TaxTMI 
TaxTMI 
2024 (6) TMI 3
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.... of the respondent 11-19 12-25 Rebuttal arguments on behalf of the petitioner 20-21 25-26 Analysis and Findings (i) Details of four subsequent FIRs (ii) Chart showing the details of the petitioner being Director of various companies of Mahira Group 22-50 25, 29-32 26 26-66 27, 30-34 28 BRIEF FACTS OF THE CASE:- 3. Briefly stated, the case of the prosecution is that M/s Sai Aaina Farms Pvt. Ltd. (presently known as M/s Mahira Infratech Pvt. Ltd and hereinafter referred to as "SAFPL") was controlled by Chhoker Family i.e. by the present petitioner and his sons Sikander Singh and Vikas Chhoker and the companies of the Chhoker family are known by the name "Mahira Group" and the said Mahira Group deals majorly in real estate / construction projects and that SAFPL is also one of the several companies under the Mahira group and the said company undertook the project of building flats at Sector 68, Gurugram, under the affordable group housing project and SAFPL applied for licences / permissions to the Department of Town and Country Planning, Haryana and were granted licence no. 106/2017 to build arou....
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.....2023 (P-29) Pg 386 Sushant Lok, Gurugram Section 120B, 420, 467, 468, 471 of IPC, 1860 M/s Mahira Homes Pvt. Ltd. Its Directors, associate companies and authorized signatory for submitting forged and fabricated building plans 0175 dated 18.05.2022 and Chargesheet no. 1 dated 08.06.2023 (P-30) Pg 393 Rajendra park, Gurugram Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 For submission of fake bank guarantees and other documents by SAFPL regarding licence No. 106 of 2017. 4. As per the further case of the ED, after recording of the said ECIR, bank account statement, balance sheet and other relatable documents were received from various offices and statements were recorded under the provisions of Sections 16, 17 and 50 of PMLA to ascertain the proceeds of crime as defined under Sections 2 (1)(u) of the PMLA and to decipher the diversion of funds by SAFPL, M/s D S Home Constructions Pvt Ltd. (hereinafter referred to as "DSHCPL") and its associated concerns through its directors, ex-directors, key persons etc. and that search was also conducted and the ED filed a Provisional Attachment Order no. 01/2024 on 15.02.2024 before the Adj....
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....ed a fresh order on 26.10.2023 (Annexure P-9) again allowing the application under Section 156 (3) Cr. P.C. and the said order was again challenged by Aditya Beri and another and the Coordinate Bench of this Court vide order dated 16.01.2024 again remanded the matter to the CJM for passing a fresh order and FIR no. 11 was stated to be a nullity in view of the earlier remand order. The complainant Neeraj Chaudhary thereafter withdrew the complaint vide order dated 09.02.2024, however, as stated hereinabove, 4 other FIRs were registered in the meantime. The petitioner along with other persons had filed CRM-M-37710-2023 in which several prayers were made including quashing of the present ECIR as well as quashing of the orders of the Special Judge issuing non-bailable warrants and also quashing of summons issued to the petitioner. During the course of said proceedings, an application was moved for restraining the ED from taking any coercive action. The said petition was dismissed vide order dated 26.02.2024 (Annexure P-13) and in the same it was observed that since there were other FIRs also registered in addition to FIR no. 11, thus, the proceeds of crime could not be ruled out and it....
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....h of this Court vide order dated 27.01.2021 passed in CRM-M-3823-2021 (Annexure P-4) was pleased to issue notice of motion and operation of order dated 07.01.2021 (Annexure P-25) passed by the CJM, Gurugram as well as further proceedings in the consequential FIR No. 11 dated 14.01.2021 were stayed qua the petitioners therein and the same was disposed of vide order dated 05.07.2023 (Annexure P-5) and while doing so, the Coordinate Bench of this Court had remanded the matter for fresh decision in accordance with law. It is submitted that when the trial Court had again allowed the application under Section 156 (3) Cr. P.C. and had further directed the SHO to conduct proper investigation in the case and had further observed that the file be sent to the Incharge of the concerned Police Station for forming the part of FIR No. 11 dated 14.01.2021 vide order dated 26.10.2023 (Annexure P-9), one Aditya Beri along with another person had filed two petitions bearing CRM-M Nos. 56495 and 56496 of 2023 challenging the said orders, in which, the Coordinate Bench of this Court vide order dated 16.01.2024 was pleased to observe that since the matter was being remanded thus, consequential FIRs i.e.....
