ....
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....-year-old having ailments, he can be released on bail. Hence by order dated 12.03.2021, accused No.3 Mr. V.N. Dhoot was granted bail. While denying bail to the applicant vide order dated 01.12.2020, it was observed that, charge against applicant is serious in nature. Enforcement Directorate has contended that relatives of applicant are witnesses and further investigation is in progress. The applicant may tamper with prosecution evidence. There are allegations of siphoning money. It is pertinent to note that, loan was obtained by accused No.3. Amount of Rs. 64 Crores was allegedly diverted by accused No.3. 30. During the course of investigation the respondents had submitted that the applicant had tampered evidence. Sealed envelope was tendered in Court. Although the material was supplied in sealed envelope, it was contended that it relates to tampering evidence. The learned counsel for applicant had strongly opposed the act of handing over sealed envelope. It is submitted that the alleged material do not relate to investigation of case. The applicant is in custody from 07.09.2020. After the arrest applicant was produced before the Court for remand and at that point of time, it was ....
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....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 of Maharashtra authorities order in writing in this behalf by that Government." (1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or not any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized by the Central Government by a general or special order, and subject to such contentions as may be prescribed. (2) The limitations on granting of bail as specified in sub-Section 1 are in addition to the limitation under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting bail. 33. The Hon'ble Apex C....
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....attacks it. Learned ASG also relied upon the decision in the case of Municipal Committee Amritsar & Anr. Vs. State of Punjab & Ors. 1969 1 SCC 475. In the said case, the Court considered whether the expression 'cattle fair' incorporated under the Punjab Cattle Fairs (Regulation) Act is unconstitutional. The Act provided for vesting exclusively, the right to hold a cattle fair at any place in the State of Punjab, declared it unlawful for any person or local authority to hold, control, or regulate a cattle fair at any place in the state and required local authorities in whose jurisdiction the fair is to be held, to deposit a prescribed amount to cover initial expenses. The High Court held the Act ultra-vires on the ground of vague and ambiguous provisions. The Act was amended and expression defined as 'a gathering of more than 25 persons for the purpose of general sale or purchase of goods'. It was contended that since the Act was struck down it should have been reenacted and that Act violated Articles 19 (1) (b), (d), (f), (g) and 6, 31 (2) of the Constitution of India. It was held that law may be declared invalid in India if the legislature has no power to enact the law or that it ....
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....that in case of exoneration on merits in adjudication proceedings where the allegation is found to be not sustainable at all and the person concerned is innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue. The Court interpreted Sections 50, 51 and 56 Foreign Exchange Regulation Act, 1973 it was observed that proceeding cannot be set aside on the ground that the Adjudicating Authority had exonerated the accused. Learned ASG submitted that the Delhi High Court in the case of Upendra Rai Vs. Enforcement Directorate (2019) SCC OnLine Del 9086 had observed that the amendment to Section 45 does not revive the twin conditions. The said decision has been challenged before the Apex Court and till further orders, the impugned order has been stayed by the Supreme Court. Learned ASG submitted that in the case of Mohammad Arif Vs. State of Orissa, the Orissa High Court at Cuttack has held that the amendment would revive the twin conditions under the PML Act. 35. Learned Counsel for the applicant submitted that the question of resurrection or revival of the twin conditions to Section 45 does not arise. He submitted that this Court in the case....
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....mount to reframing the entire Section 45 and thereby reviving and resurrecting the requirement of twin-conditions under sub-Section (1) of Section 45 of the PML Act for grant of bail. In view of clear language used in paragraph 46 of the Supreme Court's decision in case of Nikesh Tarachand Shah (supra), the Court has no hesitation in reaching a definite conclusion that the amendment in sub-Section (1) of Section 45 of the PML Act introduced after the Supreme Court's decision in case of Nikesh Tarachand Shah (supra) does not have the effect of reviving the twin-conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India. Mr. Desai submitted that the Supreme Court in the case of Nikesh Tarachand Shah (supra) has considered various aspects. Mr. Desai submitted that, it is not only because of the reason, as contended by learned ASG, the Apex Court had struck down the twin conditions. The Court has given several illustrations and has come to the conclusion that the twin conditions are ultra vires the Constitution. Mr. Desai has relied upon the decision in the case of State of Karnataka & Ors. Vs. The Karnataka Pawn Brokers A....
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....vernment 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 of bail specified in [***] sub-section 91) is in addition to the limitations under the code of Criminal Procedure, 1973 (2 of 1974) or nay other law for the time being in force on granting of bail. 37. The question of the constitutional validity of Section 45 of PMLA was dealt with by Apex Court before amendment in the case of Nikesh Tarachand Shah (supra). The grounds of challenge were that, Section 45 of the Act, when it imposes two further conditions before grant of bail is manifestly arbitrary, discriminatory and violative of petitioner's fundamental rights under Article 14 read with Article 21 of the Constitution. The Apex Court enumerated illustrations while examin....
