TaxTMI 
TaxTMI 
2023 (11) TMI 1237
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.... Shivender Singh. The said complaint pertains to the extortion of money to the tune of Rs. 200 Crores. Since the FIR no. 208/ 2021 contained sections provided under the scheduled offences of part A of PMLA, ED (Delhi Zone Office-II) recorded ECIR no. ECIR/DLZO-II/54/2021 on 08.08.2021 to investigate the offence of money laundering. The prelude to the present ECIR relates to the investigation pertaining to another ECIR/DLZO-II/05/2019 related to Religare Finvest Ltd. During the investigation of the said ECIR, it was noticed that AD Singh made some financial transactions with Aditi Shivender Singh. Based on this, Aditi Shivender Singh was summoned on 17.06. 2021 in case ECIR/DLZO-II/05/2019 and her statement u/s 50 PMLA was recorded and she also tendered her iPhone having IMEI No. 354858096914919. The said phone was sent for forensic analysis to the Directorate of Forensic Science, Gandhi Nagar. The analysis of the call data record (CDR) of the her iPhone-X IMEI no. above-mentioned mobile showed multiple calls from the numbers belonging to Union Government Officers and Ministries of the Govt, of India including Home Minster Office as well as PMO etc., were made. These numbers (for th....
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....s kept on growing and she had to liquidate all her assets. The cash was generated through jewellers and hawala operators and was delivered in various parts in Delhi. iii. That it was also informed by Aditi Singh that she was instructed by Abhinav to buy a small basic phone on which Anoop Kumar could call as the mobile phone has already been tendered in the ED and Anoop Kumar would speak to her from official landlines. Aditi Singh informed that she was using mobile number 9821942777 and the same was put on surveillance for further investigation. iv. Investigation also revealed that it was only Abhinav who could make calls to Aditi and Aditi could only message him. It was also found that sister and brother of Aditi Singh were also in touch with the said Abhinav. The sister Arundhati Singh deleted her telegram and as a result Abhinav was forced to call Arundhati on whatsapp. Through technical analysis, the IP address of the calls was traced and the numbers which accessed the IP address were analysed. From analysis, it was found that the caller was calling from 9311910260. The CDR of the number used by caller was investigated and it perfectly matched with the call mad....
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....rs. Once the complainant Aditi Singh was convinced, extortion started and the money was delivered in India and abroad. viii. The money which was delivered by complainant Aditi Singh was picked by Deepak Ramnani (accused no.3) who was known to Sukesh Chandra Shekhar prior to the extortion, and the money was transferred within India and abroad through hawala channels. It is relevant to point out that Deepak Ramnani was involved in the hawala business and the name of Deepak Ramnani also came up in another ED case related to the owners of Unitech Group i.e., Sanjay Chandra and Ajay Chandra. In fact, Sukesh Chandra Shekhar admitted that Deepak Ramnani was introduced to him Sanjay Chandra. ix. The modus operandi was that demand was made by Sukesh Chandra Shekhar and a token number was given to Aditi Singh who would then pass it to the person delivering the cash. Once the place and time was fixed, Deepak Ramnani or Pardeep Ramdani would reach the place and takes the delivery in lieu of the token and once the cash was delivered, Aditi Singh got confirmation that the cash had been received. In the same way, money was transferred to offshore locations using various companie....
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....tar Singh Kochar is a well known hawala operator in the northern India and a key person in this case, responsible for disbursement of POC within India and outside India through hawala channels. It was also admitted by accused Avtar Singh Kochar that he knew accused Deepak Ramnani for the past 10-15 years through Raj Kumar (maternal uncle of Deepak Ramnani). He also admitted that during the period, Aug, 2020 to Aug, 2021, accused Avtar Singh Kochar did hawala transactions to the tune of Rs. 50 Crores on the instructions of; accused Deepak Ramnani. Out of these 50 Crores, around 6-7 Crores was sent within India and rest 43-44 Crores was sent abroad mainly Dubai. xii. During ED custody, Avtar Singh Kochhar admitted the facts with respect to sending money via Hawala during the period of August 2020 to August 2021 for Deepak Ramnani on various occasions. But he did not disclose the complete truth about the amount he received from Deepak Ramnani for hawala. Moreover, he did not disclose complete truth about doing hawala abroad during the period of August 2020 to August 2021 for Deepak Ramnani. Actually, he was the key person who was doing disbursement of proceeds of crime within....