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.... petitioner to appear before the office of Directorate of Enforcement at New Delhi on 12.04.2024 at 11:00 am. It is submitted that the petitioner had duly complied with the said directions and in order to fortify the said arguments, reference has been made to the order dated 29.04.2024 (Annexure P-19) passed by the Special Judge to highlight the fact that proclamation proceedings against the petitioner were not being pursued as the counsel for the Enforcement Directorate had submitted that the petitioner had joined the investigation as directed by the Hon'ble Supreme Court. It is submitted that the petitioner has in every way cooperated with the Enforcement Directorate and thus, the petitioner deserves the concession of anticipatory bail on the said ground also. 8. Learned Senior Counsel for the petitioner has further submitted that although both the initial FIRs i.e. FIR Nos. 10 and 11 were held to be a nullity and complaints regarding the same were withdrawn subsequently but four other FIRs were registered i.e. FIR No. 151 dated 31.05.2023 (Annexure P-28), FIR No. 151 dated 05.07.2023 (Annexure P-29), FIR No. 175 dated 18.05.2022 (Annexure P-30) and FIR No. 152 dated 01.06.202....
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....respect to DS Homes Construction Private Limited, the petitioner had resigned on 10.07.2021 i.e. prior to the registration of the ECIR which was registered on 16.11.2021 and with respect to Mahira Homes Private Limited, the petitioner had resigned on 15.11.2017 i.e. much prior to the grant of licences in questions which were granted on 22.12.2017. It is submitted that the petitioner is a sitting MLA of Haryana Legislative Assembly from Samalkha constituency since the year 2019 and in case the petitioner is granted the concession of anticipatory bail, since he has deep roots in the society, he would not abscond or commit any further offence. It is further submitted that on an earlier occasion when the arrest warrants were stayed, the petitioner never misused the said concession. ARGUMENTS ON BEHALF OF THE RESPONDENTS 11. Learned counsel appearing for the Enforcement Directorate, on the other hand, has vehemently opposed the present petition for anticipatory bail. It is submitted that prior to the filing of the present anticipatory bail, the petitioner had filed CRM-M-37710-2023 which was dismissed by the Division Bench of this Court vide order dated 26.02.2024 (Annexure P-13).....
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....h were also there and the same were being investigated vide the present ECIR and thus, the two FIRs No. 10 and 11 having been declared a nullity would not make much difference to the case. It is highlighted that the Division Bench had taken note of judgment of the Hon'ble Supreme Court in which it was observed that merely because there was a restraint order in a criminal matter with respect to the FIR, the same would not affect the proceedings under the PMLA moreso, when the Enforcement Directorate was not a party to the said proceedings, since money laundering was an independent offence. Even the arguments to the effect that the petitioner was not the Director of the company in question was rejected in paragraph 16 thereof by the Division Bench and reliance was placed upon the judgment of the Hon'ble Supreme Court in Pavana Dibbur vs. Directorate of Enforcement (Criminal Appeal no. 2779 of 2023 decided on 29.11.2023) and it was observed that even in case the petitioner was not shown to be an accused, he could still be prosecuted under the PMLA. It is further pointed out that when the matter was pending before the Division Bench, an application was moved by the petitioner with ....
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....highlighted that the Enforcement Directorate had moved an application for seeking permission from the Hon'ble Supreme Court to arrest the petitioner and had annexed sufficient material to show that the petitioner was involved in offence of money laundering and thereafter the petitioner had withdrawn his SLP. 13. Learned counsel has next contended that FIR No. 175 dated 18.05.2022 (Annexure P-30) registered under Section 10 of the Haryana Development and Regulation Urban Area Act 1975 has not been annexed by the petitioner in its entirety and the relevant portion of the FIR has purposely been concealed and thus, the petition deserves to be dismissed on the ground of suppression of material facts. It is submitted that in the said FIR, the petitioner is shown as accused no. 6 and the subsequent portion of the FIR which has not been produced, would show that it has been alleged in the said FIR that Czar Buildwell Pvt. Ltd. and Mahira Buildtech Pvt. Ltd. are the subsidiary companies of Mahira Homes Pvt. Ltd. and that the FIR was registered on account of collusion of all the directors, share holders / authorised signatories of the said companies and accused persons, who were joint....
