2022 (4) TMI 1611

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.... 4. The complaint was filed by the informant - Assistant Director (PMLA), Directorate of Enforcement based on first information report being R.C. No.12(A)/2017-R dated 5th December, 2017 which was registered by the Central Bureau of Investigation, Ranchi against M/s. Bhanu Construction and Ors. on the basis of written information dated 20th November, 2017 received from Assistant General Manager, State Bank of India, Hatia Branch in regard to commission of the offence by M/s. Bhanu Construction (a partnership firm) under Sections 120-B read with Sections 406, 409, 420 of the Indian Penal Code (in short "IPC") and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short "the Act, 1988") and the charge-sheet was filed against 1. Sanjay Kumar Tiwari (the applicant herein), partner of M/s. Bhanu Construction, 2. Suresh Kumar, partner of M/s. Bhanu Construction, 3. M/s. Bhanu Construction, partnership firm and 4. Ajay Oraon, the Deputy Manager of SBI, Hatia Branch, Ranchi and others under Section 120-B read with Sections 406, 409 and 420 of IPC and under Sections 13(2) read with Sections 13(1)(d) of the Act, 1988. 5. The matrix of the prosecution c....

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....und that the applicant - Sanjay Kumar Tiwary was the sole signatory on behalf of the M/s. Bhanu Construction to operate all the accounts. It was revealed that Sanjay Kumar Tiwary, Managing Partner of M/s. Bhanu Construction dishonestly transferred the said amount to various accounts and misappropriated the same by keeping it as liquid security/margin for credit facility extended to them by Axis Bank Ltd., Ashok Nagar, Ranchi, HDFC Bank Ltd., Ashok Nagar Branch, SREI Equipment Finance Ltd., Ranchi, Cholamandalam Investment and Finance Co. Ltd., Ranchi and has also purchased as many as 53 vehicles out of the alleged proceeds of crime from August, 2018 to September, 2018. Many vehicles were confiscated and auctioned by SBI which further resulted in reduction of proceeds of crime to Rs.19,60,17,457/-. The charge-sheet bearing no.04 of 2019 dated 26th June, 2019 was filed by CBI, ACB, Ranchi before the court of Special Judge, CBI, Ranchi against Sanjay Kumar Tiwary, Ajay Oraon, Suresh Kumar and M/s. Bhanu Construction, a partnership firm. As per charge-sheet, the proceeds of crime was Rs.19,60,17,457/-. The accused/applicant-Sanjay Kumar Tiwary evaded to appear before Directorate of Enf....

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....minal Bail Application No.1322 of 2020) Judgment dated 25th March, 2021 (Bombay High Court). ii. Most. Ahilya Devi @ Ahilya Devi vs. The State of Bihar & Ors. (Criminal Miscellaneous No.41413 of 2019) Judgment dated 28th May, 2020 (Patna High Court). iii. Sai Chandrasekhar vs. Directorate of Enforcement reported in 2021 SCC Online Del 1081. iv. Upendra Rai vs. Directorate of Enforcement (Bail Application No.249 of 2019) Judgment dated 9th July, 2019 Delhi High Court. v. Dr. Vinod Bhandari vs. Asstt. Director, Directorate of Enforcement reported in 2018 SCC Online MP 1559. vi. Okram Ibobi Singh vs. Directorate of Enforcement with its Headquarter at New Delhi reported in 2020 SCC Online Mani 365. 7. Learned counsel appearing on behalf of the Directorate of Enforcement opposed the contentions made by the learned counsel for the applicant and contended that offence under Sections 3 and 4 of the Act, 2002 along with predicate offence under Section 120-B read with Sections 406/409/420 of the IPC and Section 13(2) read with Section 13(1) (d) of the Act, 1988 is made out against the applicant and no bona fide was shown on the part of the appl....

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....ver commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted." 9. Learned counsel for the applicant has submitted that there are no reasonable ground from the materials on record, against the applicant, that he has committed the alleged offence of money laundering. It is further submitted that the provisions of Section 45 of the Act, 2002 has been declared unconstitutional by the Hon'ble Apex Court in the case of Nikesh Tarachand Shah vs. Union of India & Anr. reported in (2018) 11 SCC 1. After that judgment, the Section 45 of the Act, 2002 was amended by the Parliament by Act 13 of 2018 w.e.f. 19th April, 2018 and the amended provisions of Section 45 of the said act are under challenge before the Hon'ble Apex ....

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....LA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" as occurring in Section 45(1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words "under this Act". As per learned ASG, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PMLA to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45(1) stood revived. 15. The Hon'ble Apex Court in the case of YS Jagan Mohan Reddy vs. C.B.I. reported in 2013 (7) SCC 439 has held as under :- "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." 16. The Hon'ble Apex Court in the case of State Of Gujarat vs. Mohanlal Jitamalji P....