TaxTMI 
TaxTMI 
2024 (1) TMI 732
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....ed 03.12.2021 made by Vikash Mohpal s/o Late Prakash Mohpal (hereinafter referred to as "the complaint") in respect of cheating, fraud, forgery stated to be committed by M/s Kinzal Freight Forwarding (OPC) Private Limited, M/s Shree Shyam International, M/s Wentorz Logistics Private Limited, M/s Balaji International, M/s Mizta Tradex Private Limited, Ravi Mehra and other unknown parties. 2.1 The complainant stated that he is a practicing Chartered Accountant and engaged in the profession through partnership firm under the name and style of M/s Mohpal & Associates and his CA membership number is 505939. The complainant on 03.08.2020 received an email from ICICI Bank, Nehru Place Branch informing that CA firm M/s Mohpal & Associates has issued 15CB certificates to M/s Shree Shyam International. ICICI Bank also requested for due diligence with regard to the said 15CB certificates. The complainant informed ICICI Bank that he never issued 15 CB certificate to M/s Shree Shyam International. The certificate on Form 15CB issued by a Chartered Accountant in terms of Rule 37BB of the Income Tax Rules is required to be submitted to the bank at the time of effecting a foreign remittance by th....
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....e same can be verified from the UDIN portal which has not be done by ICICI Branch. The foreign remittances have been effected fraudulently with connivance of officials of ICICI Bank during the relevant time. M/s Kinzal Freight Forwarding (OPC) Private Limited, M/s Shree Shyam International, M/s Wentorz Logistics Private Limited, Ravi Mehra, M/s Balaji International, M/s Mizta Tradex Private Limited, the officials of ICICI Bank and other banks and unknown persons and parties have remitted crores of rupees by using his name in edited Form 15CB and also forged the Form 15CA with mala fide intentions to remit the funds abroad which otherwise could not have been possible. 2.3 The respondent/ED on the basis of information/documents submitted by the complainant found that a prima facie case for an offence of money laundering as per section 3 of PMLA punishable under section 4 of PMLA has been made out. Accordingly, ECIR bearing no. DLZO-II/24/2022 dated 28.03.2022 was got recorded and investigation under the provisions of PMLA was initiated. 3. The respondent/ED during investigation after examination of documents of ICICI Bank, accounts of the entities i.e. M/s Mizta Tradex Private Limi....
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....entities were operated for short time periods by employing bogus Director(s)/Proprietor(s) mostly on forged IDs in cases where the quantum of amounts involved was large. The photographs in KYC documents were found to be original but the identity documents were found to be forged. There was layering between the operators of Indian entities and the operators who arranged and made the funds available abroad. The funds were introduced by way of RTGS/NEFT/other modes into the bank accounts of shell/bogus entities and thereafter, they were transferred abroad to various entities. During the investigation, 16 companies in Hong Kong and Singapore were identified where foreign exchange worth USD 93,575,185.53 (equivalent to Rs. 696,69,27,962.27/-) has been fraudulently remitted by the shell/bogus Indian entities. 3.3 The persons operating the Indian entities were pseudonyms/not traceable, as such efforts were made to seek data from regulatory sites in Hong Kong and Singapore. The data available on internet site of the 'Centre of the Integrated Companies Registry Information System' (ICRIS), Hong Kong and 'The Accounting and Corporate Regulatory Authority' (ACRA), Singapore revealed that one....
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....titioner") in the commission of offences and stated that the petitioner used to meet people by the nickname 'Ravi Mehra' and had incorporated bogus/shell companies for effecting fraudulent remittances. Chitra Pandey @ Rashmi Dwivedi also admitted about forged IDs i.e. Voter ID Card, PAN Card, Aadhaar Card of the staff working under the petitioner and his associate Rahul Kumar whereon the real pictures were used with fake names. The employees were made Directors of the bogus/shell entities used for foreign outward remittances. The petitioner and Rahul Kumar incorporated and operated the companies by using forged IDs for illegal transfer of forex to Hong Kong and Singapore. Chitra Pandey @ Rashmi Dwivedi also disclosed that one Gaurav Sharma was working as an Accountant who used to book the rate for forex transfer and also upload the documents related to export over internet banking on instructions of the petitioner and Rahul Kumar. 3.7 The statement of Gaurav Sharma was also recorded under section 50 of the PMLA wherein he disclosed that he joined the petitioner as accountant and was made Director in the name of Sarmod Kumar in M/s Wentorz Logistics Pvt. Ltd. by using forged KYC do....
