AI Drafter 
TaxTMI 
TaxTMI 
2024 (3) TMI 357
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....with his brother, orchestrated collection of money by promising job opportunities in various positions within the Transport Department. This gave rise to several complaints made by candidates, who had paid the money but were not able to secure the employment. The investigation ultimately ended with three final reports filed by the Central Crime Branch, Chennai in C.C.No.19 of 2020, C.C.No.24 of 2021 and C.C. No.25 of 2021 and in all these cases, the petitioner has been arrayed as A.1 and it is pending before the trial of cases relating to MP/MLA Special Court. 2.2. On the basis of the above cases, the Enforcement Directorate entered into the scene and after collecting the required information/documents registered a case in ECIR No. MDSZO/21/2021 on 29/07/2021, against the petitioner and others under the provisions of the PMLA. 2.3. The petitioner was arrested and remanded to judicial custody on 14/06/2023. The petitioner had earlier filed a bail petition before the learned Principal Sessions Judge in Crl.M.P.No.22608 of 2023 and this petition was dismissed by an Order dated 20/09/2023. Thereafter, the petitioner filed Crl.OP.No.23629 of 2023, before this Court seeking for bai....
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....ilty for the charge under Section 3 of the PMLA. Considering the fact that the petitioner has already resigned his position as a Minister, there is absolutely no ground to assume that he will commit any offence while he is on bail. 3.4. The learned Senior Counsel submitted that while testing the reasonable grounds to believe that the petitioner is not guilty, it is not necessary for the petitioner to prove beyond reasonable doubts that he is not guilty and it will suffice if the petitioner is able to satisfy atleast on the surface analysis about the probative value of the evidence that is relied upon by the prosecution. It was further submitted that the Enforcement Directorate is strongly relying upon CF-29, CF-27 and CF-116. The learned Senior Counsel pointed out to various discrepancies in CF- 29 and CF-27 and he also pointed out to the various modifications that had also taken place to the pen drive after the seizure. The learned Senior Counsel further submitted that insofar as CF-116 is concerned, it was a Hard disk relied upon by the respondent. However, what was seized was a HP Hard disk and what has been submitted to analysis is Seagate Hard disk. Therefore, there is a di....
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.... there is prima facie evidence to show that the petitioner had withdrawn a sum of Rs. 58,94,000/- and the money has been disbursed from this account through RTGS and the list of beneficiaries are also available. That apart, whatever amounts have been relied upon by the respondent is shown in the Income Tax returns that have been filed. Therefore, there is absolutely no money trail established by the respondent to even prima facie prove that those amounts are the proceeds of crime. The learned Senior Counsel also relied upon a separate note that was filed before this Court explaining the cash deposits and payments that is put against the petitioner. 3.8. The learned Senior Counsel further submitted that the prosecution is relying upon certain correspondences which does not even carry the signature of the petitioner or any other person and many of these correspondences pertains to the period prior to the check period starting from 2014 onwards. Those materials in which the petitioner has absolutely no connection, has also been relied upon by the respondent. 3.9. In the light of the above submissions, the learned Senior Counsel concluded his arguments with a plea that the petiti....
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....he dispute with the complainant which was subsequently interfered by the Hon'ble Supreme Court, is a very strong antecedent that should be kept in mind since the petitioner, if he is let out, will make similar attempts to tamper with the witnesses and thereby, derail the criminal trial. The petitioner is very much capable of winning over witnesses and if that is done, that will be detrimental to the progress in the criminal prosecution. That apart, the brother of the petitioner and yet another important accused, who was an associate of the petitioner viz., Shanmugam are absconding and certain vital materials must be collected only after they are arrested and their statements must also be recorded. If the petitioner is let out on bail, with the influence wielded by the petitioner, it will become even more difficult to apprehend these accused persons. It is also a matter of record that when the IT officials went for a raid to the residence of the petitioner, they were attacked by a mob and their vehicles were damaged and there is a separate prosecution that is going on in that regard. In view of the same, it was contended that the grounds that were put against the petitioner unde....