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....ey laundering under section 3 punishable under section 4 of PMLA, nor has derived or obtained directly or indirectly any "proceeds of crime' from a criminal activity relating to a scheduled offence. Learned senior counsel for the petitioner has submitted that the petitioner has no nexus or link whatsoever with accused No. 1 nor with the alleged "proceeds of crime'. Learned senior counsel for the petitioner has further submitted that even in the prosecution complaint there is no material/evidence from which any mens rea can be attributed in connection with the scheduled offence or any proceeds of crime. It has further been submitted that in the absence of any legally admissible evidence and merely on the basis of hypothetical assumptions/notions, the petitioner cannot be kept in custody. Learned senior counsel has submitted that the allegations against the Petitioner are baseless, imaginary and devoid of any merit. Learned senior counsel for the petitioner has invited the attention of the court to the statement under Section 50 recorded on 12.10.2021 and 16.10.2021, wherein there is no material to link the accused with the main accused or the predicate offence. Learned senio....
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....d there is no probability of tampering with the evidence or influencing/intimidating the witnesses. Reliance has been placed upon P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791. 9. Learned senior counsel has submitted that at this stage, the court is not required to make a roving enquiry or to record a positive finding that the petitioner has not committed an offence under the Act. Learned senior counsel has submitted that the court is only required to evaluate on the broad probabilities. Reliance has been placed upon Vijay Madanlal Choudhary (supra) and Sanjay Pandey v. Directorate of Enforcement 2022 SCC OnLine Del 4279. Learned counsel has further submitted that the petitioner is aged about 69 years old, a COVID survivor who has been suffering from several geriatric illnesses and his health is deteriorating fast. Learned senior counsel has further submitted that the petitioner has no criminal antecedents and therefore petitioner is entitled to bail. SUBMISSION ON BEHALF OF ED 10. Mr. Zoheb Hossain, Learned counsel for ED has submitted that during the course of the investigation, the following evidence has appeared against the petitioner: a) That....
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....gh Kochhar at Karol Bagh in order to give or take the amount in cash. He also admitted that he had gone to Deepak Ramnani ' s house in Model Town for 2-3 times. He used to give approximately 40-50 lacs every time. (RUD 91 at Page 2 & 3) That it is most respectfully submitted that the evidences collected during the course of investigation prima facie makes out an offence of Money Laundering under Section 3 and punishable under Section 4 of the PMLA, 2002 against the applicant/accused no. 5 Sh. Avtar Singh Kochar in the instant case. 11. Learned counsel has submitted that the evidence collected during the course of investigation, prima facie makes out an offence of money laundering under Sections 3 & 4 of PMLA. Learned Counsel has further been submitted that the accused was arrested on 12.10.2021 but after his arrest the petitioner did not disclose the complete truth about the amount he received from Deepak Ramnani for hawala nor did he disclose the complete truth about doing hawala abroad during the period of August 2020 to August 2021 for Deepak Ramnani. Learned counsel for the ED has submitted that the gist of the statement given by the accused Avtar Singh Kochhar is as und....
