2022 (9) TMI 563

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....of offices and properties as if with untainted funds. It is alleged that the co-accused Naresh Jain had placed funds in his companies and layering was done by routing the proceeds of crime into various companies that had dummy shareholders and Directors and were used for opening bank accounts, using identity proofs and documents of real persons, but changing photographs and addresses. Naresh Jain was arrested on 1st September, 2020 under Section 19 of the PMLA. The investigations have traced proceeds of the crime to the tune of Rs.5,65,11,22,269/-, but the extent of money laundering was more than rupees ninety six thousand crores. Further investigations were proceeding, but the first complaint and the supplementary complaints had been filed against the accused persons, including the present applicant. 3. Mr. Naveen Malhotra, learned counsel for the applicant, submitted that the present application has been moved in terms of the orders of the Supreme Court dated 4th January, 2022 passed in SLP (Crl.) No.7942/2021. It was submitted that charge had not been framed and there were about 150 witnesses to be examined and there was no possibility of a quick trial. Therefore, in terms of....

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....al custody. 6. It was submitted by the learned counsel for the applicant that the respondent has acted with vengeance inasmuch as five notices were sent to the applicant when Covid-19 pandemic was at its peak and when he sent a medical certificate to the effect that he was suffering from Covid-19, the respondent had prosecuted the lab/dispensary staff Mr. Himanshu, who had prepared the reports. Further, when there was no urgency to do so, the respondent had filed complaints that were incomplete and sought nonbailable warrants against the applicant and got him arrested and without adherence to due process, police remand was also granted. According to the learned counsel, all this was done in order to frustrate the right of the co-accused Naresh Jain to get bail under Section 167(2) Cr.P.C.. A complaint could have been filed only when the investigation was complete, but here it was filed violating the provisions of Section 44(1)(b) of the PMLA. The learned counsel urged that in the light of the decision of the Supreme Court in Satender Kumar Antil (supra), the Trial Courts were releasing the accused who had not been arrested during investigations on bail when they appeared before ....

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....State of Punjab, (1969) 1 SCC 379 that the pleas that had been raised in the present matter, particularly that since the applicant had not been arrested under Section 19 of the PMLA, the rigors of Section 45 of the PMLA would not apply, had been raised and had been rejected by a Coordinate Bench of this court vide order dated 14th September, 2021 (Annexure R-5 to the reply). Thus, on the basis of issue-estoppel, the applicant could not raise these grounds again. In the previous order, the Coordinate Bench had observed that since the applicant had absconded, NBWs were required to be issued and his arrest thereupon satisfied the requirements of Section 19 of the PMLA. 10. It was submitted by the Special Counsel that in the application for police remand (Annexure R-2), it had been brought to the notice of the court that the co-accused No.2 to 5 - the applicant being the accused No.2 - were absconding and though they had initially joined investigations and given statements, in the statements recorded in August 2020, they had provided fake addresses and could not be traced. Five notices had been issued as listed in the reply filed on behalf of the respondent to this application, whic....

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....dherence to Section 19 of the PMLA and therefore, to the entitlement to the bail, the same plea could not be raised in the present application on the ground of "issue-estoppel". It needs to be noted however, that the said judgment, relied upon by the respondent, related to judgments on the conclusion of a trial and were pleas that were raised against the prosecution to the effect that the prosecution was estopped from relying on the testimony of an approver, since on the basis of the same statement, another person had been acquitted. The decision would not have a bearing on the facts of the present case, where a bail application is under consideration. 14. In Usmanbhai Dawoodbhai Memon and Ors. v. State of Gujarat, (1988) 2 SCC 271, the position in law has been reiterated that the grant or refusal of a bail application is essentially an interlocutory order. Therefore, in the opinion of this Court, issue-estoppel is not available to the respondent to oppose the bail application. There is no finality attached to an order upon an application for bail and therefore renewed applications for grant of bail can be moved from time to time. The Supreme Court in Parvinder Singh v. State of....

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....e Enforcement Directorate arraying petitioner Bimal Jain as accused No.2, prima facie show there were reasons to believe the person was guilty of offence punishable under Section PMLA as the complaint is filed only against a person who is presumed to be guilty. Admittedly, the learned Special Judge, PMLA took cognizance of the complaint filed by the Enforcement Directorate as he reasonably believed petitioner Bimal Jain, being guilty of offence of money laundering." The argument raised was that the officer had not recorded the "belief that any person has been guilty of an offence punishable under this Act" and therefore, there was no arrest. However, the Directorate of Enforcement had produced the file before this Court for perusal where such a satisfaction had been in fact recorded. Therefore, that objection is not available. Since the question of adherence or non-adherence to the provisions of Section 19 of the PMLA have been raised and rejected by a Coordinate Bench, there is no cause to discuss that again here. The conclusions remain the same. 17. The further plea that because the applicant has not been arrested, the rigors of Section 14 of the PMLA are not attracted, is ....

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.... question of delay was to be considered under Section 436A Cr.P.C.. The mere fact that there are a large number of witnesses to be examined would not per se entitle the applicant to bail. 20. Thus, this bail application would have to be considered in terms of the provisions of Section 45 of the PMLA and the twin requirements, namely, (i) that there are reasonable grounds for believing that he is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail, will have to be met. The allegations against the applicant are very serious in nature. A huge amount of rupees ninety-six thousand crores is supposed to have been laundered. There has been multiple layering, calling for painstaking and detailed investigations. The applicant has fully participated in the money laundering by lending his companies accounts to his brother and making accommodating entries. A sum of Rs. 35 crores is directly traceable to the applicant. A mere exculpatory statement to the respondent can never suffice to form a ground, leave alone a reasonable ground to believe that the applicant is not guilty of the offence. The investigations are continuing in respect of the scale of....