TaxTMI 
TaxTMI 
2024 (5) TMI 1414
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....ce Station, Whitefield, Bengaluru under Sections 186, 204, 353 & 120B of IPC against one Suryakant Tiwari & other persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, Suryakant Tiwari had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by Suryakant Tiwari and his associates. 3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short "CBDT") to the Directorate of Enforcement containing the FIR No. 1292022 Police Station-Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Suryakant Tiwari Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department on the premises of Suryakant Tiwari and his associates, evidence was gathered related to a syndicated being operated ....
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....ed in these transactions to layer and obfuscate the real ownership of these tainted properties. Despite being a man of means and business standing, he knowingly acted as a benami for Suryakant Tiwari and has assisted in the money laundering process. Apart from the above two washeries, after the income tax raids on Surykant Tiwari and his associates, Indermani Group purchased all the benami properties of Suryakant Tiwari to safeguard the ill-gotten proceeds of crime and to frustrate the efforts of Enforcement Directorate to attach the proceeds of crime in future. All these transactions are sham transactions and in effect applicant's Indermani Group is holding these assets for Suryakant Tiwari and his benamis. It is clear that although the applicant is a wealthy businessman, Enforcement Directorate investigation has established that for getting personal benefits in terms of share in washery business and for his larger business ambitions in getting close to the Government of the day, he has acted as a benami and is holding these assets for the benefit of Suryakant Tiwari. He has only blocked his capital in these assets and the remaining entire cash transactions were still done by ....
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....applicant in the process of purchase of the coal washeries from the firms belonging to Suryakant Tiwari, all establishes the nexus between the applicant and Suryakant Tiwari and their involvement in the predict offence. Further, going into the entire materials available in the case records, there seems to be a serious nature of racket involving huge generation of hard cash illegally being collected. Thereafter, the applicant has filed second bail application before this Court on 12.01.2024 contending that there are changed circumstances as certain germane facts have been transpired after rejection of first bail application approximately ten months ago. 6. Learned Senior counsel for the applicant would submit that the present applicant is a victim of extortion syndicate who has been projected as an accused in fact the applicant was not a part of the extortion syndicate. He would further submit that the applicant tried to erase the evidences related to proceeds of crime and the properties connected by removing all computers and other digital devices from his office and by hiding his mobile phone in an attempt to escape the clutches of law and to frustrate further investigation und....
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.... to Enforcement Directorate that the coal washeries were sold to Maa Madwarani for Rs. 96 Crores whereas the ground of arrest provides that the coal washeries were sold by them to Maa Madwarani for Rs. 50 crores. He would further submit that from the documents relied upon by the prosecution complaint is that two coal washeries were sold for Rs. 31,50,00,000. Hence, any value attributed to the two coal washeries over an amount of Rs. 31.59 crores approx, is a pure figment of imagination. He would further submit that these two coal washeries were sold by them as per the independent valuation report dated 14.05.2022 and 16.05.2022 which is based upto the value declared by the directors and certified the independent Chartered Accountants. As such, he would submit that the allegation is without any foundation. 8. He would further submit that out of 70 properties attached by the Enforcement Directorate only 9 properties were directly purchased from Suryakant Tiwari. He would further submit that it is not a case of the Enforcement Directorate that the applicant purchased the property using the proceeds of crime or under valued amount prize below the circle rate. He would further submit....
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....aid properties can never be a benami transaction since the agreed price was paid by the applicant using its own funds. No loan or external aid was sought to purchase these properties. Hence, all these properties were acquired by legal means. The applicant had paid the purchase consideration for all these properties by cheques and all these properties are registered with the appropriate authorities. The applicant had acquired these properties for its own use as such it cannot be said that it benami property. 10. He would further submit that the allegation made by the Enforcement Directorate that Suryakant Tiwari and other persons liquidated all properties in their names and in the names of their family members to willing associates like the applicant to project the same as untainted assets, though these assets continue to remain in the syndicate's control for all practical purposes, is incorrect fact as there is nothing on record to substantiate this. He would further submit that these properties were purchased by the applicant to fulfill the purpose of acquiring these properties, as mentioned in the board resolutions passed in this regard. He would further submit that the ap....
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....urther submit that Anupp Bansal has submitted in his statement that he sold his entire share (13%) of M/s Maa Madwarani to M/s Indermani in the month of July 2022 at Rs. 14 crore, is entirely false and baseless as no such records exist with the Registrar of Companies, Chhattisgarh. Lastly he would submit that Rajnikant Tiwari's anticipatory bail bearing MCRCA No. 816 of 2023 was dismissed by this Court vide order dated 02.11.2023, but till date he is not arrested by the Enforcement Directorate. He would further submit that the applicant is remained in jail for more than one year and five months whereas maximum sentence which can be imposed upon him is seven years. 12. The applicant has also filed additional documents on record i.e. the remand order dated 13.10.2022 passed by the learned Special Court, Raipur, copy of remand order dated 05.06.2023 passed by the learned Special Judge (PMLA) Panchkula in case of Pankaj Bansal, copy of extract of financial statements of KJSL Coal and Power Private Ltd. as well as Indermani Mineral India Private Ltd. and statement made by Nikhil Chandrakar before Police Station-Telibandha, Raipur to substantiate that applicant was illegally kept ....
