TaxTMI 
TaxTMI 
2021 (10) TMI 1165
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....as registered on 17.06.2021 at Police Station City Phagwara, alleging therein the commission offences punishable under the provisions of Sections 467/471/120-B/108-A of the IPC. 3. As per the FIR, in the year 2014, the Government of Netherlands is stated to have unearthed "underground banking and laundering of direct or indirect proceeds of crime in respect of Sh. Shivlal Pabbi (a Dutch national)." Thus, Shivlal Pabbi was suspected of violating Section 420 of the Dutch Penal Code which, as per the complainant, corresponds to Section 3 of the Prevention of Money Laundering Act, 2002, (herein after referred to as the Act). He was alleged to have also 'violated' Section 225 of the Dutch Penal Code which is stated to be corresponding to Section 467 of the IPC and further, with Section 326 of the Dutch Penal Code also having been violated by Pabbi, corresponding to the Sections 415 and 420 of the Indian Penal Code; and therefore, upon a 'note verbale' received from the Embassy of Netherlands, New Delhi, the Directorate of Enforcement had initiated investigation against the aforesaid Pabbi. 4. A letter of request was also received by the Directorate from the Ministry o....
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....onferring a power of attorney on Shivlal Pabbi on 09.05.2005, so that business operations of the company could be run by Pabbi in the Netherlands. 7. Importantly, the FIR next states that Pabbi indulged in transfer of money on behalf of other persons, i.e. in ' Hawala' operations or "underground banking" activity and earned a commission in the form of cash to hoodwink the authorities in the Netherelands; and to evade taxes there he created a facade of a legitimate business operation in the name of S.M.Fashion BV (which in turn was "in the name" of the petitioner, Mukesh Sharma", with the earlier part of the FIR stating that it is registered in the petiitiones' name). It is next stated that Shivlal Pabbi also used the cover of business operations in the said S.M.Fashion BV to conduct "underground banking". 8. The petitioner is stated to have executed and signed the aforesaid power of attorney, dated 09.05.2005, as the sole shareholder of the said company, with powers delegated to Pabbi to run the company in the Netherlands, even though the petitioner did not invest any money in the company himself but authorized Pabbi to handle all financial transactions including the....
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.... sale deed and the said power of attorney, with the petitioner therefore being an active participant in the criminal conspiracy hatched by Pabbi and others to evade taxes and cheat the Government of Netherlands, as also to launder proceeds of a crime committed in the Netherlands, to India, with the investments made in Cabana Infrastructure Private Limited and Mayfair Resorts Jalandhar, India. 11. Mr. Chaudhri, learned senior counsel appearing for the petitioner, has submitted to this court a compilation of judgments, as also a 'synoptic note' to which he has today referred to extensively. 12. As per learned senior counsel for the petitioner, the following allegations are made against the petitioner in the FIR:- (i) Power of attorney dated 09.05.2005; (ii) Loan agreement and (iii) Deed of sale of assets and liabilities dated 31.12.2007, which were used by Shivlal Pabbi to commit the aforesaid offences in the Netherlands. By doing so, Sh. Mukesh Sharma has abetted (under Section 108-A of the IPC) Shivlal Pabbi in the commission of the said offences. Hence, he submits that, as per the complaint leading to registration of the FIR, offences punishable under the provisio....
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....added in the FIR; In that context, learned senior counsel also referred to the following extracts from the FIR, as he has reproduced in his 'synoptic note':- "........Sh. Mukesh Sharma, executed and signed the said power of attorney dated 09.05.2005 in India as the sole shareholder of S.M. Fashion BV and delegated the power to Shivlal Pabbi to run S.M. Fashion BV in the Netherlands even though Sh. Mukesh Sharma did not invest a single rupee in the company." xxxx xxxx xxxx xxxx "Sh. Mukesh Sharma also signed and, executed a loan agreement (copy enclosed) for providing a loan of Euro 2,00,000 to Shivlal Pabbi even though no loan was actually extended by him to Shivlal Pabbi." xxxx xxxx xxxx xxxx "In reality, there was no money involved in the transactions shown in the books on behalf of Sh. Mukesh Sharma and the transactions shown against payments to creditors and loan to Shivlal Pabbi from Mukesh Sharma was only a sham done for the purpose of book keeping." xxxx xxxx xxxx xxxx [In fact it needs to be noticed by this court here itself, that the above reproduction in the 'synoptic note' submitted by learned senior counsel for the petitioner, is a very &....
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....SCC 694 and 5. Mir Nagvi Askari vs. Central Bureau of Investigation (2009) 15 SCC 643. 16. Per contra, Mr. S.V. Raju, learned Additional Solicitor General of India, has submitted that there being specific allegations in the FIR itself as regards 'Hawala' transactions having taken place/"underground banking" transactions, it is not open for the petitioner at all to say that no 'Hawala' transaction actually took place. He next submits that though a complaint under the provisions of the Act is undoubtedly pending before the competent court at Mohali, yet, that does not absolve the petitioner of his liability/guilt as regards the commission of offences punishable under the provisions of the Indian Penal Code, with in fact, obviously therefore, an offence punishable under the provisions of Section 420 of the IPC also made out (in view of the allegation of 'Hawala' transactions/"underground banking)." 17. Though as regards whether the petitioners' custodial interrogation is required or not, the learned ASG has fairly submitted that that would be something completely in the domain of the District Police, Kapurthala, where the FIR stands registered, yet he ....
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....ich was deliberately and fraudulently created in the name of an Indian national Mukesh Sharma, i.e. petitioner." It has next been stated in the affidavit as follows:- "That it was further stated in complaint that petitioner also signed and executed a loan agreement for providing a loan of Euro 2,00,000 to Shiv Lal Pabbi even though no loan was actually extended by him to Shiv Lal Pabbi. Further, on behalf of S.M. Fashion BV, Sh. Mukesh Sharma also signed and executed a Deed of Sale of Assets and Liabilities dated 31.12.2007 with Shiv Lal Pabbi and by virtue of this deed, purchased all the assets and liabilities of Shivlal Pabbis' business concern named Euro Modi. In reality, there was no money involved in the transactions shown in books on behalf of petitioner and the transactions shown against payments to creditors and loan to Shiv Lal Pabbi from Mukesh Sharma was only sham done for the purpose of book keeping....." Other than that, the FIR itself also alleges that "the payment and repayment of the loan could not be found in Pabbis' account", as regards the loan of Euro 200,000 shown to have been extended to Pabbi. 20. In view of the above, in fact this court finds it....
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....ransactions between India and the Netherlands have been transacted, and therefore, offences punishable under the provisions of the Indian Penal Code would also, in my opinion at least for the purpose of this petition, be found to have been committed, and consequently, no ground whatsoever is made out to admit the petitioner to anticipatory bail. 24. Next, as regards the contention of learned senior counsel that with a complaint already having been submitted by the Directorate, as regards their being offences punishable under the Act and therefore the FIR itself is not maintainable and therefore the petitioner has a right to be admitted to anticipatory bail, in the opinion of this court, the Directorate having only limited jurisdiction qua the said Act itself, was correct in sending the complaint as regards the commission of offences punishable under the IPC to the competent police authority (in District Kapurthala, Punjab), and with that authority also having found that offences punishable under the provisions of the IPC are made out (with this court for the purpose of this petition already having observed that possibly even an offence punishable under the provisions of Section 42....