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....il only if the conditions specified in Section 45(1) are satisfied and not otherwise. In the fourth illustration, Section 45 would apply in a joint trial of offences under the Act and under Part A of the Schedule because the only thing that is to be seen for the purpose of granting bail, under this Section, is the alleged occurrence of a Part A scheduled offence, which has imprisonment for over three years. The likelihood of Mr. X being enlarged on bail in the first three illustrations is far greater than in this fourth illustration, dependent only upon the circumstance, that Mr. X is being prosecuted for a Schedule A offence which has imprisonment for over three years, a circumstance which has no nexus with the grant of bail for the offence of money laundering. The mere circumstance that the offence of money laundering is being tried with Schedule A offence without more cannot naturally lead to the grant or denial of bail by applying Section 45 (1) for the offence of money laundering and the predicate offence. Paragraphs 34, 42 and 46 of Judgment of Nikesh Shah case reads as follow: - "34. Again, it is quite possible that the person prosecuted for the scheduled offence is differ....
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....re which is not fair or just and would, thus, violate both Articles 14 and 21 of the Constitution. 42. Another conundrum that arises is that, unlike the Terrorist and Disruptive Activities (Prevention) Act, 1987, there is no provision in the 2002 Act which excludes grant of anticipatory bail. Anticipatory bail can be granted in circumstances set out in Siddharam Satlingappa Mhetre v. State of Maharashtra (see paras 109, 112 and 117). Thus, anticipatory bail may be granted to a person who is prosecuted for the offence of money laundering together with an offence under Part A of the Schedule, which may last throughout the trial. Obviously for grant of such bail, Section 45 does not need to be satisfied, as only a person arrested under Section 19 of the Act can only be released on bail after satisfying the conditions of Section 45. But insofar as pre-arrest bail is concerned, Section 45 does not apply on its own terms. This, again, would lead to an extremely anomalous situation. If pre-arrest bail is granted to Mr. X, which enures throughout the trial, for an offence under Part A of the Schedule and Section 4 of the 2002 Act, such person will be out on bail without his having satisf....
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....vived and the said condition therefore remain on statute book. The original Section 45 (1) (ii) has to be inferred and treated as it still exists on the statute book and holds the field even as of today for deciding application for bail by an accused under PMLA. It was further argued that by inserting words "under this Act", the Judgment delivered by Supreme Court in Nikesh Shah (supra) has become in effective. The Court held that the Apex Court in Nikesh Shah (supra) has declared Section 45 (1) of PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of Constitution of India. After effecting amendment to Section 45 (1) of PMLA. The words "under this Act" are added to sub-Section (1) of Section 45 of PMLA. However, the original Section 45 (1) (ii) has not been revived or resurrected by Amending Act. Even notification dated 29.03.2018 amending Section 45 (1) of PMLA which came into effect from 19.04.2018 is silent about its retrospective applicability. Hence, contention of respondent cannot be accepted. The Original sub-Section 45 (1) (ii) has neither revived nor resurrected by amending Act and therefore ther....
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....urt of Delhi is stayed if the respondent has not already been released on bail. It is not clear whether the respondent therein was released on bail before passing the said order. From the order it appears that operation of order was stayed if accused is not released on bail. The High Court of Manipur at Imphal in the case of Okram Singh Vs. Directorate of Enforcement (supra) considered similar argument of prosecution. The contention of respondents was not accepted. The respondents in support of submissions had relied on Supreme Court decision in the case of P. Chidambaram Vs. Directorate of Enforcement (2018) 11 SCC 46. It was submitted that, Amendment has been introduced with effect from 19.04.2018 after taking note of the decision of the Hon'ble Supreme Court in the case of Nikesh Shah (supra) and the defects which were pointed out in the Judgment, have thus been rectified i.e. in place of the term punishable for a term of imprisonment of more than three years of Part A of the Schedule, "under This Act" has been substituted and twin conditions become referable and relatable to the offence under PML Act. The High Court considered the observations in the case of Nikesh Tarachand Sh....
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....ner was seeking anticipatory bail. The Court had decided case on merits and not dealt with issue relating to effect of amendment to Section 45 (1) of PMLA and whether the twin conditions stands revived. 42. In the case of Nikesh Tarachand Shah (supra) as stated above the Hon'ble Supreme Court has declared Clause (ii) of sub-Section 1 of Section 45 of PML Act ultra vires Articles 14 and 21 of the Constitution. Sub-Section 2 the said decision the amendment referred to hereinabove was carried out. Clause (ii) of sub-Section 1 of Section 45 of PML Act places two conditions for release of a person accused of an offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The question is whether substitution of the words "under this Act" in place of words punishable for term of imprisonment of more than three years under Part A of the Schedule in Section 45 of the Act, has impact of meeting with reasonings discussed by the Supreme Court in the case of Nikesh Tarachand Shah for decla....