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....hich is anterior to the date of seizure. This is apart from the fact that these materials were actually seized by the police in the predicate offence and was available in the Special Court along with the final report and that material in turn was relied upon by the respondent in the present proceedings. Therefore, the respondent cannot be attributed with any tampering or anti-dating or over-writing of the files. The genuineness of the materials collected by the prosecution in the predicate offence has never been questioned by the petitioner and when the very same materials are relied upon by the Directorate of Enforcement, the petitioner is attempting to question its genuineness. The ground that has been taken by the learned Senior Counsel for the petitioner, as if the electronic evidence lacks probative value, is totally misconceived and unsustainable. The learned ASG submitted that prima facie, there is no discrepancy in the electronic evidence that is relied upon and if at all there is any discrepancy as alleged by the petitioner, it can only be proved at the time of the trial. At this stage, the Court must only see if the final report in the predicate offence is genuine, the co....
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....e petitioner and also with the officials of the Transport Corporation regarding the recruitment to various posts. Hence, those letters and the email communications clearly establish the conspiracy among the accused persons and the active involvement of the said Shanmugam and Karthikeyan along with the petitioner in committing the crime, which has been branded infamously as "Job racket scam". 3.17. The learned ASG further submitted that the reliance placed by the learned Senior Counsel for the petitioner in the judgment in Vernon, referred supra, will not apply to the present case since the language that is used under Section 43D(5) of the UAPA Act is different from the language used under Section 45 of PMLA. Therefore, the test is different when it comes to the PMLA. 3.18. The learned ASG submitted that the materials that are available and the reliance upon those materials which has been explained in the complaint pending before the Court below in C.C.No.9 of 2023, clearly makes out a case against the petitioner for offence under Section 3 of PMLA and as on today, there are no reasonable grounds to believe that the petitioner is not guilty of such offence. That apart, the pet....
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....nd other letters and also the proceeds of crime. Insofar as proceeds of crime is concerned, it is projected as if the total proceeds of crime is Rs. 67.74 crores. In order to substantiate the same, the respondent is relying upon a file named CSAC found in CF-27/21 and particular reference is made to sub-sheet named sheet no.7. A careful perusal of CF-27/21 does not reveal the existence of such a file and the nearest file that is available is a file named CSAC.XLSX which is dealt with in annexure-43. This annexure-43 also covers sheet no.7. However, the document that is referred to at paragraph no.14.5.8 of the complaint is not available. This document has been brought forth as a subsequent addition by the investigating agency in the predicate offence and it forms part of the files that were prepared for questioning. It does not form part of the original file in CF-27/21. Hence, if the very existence of the so called file is under question, the very basis on which the respondent is trying to project the case as if, the proceeds of crime is to the tune of Rs. 67.74 crores, is totally unbelievable. 3.21. The learned Senior Counsel further submitted that he is not alleging that the ....
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.... has carefully considered the submissions made on either side and the materials available on record. 4.2. It is not necessary for this Court to discuss about the predicate offence for which the petitioner was charged and the subsequent events that took place and all those facts have been dealt with in detail in the previous orders passed by the Hon'ble Apex Court and this Court during earlier hearings on various occasions. Therefore, it will suffice to straight away go into the grounds that have been raised in this petition and render findings. 4.3. While considering this petition, this Court has to primarily satisfy itself that the petitioner has fulfilled the requirements under Section 439 Cr.PC and also the twin conditions prescribed under Section 45 of PMLA. 4.4. To start with, this Court will deal with the twin requirements prescribed under Section 45 of PMLA. The Hon'ble Apex Court in Vijay Madanlal Choudhary case referred supra has upheld the validity of Section 45(1) of PMLA. Section 45 of the PMLA turns the principle of bail is the rule and jail is the exception on its head. Under the PMLA regime jail is the rule and bail is the exception. The power of the....