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....crime were generated by Mahira Group in form of advances / payments from home buyers in relation to delivery of flats in proposed projects and the funds were not utilized for construction of the proposed project and the construction of all the projects of Mahira Group has not been completed till date and no flat has been delivered to any home buyer and rather the money has been diverted and siphoned off through the company of which the petitioner was the director. It is submitted that a large number of flat owners have given written complaints on the said aspect. It is submitted that the petitioner along with other accused persons have forged bank guarantees in order to get licences issued and further forged signatures of the farmers / land owners for getting the same issued and also for selling 35% flats which were the share of the said land owners / farmers and various FIRs on the said aspect have been registered. It is submitted that the arguments made on behalf of the petitioner to the effect that two FIRs i.e, FIR No. 10 and 11 are not in existence and that the complaint regarding the same was withdrawn on 09.02.2024, also does not further the case of the petitioner in any man....
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....Director in various companies and has highlighted the fact that the petitioner was a Director in M/s D.S. Homes Construction Pvt. Ltd for two periods and the subsequent period being 02.12.2019 till 10.07.2021. It has further been highlighted that the petitioner was also a Director for some period in Mahira Homes Pvt. Ltd. It is argued that it was specifically averred therein that as per the Forensic Audit Report, SAFPL had diverted an amount to the tune of Rs. 31,57,73,653/- belonging to home buyers for other purposes which were not connected with the construction of flats at Sector 68, Gurugram and further as per the Forensic Report dated 22.07.2022 which was got conducted by HRERA in respect of real estate projects, M/s Mahira Buildtech Pvt. Ltd., which company is an accused in FIR No. 151 dated 31.05.2023, had collected an amount of Rs. 160 crores approximately from 781 allottees and have diverted the total amount of Rs. 68 crores to M/s D S Home Construction Pvt. Ltd. of which the petitioner was a director for the relevant period. It is argued that specific reference was made to the balance sheet of M/s Mahira Buildtech Pvt. Ltd. for the financial year 2021-22 and the payments,....
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....torate to show that money was received from the home buyers prior to the date on which the two transfers of March 2018 were made in favour of the petitioner. 17. Learned counsel for the respondent has further referred to the independent audit report with respect to Company M/s D.S. Home Construction Pvt. Ltd., which has been prepared by Raheja & Company Chartered Accountant and has highlighted that all the documents annexed along with the said report including the statement of profit and loss account, balance sheet etc., have been signed by the petitioner as Director and his son Sikandar Singh also as Director. It is submitted that the same clearly shows that the petitioner was one of the main Directors of the said Company and was actively involved in day to day functioning of the company. It is further submitted that an amount of Rs.40 crores from the RERA account of M/s Sai Aaina Farms Pvt. Ltd. has been transferred into the account of M/s D.S. Home Construction Pvt. Ltd and that the Special Judge, after taking into consideration all the aspects, had rejected the anticipatory bail of the petitioner and had even taken a note of the fact that the balance sheet of M/s D.S. Home C....
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....fence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency, whose powers are unfettered and that the economic offences stand as a different class in itself and the powers under Section 438 Cr.PC. are to be exercised sparingly, more so, in cases of economic offences. Further reliance has been placed upon a judgment of Hon'ble Supreme Court in case of "Pavana Dibbur Vs. The Directorate of Enforcement in Criminal Appeal No. 2779 of 2023, decided on 29.11.2023, in which, it has been held that it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as an accused in the scheduled offence. 18. Learned counsel for the Enforcement Directorate has further submitted that an amount of Rs. 141 crores which has been paid by M/s Sai Aaina Pvt. Ltd. to M/s D S Constructions Pvt. Ltd., was under the heading of construction and the amount of Rs. 48 crores which as per the case of the Enforcement Directorate has been siphoned off, has been paid by M/s Sai Aaina Pvt. Ltd to M/s D S Construction by giving bogus loans and advances and it was recorded as loan in ....
