TaxTMI 
TaxTMI 
2023 (4) TMI 1078
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....prosecution case is that the petitioner herein, who is the 9th accused in the above crime, committed offences defined under Section 3 and punishable under Section 4 of PML Act. The predicate offences as stated in the arrest order in FIR No.VC.02/2020-SUI-1 dated 30.09.2020 registered by the Vigilance and Anti-corruption Bureau, Thiruvananthapuram registered for offences under Sections 7(a), 7(b), 13(2) r/w 13(1)(a) of Prevention of Corruption Act, 1988 and FIR No.RC-0332020A0005 registered by the CBI, ACB, Cochin for offences under Section 120B IPC r/w Section 35 r/w Section 3 of the FCRA, 2010. The crux of the allegation in the ECIR as epitomized in the Arrest Order is that pecuniary advantage/illegal gratification was obtained by the accused out of the funds received from UAE Red Crescent meant for flood victims in Kerala though `Life Mission Project'. 4. The prosecution case runs on the premise that the `Life Mission Project of Kerala Government' had made MoU on 11.07.2019 with M/s Red Crescent, UAE for construction of residential apartments to flood affected people in Wadakkanchery Municipality. The WhatsApp conversations between Smt.Swapna Suresh and the petitioner ....
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....apply to the petitioner since the petitioner is sick and infirm and the alleged money laundering pertaining to the petitioner is a sum less than Rs.1 crore. While canvassing bail on medical ground, it is submitted that the petitioner is a cancer patient and he underwent surgery thrice. Further it is contended that as on 23.02.2023, the petitioner underwent medical examination at General Hospital, Ernakulam and the Medical Board recommended surgical intervention. In support of plea to relax the rigour under Section 45 of the PML Act, the learned counsel for the petitioner pointed out the decisions reported in [(2019) SCC Online SC 1549], P.Chidambaram v. Directorate of Enforcement; [2015 SCC OnLine SC 1333], Gautam Kundu v. Directorate of Enforcement (PMLA) and judgment dated 26.09.2022 in B.A.No.540/2022 passed by Delhi High Court. 7. The first point argued by the learned counsel for the petitioner is that the allegations levelled against the petitioner in the instant crime are precisely and exactly the same as alleged in Crime No.ECIR/KCZO/31/2020, where Annexure 11 supplementary complaint was filed arraying the petitioner as an accused. In Annexure 11, the allegations/findings....
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....eceived by her for the petitioner and such statements by itself is insufficient to fasten culpability on the petitioner. No evidence is stated to show for whether the petitioner has demanded, seen, or touched or handled or transferred or at least knew about the money parked at her locker. The petitioner was never aware of the existence of such money or ever possessed the same. In such circumstances, such statements must not be treated as trustworthy enough to assume culpability of the petitioner so as to decline bail under Section 45 of PML Act. The learned Senior Counsel for the petitioner placed a decision of the Apex Court reported in [MANU/SC/0365/2001], T.T.Antony v. State of Kerala & Ors. to contend that registration of second F.I.R and fresh investigation, in relation to an occurrence whereby earlier FIR registered, are not prescribed by law. In this connection, the learned counsel for the petitioner placed emphasize to paragraphs 19 ad 20 of the above judgment. 10. Another decision reported in [2022 LiveLaw (SC) 731], Tarak Dash Mukharjee & Ors. v. State of Uttar Pradesh & Ors. also is placed in support of this contention. 11. Opposing the contentions raised by the le....
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....he PML Act on medical grounds. But when he was released on bail, he joined duty and also continued in service till his retirement without undergoing any further treatment. Therefore, the petitioner could not be given the benefit of sickness to relax the rigour under Section 45 of the PML Act, as argued by the learned counsel for the petitioner. 14. The learned ASGI submitted that the exemption sought by the petitioner by resorting to the proviso to Section 45 of PML Act on the ground of medical illness cannot be considered since he had denied surgery offered by the prosecution acting on the medical report. The learned ASGI argued that investigation under PMLA, 2002 revealed that the petitioner/9th accused was constantly and closely monitoring the M/s.UAE Red Crescent funded LIFE Mission Project of Wadakkancherry even when Shri U.V.Jose assumed his charge as the CEO of LIFE Mission Project. Shri U.V.Jose in his statement dated 17.02.2023 given u/s 50 of PMLA, 2002 stated that he had received the direction from the Government of Kerala to sign the MoU only by noon on 11.07.2019, the day of signing MoU. It shows that even the LIFE Mission CEO was not aware of the happenings in the ....