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....prosecution complaint qua the petitioner is yet to be filed. The petitioner was found to be the main accused for the offence of money laundering under investigation and has failed to cooperate in the investigation. The petitioner due to non-cooperation in the investigation has not been arrayed as accused either in the prosecution complaint or in the supplementary prosecution complaint. The petitioner has been named in the FIR registered at EOW as 'Ravi Mehra'. 4. The petitioner filed a bail application bearing no. 54/2023 titled as Amit Aggarwal V ED, which was dismissed vide order dated 06.06.2023 passed by the court of Sh. Babru Bhan, ASJ-03, North-West District, Rohini Courts, Delhi. The relevant portion of the said order is reproduced as under: - 16. It is settled proportion of law that court is not supposed to enter into the merits of the case or to weigh the evidence at the state of hearing of bail application. So, the argument put-forth by Ld. Counsel for the petitioner that the investigating agency has not elaborated about the generation of proceeds of crime is not of much relevance at this stage. Even otherwise, Ld. SPP for the respondent has satisfactorily explained th....
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....ioner further stated that one Rahul Kumar was arrested on 02.12.2022 in reference to present ECIR and his statement was also recorded under force and coercion. Manpreet Singh Talwar was also arrested on 22.11.2022 and was remanded to judicial custody on 05.12.2022 and his statement was also recorded during police remand under force and coercion. The notices under section 50 of PMLA were also issued against the petitioner and the petitioner on some occasions could not appear before the issuing authority due to the reasons as forwarded to the respondent. The petitioner appeared before the authority on 03.01.2023 and his statement was partially recorded, however, the petitioner was physically assaulted by the respondent. The petitioner was taken to Ram Manohar Lohia Hospital on 03.01.2023. The petitioner again appeared before the authority on 04.01.2023 and was pressurized by the respondent for recording of the statement as per the dictates of the officers of the respondent and on refusal, he was again physically assaulted. The petitioner was again taken to the hospital. The petitioner also filed a complaint before NHRC about the inhuman treatment besides making a complaint to the Dir....
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....the factual background of the case and the investigation conducted by the respondent as detailed hereinabove. The Status Report stated that the non bailable warrants issued against the petitioner by the court of Additional Sessions Judge-03, North-West District, Rohini Courts, Delhi could not be executed and he was never found at his residence despite being advised for rest. The presence of the petitioner is required as he is the key person involved in the entire transaction/crime. The petitioner may tamper with the evidence. The petitioner is required to satisfy the twin conditions as imposed under section 45 of the PMLA which are not satisfied in the present application. The economic offences are grave offences causing loss and damage to the economic health of the country. The present bail application is liable to be dismissed. 7. It is reflecting that the complainant is a Chartered Accountant and made a complaint to Economic Offences Wing after receiving an email from the ICICI Bank wherein it was alleged that the Form 15CB has been forged on a certificate issued by him on 11.03.2019 to M/s Wentorz Logistics Private Limited using UDIN no. 19505939AAAAA18327. The forged Form 15C....
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....iness premises were raided on 21-22.09.2022 under section 17(1) of PMLA. Data was recovered from the mobile phone of Manpreet Singh Talwar and incriminating material regarding one Infiniti Futures Pte Ltd., Singapore was also recovered besides bank account details, user ID, etc. It was found that the Infiniti Futures Pte Ltd. also received fraudulently remitted foreign exchange from India including remittances from ICICI Bank from the account of Indian entities as named in the FIR. 7.2 Rashmi Dwivedi who was stated to be the Director in M/s Mizta Tradex Private Limited and Truzel Tradex Private Limited, was found to be involved into managing funds into their bank accounts via RTGS and NEFT and then making the outward forex remittance fraudulently to Hong Kong and Singapore. Rashmi Dwivedi was actually found to be Chitra Pandey and was traced by the officials of the respondent/ED. The statements of the complainant i.e. Vikash Mohpal, Rahul Kumar (co-accused) and Chitra Pandey were recorded under section 17(2) and section 50 of PMLA during investigation. 7.3 The complainant in the statement recorded on 04.12.2022 stated that Ravi Mehra who was identified by the complainant as the p....