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....tegy to exchange cash for job selections under various categories in the Transport Department. Thereby, the petitioner has received proceeds of crime to the tune of Rs. 67.74 crores. The predicate offence has resulted in filing of final reports and the case is pending in C.C.No.19 of 2020, CC.No.24 of 2021 and C.C.No.25 of 2021, before the Special Court dealing with MP/MLA cases. 4.7. The respondent came into the scene since the predicate offence under the Prevention of Corruption Act Act falls within the schedule under PMLA. An ECIR [Enforcement Case Information Report] was registered and the available materials revealed that the petitioner has committed an offence under Section 3 of PMLA. Based on the details collected, the petitioner was arrested under Section 19 of PMLA on 14.6.2023. 4.8. On completion of investigation, a complaint has also been filed before the Special Court constituted under Section 43(1) of PMLA and the same has been taken on file in C.C.No.9 of 2023 and the same is pending from August 2023 onwards. 4.9. The first material upon which arguments were made on either side pertains to CF-116. It came to light that this electronic record is a Seagate Hard....
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....mbering 284 and the same was analysed and a report was given by TNFSL. 4.12. Insofar as CF-27/21 is concerned, it pertained to selecting 472 files that was created on a particular date on 27.07.2015. In view of the same, no useful purpose will be served in comparing the analysis report given for CF-29/20 and CF-27/21 since these two analysis reports relates to different purposes. In the first case, it pertained to the selected 284 files and in the second case, it pertained to 472 files created on a particular day on 27.07.2015. Hence, there is no necessity to analyse the so called differences pointed out by the learned Senior Counsel for the petitioner. In any case, this Court cannot come to a conclusion that the differences pointed out is as a result of manipulation. That would tantamount to an extreme presumption which is not warranted at this stage. It must be borne in mind that these materials and reports were collected by the investigation agency, who investigated the predicate offences and the respondent is merely relying upon the same in order to prosecute the petitioner for offence under Section 3 of PMLA. It is not necessary for the respondent to rely upon all the mater....
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.... record relied upon by the respondent. What is required is to see as to whether there is prima facie genuineness in the materials that are sought to be relied upon by the respondent. If on going through the materials, this Court is convinced that there is no doubt on the genuineness of the materials relied upon by the respondent, there is no question of doubting the probative value of those documents at the stage of dealing with the bail petition. The submission made by the learned Senior Counsel for the petitioner as if, 284 files had increased to 472 files and therefore, there is manipulation of pen drive, is totally unsustainable and as has already been held by this Court, such comparison between CF-29/20 and CF-27/21 is uncalled for in this case. This is in view of the fact that both these reports deals with two different sets of files. 4.17. The next important submission that was made was that the respondent did not make out a case for substantiating that Rs. 67.74 crores is involved and identified as proceeds of crime. The respondent has explained at paragraph no.14.5.8 of the complaint in C.C.No.9 of 2023, regarding the material on which the proceeds of crime was fixed at....
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....upon documents 28 to 33 filed along with the complaint, it becomes clear that the excel sheet is very much a part of CF-27/21. To add strength to the same, it is also seen that the relevant document has been certified by the Special Court and this document is a print out of what is contained in the file. These documents, prima facie establishes that the entire recruitment process in the Transport Corporation was manipulated by fixing specific rates for various posts and based on the payment of money, the marks were manipulated and the recruitment had taken place. It is seen that there was a large scale manipulation resorted to which has been explained at paragraph no.11 of the complaint and which shows that payments have been made by many job aspirants for jobs either directly or through the associates to B.Shanmugam and M.Karthikeyan, who were the unofficial personal assistants of the petitioner during the relevant point of time. 4.20. If there is a prima facie material to show that the amount has been received by misusing the position of the petitioner who was the then Transport Minister, that by itself will be construed as proceeds of crime and it is not necessary for the res....
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....the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it woul....
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....rials referred supra, strengthens the case against the petitioner. The petitioner has not made out a case by satisfying this Court that there are reasonable grounds for believing that he is not guilty. Hence, the twin conditions that are mandatory under Section 45(1) PMLA has not been satisfied by the petitioner. 4.26. The Hon'ble Apex Court in P.Chidambaram v. Central Bureau Investigation reported in 2020 13 SCC 337 had come up with triple test under Section 439 of Cr.PC, while dealing with cases involving economic offences. The principles that were summarised in this judgment is extracted hereunder: 21. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reason....