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....tted that the order dated 06.05.2024 passed by the Hon'ble Supreme Court specifically clarifies that the observations made in the judgment of the Division Bench would not be treated as binding findings on merits and thus, it is open to the petitioner to raise all the pleas on merits and the argument raised on behalf of the respondent that the petitioner be estopped from raising the said pleas is misconceived and deserves to be rejected. ANALYSIS AND FINDINGS:- 22. This Court has heard learned counsel for the parties and has perused the paper book and is of the considered opinion that the petitioner does not deserve the concession of anticipatory bail and the present petition deserves to be dismissed for the reasons detailed hereinafter. 23. As stated hereinabove, the case of the prosecution is that M/s Sai Aaina Farms Pvt. Ltd. (presently M/s Mahira lnfratech Pvt. Ltd.) is controlled by the Chhoker family led by the petitioner and his sons Sikander Singh and Vikas Chhoker and the companies of the Chhoker family are known by the name of Mahira Group, (primarily dealing in Real Estate/Construction projects) and that SAFPL is one of the several companies under the Mahira Grou....
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....argesheet no. 1 dated 08.06.2023 (P-30) Pg 393 Rajendra park, Gurugram Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 For submission of fake bank guarantees and other documents by SAFPL regarding licence No. 106 of 2017. 26. As per the further case of the prosecution, during the course of investigation, it was found that the petitioner was Director of six companies belonging to "Mahira Group". The details of the same, which have been given in para 46 of the reply filed on behalf of the ED to the anticipatory bail application filed by the petitioner before the Special Judge, are given hereinbelow:- S.No. Company Name Designation Date of appointment at Current Date of Designation cessation (if applicable) 1. DS ESTATES & CONSTRUCTION PRIVATE LIMITED Director 02.07.2007 30.09.2009 2. MAHIRA HOMES PRIVATE LIMITED Director 17.11.2016 15.11.2017 3. D S HOME CONSTRUCTION PRIVATE LIMITED Director 31.08.2012 15.03.2017 Director 02.12.2019 10.07.2021 4. DSC ESTATE DEVELOPERS PRIVATE LIMITED Director 03.11.2010 18.12.2014 5. DS HOMES PRIVATE LIMITED Director ....
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....oss to the landowners had sold flats of 35% stake belonging to the landowners without their permission and also received advance money from the people and further had even obtained the licence/permit of the said affordable housing project by forging the signatures of the landowners/complainants and further that accused persons including the petitioner had issued cheques worth Rs. 20 crores on behalf of M/s Czar Buildwell Company which were dishonoured by the bank and that accused persons including the petitioner had abused the landowners and the petitioner had stated that he was an MLA and in case the complainants asked for their money then they would be killed. It was further stated in the said FIR that the complainants had come to know from newspaper reports that flat buyers and farmers had also given a lot of complaints against Mahira Group for the illegalities committed by them. 30. FIR No. 151 dated 31.05.2023 (Annexure P-28) was got registered by some farmers, first of whom was Sita Ram and in the said FIR, allegations have been made against M/s Mahira Buildtech Private Limited, of which company the petitioner was a Director for a limited time, as is apparent from the char....
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....er, the same was not sanctioned/released and it came to the notice of the Department that Mahira Homes Private Limited had applied for approval of Service Plan Estimates (SPE) for the Affordable Group Housing Colony alongwith its Board Resolution and plans which were forged and fabricated as signatures of the members of the Building Plans Approval Committee were forged and for the same, it was observed that the Directors of Mahira Homes Private Limited, Associate Companies and Authorized Signatory and the Architect etc. were liable. 32. FIR No. 175 dated 18.05.2022 (Annexure P-30) was also registered by the District Town Planner against six persons including the present petitioner and his son Sikander Singh on the allegations that SAFP and the accused persons had got issued licence No. 106 of 2017 for setting up of Affordable Group Housing Colony by submitting bank guarantees and it was found that several bank guarantees were fake and upon confirmation made, it was found that the same were never issued by the concerned Bank which had purportedly issued the said bank guarantees. Similar allegations were also made in the FIR with respect to licence No. 66 of 2021 dated 07.09.2021.....