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....wards the freight payments but stated that the petitioner forged 15CB certificates and met Chartered Accountant for obtaining 15CA/CB certificates for M/s Wentorz Logistics Private Limited. 7.5 Chitra Pandey @ Rashmi Dwivedi in the statement recorded on 26.11.2022 stated that the petitioner was the main person who used to give directions for all transactions and he along with Rahul Kumar also used to give directions for dealing with bankers and getting signatures on pre-filled applications for effecting foreign remittances. Chitra Pandey @ Rashmi Dwivedi also stated that in the statement recorded on 26.11.2022 stated that M/s Mizta Tradex Private Limited and M/s Truzel Tradex Private Limited were used for illegal transfer of forex to Hong Kong and Singapore and the petitioner was the mastermind in the illegal transaction. The petitioner along with others, used to incorporate company by using forged KYC documents i.e. the Voter ID Card, PAN Card, Aadhaar Card. 7.6 The statement of Gaurav Sharma was also recorded during investigation who disclosed that he was employed by the petitioner as an Accountant and was made Director in M/s Wentorz Logistics Private Limited by using forged K....
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....8.1 The counsel for the petitioner further argued that the petitioner appeared before the respondent/ED on 03.01.2023 and 04.01.2023 but he was physically assaulted by the officers of the respondent/ED and as a result of which he was taken to Ram Manohar Lohia Hospital for treatment. The petitioner also made a complaint at NHRC and had already undergone three separate operations related to kidney at Max Healthcare on 10.01.2023, 06.02.2023 and 04.04.2023. 8.2 The counsel for the petitioner argued that in the present case neither any 'proceeds of crime' were generated from the scheduled offence nor does the alleged offence fall in the category of scheduled offences. The alleged offence, pertaining to the unauthorized outward remittance by placing the forged 15CB Form, has not fulfilled the ingredients of the offence of money laundering as there are no 'proceeds of crime' being generated from the scheduled offence i.e. fabrication of 15CB Form. The 'proceeds of the crime' is the core of the ingredients constituting the offence of money laundering and all the properties recovered and attached by the investigating agency in connection with offence of the criminal activity relating to ....
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.... assaulted by the officers of the respondent/ED. The petitioner has replied all the notices issued to him by the respondent/ED and the custodial interrogation of the petitioner is not required. The counsel for the petitioner prayed that the petitioner be granted anticipatory bail. 9. Mr. Ravi Prakash, Central Government Standing Counsel (CGSC) advanced oral arguments and also submitted written submissions. The CGSC argued that FIR bearing no. 0045/2022 registered under sections 420/467/468/471/120B IPC discloses the commission of scheduled offence and generation of 'proceeds of crime' within the meaning of section 2(1)(y) of PMLA. 9.1 The CGSC further argued that 'Rashmi Dwivedi' who was later on identified as Chitra Pandey was the Director in M/s Mizta Tradex Private Limited and M/s Truzel Tradex Private Limited and these companies were involved in managing funds into its bank accounts via RTGS and NEFT and then fraudulently making outward forex remittance to Hong Kong and Singapore. Chitra Pandey @ Rashmi Dwivedi in the statement recorded under section 50 of PMLA deposed about the role of the petitioner in commission of the offence subject matter of the present litigation. The ....
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....he commission of a serious offence of money laundering. The Supreme Court in Rohit Tandon (supra) observed that that the prosecution has relied on statements of 26 witnesses/accused which have already been recorded and the High Court has relied on 07 witnesses which are admissible in view of section 50 of PMLA. It was further observed that these statements made formidable case about involvement of the appellant therein in the commission of serious offence of money laundering. 10.1 The counsel for the petitioner as mentioned hereinabove argued that the statements of the co-accused cannot be considered against the petitioner which are not substantial piece of evidence and their evidentiary value has to be tested at the end of the trial and not at the stage of granting bail. This Court in Vijay Agrawal through Parokar V Directorate of Enforcement, 2023 SCC OnLine Del 3176 relied on by the counsel for the petitioner observed that the evidentiary value of the statement recorded under section 50 of PMLA has to be tested at the end of trial and not at the stage of bail. Similar view was also taken by another Coordinate Bench of this Court in Basant Bansal V State (Govt. of NCT of Delhi) ....
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.... This submission presumably is linked to the observation in paragraph 42 in the case of Nikesh Tarachand Shah (2018) 11 SCC 1. Similar argument was considered in The Asst. Director Enforcement Directorate vs. Dr. V.C. Mohan (Criminal Appeal No.21 of 2022, decided on 04.01.2022). We are in agreement with the observation in this decision that it is one thing to say that Section 45 of the 2002 Act refers to a scheduled offence under the general law, but, as noted earlier, the offence under this Act in terms of Section 3 is specific to involvement in any process or activity connected with the proceeds of crime which is generated as a result of criminal activity relating to a scheduled offence. It is also true that Section 45 does not make specific reference to Section 438 of the 1973 Code, but it cannot be overlooked that sub-section (1) opens with a non-obstante clause and clearly provides that anything contained in the 1973 Code (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond, unless the stipulations provided therein are fulfilled. On account of the non-obstante clause in Section 45(1) of the 2002 Act, the sweep of that provisi....