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....ant has not succeeded in persuading us about the inapplicability of the threshold stipulation under Section 45 of the Act. In the facts of the present case, we are in agreement with the view taken by the Sessions Court and by the High Court. We have independently examined the materials relied upon by the prosecution and also noted the inexplicable silence or reluctance of the appellant in disclosing the source from where such huge value of demonetized currency and also new currency has been acquired by him. The prosecution is relying on statements of 26 witnesses/accused already recorded, out of which 7 were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the Act of 2002. The same makes out a formidable case about the involvement of the appellant in commission of a serious offence of money-laundering. It is, therefore, not possible for us to record satisfaction that there are reasonable grounds for believing that the appellant is not guilty of such offence. Further, the Courts below have justly adverted to the antecedents of the appellant for considering the prayer for bail and concluded that it is not possible to hold that ....
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....t that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan are quite apposite: (SCC p. 691, para 6) "6.... Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution." 19. The Hon'ble Apex Court in [(2013) 7 SCC 439], Y.S. Jagan Mohan Reddy Vs. CBI, observed that the economic offences having deep rooted ....
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.... the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." A larger bench of the Hon'ble Supreme Court has, inter alia, made following observations in its order dated 12.09.2019 in the matter of bail in Cr. MA 1381 of 2019 in the case of Serious Fraud Investigation Office Vs. Nitin Johari: "Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accus....
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....e name of this petitioner, regarding which no plausible explanation has been offered. The investigation revealed that the cash receipts amounting to Rs.5,65,17,000/- in Punjab National Bank Account No.21881132000179 of M/s Herbal Green Solutions Pvt. Ltd, and subsequent payments worth Rs.5,31,18,000/- to one company M/s/ Aurora Studio Pvt. Ltd., a company of Amit Agarwal, required to be satisfactorily answered by the petitioner, but he failed to do so. Quite interestingly, even two AK 47 rifles were seized from his house which are said to be of the security guards not posted in his place. The case is still at its nascent stage and it will not be in the interest of justice to enlarge the petitoner on bail. 20. It is pointed out that the High Court of Chennai held in the matter of P.Rajendran vs. Assistant Director, ED as follows: "15. On facts, we find that Rajendran [A6] had voluntarily lent his name for the purchase of the property under the sale deed dated 09.09.2009 with the tainted money that was generated by G.Srinivasan [A1] and R.Manoharan [A2] by committing a scheduled offence. Under Section 24 of the PMLA, there is a statutory presumption which can be ....
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....s. The possibility of the petitioner /9th Accused likely to commit the offence of Money Laundering again by concealing the proceeds of crime or by projecting it as untainted money, is very high, especially in light of the highly influential position of Principal Secretary to the Chief Minister of Kerala, which he held and the tremendous power he wields throughout the State of Kerala, by virtue of having held such office. There is a strong apprehension and likelihood that material evidence would be tampered with and witnesses would be influenced, if the petitioner/9th accused is released on bail. There is also a very strong likelihood that he would continue to commit the offence of Money Laundering by concealing the proceeds of crime and projecting it as untainted. 25. While addressing the first question that has been raised by the learned counsel for the petitioner on the submission that since earlier crime vide Crime No. ECIR/KCZO/31/2020 was registered based on the same facts, ie. Rs.1,00,50,000/-, which was kept in 2 bank lockers belonged to Ms.Swapna Suresh, ie. in SBI locker Rs.64,00,000/- and in Federal Bank locker Rs.36,50,000/-, and this crime also was registered on the ....
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....ernment or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." On a plain reading of the proviso to Section 45(1), it could be gathered that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs. Coming to the mandate of Section 45 of the PML Act, Section 45(1) provides that no person accused of an offence punishable for a term of imprisonment of more than 3 years under part A of the schedule shall be released on bail or on hi....
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....as under: "11. In the circumstances, I am of the view that the High Court should not have enlarged the respondent on bail in the larger interests of the State. It is urged that the respondent is a person who has undergone a cardiac operation and needs constant medical attention. I am sure that the prison authorities will arrange for proper treatment of the respondent whenever the need for it arises." 30. In Ashok Kumar Jain (supra), the Apex Court dealt with a case under the Foreign Exchange Regulation Act, 1973 (FERA), it has been observed that, we have noticed that learned Sessions Judge while dismissing the application for pre-arrest bail has taken due note of the aforesaid plea of the respondent and made necessary observations regarding the need to provide medical care and protection to the respondent in view of the medical reports. It cannot be contended, nor has it been contended before us, that respondent is immune from arrest on even interrogation simply on account of his physical conditions. No doubt investigating officials of the Directorate are duty bound to bear in mind that the respondent has put forth a case of delicate health conditions. They cannot overl....