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....stated the name of angarias whom he has transferred the money for further transactions, was namely Lalu, Tiwari, Govind, PTI Ji, Ravi, Patel On-line and all are located in Kucha Mahajani, Chandani Chowk. f) He also stated that he sent money to Dubai to Rajkumar, Shetty, Ashok Patel, Rajiv Khurana, and Pankaj, who are hawala operators in Dubai for further transactions. g) Statements of Narender alias Sonu, Ramesh Kumar, Rohit, Paramjit Singh were recorded who confirmed the fact that they picked cash from the house of Deepak Ramanani from his residence as well as the location near his office and this cash was handed over for onward hawala and at times have also handed im cash received through Hawala transactions. 12. Learned counsel has submitted that the accused has been involved in the commission of the offence of money laundering which is an economic threat to national interest and with a deep conspiracy with the other accused persons. It has further been submitted that the accused did not cooperate with the investigation. Learned counsel has further been submitted that an offence under Section 3 of PMLA in the event of a direct or indirect attempt to indulge ....
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....endra Kumar Jain vs. Directorate of Enforcement Bail application no.3590/2022 and other connected cases while discussing the scope of Section 3 of PMLA inter alia held as under: 61. Before proceeding further, it is necessary to refer to the relevant provisions of PMLA. Section 3 of the PMLA defines the offence of money laundering. There are certain key words under Section 3 which can be noted-(i) directly or indirectly (ii) attempts to indulge; or knowingly assists; or knowingly is a party; or is actually involved in any process or activity connected (proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming) it as untainted property. Thus, if we read the definition minutely, it is necessary that a person must be directly/indirectly involved and such person should be taken as involved if he is connected in any manner with the proceeds of crime including its (i) concealment, (ii) possession, (iii) acquisition (iv) use, (v) projecting and (vi) claiming. Thus handling the proceeds of crime in any manner as stated above constitutes the offence of money laundering. An explanation has been added by the Finance Act, 2019 only for the r....
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....ed with the proceeds of crime including its concealment, possession, acquisition or use and projecting as untainted properties or claiming untainted property in any manner. The intention of the legislature in enacting the PMLA is that money laundering poses a serious threat not only to the financial systems of countries but also to their integrity and sovereignty and, therefore, the legislature thought it fit to provide a comprehensive legislation for this purpose. Thus the courts while dealing with matters under PMLA have to take into account the object and purpose of legislation." 15. In regard to the discretion to be exercised at the stage of bail, it was inter alia held in Vijay Madanlal Chaudhary (supra) as under: 388. ....Such twin conditions in the concerned provisions have been tested from time to time and have stood the challenge of the constitutional validity thereof. The successive decisions of this Court dealing with analogous provision have stated that the Court at the stage of considering the application for grant of bail, is expected to consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not....
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..... Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the....
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....he Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an 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, 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. 19. It is also pertinent to mention that even in the complaint that the Respondent has filed Prosecution Compliant on 04.12.2021 under section 44 r/w section 45 of PMLA in ECIR/DLZO-II/54/2021 before the learned Special Judge (PMLA), Patiala House Courts, New Delhi wherein the Petitioner has been arrayed as accused No. 5. The alleged role attributed to the Petitioner in the Prosecution Complaint as per petitioner is that of a Hawala operator and not that of beneficiary of the alleged proceeds of crime and the same is reproduced below....
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....ee the probable cause for believing that accused is not guilty of offence. 23. Furthermore, though the allegations against the petitioner are grave and serious, however, the court has to take into account the wholesome view of the case. The prosecution/ED has repeatedly said that the petitioner is a known Hawala Operator. Be that as it may, but here the court has to see the role of the petitioner only in respect of the case in hand. If the petitioner is a Hawala Operator, the State is at liberty to initiate any action against him in accordance with the law. However, in order to keep the petitioner in custody in the present case, the court is required to consider his role in this case only. Merely because the petitioner has been alleged to be a Hawala Operator, the bail cannot be denied to him. The court is required to keep itself confined to the facts of the present case. It is also pertinent to mention that heinous the offence alleged, harsher the onus on the prosecution to prove. 24. It is also a settled proposition that even in the economic offence case, it is not a rule that the bail should be denied in every case. It is a also settled proposition that merely levelling th....