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....te of Enforcement, reported in (2020) 13 SCC 337, Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40, Manish Sisodia Vs. Central Bureau of Investigation, reported in (2023) SCC OnLine SC 1393, State of Rajasthan Vs. Balchand, reported in (1977) 4 SCC 308, Dataram Singh Vs. State of Uttar Pradesh, reported in (2018) 3 SCC 133, Arnab Manoranjan Goswami Vs. State of Maharashtra & others, reported in (2021) 2 SCC 427, Y.S. Jagan Mohan Reddy Vs. CBI, reported in (2013) 7 SCC 439, DK Shivkumar Vs. Directorate of Enforcement, reported in (2019) SCC Online Del 10691, Union of India Vs. K.A. Najeeb, reported in (2021) 3 SCC 713, Preeti Chandra Vs. Enforcement Directorate (Bail Application No. 3494/2022) (decided on 14.06.2023) reported in 2023 SCC OnLine Del 3622, Anil Kumar Aggarwal Vs. Enforcement Directorate through its Assistant Director, Jammu [WP(Crl.) No. 09/2024, decided on 15.03.2024], Vijay Narendra Kumar Kothari Vs. Directorate of Enforcement & another reported in (2021) SCC OnLine SC 561, Raj Kumar Goel Vs. Directorate of Enforcement, reported ....
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....f same ECIR are also not applicable to the facts of this case and would pray for releasing the applicant on bail. 15. On the other hand, learned counsel for the Enforcement Directorate would refer to the ECIR and would submit that a notification dated 15.07.2020 was issued by Shri Sameer Vishnoi, IAS at the instance of extortion cartel led by Mr. Suryakant Tiwari, modified the pre-existing transparent online process of getting e-permits for transporting coal from mines to users, into a system which made it prone to massive corruption. He would further submit that FIR No. 129/2022 dated 12.07.2022 was registered by Kadugodi Police Station, Whitefield, Bengaluru under Sections 186, 204, 353 & 120 (B) of IPC against Suryakant Tiwari and others on the basis of complaint filed by the Deputy Director of Income Tax, Foreign Assets Investigation Unit-1, Bengaluru, stating that as part of a conspiracy, during the course of search by Income Tax Department on 30.06.2022 at Room No. 664, Hotel Sheraton Grand, Whitefield, Bengaluru, Suryakant Tiwari had obstructed the officials from carrying their official duties and had destroyed crucial incriminating documents and digital evidences which s....
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.... has played specific role and he is kingpin of the offence and would submit that the applicant is promoter of M/s Indermani Group having a close relationship with Suryakant Tiwari. Investigation revealed that the applicant had helped Surykant Tiwari in acquiring coal washeries from M/s Indus Udyog & Infrastructure Pvt. Ltd. and M/s Satya Power and Ispat Ltd. These coal washeries were acquired for an amount of Rs. 96 Crore, out of which Rs. 34 Crore was the registered value and was paid through banking channel and rest of the amount was to be paid in cash. Thus, large amount of illegally acquired cash was layered in these transactions. After the Income Tax raids, he made sham paper transactions to show that he was the owner of these two washeries. These transactions were nothing but a futile attempt to alienate the ill-gotten proceeds of crime and take them far away from the arms of Income Tax & Enforcement Department and to prevent their attachment and to claim them as untainted assets. The applicant knowingly and willingly participated in these transactions to layer and obfuscate the real ownership of these tainted properties despite being a man of means and business standing, be ....
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....the twin conditions of Section 45 of the PMLA, 2002 as from the above factual matrix, it is quite vivid that the possibility of the accused being not guilty of the offence of money laundering is highly impossible. To substantiate the submission, he would refer to paragraph 135 of the the judgment rendered by Hon'ble the Supreme Court in case of Vijay Madanlal Choudhary (supra). He would further submit that the applicant with proceed of crime and having deep roots in the society, is in a position to influence witnesses. To substantiate this submission, he has mentioned certain privilege granted to him by the medical hospitals which normally provided to the prisoners. To substantiate this submission, he has referred to the judgment of Hon'ble Allahabad High Court in case of Pankaj Grover v. ED [Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 7661 of 2021] wherein Hon'ble the High Court has held that the accused in economic offences/ PMLA cases are in possession of huge proceeds of crime and may use those to influence witnesses. Further the Court also held that since such offences are committed mostly by influential persons, there is a high likelihood of their usi....