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....rm the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 11.3 A Coordinate Bench of this Court in Vijay Agrawal (supra) observed that as per Vijay Madanlal Choudhary (supra), though the twin conditions provided under Section 45 of PMLA restrict the right of accused to grant of bail but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. It is a settled proposition that the discretion vested in the Court has to be exercised in accordance with the law and has to be guided by the principles of law. The observation in Vijay Agrawal (supra) was followed by another Coordinate Bench of this Court in Basant Bansal (supra). It was also observed in Vijay Agrawal (supra) as under:- 30. The jurisprudence of the bail positively....
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....s to do with) used in the main provision is a present participle of word "relate" and the word "relatable" is only an adjective. The thrust of the original provision itself is to indicate that any property is derived or obtained, directly or indirectly, as a result of criminal activity concerning the scheduled offence, the same be regarded as proceeds of crime. In other words, property in whatever form mentioned in Section 2(1)(v), is or can be linked to criminal activity relating to or relatable to scheduled offence, must be regarded as proceeds of crime for the purpose of the 2002 Act. It must follow that the Explanation inserted in 2019 is merely clarificatory and restatement of the position emerging from the principal provision [i.e., Section 2(1)(w)]. 251. The "proceeds of crime" being the core of the ingredients constituting the offence of money-laundering, that expression needs to be construed strictly. In that, all properties recovered or attached by the investigating agency in connection with the criminal activity relating to a scheduled offence under the general law cannot be regarded as proceeds of crime. There may be cases where the property involved in the commission....
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....nd reaching upto the property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence. Therefore, the Explanation is in the nature of clarification and not to increase the width of the main definition "proceeds of crime". The definition of "property" also contains Explanation which is for the removal of doubts and to clarify that the term property includes property of any kind used in the commission of an offence under the 2002 Act or any of the scheduled offences. In the earlier part of this judgment, we have already noted that every crime property need not be termed as proceeds of crime but the converse may be true. Additionally, some other property is purchased or derived from the proceeds of crime even such subsequently acquired property must be regarded as tainted property and actionable under the Act. For, it would become property for the purpose of taking action under the 2002 Act which is being used in the commission of offence of money-laundering. Such purposive interpretation would be necessary to uphold the purposes and objects for enactment of 2002 Act. 253. Tersely put, it is only such property which is derived or o....
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....een derived in lieu of or in exchange of the 'property' which had been directly derived or obtained as a result of criminal activity relating to a scheduled offence, such property would also fall within the definition of 'proceeds of crime.' It has also been inter alia held in Vijay Madanlal Choudhary (supra) that even at the stage of bail, the court is expected to consider the question from the angle as to whether the accused possessed the requisite mens rea. 12.2 In the present case main allegation of the respondent/ED against the petitioner is that he was instrumental in outward remittance of huge amount in the account of foreign entities on the basis of forged Form 15CB Certificates. However, in the present case, there is no property which is derived or obtained directly or indirectly as a result of criminal activity concerning the scheduled offence which can be regarded as 'proceeds of crime'. There is legal force in the arguments advanced by the counsel for the petitioner that the unauthorized outward remittance by forged Form 15CB Certificates does not amount to 'proceeds of crime' being generated from the scheduled offence i.e. fabrication of Form 15CB Certificates. 13. T....
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....f allegation made against the accused. Such economic offences normally involve the public exchequer and money of the honest tax payer. The offence of money laundering in itself is a very serious offence. The money laundering not only is a threat to the financial health of the country but it may also adversely impact its integrity and sovereignty. Moreover, the act of money laundering can even lead to the collapse of the economic system. 16. In view of the above discussion and after considering all facts, including incriminating material against the petitioner which are the statements made by co-accused/witness under section 50 of PMLA and the fact that their evidentiary value can be tested at the stage of trial, no generation of 'proceeds of crime' from criminal activity and the petitioner being a sick and infirm person, the present anticipatory bail application is allowed. The petitioner, in case of arrest, shall be released on bail on furnishing personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount to the satisfaction of the concerned Investigating Officer or any other authorized person subject to following conditions:- i. The petitioner shall join inve....