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....nt within jail premises, if so required and extension of his interim bail on medical grounds is unwarranted." 32. In [2011 SCC OnLine Del 2967], Karim Morani v Central Bureau of Investigation, where court refused bail whilst making the following observations : "8. From the aforesaid record, it transpires that the petitioner underwent by-pass surgery around the year 2007. Thereafter, for a continuous period of 4 years, there is no medical record, which prima facie indicates that during the period from 2007 to 2011, the petitioner did not suffer any medical complication. Coming to the medical record of the petitioner for the year 2011, it would be seen that the record submitted by the petitioner starts from 25th April, 2011. It is pertinent to note that supplementary charge sheet showing the petitioner as one of the accused was also filed in the court on 25th April, 2011. From the medical record of year 2011 submitted by the petitioner, it cannot be said that petitioner is suffering from such a medical condition which cannot be managed by proper treatment regime in jail hospital. As per the report of Dr. Yash Lokhandwala, D.M. (Cardiology) dated 13th May, 2011, following ....
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.... "18. Reverting to the rigour of the twin test under Section 45 of the PMLA, it has to be considered whether the applicant would qualify to get bail. There is no doubt about the complicity of the applicant and there are no reasonable grounds to believe that he is not guilty. However, it should also be considered whether there is a likelihood of the applicant committing any offence while on bail. I am afraid that the prosecution has not been able to establish this fact. Going by the allegations made by the ED, the applicant was indulged in laundering of 64 lakhs which was seized from the SBI locker. Rs. There is no indication that the applicant had anything to do with the locker belonging to A2 in Federal Bank. Thus the proviso to Section 45 (1) of the PMLA would operate in view of the fact that the money allegedly laundered is less than rupees one crore. The fact that the applicant is suffering from various illness would also come to his benefit as the proviso to Section 45 exempts a sick person from the rigours of the Section. As was held by the Hon'ble Supreme Court in P Chidambaram's case, the applicant is neither a flight risk nor has he been shown to have any ....
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....that as per the statement given by Venugopal and Swapna Prabha Suresh in this crime it is crystal clear that they opened joint locker since Sivasankar had told Venugopal to open locker with Swapna Prabha Suresh and it was opened during November, 2018 till December, 2018. Subsequently Venugopal gave statement that Sivasankar messaged through WhatsApp that Rs.35 lakh should be done separately. It is pointed out by the learned ASGI that as per the statement given by Sri Venugopal on 16.02.2023 when he was asked to give details about the visit of Sri Sivasankar along with Smt.Swapna Prabha Suresh to the house of Venugopal, the date of visit, purpose of visit, cash and cash brought by them, it was stated by Sri Venugopal that it was on 28.11.2018 both of them came to his house with cash to the tune of Rs.34 lakh and money was brought by Sri Swapna Prabha Suresh and Sivasankar together. Both of them came in different cars. Further Venugopal gave statement that Sivasankar asked him to include his name also in the locker for operational purposes. That apart, the learned ASGI given emphasis to the WhatsApp chat in between Swapna Prabha Suresh and Sivasankar running into pages whereby the en....
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....ocating the project in his name. Further, a portion of the money is meant for Sivasankar. 39. As far as the sick condition of the petitioner is concerned, the learned counsel for the petitioner pointed out the medical board report on 25.02.2023 suggesting treatment of the petitioner and also the medical certificate showing admission and discharge of the petitioner at Thriveni Nursing Home from 14.03.2021 to 27.03.2021. 40. The prime question to be considered herein is as to whether the petitioner is entitled to get exemption under the proviso to Section 45(1) of the PML Act. It is true that in para.18 of Annexure-A9 judgment, this Court found that the petitioner is entitled to get benefit of the proviso holding that the petitioner is a sick person. According to the learned counsel for the petitioner, the said finding would bind this Court even though the said finding is under challenge before the Apex Court since there is no interference or stay of its operation. 41. In this matter, though the learned ASGI placed statement of the witnesses in sealed cover, the same was returned since `sealed cover production of documents' is not a generally accepted rule. Therefore, th....