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....ed to the petitioner through RTGS. Further even on 05.12.2017, an amount of Rs. 31 lacs had been transferred in favour of the petitioner. From the said bank statement, it is apparent that a total amount of Rs. 1,01,00,000/- had been transferred by M/s SAFPL in favour of the petitioner and the same is also apparent from the balance sheet of the said company which has been annexed as Annexure R-2 along with CRM-23673-2024. It has further specifically been averred in para 48 of reply filed by the ED to the anticipatory bail application filed by the petitioner (Annexure P-23) that as per ITRs of the petitioner for the Assessment Year 2021-22 (Financial Year 2020-21), an amount of Rs. 20 lacs had been shown as given by M/s DS Homes Construction Private Limited to the petitioner from the home buyers funds which had been diverted from M/s Sai Aaina Farms Private Limited to M/s DS Homes Construction Private Limited and further, it has been averred in para 50 of the said reply that M/s SAFPL had received an amount of Rs. 363 crores approximately from the home buyers and had further transferred substantial amounts to M/s DS Homes Construction Private Limited in the guise of loans and advance....
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....0/- was transferred in the account of the Petitioner from the accounts of M/s Sai Aaina Farms Pvt Ltd. No amount was given by the Petitioner to M/s Sai Aaina Farms Pvt Ltd earlier. Further, the Petitioner failed to give any supportive documents regarding the above amounts received by the Petitioner from M/s Sai Aaina Farms Pvt Ltd. The above amount taken from M/s Sai Aaina Farms Pvt Ltd is the home buyers money and the same is squarely covered within the definition of proceeds of crime on account of Petitioner being beneficiary of the proceeds of crime as defined under section 2 (1) (u) of PMLA. 6. Further, M/s D S Home Construction Pvt Ltd transferred the above mentioned loans and advances to the other companies / persons associated with Shri Dharam Singh Chhoker only. The details of the same are as below: Name of person / entity As on 31.03.2020 As on 31.03.2021 As on 31.03.2022 Amit Chhoker, a family member of Dharam Singh, being his nephew 52,75,000 52,75,000 11,50,000 Dharam Singh 1,27,72,600 1,29,36,380 1,30,74,213 Ms. D S Homes Pvt. Ltd 9,21,50,000 9,32,64,200 Ms. Mahira Fuels, a prop. concern of Vikas Chhoke....
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.... of the directors and had significant influence on the affairs of the company. In this regard, the below mentioned payments were made to M/s Hazoorilal Jewellers Pvt Ltd from the account of M/s D S Home Construction Pvt Ltd (Account no. 50200003495224, maintained with HDFC Bank) during the directorship period of Dharam Singh Chhoker: 11. It is further submitted that the bogus purchases were done to the tune of Rs. 56 Crore (approx.) by M/s Sai Aaina Farms Pvt Ltd and M/s D S Home Construction Pvt Ltd after receiving the payments from home buyers for Project Mahira Homes - 67, Gurugram. Wherein the payments were transferred to the entities through banking transactions and further cash amount were received back by Chhoker family. 12. In light of the above stated facts depicting role of the Petitioner, it is to be noted that the instant case involves serious economic offence of siphoning of huge amount of public money and the Petitioner is the beneficiary of proceeds of crime thereby being squarely covered within the ambit of offence of money laundering. Xxx xxx" 35. In addition to the above mentioned material which is against the petitioner, it would also be rele....
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....2. M/s Mahira Homes Pvt. Ltd. 33,95,36,021 3. M/s Czar Buildwell Pvt. Ltd. 6,91,73,363 4. M/s Neel Mahadev Buildtech Pvt. Ltd. 1,32,65,820 5. M/s Neelmahadev Builders Pvt. Ltd. 3,86,22,082 (vii) As per the forensic audit report dated 27.06.2022 in respect of real estate project of M/s Czar Buildwell Pvt Ltd. an associate Company, situated at sector 104, Gurugram. the company collected amount of Rs. 90 Crore (approx.) from the home buyers for their project at Sector-104, Gurugram and most of the funds have been utilized by the developer and only 2% of the work has been done. Also, an amount of Rs. 21 Crore has been paid to M/s DS Home Construction Pvt Ltd. Further, as per the balance sheet of M/s Czar Buildwell Pvt Ltd for F.Y. 2021-22, an amount of Rs. 80 Crore (approx.) was paid to M/s DS Home Construction Pvt. Ltd. Alone. (viii) Furthermore, during investigation, it is revealed that SAFPL undertook the project Mahira Homes-68 of building flats at Sector 68, Gurugram, under the affordable group housing project and had applied for relevant licenses/permissions to Department of Town and Country Planning [DTCP), Haryana. DTCP granted....