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....he Central Government by general or special order, has on the basis of material in his possession, reason to believe (that reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a [Special Court or] [Inserted by Finance Act, 2018 (Act No. 13 of 2018) dated 29.3.2018.] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place....
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....ssed and large amount of the sale consideration was given in cash. Sunil Agarwal actively assisted Suryakant Tiwari in layering of this cash and in the process of claiming the ill gotten wealth as untainted and helping in making investments to conceal the ill gotten cash. 18. Shri Sunil Kumar Agarwal, in his statement dated 12.10.2022 given under Section 50 of PMLA, 2007, has, inter alia, stated that he has known Shri Suryakant Tiwari for the last 15 to 20 years and that he had no business transactions with him. However, in the same statement, he has admitted to the acquisition of two coal washeries from the company of Shri Suryakant Twari, M/s MCBPL, When asked he stated that he did not know that M/s. MCBPL belonged to Shri Suryakant Tiwari, a person he has known for the last 20 years Furthermore, the Directors of M/s SPIL and M/s IUIPL, Shri Shikhar Agarwal and Shri Shailesh Agarwal respectively, in their statements given under Section 17 (1) (f) of PMLA, 2002 have stated that they were forced to sell the washeries to M/s MCBPL and that M/s MCBPL was represented by Shri Suryakant Tiwari and Shri Sunil Kumar Agarwal at the time of sale. When pointed and asked about it, Sh....
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....ted 13.10.2022 passed by the learned Special Judge granting remand of the applicant along with other accused has given reason wherein it has specifically stated that the present applicant has purchased coal washeries from M/s KJSL Coas & Power Ltd. to M/s Maa Madwarani Coal Benefaction Pvt. Ltd. at the cost of Rs. 35 crores and other two coal washeries have been purchased and the investigation within 24 hours is not possible, therefore, the custodial remand was ordered. Thus, the learned Special Judge has given some reason. Whereas the order cited by learned Senior counsel for the applicant of the Panchkula Court, it is quite clear that in case of Pankaj Bansal (supra), learned Special Judge has not assigned any reason merely sent them on custodial remand. The judgment of Hon'ble Supreme Court in case of Pankaj Bansal (supra) at paragraph 19 has categorically held that the learned Judge has not recorded its satisfaction. Paragraph 19 of the judgment reads as under:- "19. Viewed in this context, the remand order dated 15.06.2023 passed by the learned Vacation Judge/ Additional Sessions Judge, Panchkula, reflects total failure on his part in discharging his duty as per the e....
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....of Roop Bansal (supra) is distinguishable on the facts and circumstances of the case. 29. Further submission of learned Senior counsel for the applicant that the summon was issued for appearance of the applicant for 12.10.2022 which was made effective till 11.59 p.m. on 12.10.2022 and he was arrested at 5.30 a.m. on 13.10.2022 as such, the applicant was remained in wrongful custody and was illegally restrained during the period from 12 a.m. to 5.30 a.m. of 13.10.2022 as such, arrest is nonest and illegal order. This submission has already been repelled by the learned Special Judge by rejecting the same. Even otherwise the submission made by learned Senior counsel for the applicant that he was remained in custody of the Enforcement Directorate from 12.00 a.m. to 5.30 a.m. is a matter of evidence which can be examined when the trial is begun. Even otherwise, law has been well settled by Hon'ble the Supreme Court that while considering the bail application, the Court is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the se....
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....fusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences." 30. From bare perusal of the above reason assigned by the learned trial Court and the material which has been considered by the trial Court while ordering for remand, clearly demonstrates that there is sufficient material for passing the impugned order. 31. Further submission of learned counsel for the applicant that the summon was issued for appearance of the applicant on 12.10.2022 which expired on 12.10.2022 at 12 p.m. thereafter arrest was made on 13.10.2022 upto 5.30 a.m., it was illegal custody, as such, the subsequent order of remand on illegal custody, is void ab initio in the light of judgment passed by Hon'ble the Supreme Court in case of V. Senthil Balaji (supra), and deserves to be rejected as in the present facts of the case, while arresting the applicant, reasons have been assigned by the Enforcement Directorate and in the remand order also, the learned trial Court has applied its mind and has also considered the fact that the present applicant has purchased two coal washeries at the cost of Rs. 35 crores and the accused have been arrest....
