TaxTMI 
TaxTMI 
2021 (6) TMI 426
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.... Case No. 298/2016 for offence under Sections 120(B), 420, 467 & 471 of the Indian Penal Code. 3. Prosecution case according to the informant, namely, Kunal Kumar is that the petitioner and his brother namely Ashok Kumar Goenka dishonestly and fraudulently got opened his bank accounts in Kotak Mahindra Bank and three accounts in ICICI Bank at Muzaffarpur by misusing his photographs and other documents without his knowledge and consent and again without his knowledge effected transactions worth Rs. Thirteen (13) crores from these bank accounts and he has got no manner of concern with these transactions at all. In substance, the allegation is about the misuse of his account without his knowledge. On the basis of said FIR, the Enforcement Directorate (ED) has recorded an ECIR No. PTZO/01/2017 dated 14.02.2017 and initiated its investigation. Though ECIR was recorded in Feb'17 and investigation was initiated, however, the copy of such ECIR was served to the petitioner in Jan'20. 4. Learned senior counsel for the petitioner submits that Raj Kumar Goenka (petitioner) was doing business of Biscuit "BRISCKO" which is manufactured by Pankaj Agrawal (co-accused) of Kolkata, who also....
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.... bank account. Kunal Kumar became scared on questioning from Income Tax Department and was pressurized to file an FIR by the Income Tax Authority against the petitioner stating that the bank accounts have been opened without his knowledge and consent. As such FIR No. 298/2016 in Mithanpura P.S. was registered. On the basis of FIR No. 298/2016 of Mithanpura P.S. as schedule offence the opposite parties (ED) have initiated the present ECIR case against the petitioner and others. 7. Learned senior counsel for the petitioner submits that the petitioner preferred Anticipatory Bail Application in Mithanpura P.S. Case No. 298/2016 before this Court in which he has mentioned the issuance of summons by the Enforcement Directorate (ED) as well as recording of his statement u/s 50 of Prevention of Money Laundering Act (PMLA). The said fact of summon was mentioned in Para 10 of the Anticipatory Bail Petition filed vide Cr. Misc. No. 7790/2018 which is attached as an annexure to the 2nd Supplementary Bail Petition filed in the present case. On consideration of every aspect of the matter this Court has been pleased to grant Anticipatory Bail to the petitioner (Raj Kumar Goenka) vide Cr. Misc.....
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....he companies/firms/persons on the direction of Sri Pankaj Agrawal (co-accused). In statement recorded by Enforcement Directorate dated 02.10.2020 of Pankaj Agrawal (co-accused), in reply to Question no. 30, Pankaj Agrawal (coaccused) has said that he used to get the sale consideration into the bank accounts held in the name of sheel companies controlled by him for the unaccounted sales of biscuits and he has further stated that the petitioner was his main distributor for his biscuit (BRISCKO) in Bihar and the petitioner used to transfer money to his shell companies against the unaccounted sale of biscuits. Further, in statement recorded by ED dated 21.09.2020 of Pankaj Agrawal (co-accused), in reply to Question no.5, has accepted that the petitioner used to deposit cash into the bank accounts of Kunal Kumar and Neeraj Kumar and, subsequently, transferred the same to the bank accounts of companies/firms controlled by him through the mode of RTGS/NEFT and he has further accepted that he used to provide an accommodation entry to his clients and used to get cash of the equivalent amount. During this process he used to get 0.20 to 0.25% commission from his clients he used to get he gave....
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....ich stands in the name of different persons, since the petitioner assessee's acceptance-existence and identity of such persons automatically ceased to exist and the person concern automatically got the immunity from levy of any tax. As at date, all Income Tax proceedings in relation to all these transactions have been completely dropped by Income Tax Authorities. Around 4.5 years have elapsed from the date of recording of such FIR and around 3 years have elapsed from the date of grant of such Anticipatory Bail, no charge sheet has been submitted yet by the investigating agency in the said FIR 298/2016. 12. Learned senior counsel for the petitioner submits that the ED has not established the fact that the intention of the petitioner behind the effect of transactions from Kunal Kumar's Account was to cheat anyone. If the intention is to cheat, then why such transaction were effected from the petitioner' own bank accounts, his wife bank accounts and his daughter's bank accounts. The quantum of transactions done from self accounts are higher than the quantum of transactions done from Kunal Kumar's bank accounts. Also nowhere it has been denied by the petitioner that he does not o....