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....ntioned averments would show that it was specifically averred that as per the Forensic Audit Report, the Company M/s Mahira Buildtech Private Limited of which the petitioner was a Director for a period of more than one year and five months and which company is accused in FIR No. 151 dated 31.05.2023 had diverted a total fund of Rs. 68 crores out of an amount of Rs. 160 crores received from 781 allottees into the account of M/s DS Homes Construction Private Limited of which the petitioner was a Director for a substantial term as has been given in the abovesaid chart. Even M/s Czar Buildwell Private Limited, which project is the subject matter of FIR No. 152 dated 01.06.2023, is stated to have transferred a total amount of Rs. 80 crores to M/s DS Homes Construction Private Limited, (of which the petitioner was Director for a substantial time) as per the balance sheet of the year 2021-22. It has been specifically averred that although Rs.90 crores had been received from the home buyers with respect to the said project but only 2% of the work regarding the same had been done. In para 5(B), it has further been specifically averred that the investigation done by the Enforcement Directora....
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....13.05.2024 No compliance 15. 17.05.2024 21.05.2024 No compliance 20. However, Ld. Sessions Judge-cum-Special Judge, Gurugram considering the facts & circumstances of the case, directed to take more efforts to procure the presence of respondents/accused through warrants of arrest. Hence, following Arrest Warrants were issued against Petitioner-Dharam Singh Chhoker Date of Arrest Warrant Report of this office Date of attempts made by police authorities 20.03.2024 Made attempts on 28.03.2024 and 04.04.2024, not found at home as he was not there since 26.02.2024. Report dated 03.04.2024, not found at residence even after multiple attempts. 06.04.2024 Made attempts on 13.04.2024, not found at home as he was not there since 26.02.2024. Report dated 14.04.2024, not found at residence even after multiple attempts. It is also to be noted that Hon'ble Supreme Court of India directed Petitioner to appear before Respondent Directorate during hearing of SLP (Crl) No. 3867 of 2024 and the Petitioner appeared only twice in compliance thereof and thereafter deliberately chose not to appear before Respondent Directorate upon summons issued....
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....ncy of this Hon'ble Court; 7. Pass such other order(s) or direction(s) as this Hon'ble Court may deem fit in the peculiar facts and circumstances of the case in favour of the petitioner." A perusal of the abovementioned would show that the present ECIR along with subsequent proceedings arising therefrom were sought to be challenged and the order of the Special Judge, vide which non-bailable warrants and summons were issued to the petitioner was also challenged in the abovesaid petition. 39. In the said petition, a misc. application was also filed on behalf of the petitioner under Section 482 Cr.P.C for interim/ad-interim relief which included the prayer for directing the respondents not to take coercive action against the petitioners therein, which included the present petitioner. The said application has been annexed as Annexure R-4 with CRM-M-26190-2024. Although, initially notice was issued and an interim order was passed on 05.10.2023 by the Division Bench of this Court, to the effect that till the next date of hearing, the arrest warrant be not implemented, but the said petition was finally dismissed by the Division Bench, vide a detailed judgment dated ....
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....aid that there were no proceeds of crime or that no offence of money laundering under Section 3 of the PMLA was made out. Further reliance was placed upon the judgment of the Hon'ble Supreme Court in "Pavana Dibbur versus Directorate of Enforcement (Criminal Appeal No.2779 of 2023 decided on 29.11.2023) and it was observed that even in case the petitioner was not an accused in the predicate offence, then also, he could be prosecuted under the PMLA and thus, the arguments raised before the Division Bench were rejected. The relevant portion of the judgment of the Division Bench is reproduced herein below: - "16. As regards the argument that petitioner Dharam Singh Chhoker had never been the director and, therefore, no proceedings could have been issued against them, the same is also devoid of merit. The argument that since Dharam Singh Chhoker was not arraigned as an accused in the complaints submitted by Neeraj Chaudhry, no proceedings could have been issued against him is also devoid of merit. Still further, once there were other FIRs pending against the petitioners, it cannot be said that there were no proceeds of crime and, therefore, no offence of money laundering, as d....
