TaxTMI 
TaxTMI 
2022 (2) TMI 1303
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....i vide Court Case No.39/Misc/2020 against eight accused including the present applicant. In that complaint, the learned Magistrate had passed an order under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') and had directed the Yellow Gate Police Station to investigate into those allegations. Pursuant to that order, the FIR vide MECR No.3/2020 was lodged at Yellow Gate police station, Mumbai on 28.10.2020 for commission of offence punishable under Sections 420, 406, 465, 467, 468, 471 and 120-B of IPC. The proforma mentions that the period of the offence was between the year 2008 to year 2020. 4. In respect of the allegations in the FIR, the respondent No.1 registered their Enforcement Case Information Report (ECIR) No.ECIR/MBZO-I/40/2020 on 31.10.2020, as according to respondent No.1 prima facie a case for offence of money laundering under Section 3 of the PMLA was made out. The applicant was shown as accused No.8 in that ECIR. 5. The investigation was conducted by respondent No.1 and that culminated into filing of the complaint on 19.12.2020 before the Designated Court for the PMLA, Greater Mumbai. The complaint was filed against five acc....
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....atap Sarnaik equally. Amit Chandole was a close confidant of Pratap Sarnaik. Amit Chandole used to coordinate for the same and used to collect the profit shared on behalf of Pratap Sarnaik. v. It is alleged that the applicant tried to mislead the investigation by stating that Rahul Nanda was unaware of the arrangement with Amit Chandole; though the investigation revealed that the applicant was apprising Rahul Nanda regarding the same. It is alleged that the applicant accepted that he had spoken to Amit Chandole about making pay off to a person from MMRDA for releasing the payment and removing Topsgrup Company from the blacklist. vi. In paragraph-6.2 of the complaint, the details of the amounts given to Amit Chandole are mentioned. From the year 2017 onwards he was paid Rs.2,36,18,865/- in cash which was calculated as 50% of the profitability of the MMRDA contract. The profitability was calculated on the basis of short deployment, underpaid overtime and commissions. Mr. Amit Chandole was paid also through NEFT and that amount was mentioned as Rs.56,92,446/-. vii. In paragraph-8.4 of the complaint, the role played by the applicant is described. According to....
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....are almost similar to the registered FIR i.e. MECR No.3/2020 registered at Yellow Gate police station, Mumbai; and there was no special reason to invoke PMLA. Ramesh Iyer was terminated vide letter dated 15.10.2020 and, therefore, immediately he had lodged complaint against the company. That termination letter was issued under the signature of the present applicant and, therefore, the applicant is also roped in as an accused. (v) The money trail analysis mentioned in paragraph-6 of the complaint shows that the money has gone to Rahul Nanda and his relatives. No money is received illegally by the applicant himself. No amount has come to him. He is not the beneficiary. As per the allegations, the profitability sheet was manipulated for the purpose of profit sharing with Amit Chandole, but, it was an internal sheet of Topsgrup. It was neither submitted to MMRDA nor to any of the authorities. There is nothing to show that the applicant had destroyed any evidence. (vi) Even as per the statement of Neeraj Bijlani, only the final process in respect of MMRDA tender was completed by the present applicant. And, therefore, he had no connection with the decision to enter into....
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....ing. (iii) The false accounts were prepared under his instructions. (iv) The applicant was aware that the money was shared by Amit Chandole, Sanket More and Rahul Nanda. The illegally acquired money was diverted to foreign countries to benefit Rahul Nanda. (v) Learned ASG referred to the applicant's statement, the statement of Amar Panghal and the four statements referred to by learned counsel Shri Mor. (vi) The money earned illegally in this case would fall within the definition of the 'proceeds of crime' provided under Section 2(1)(u) of the PMLA. (vii) The applicant's act also falls within the meaning of "money-laundering" as provided under Section 3 of the PMLA. (viii) There are restrictions to release the applicant on bail in view of the conditions laid down under Section 45(1) of the PMLA. A Division Bench of this Court in the case of Ajay Kumar Vs. Directorate of Enforcement1 has held that the twin conditions mentioned in Section 45(1) of the PMLA would revive and operate by virtue of Amendment Act which which is on date in force. In view of these twin conditions and the judgment of the Division Bench, the....
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....working sheet of GOM to him. Amit Chandole was convinced by that. This statement shows that the accounts were manipulated under the instructions of the present applicant. The profitability shared with Amit Chandole was also manipulated to keep higher amount with Tops Securities Ltd. The funds were immediately used for the benefit of other above mentioned accused. The applicant was not only fully aware of the illegal profit, but, he was directly responsible for instructing this witness to manipulate the accounts. Though, this statement of account has not gone to MMRDA, the receipt of money from MMRDA was used in preparing the accounts to share that illegal profit with Amit Chandole. Therefore, the applicant not only was aware of the illegal manipulation of the accounts, but, he was instrumental in actual manipulation. 12. The next witness in that behalf is Dilesh Thawai. He had joined M/s. Tops Detective and Security Services Limited as a guard and got promotions intermittently. He had left the company but then he had again joined the company as a Branch Head of Konkan; and in the year 2018 he was promoted as Deputy Regional Head, Mumbai and was posted at Sakinaka office. He h....
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....des the applicant, there were other officers as well who were asking the subordinates to maintain false entries. They were not made accused and the applicant is unfairly singled out. This argument has no substance because the applicant's role is specifically spelt out by these witnesses in manipulating accounts and earning higher illegal profits for the company. 15. Besides the statements of these four witnesses, learned ASG also referred to the statements of the applicant himself and one Amar Panghal. The applicant has referred to the WhatsApp Group namely "Senior Management Group" and 19 of 30 : 20 : ba-1046-21.odt from the conversation shown to him during investigation; according to the applicant, Rahul Nanda was aware of all this and was part of the scheme. 16. Amar Panghal had joined the Topsgrup from 2008 and in 2016, he was the Finance Director. He had noticed several irregularities due to misappropriation of funds, mismanagement and siphoning off of funds from the company by Rahul Nanda for his personal use and for use of his family. He has stated that under the instructions of Rahul Nanda, the accounts department kept on transferring the funds on-line. He has nam....
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.... (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever." 20. Thus, firstly the higher amount received illegally from MMRDA would be covered by the definition of 'proceeds of crime'. The predicate offences are covered under the schedule of the Act i.e. under Sections 420, 406, 465, 467, 468, 471 and 120-B of IPC. 21. The definition of "offence of money laundering" also mentions that the accused who knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, or possession, or acquisition, or use, or projecting or claiming it as untainted property, is said to have committed the offence. In this case, the proceeds of crime were received from MMRDA. It was projected as if it was legally acquired and then it was utilized for the personal benefits of Rahul Nanda and his family. Thus, his act cle....
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....gislative intervention vide Amendment Act 13 of 2018." Therefore it is necessary to record the satisfaction as required under those twin conditions for grant of bail and unless such satisfaction is recorded, bail cannot be granted. 24. In this connection, reference can also be made to the decision of Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and another (2005) 5 SCC 294 , wherein in a similar provision under the Maharashtra Control of Organized Crime Act, 1999, the Hon'ble Supreme Court had observed as to what should be the approach of the Court in dealing with these twin conditions. The relevant paragraphs in that judgment are paragraphs-45 and 46, which read thus : "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 b....