TaxTMI 
TaxTMI 
2023 (12) TMI 1293
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dated 18.11.2022, the Apex Court has granted bail. Thereafter, the Assistant Director, Directorate of Enforcement (ED) Indore has registered a crime No.ECIR/INSZO/42/2022 under Section 45 of Prevention of Money Laundering Act, 2002 (for brevity "PMLA Act") for prosecution under Section 3 and 4 of the PMLA Act. 03. On the basis of three different FIRs i.e. FIR No.119/2019 dated 05.02.2019, FIR No.159/2021 dated 17.02.2021 & FIR No.161/2021 dated 18.02.2021 registered at police station Khajrana, District Indore in respect of same sale-deed. The petitioner approached the Special Court for PMLA Act by way of application under Section 438 of Cr.P.C. which came to be rejected vide order dated 17.10.2023 hence, present application is filed under Section 438 of Cr.P.C. mainly on the ground that he had already been remained in jail for 7 to 8 months in above crimes and though the Apex Court has granted him bail, therefore, for the same offence no further arrest and custody of applicant is required. It is submitted that all the documents related to the crime have already been seized and ECIR has been filed before the Competent Court which is pending for adjudication. In the ECIR the appl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e sale amount, thus received from the new buyers was deposited and withdrawn by themselves. Shri Keshav Nachani issued four cheques each of rupees 50 lacs; one cheque was encashed by the society and the remaining three cheques were bounced due to insufficient fund in the account. Thus, he paid only 50 lakhs to the society. Further immediately he mortgaged the land to Allahabad bank and was given a loan/CC Limit of Rs.10 Crores (approx.). The said land thus purchased from the society was mortgaged before Allahabad bank by Shri Keshav Nachani as personal guarantor, as he and his family members were the directors and shareholders in the company which was availing Loan/ CC Limit, The shareholding pattern and directorship of the close family members of Shri Keshav Nachani and the instance of offering his personal land to the company for taking loan clearly reveals that he was the one who was controlling the day-to-day operations and the entire affairs of the company. The said company after availing the loan of Rs 10 Crores was in operation till 2015- 16, when the outstanding balance loan became NPA. The Allahabad bank enforced the loan recovery proceedings and thus handed over the mortg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce is not just an offence against an individual; rather the larger societal interest is at stake. Therefore, a delicate balance is to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India." It is further stated that 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 accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. With regard to the economic offences, the Court said that economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless to the consequence to the community. Such offences constitute a class apart as they affect the econo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail." The first and foremost thing that the court hearing an anticipatory bail and application should consider is the prima facie case put up against the accused, Thereafter, the nature of the offence should be looked into along with the severity of the punishment. In the instant case even though the said applicant was not arrested but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. As economic offences constitute a very serious nature of offence and need to be visited with a serious 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. 08. This applic....