TaxTMI 
TaxTMI 
2022 (11) TMI 754
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.... wherein, it has been alleged that the complainant of the predicate offence Amit Kumar Agrawal came to know through media and other sources that a Public Interest Litigation has been filed at Jharkhand High Court at Ranchi vide Case No. 4290/2021 by one Shiv Shankar Sharma, represented by Rajiv Kumar (Advocate), petitioner, wherein some of the companies including his companies are involved in laundering of black money and political money and that these companies are used as Shell Companies by politicians and it is further alleged that the suspect of this ECIR are hand in gloves in filing such PIL against different businessman and their companies and later on compromise in lieu of huge amount of money on the assurance to settle the issue by managing Courts, Court officers and other Government agencies. It is further alleged by the complainant that the accused Rajiv Kumar consented in giving him relief against a huge amount of Rs. 10 Crore as bribe for payment to different Government officials to minimize the issue and later on the amount was reduced to Rs. One crore to be paid in two installments of Rs. 50 lakhs. The complainant then forwarded the complaint to the Officer-in-Charg....
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....edly nothing was recovered from the possession of this petitioner, but somehow in a very haste manner, the alleged trap was conducted without following the minimum requirement of the pre-trap or post-trap proceeding and the petitioner was remanded to Special Court at Kolkata. He further submits that even a preliminary enquiry has not been taken place before such remand. He submits that in very haste manner has been considered by the learned Special Court, while granting bail in Special Case No. 03 of 2022 (arising out of Hare Street P.S. Case No. 222 of 2022) vide order dated 12.09.2022. He took the court to the said order, annexed with the petition and submits that the considering this aspect of the matter, the learned court has granted bail to the petitioner on 12.09.2022. He submits that on the basis of the scheduled offence, the present case has been lodged by the ED and the petitioner has been taken into remand on 18.08.2022 virtually and physically on 28.08.2022. He submits that since the petitioner has already been granted bail in Hare Street P.S. Case No. 222 of 2022 and this case is arising out of the scheduled offence of that case, the petitioner may kindly be allowed on ....
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....ce, if he is allowed regular bail. 6. Learned counsel appearing for the petitioner draws the attention of the court to the chargesheet, brought on record by the ED by way of filing counter affidavit and submits that it has come in the chargesheet at para-3.2 that Amit Kumar Agrawal has hatched a conspiracy and contacted this petitioner and influenced him to come to Kolkata. By way of referring para-6.1, he submits that one Vishnu Agrawal came to the house of the petitioner and told the petitioner that Sonu Agrawal wanted to talk to you. He submits that in the chargesheet, it has also come that Sonu Agrawal requested the petitioner to come to Kolkata for a discussion about a matter. The petitioner along with his son reached at Kolkata, thereafter the petitioner was asked to come to Quest Mall, Kolkata. The petitioner along with his son arrived at Quest Mall, Kolkata, where Sonu Agrawal requested him to meet Amit Kumar Agrawal, who was sitting in a Mercedes Car on the driver's seat. He further submits that the fact with regard to jurisdiction of the Hare Street police station has also come in the said chargesheet. By way of referring para-7.3, he submits that in the chargesheet, it ....
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....on for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause "proceeds of crime", as it obtains as of now. 281. The next question is: whether the offence under Section 3 is a standalone offence? Indeed, it is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence. Nevertheless, it is concerning the process or activity connected with such property, which constitutes offence of money-laundering. The property must qualify the definition of "proceeds of crime" under Section 2(1)(u) of the 2002 Act. As observed earlier, all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "proceeds of crime" under Section 2(1)(u) will necessarily be crime properties. Indeed, in the event of acqui....
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.... offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in subsection (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tent....
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....ed counsel appearing for the petitioner submits that Shiv Shankar Sharma has been granted anticipatory bail in the case of Kolkata by one of the Kolkata Court. 8. On these grounds, learned counsel appearing for the petitioner submits that the petitioner may kindly be enlarged on regular bail and the petitioner is ready with the condition, if the bail is granted to him by this Hon'ble Court. 9. Per contra, Mr. Anil Kumar, learned A.S.G.I. appearing for the ED submits that the petitioner has been apprehended with cash. By way of referring para-5.7 of the counter affidavit, filed by the ED, he submits that it has come that the petitioner was approached by Amit Kumar Agrwal through one Sonu Agrawal and Sonu Agrawal contacted the petitioner through Vishnu Agrawal and requested the petitioner to come to Kolkata as Amit Kumar Agrawal wanted to meet him in reference to one PIL, pending before the Jharkhand High Court, Ranchi, wherein he is being linked with Chief Minister of Jharkhand, Shri Hemant Soren. All the arrangement for his air tickets, stay at Kolkata and a vehicle at Kolkata Airport was arranged by Sonu Agrawal. He further submits that on 13.07.2022, the petitioner met Amit Kum....
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....estigation, ED came to the conclusion that Amit Kumar Agrawal contacted the petitioner with the help of Sonu Agrawal and Amit Kumar Agrawal falsely stated in the complaint to the police that the petitioner has contacted him for settling the PIL. It has come in the said report that no court official or government official name has been taken either by Amit Kumar Agrawal or by this petitioner. In para-7 of the said report, it has come that Amit Kumar Agrawal himself tried to influence the petitioner. It has been reveled in the said report that Amit Kumar Agrawal hatched the conspiracy for trapping the petitioner to frustrate the PIL. It has also come that with the help of acquainted police officials, Amit Kumar Agrawal hatched the conspiracy. It has also come in para-8 that Amit Kumar Agrawal knowingly register the FIR under the PC Act, in order to show that the PIL was the result of conspiracy between the petitioner and others. It has also come that in anticipation that the shell companies of Amit Kumar Agrawal have been enquired into by the ED, that's why this petitioner has been implicated in this case. It has also come that Amit Kumar Agrawal has tried to falsely coerce this peti....
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....heet at para-7.2 that accused No. 1 Amit Kumar Agrawal drafted a misleading complaint and frivolously linked the accused No. 2 Rajeev Kumar and Shiv Shankar Sharma and the only mens rea behind this was to check and hamper the ongoing PIL for his gain by Amit Kumar Agrawal and for that he withdrew the amount of Rs. 60 lakhs from his bank account, out of which Rs. 50 lakhs was used to trap the petitioner. In para-7.3, it has come that a trap was made with the assistance of certain acquainted Kolkata police officials outside their jurisdiction, with the sole objective to trap the petitioner. It has also come in the said para that Amit Kumar Agrawal filed the complaint and FIR has been lodged in a police station outside the limits of his residence as well as his office without any due diligence. That chats between the Amit Kumar Agrawal and Sonu Agrawal has been discussed in para 7.7 of the chargesheet, which has been accepted by Amit Kumar Agrawal that the said chat was of 07.10.2022. Amit Kumar Agrawal concealed before the ED and cooked the story of threat or fear from the petitioner, which has come in para-7.16 of the said chargesheet. It has further been disclosed that the said cas....
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....PMLA: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. 30. The conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, ....
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....eing seven years if convicted and in that regard it has been held that in determining the grant or otherwise of bail, the seriousness of the charge and severity of the punishment should be taken into consideration. 23. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation mad....