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....ompany is a separate legal entity from its shareholders and directors, the lifting of corporate veil is permissible when such corporate structures have been used for committing fraud or economic offences or have been used as a facade or a sham for carrying out illegal activities. 29. It has also been found that the appellants - Ankush Jain and Vaibhav Jain had assisted the appellant-Satyendar Kumar Jain by making false declarations under the IDS each of them declaring alleged undisclosed income of Rs.8.26 crores in order to protect Satyendar Kumar Jain. Though it was sought to be submitted by the learned counsel for the appellants that the said declarations under IDS having been held to be "void" in terms of Section 193 of FA, 2016 by the income tax authorities, the same could not be looked into in the present proceedings, the said submission cannot be accepted. The declarations made by the appellants-Ankush Jain and Vaibhav Jain under IDS have not been accepted by the Income Tax authorities on the ground that they had misrepresented the fact that the investments in the said companies belonged to the said appellants, which in fact belonged to Mr. Satyendar Kumar Jain. The ....
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....or temporary period after their arrest and the appellant-Satyendar Kumar Jain was released on bail on medical ground on 30.05.2022, which has continued till this day. He shall now surrender forthwith before the Special Court. It is needless to say that right to speedy trial and access to justice is a valuable right enshrined in the Constitution of India, and provisions of Section 436A of the Cr.P.C. would apply with full force to the cases of money laundering falling under Section 3 of the PMLA, subject to the Provisos and the Explanation contained therein. 34. In that view of the matter, all the appeals are dismissed." Thus, Point No. 1 answered against the applicant. Point No. 2 34. Before adverting to the facts of the case, it is expedient for this Court to extract Section 45 of the PMLA, 2002, which reads as under:- "Section 45 of PMLA, 2002- Offences to be 31.05.2022 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 opportuni....
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....at he was the owner of these two washeries. These transactions were nothing but a futile attempt to alienate the ill-gotten proceeds of crime and take them far away from the arms of Income Tax & Enforcement Department departments and to prevent their attachment and to claim them as untainted assets. The applicant knowingly and willingly participated in these transactions to layer and obfuscate the real ownership of these tainted properties despite being a man of means and business standing, be knowingly acted as a benami for Suryakant Tiwari and has assisted in the money laundering process. He would further submit that apart from the above two washeries, after the income tax raids on Surykant Tiwari and his associates, Indermani Group purchased all the benami properties of Suryakant Tiwari to safeguard the ill-gotten proceeds of crime and to frustrate the efforts of Enforcement Directorate to attach the proceeds of crime in future. The ECIR would further reflect that all these transactions are sham transactions. He has only blocked his capital in these assets and the remaining entire cash transactions were still done by Suryakant Tiwari only. The record would further reflect that s....
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....r 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 punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision 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 bai....
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....fences 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 on bail are unsustainable and the matters are required to be remitted back to the High Court for afresh decision on the bail applications after taking into consideration the observations made hereinabove." 37. Learned Senior counsel for the applicant would submit that since the applicant is remained in jail for more than one year and five months and maximum sentence which can be awarded is seven years, therefore, he should be released on bail. This submission also deserves to be rejected looking to gravity and seriousness of the offence and the role played by the applicant and also the offence relates to money laundering which has difference class of offence, the applicant being influenced person as he was granted the facilities when he was remained in hospital, this clearly indicates that he is influential person and may influe....
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....त है कि अà¤à¤¿à¤¯à¥à¤•à¥à¤¤ के विरूदà¥à¤§ à¤à¥Œà¤¡à¤¯à¥‚ल अफेंस पंजीबदà¥à¤§ होने के आधार पर ECIR/RPZO/09/2022 दिनांक 29.09.2022 धारा 3, 4 धनशोधन निवारण अधिनियम का अपराध पंजीबदà¥à¤§ किया गया है। अà¤à¤¿à¤¯à¥à¤•à¥à¤¤à¤—ण को दृढ आधारों पर गिरफतार किया गया है तथा 24 घंटे के अंदर उसका अनà¥à¤µà¥‡à¤·à¤£ पूरà¥à¤£ कà¤....
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.... के अधीन सौपा जाना नà¥à¤¯à¤¾à¤¯à¤¾à¤šà¤¿à¤¤ दति होता है:- (1) अà¤à¤¿à¤°à¤•à¥à¤·à¤¾ अवधि के दौरान अà¤à¤¿à¤¯à¥à¤•à¥à¤¤à¤—ण के मानवाधिकारों की रकà¥à¤·à¤¾ का संपूरà¥à¤£ दायितà¥à¤µ पà¥à¤°à¤µà¤°à¥à¤¤à¤¤à¤¨ निदेशालय के सहायक निदेशक निरà¥à¤®à¤² à¤à¤°à¤µà¤¾à¤° की होगी। gal (2) अà¤à¤¿à¤°à¤•à¥à¤·à¤¾ अवधि में अà¤à¤¿à¤¯à¥à¤•à¥à¤¤à¤—ण के साथ दà¥à¤°à¥à¤µ....