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....satisfied that there are reasonable ground for believing that the person is not guilty of such offence. Hon'ble Supreme Court in the case of Nikesh Tarachand Shah Vs. Union of India & Another (2018 (I) PLJR page 46 (SC) dated 23.11.2017 has already struck down Section 45 (1) on the ground that the same is violation of Articles 14 and 21 of the Constitution of India. Hon'ble Supreme Court also directed the Courts to decide the Bail applications without Application of conditions contained in Section 45 (1) as they are ultra vires. Second proviso to Section 45 of PMLA says if a person is a woman or is sick or infirm, may be released on Bail, if the Court so directs- Raj Kumar Goenka (petitioner) is patient of Acute Depression, Diabetes (since 15 years), Hypertension, High Cholesterol and was tested COVID-19 positive in July 2020. He has also been operated with spine injury due to this the doctors have strictly advised him not to sit for 3 hours at a stretch. Triple test for consideration of bail as laid down by the Apex Court a. Flight Risk- The petitioner has got his family and properties in Muzaffarpur, hence no flight risk. b. Tampering with evidence-The entire....
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....should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course, this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case, the petitioner has already spent more than six months in custody. 18. Learned senior counsel for the petitioner relied upon the judgment in "Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273" which makes it mandatory that in any case where the offence is punishable with imprisonment for a term which may extend to 7 years, the accused may not be automatically arrested and the Magistrate may not authorize the detention casually and mechanically. 19. Learned counsel for the Opposite Party Union of India represented by Additional Solicitor General Dr. K.N. Singh submits that the scrutiny of statement of above bank accounts reveled that the above cash depo....
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.... 700069 (Kotak Mahindra Bank A/c No.504011053267) c) SLA commodity, 159, Rabindra Sarani 4th Floor, FL-4/L Kolkata d) Star Enterprises, Kolkata (Kotak Mahindra Bank A/c No. 9011502268) e) M/s HRK Adventure World Pvt. UGF-06, Omaze Park Plaza, Shaktikhand-II, Indrapuramiabad Ghaziabad UP 201014 (Axis Bank A/c No. 914020016470457) f) Nextgen Retail Pvt. Ltd. 266, Rabindra Sarani 1st Floor Kolkata WB 700007 (Canara Bank Account No. 0397201001934) g) Allmost Tradelink Pvt. Ltd. 7/1A, Grant Lane 1st Floor Kolkata Kolkata WB 700012 (Canara Bank Account No. 0397201001994) h) Cheroot Vanijya Ptv. Ltd., 4, NS Road, 1st Floor Kolkata Kolkata WB 700001 (ICICI Bank A/c No. 127605000278) i) A One Enterprises, 2 N C Dutta Saranisagar Estate 4th Floor Koklata WB 700001 j) Best Enterprises, Kolkata k) Join Overseas, Kolkata (ICICI Bank A/c No.015405500489) l) Vevo Logistics, Kolkata etc. (ICICI Bank A/c No. 015405500439) m) Star Commodities, Kolkata (Federal Bank A/c no. 11570200071248) Enquiry has revealed that more than 50 such Companies were registered at one single address at 1st Floor, ....
