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2022 (11) TMI 101
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....erted an amount of Rs.3.75 crores in the account of Deepak Prajapati and his family members in various tranches. The said amount was later transferred in the account of M/s. Master Plan Finance Ltd., of which Deepak Prajapati is the director. 3. It is alleged that Deepak Prajapati, who is engaged in providing accommodation entries and bogus loans, provided a transaction entry of 3.58 crore to the Applicant under the garb of loan. The said amount, which was provided as loan was utilised by the Applicant for purchase of a property i.e. office No.16, Nariman Bhavan, Nariman Point, Mumbai. It is alleged that the Applicant was an active participant in the generation of proceeds of crime and that he was actually involved in the laundering of said proceeds of crime as defined under Section 3 of the PMLA. 4. Mr. Satish Maneshinde, learned counsel for the Applicant submits that the Applicant had no direct relationship with the Trust, except for heading the Fraud Detection Committee. He was not a signatory to the bank account of the Trust. In fact, the signatories to the bank account of the Trust were Bhavna Gawali and Ashok Gandole. Bhavna Gawali had authorised Ashok Gandole to operate th....
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....- was withdrawn by cheque by Bhavna Gawali and is reflected in the audited account of the Company. 9. Learned counsel for the Applicant submits that the Applicant is not involved in committing offence under PMLA. That the charge-sheet has been filed and the co-accused are either on bail or are not arrested. He submits that the Applicant, who is in custody since 27/09/2021 is entitled for bail. 10. Per contra, Mr. Hiten Venegaonkar, learned counsel for Respondent No.1 submits that the Applicant in connivance with Bhavna Gawali has taken over control of the Trust by converting the Trust into Section 8 Company on the basis of forged and fabricated documents. He submits that the amount from the Trust is withdrawn in cash and that the said amount has been utilised for personal use. He submits that an amount of Rs.20,00,000/- from the account of the Trust was transferred to the account of the Applicant on 20/12/2019. Similarly, on 16/11/2019 an amount of Rs.14,00,000/- from the account of one of the institutions of the Trust was transferred in the account of the Applicant. On 02/06/2020, after converting the Trust into a Company, Rs.2,81,03,228/- was transferred from the account of Bha....
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....the Courts, it cannot be watered down. Since after the amendment the entire complexion of section 45 has been changed, we are not in agreement with the contention that the entire section has to be re-enacted by way of amendment after decision in the case of Nikesh Shah(supra). Therefore, in our opinion, the twin condition would revive and operate by virtue of Amendment Act, which is on date in force. In view of that, we answer the reference by stating that the twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T. Shah vs. Union of India (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018." 14. It would also be relevant to refer to the decision in Ranjitsingh Brahmajeetsingh Sharma vs. State of Maharashtra and Anr. (2005) 5 SCC 294 wherein the Hon'ble Supreme Court, while interpreting the embargo under Section 21 (4) of MCOC Act, which is pari materia with Section 45 of PMLA, has observed thus:- "35. Presumption of innocence is a human right. [See Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699, para 31] Article 21 in view of its expansiv....
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.... 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. xxx 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility o....
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...., suspecting financial discrepancies in the accounts of the Trust. The Fraud Detection Committee had allegedly scrutinized and identified the cash vouchers, which were allegedly issued on bogus names or in the names of the relatives of Ashok Gandole and the other trustees. Bhavna Gawali appointed Hakeem Shaikh, a Chartered Accountant to prepare a detailed report on the financial dealings of the Trust. Based on the report submitted by Hakim Shaikh, Bhavna Gawali lodged FIR dated 12.05.2020, pursuant to which crime No.0389 of 2020 came to be registered against Ashok Gandole and other trustees for committing offences of fraud, cheating and misappropriation of an amount of Rs.18,18,40,867/- from the account of the said Trust. 17. While the said crime was being investigated, suspecting it to be the case of money laundering, the Enforcement Directorate registered ECIR/MBZO-1/78/21 and arrested the Applicant on 27/09/2021. It is alleged that on 16.11.2019, an amount of Rs.14 lakhs was transferred to the account of the Applicant from the account of Principal, BAMS College. On 20.12.2019 an amount of Rs. 20 lakhs was transferred from the account of the Trust at BMC Bank, Aurangabad, Ladies....
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....nor an authorized signatory of the Trust during this period. He became the Director of the Company only on 03.01.2020 whereas the transaction regarding purchase of the office premises was completed in August 2019. During this period the Applicant was not authorized to withdraw any money from the account of the Trust and was not in any manner connected or involved with the Trust, save and except heading the Fraud Detection Committee constituted in September-2019. Hence, prima facie the Applicant cannot be foisted with financial misconduct in respect of the Trust during this period. 22. The averments in the complaint as well as the statement of the Applicant does not indicate that he was questioned on either withdrawal of cash from the account of the Trust or deposit of cash of Rs.3,46,75,500/- in the account of Deepak Prajapati and his family members from 08/05/2019 till 10/12/2019. When questioned about huge cash deposits in the Bank account, Deepak Prajapati in his statement recorded under Section 50 of PMLA has explained that he is involved in the business of contract farming. He has about 250 acres of agriculture land wherein actual farming is done by the local farmers. The exp....