TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 585
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....ities were occurred and the funds were diverted. The findings of the Forensic Audit, Private Detective Agency, Stock Audit and ROC search have also revealed that the management of SIPL along with its employees, shareholders and directors have mis-utilized the funds borrowed from the consortium of banks to shell companies/firms/individuals during the period from 01.04.2011 to 31.03.2015 and that the total amount said to have been involved in the said siphoned is about Rs.298.97 crores. The Assistant General Manager, State Bank of India, Overseas Branch, Somajjiguda, Hyderabad, has filed a complaint dated 31.01.2018 before the CBI, BS and FC Bangaluru in respect of misutilization of the funds by SIPL and basing on the said complaint, the CBI, BS and FC, Bangaluru has registered a case vide FIR.No.02/2018, dated 02.02.2018 against the petitioner and three others, who are Directors of SIPL, for the offences under Sections 120-B read with Sections 420, 468 and 471 IPC and substantial offences thereof alleging that they have used the accounts of group companies to fraudulently obtain and draw from the consortium of banks for unintended usage. As the offences under Section 120-B read wi....
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....the Court of the Metropolitan Sessions Judge, Hyderabad and he was remanded to judicial custody on 18.01.2022 for the offences alleged against him. Learned Senior counsel for the petitioner submitted that without being crystallization of the offence investigated by the CBI, the Enforcement Directorate, has foisted a false case without any basis. It is further submitted that the proceeds of the crime have to be quantified by the CBI and only then the Enforcement Directorate can invoke the offence under Section 3 of the Act. He has further submitted that though the CBI has registered the FIR on 02.02.2018, investigation could not be completed and charge sheet has not been filed by them. The complainant has filed a frivolous complaint basing on the forensic audit report dated 24.12.2015 of M/s. Deloitte Touche Tohmatsu Limited LLP (DDI LLP) without any supporting material, as the petitioner has not floated any benami companies and he has not siphoned the funds. Learned counsel further submitted that NCLT has initiated CIRP against the petitioner on 22.02.2018 under the provisions of the Insolvency Bankruptcy Act, 2016 and that once CIRP is initiated, the powers of the Board of Direc....
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....nder Section 45 of the Act whether bail can be granted to the petitioner. Section 45 of the Act reads as under: "45. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity 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 [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], 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 ....
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.... "54. Regard being had to the above, we declare Section 45(1) of the Prevention of Money-Laundering Act, 2002, insofar as it violates Articles 14 and 21 of the Constitution of India. All the matter before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that the persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly." However, subsequent to the striking down of Section 45 of the Act, the said Act was amended by Act of 13 of 2018 with effect from 19.04.2018 whereunder the term "no person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule" is replaced with "no person accused of an offence under this Act". It is submitted by the learn....