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....ty of the amendment. There cannot be debate about the submissions on law as evident from the judgment relied upon by the learned ASG. This Court is certainly not dealing with the constitutional validity of the amendment. However, on plain reading of amendment it cannot be interpreted that the twin conditions which were stuck down by the Apex Court being unconstitutional would stand revive. 43. Learned counsel Mr. Desai further submitted that even assuming that the twin conditions are applicable, the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the material brought on record, is satisfied that in all probability he may not be ultimately convicted bail can be granted. Learned counsel relied upon the decision of this Court in the case of Anil Babulal Chakhara Vs. Directorate of Enforcement, Mumbai & Anr. delivered in Bail Application No.1581 of 2017 on 04.08.2017. In the said decision it was observed that Section 45 of PMLA is pari materia to Section 21 (4) of the MCOC Act. Reference was made to the decision of Apex Court in the case of Ranjitsing Sharma (supra). This Court considered the principle enunciated in the....
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.... 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 disciplinary proceedings but may not attract a penal provision. 50 .... 52 .... 52 .... 53 .... 54 .... 55. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a pos....
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....he Supreme Court in the case of Union of India Vs. Hasan Ali Khan & Anr. decided on 30th September 2011 vide Criminal Appeal No. 1881 of 2011 arising out of SLP (CRL) No.6114 of 2011. In the said decision it was observed that burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted to accused under Section 24 of the PML Act, 2002. The Apex Court referred to Section 24 of the Act. It is pertinent to note that Section 24 of PMLA has been substituted by Act of 2013 with effect from 15.02.2013. In pursuant to that Section 24 reads as follows:- "24. Burden of Proof.- In any proceeding relating to proceeds of crime under this Act,- (a) 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 (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering." Prior to amendment Section 24 was as follows:- "24. Burden of Proof.- When a person is accused of having committed the offence under Section 3, the bu....
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....fying and entering into power business from 2007-2010. On 03.07.2008 Videocon group incorporated Supreme Energy Pvt. Ltd. with an object to enter into electric power and energy segment. In December 2008, NRL was incorporated with Mr. V.N. Dhoot, Saurabh Dhoot and applicant as Directors. The said company had since grown many folds. NRL along with its subsidiaries has set up Wind Power Assets of 180 MW in four different States of India. In January 2009, applicant was allotted 19,97,500 share warrants which were subject to achievement substantial milestones and were cancelable if the milestones were not achieved. Hence, the allotment of warrants in January 2009 had no impact on the equity shareholding of the company till March 2012, as the warrants were exercised in March 2012. From June 2009 to 2012, Videocon group through their company SEPL was 95% owner of NRL which is evident from the table relied upon by respondents. The warrants were allotted at Rs. 10 per warrant, but since they were subject to cancellation if milestones were not achieved, Re.1 per warrant were paid on exercise of warrants in 2012. In January and February 2009, the business plan was finalized for NRL. The appli....
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....th applicant holding 0.54 % of shares in the post-merger company. The merged entity, of which Videocon had become principal shareholders raised loan from SBI Home Finance for business purpose wherein Videocon corporate guarantee was the primary security for the loan. The applicant gave his flat of collateral security with assurance that his title to the flat would remain protected. Due to defaults by Credential Finance Ltd., SBI Home Finance file a suit against CFL, VIL, applicant and Rajiv Kochhar. VIL in discharge of corporate guarantee arrived at settlement of SBI Home Finance Ltd, and deed of assignment was entered between them. In view of repayment of loan to SBI, question of collateral security furnished by applicant came to an end and the original title deeds were written to the applicant. For disposal of suit, applicant was asked to sign consent terms. Transfer deed was entered into between CFL and Quality Appliances Pvt. Ltd. without CFL having any title to the flat and without the applicant being party by way of abundant precaution. The applicant signed the document with Quality Appliances Pvt. Ltd. The shares of QTAPL were purchased by trust of which applicant was Managi....
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....e time, right to bail is not to be denied merely because of sentiments of community against the accused. The primary purposes of bail in a criminal case is to relieve the accused of imprisonment. Mr. Desai submitted that the applicant is in custody for substantial period of time. Further detention is not necessary. He also relied upon the decision in the case of Dataram Singh Vs. State of Uttar Pradesh and another 2018 3 SCC page 22 in the said case it was observed that grant or refusal of bail is entirely the discretion of the Court and it must be exercised in a judicious manner and humane way. Reliance is also place on the decision in the case of Bhagirath Singh Vs. State of Gujarat AIR 84 SC 372 and Sushila Aggarwal and others Vs. State (NCT Delhi) & Anr. 2020 5 SCC page 1. He also relied upon on the decision of the Supreme Court in the case of P. Chidambaram Vs. Enforcement Directorate 2019 SCC OnLine 1549 and submitted that the Court is required to consider that the accused is not flight risk, there is no possibility of tampering the evidence or influencing/ intimidating the witnesses. Learned counsel for the respondent relied upon the order passed by this Court in the case of....