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....now of affairs has also stated that Pankaj Agrawal (co-accused) and Raj Kumar Goenka (petitioner) are cousins and both are involved in hawala transactions and such accounts operated by them have been utilized for Hawala. On 01.04.2017 Deepak Agrawal unequivocally stated that Pankaj and Pankaj's brother Aashish laundered money of Raj Kumar Goenka (petitioner) and as such the yarn of money from biscuit sales is falsified. Aashish Agrawal has also corroborated the fact of the petitioner being the kingpin. Pankaj says even Deepak Agrawal is his first cousin but he does not know his address, Pankaj Agrawal (co-accused) on 21.09.2020 and 01.10.2020 has also unambiguously stated that the money deposited into accounts of Kunal Kumar and his brother Neeraj Kumar belonged to the petitioner himself. 24. Learned ASG submits that with regard to the offences against the petitioner it is submitted that predicate offence has not been booked under Income Tax Act. Rather, FIR no.298/2016 dated 22.12.2016 was registered with P.S. Mithanpura, Muzaffarpur, Bihar for commission of offence punishable under Sections 420, 467, 468, 469, 471 and 120B of the Indian Penal Code. As, these offences are cover....
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....ntrolled by the petitioner and his Mausera Bhai co conspirators. Therefore, in view of presumption under Section 23 of the PMLA, this entire series of transactions originating from bank accounts complainant and his brother and other accounts controlled by them are involved in money laundering. 26. Learned ASG submits that the provisions of the Income Tax Act, 1961 mandate that any income, even from illegitimate business sources or business of crime, unless exempt under that Act will be taxed. The tax man is not concerned about the nature of income so long as it is income he will tax it at the specified rates as he is only concerned about his tax and not to punish the criminal for any crime or illegality that may have been committed in generation of that income as he has been done in this case, which also admits deposits of more than Rs. 225 crores by the petitioner. Even in all illegitimate business such as smuggling the profits will be taxed viz Receipts-expenses of the business (which would also include seizures by customs auth)= taxable income/loss. The case is best illustrated by the case of Commr. Of Income Tax, Patiala Vs. Piara Singh AIR 1980 SC 1271 applying the ratio of....
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....ade a statement vide para 10 of the bail application that he had received summons from ED. He states that he had no knowledge of ECIR No.PTZO/01/2017 since it was not known to him. However, the statement at para 10 of the Cr. Misc. No.7970/2018 appears to be misleading concealing the real fact as the top left hand corner of the summons itself bears the No.PTZO/01/2017. The petitioner cleverly, with help of misleading statements and half truths contrived that facts of PMLA case were not brought to notice of the Hon'ble Court. ED had no notice of the matter. 28. Learned ASG submits that being an influential and wealthy individual involved in money laundering, there is every likelihood that the petitioner may tamper with the evidence and he will escape to any other country and will not be available for trial and petitioner assertions to contrary are not reliable as even Nirav Modi and V.Mallaya had family and property but they evaded the law and so may petitioner. It cannot be lost sight of that petitioner being the king pin has control and influence over many witnesses who were/are employees of accused and obliged to him. He accepts that he has fraudulently opened bank accounts....
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.... under Section 45 (1) of the PMLA should be complied. The same was upheld by the Hon'ble Supreme Court of India in the case of Gautam Kundu Vs. Manoj Kumar, AD, ED (2015) 16 SCC 1 and by the Bombay High Court in the case of Chhhagan Chandrakant Bhujbal & Others Vs. Union of India (2017 140 SCL 40 (Bom.). The Apex Court has, in the case of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation (2013) 4 SCC 439 held:- "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused reasonable apprehension of the witnesses being tampered with the larger interests of the....
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....sheet which may be considered only a preliminary charge-sheet in the present case against the petitioner. 34. I have perused the records including the counter affidavit, no allegation of any fraud with State Exchequer or affecting any Govt. policy like demonetization. Neither any allegation nor any material to suggest that money was acquired by cheating anyone, by defrauding anyone, being ransom for kidnapping, proceeds of any dacoity, obtained from any corrupt practice or embezzlement of Govt. fund-sets. The only allegation is that its source was not disclosed in income tax before the cash was deposited in Muzaffarpur. The money belonged to the clients for accommodation entry; petitioner has admitted this fact in the statement given under Section 50 of PML Act. 35. The ED has not stated that the money was arranged or collected by commission of any Scheduled offence to become proceeds of crime. In the charge-sheet filed by the ED, it is stated that "because all the unaccounted cash has been deposited / placed into normal banking channels by use of this criminal modus operandi through the bank accounts opened through fraudulent means, thus, the same became proceeds of crime". ....