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.... as his prayers for quashing of the ECIR as well as for quashing of the arrest warrants and taking of no coercive action had already been rejected by the Division Bench and has been upheld up to the Hon'ble Supreme Court. It is also submitted that at any rate, in the light of the abovementioned orders and findings against the petitioner, this Court possibly cannot opine that it is satisfied that there are reasonable grounds for believing that the petitioner is not guilty of any such offence and that he is not likely to commit any such offence while on bail so as to meet the twin conditions of Section 45 of the PMLA. It is further submitted by the respondents that the observations made by the Hon'ble Supreme Court while permitting the petitioner to withdraw the SLP are generally recorded by every Court while deciding a petition seeking quashing of proceedings or even seeking bail and the same is for the purpose of not prejudicing the case of the accused before the trial Court where the matter has to be finally adjudicated on the basis of the evidence produced before the trial Court and that the same cannot be construed to permit the petitioner to re-agitate the whole matter in the p....
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....icer 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;] [Inserted by Act 20 of 2005, Section 7 (w.e.f. 1.7.2005).] (2) The limitation on granting of bail specified in [***] [The words "clause (b)" omitted by Act 20 of 2005, Section 7 (w.e.f. 1.7.2005).] of 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 bail. [Explanation.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the conditions enshrined under this section.] " 42. The Hon'bl....
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....ere the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.(See D.K. Ganesh Babu v. P.T. Manokaran, State of Maharashtra V. Mohd. Sajid Husain Mohd. S. Husain and Union of India v. Padam Narain Aggarwal) Economic Offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement V. Ashok Kumar Jain, it was held that in economic offences, the accused is not entitled to anticipatory bail. *** *** *** 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said....
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....e Court need not go deep into the merits of the case and is only required to place its view based on probability on the basis of reasonable material collected during investigation and the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt. "401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad, the words used in Section 45 of the 2002 Act are "reasonable groun....
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.... "26. For the purpose of adjudication of the present petition, the following dates are relevant: i. 24.01.2018 - FIR No. 16/2018 under Sections 420/406/120B of the IPC is registered at PS EOW against the accused persons, including the petitioner. ii. 27.06.2019 - Impugned ECIR/09/HIU/2019 is registered by the departments on the basis of the scheduled offences in FIR No. 16/2018. iii. 19.11.2019 - The learned Trial Court allows an application under Section 320 of the CrPC moved on behalf of the accused persons for compounding of FIR No. 16/2018 registered at PS EOW based on an amicable settlement arrived at between the parties and acquitted the accused persons. iv. 12.03.2021 - FIR No. 49/2021 under Sections 420/406/120B of the IPC is registered at PS EOW against the accused persons, including the petitioner. Consequently, the said FIR is taken on record in the existing ECIR/09/HIU/2019. v. 18.11.2022 - The department carries out search and seizure in terms of Section 17(1) of the PMLA. vi. 19.11.2022, 22.11.2022 and 09.12.2022 - The department carries out follow-up searches and seizures. ix. 15.12.2022 - An applicati....
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....pertaining to 'proceeds of crime' under the PMLA in the previous FIRs. Needless to state, the Hon'ble Supreme Court, in Vijay Madanlal Choudhary (supra), has categorically held that the offence under PMLA is an independent offence. xxx xxx xxx xxx 33. The proposition of law laid down in judicial precedents relied upon by learned Senior Counsel for the petitioner is not in dispute. In the said cases, the 'scheduled offence' was quashed or compounded in all respects. In the present case, 'scheduled offences' by way of the third FIR still exist. It is pertinent to note that even in an FIR being investigated by the local police involving multiple complainants, compounding with some of them will not be a ground for quashing of the said FIR. However, partial compounding/quashing is permissible. 34. In so far as the submission of learned Senior Counsel with respect to the issue of the 'jurisdictional fact' is concerned, it is noted that during the pendency of the impugned ECIR, the registration of a third FIR with respect to 'scheduled offences; gives jurisdiction to the department to investigate by taking the said third FIR on record. The authorities cited by l....
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....h the petitioner has been accused by the respondent, regarding which sufficient material has also been produced. Section 3 of the Act is reproduced hereinbelow: - "3. Offence of money-laundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. [Explanation.--For the removal of doubts, it is hereby clarified that,-- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:-- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the proces....