TaxTMI 
TaxTMI 
TaxTMI 
2023 (11) TMI 750
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....d, Bengaluru, certain incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section 120B of the IPC which led to the registration of the FIR. Based upon investigation, the Enforcement Directorate registered ECIR No. RPZO/09/2022. In the course of the investigation, the present applicant was summoned and finally the applicant was arrested on 23.01.2023. 3. It is further case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari, which would reveal transaction of cash money between Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnikant Tiwari and his associates Hemant Jaiswal, Jogendra Singh, Moinuddin Quaraishi, Nikhil Chandrakar, Roshan Singh and others were involved in a criminal conspiracy to run a parallel system of c....
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.... was subjected to threaten to make statement against his will. He would also submit that the applicant against the inaction of authorities has made complaint on 01.11.2022 before the Outpost Incharge and again preferred representation on 03.12.2022 before the Enforcement Directorate elaborating the ill-treatment made out against him. The documents were also annexed with the bail application. He would further submit that the applicant submitted an application before the learned Special Judge (PMLA), Raipur for providing various documents on 20.12.2022. In the meanwhile, the Enforcement Directorate filed a complaint on 10.12.2022 before Special Judge (PMLA), Raipur. He would further submit that the present applicant has cooperated with the investigation but on account of his refusal to make untrue statement, he was arrested on 23.01.2023. 6. He would further submit that from bare perusal of the complaint, it is quite vivid that the applicant is neither involved in schedule offence nor he is involved with the alleged proceeds of crime. He would further submit that condition as enumerated under Section 45 of the PMLA, 2002 for grant of bail, is satisfied. He would further submit that ....
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....duced even Shri Chandreshekhar Sinha whose statement was recorded under Section 50 of PMLA, 2002 has admitted that fruits bills were bogus one. He would further submit that Deepesh Taunk works as Supervisor at M/s Om Agro Farms which has now been purchased by family members of Smt. Soumya Chaurasia. On above factual matrix, he would submit that as per Section 24 of the PMLA, 2002, the burden of proof to prove non-involvement in the crime of money laundering is upon the person who charged with the offence. The present applicant has narrated the events while recording statement under Section 50 of PMLA, 2002 which is a judicial proceeding and he would submit that there is prima facie sufficient material against the applicant, therefore, he would pray for rejection of the bail application. 9. To substantiate his submission, he would also refer to the judgment in case of Y.S. Jagan Mohan Reddy Vs. CBI, reported in (2013) 7 SCC 439, Anirudh Kamal Shukla Vs. Union of India through Assistant Director Directorateof Enforcement (Criminal Misc. Anticipatory Bail Application under 438 Cr.P.C. No. 307/2022), State of Gujrat Vs. Mohanlal Jitamalji Porwal, reported in Air 1987 SC 1321, Mohd. Ar....
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....ovision 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." 12. Hon'ble Division Bench of Madras High Court in N. Umashankar Vs. The Assistant Director, Directorate of Enforcement, reported in MANU/SCOR/25324/2022, has examined Section 45 of the PMLA, 2002 and has held at paragraph 18 as under:- "18. It is also brought to the notice of this Court by the respondent in the counter affidavit that the documents collected would prima facie disclose that all the accused have committed acts of money laundering under Section 3 of the Prevention of Money Laundering Act and punishable under Section 4 of the said Act and the petitioners, during police custody also, did not cooperate with them and despite the complaint has been filed, further investigation is also in progress. Even befo....
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...., the enquiry/investigation against respective respondent No. 1 is going on for the offences under the PML Act, 2002, the rigour of Section 45 of the PML Act, 2002 is required to be considered. Section 45 of the PML Act, 2002 reads as under:- "45. Offences to be cognizable and non-bailable.- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless-] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence p....
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.... respect to the scheduled offences under the PML Act, 2002 by the Enforcement Directorate is still going on. Merely because, for the predicated offences the chargesheet might have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PML Act, 2002. Investigation for the predicated offences and the investigation by the Enforcement Directorate for the scheduled offences under the PML Act are different and distinct. Therefore, the High Court has taken into consideration the irrelevant consideration. The investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is till going on. 7. As observed hereinabove, the High Court has neither considered the rigour of Section 45 of the PML Act, 2002 nor has considered the seriousness of the offences alleged against accused for the scheduled offences under the PML Act, 2002 and the High Court has not at all considered the fact that the investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is still going on and therefore, the impugned orders passed by the High Court enlarging respective respondent No. 1....
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....accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others 57 , held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be." 16. From the above stated legal position, it is necessary for the applicant to prima facie establish that he is not involved in the commission of offence under the PMLA, 2002 to enlarge on bail, therefore, this Court is now considering the factual matrix as projected by the applicant and the respondent to substantiate their respective stands. 17. The submission made by learned Senior counsel for the applicant that the applicant has sold the property to Smt. Shanti Devi Chaurasia for consideration of Rs. 2.53 crore through registered sale-deed and through banking channels, which cannot be said to be amount of proceed of crime and his submission that allegations made by the respondent that the present applicant has received cash of Rs. 61.02 lacs over the above sale proceeds, which were then deposited into his bank account,....