TaxTMI 
TaxTMI 
2024 (10) TMI 681
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.... Date of registration of F.I.R. 08/01/2020 3. Name of Police Station Shivaji Nagar, Dist. Pune (Directorate of Enforcement) 4. Section/s invoked (Scheduled Offence) 406, 408, 409, 420, 468, 471 r/w. 34 of Indian Penal Code, 1960 along with Sections 3, 4 and 5 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 5. Section/s invoked (PMLA Offences) 4 of the Prevention of Money Laundering Act, 2002 ("PMLA") 6. Date of arrest 24/02/2020 in IPC Offences/Scheduled Offences 05/03/2021 - In the offence under PMLA. 3. Mr. Kazi, learned Counsel appearing for the Applicant raised following contentions:- (i) The role of the present Applicant and co-Accused-Shailesh Bhosale is at par. Shailesh Bhosale has been granted bail in scheduled offence by a learned Single Judge by order dated 10th October 2023 passed in Criminal Bail Application No. 1110 of 2023 and in PMLA offence this Court has granted bail to said co-accused by order dated 6th September 2024 passed in Bail Application No. 3204 of 2022. He therefore, submitted that the Applicant is entitled to be released on bail on the ground of parit....
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....se. He also pointed out the role which the present Applicant has played in the crime which is described at page Nos. 1214 to 1217 of the said affidavit-in-reply. 5. Before considering the rival submissions, it is necessary to set out the prosecution case. The same is set out in paragraph Nos. 7.1 to 7.6 of the said affidavit-in-reply, which reads as under: "7.1. That, Shivajinagar Police Station, Pune registered FIR No. 0026/2020 dated 08.01.2020 against Mr. Anil Shivajirao Bhosale, Mr. Suryaji Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr. Shailesh Sampatrao Bhosale and others on the basis of complaint filed by the Complainant Mr. Yogesh Rajgopal Lakade, Chartered Accountant (Partner of M/s Torvi Pethe &Co.) invoking Sections 420 read with Sections 34, 406, 408, 409, 468 and 471 of Indian Penal Code, 1860 (herein after referred to as 'the IPC, 1860'). 7.2. That, it is alleged in the FIR that RBI team during their periodical visit at head office of M/s Shivajirao Bhosale Co-operative Bank Ltd. at Pune on 26.04.2019, noticed various discrepancies in records / books of accounts of the bank. Further, the RBI vide letter dated 16.05.2019 had given direction....
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....umbai, against Mr. Anil Shivajirao Bhosale, Mr. Suryaji Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr. Shailesh Sampatrao Bhosale and others as sections 420, 467 & 471 of IPC invoked in the FIR are scheduled offence under PMLA, 2002 within the meaning of section 2(1) (y) of PMLA, 2002 read with Part A Paragraph 1 of the schedule to the PMLA, 2002." 6. In the said affidavit-in-reply role of the present Applicant is also set out in paragraph No.8.3. The same reads as under: "8.3. That, the Management of the bank is vested in the Chief Executive Officer and Managing directors of the bank. Mr. Tanaji Dattu Padwal being a CEO of the bank, used to supervise all the 14 branches of the bank and used to prepare policies for implementation in the day-to-day affairs of the bank. He failed to comply his duties as a Chief Executive Officer of the bank. He neither adhered by laws of the bank nor guidelines of RBI issued from time to time while discharging his duties. He followed instructions regarding illegal withdrawal of cash for Anil S. Bhosale and Suryaji Pandurang Jadhav without filling any voucher/slip while taking out cash from the bank. He is also the person who used to manag....
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....m Shivajinagar branch for Anil S. Bhosale and Suryaji Pandurang Jadhav. Names of the persons to whom cash to be handed over by branch were instructed to her by Tanaji Dattu Padwal along with other officials on behalf of Mr. Anil Shivajirao Bhosale and Mr. Suryaji Pandurang Jadhav. She also stated that she had informed Mr. Tanaji Dattu Padwal regarding the shortfall in cash in Shivajinagar Branch and liquidity problems faced by the depositors since April 2019, this implies that Mr. Tanaji Dattu Padwal was very well aware about the financial crisis faced by the bank due to illegal cash withdrawal. In reply to the same, Mr. Tanaji Dattu Padwal informed Mrs. Sunita Bandal that Mr. Anil Shivajirao Bhosale will repay the cash to the bank at the earliest. She also stated that Mr. Tanaji Dattu Padwal passed on instructions to her for cheque discounting to reduce the percentage of NPA. A Forced Loan account was created by the Administrator of Shivajirao Sahakari Bank Limited in the name of Mr. Tanaji Dattu Padwal for Rs. 2,14,00,000/- for cash withdrawal of the said amount from the IDBI Bank, Yes Bank and Axis Bank even after restriction imposed by the RBI for cash withdrawal by the Bank. T....
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....he offence. As the Chief Executive Officer of the said Bank, it is the duty of the Applicant to see that the Bank functions in accordance with the provisions of law. Perusal of record shows that Loan account was created of Shivajirao Sahakari Bank Limited in the name of the Applicant - Tanaji Dattu Padwal for Rs. 2,14,00,000/- for cash withdrawal of the said amount from the IDBI Bank, Yes Bank and Axis Bank even after restriction imposed by the RBI for cash withdrawal by the Bank. The Applicant even after imposing restrictions on 3rd May 2019 by RBI on withdrawal of cash more than Rs. 1000/-, had issued cheques to withdraw an amount of Rs.2.14 crores on various dates from the period of 26th June 2019 to 18th November 2019 from accounts of Shivajirao Bhosale Sahakari Bank which are maintained with Axis bank, IDBI bank and Yes Bank. Thus, it is clear that the Applicant is involved in a very serious crime. 8. Mr. Venegavkar, learned Special Public Prosecutor also pointed out paragraph Nos.6 and 7 of this Court's order dated 7th October 2024 passed in Criminal Bail Application No. 2528 of 2023 regarding scheduled offences. In said paragraph Nos. 6 and 7 after considering the record,....
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....personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded." 12. However, it is required to be noted that the offence alleged against the present Applicant is under PMLA. 13. Section 45 of the PMLA Act is as follows :- "45. Offences to be 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 opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to com....
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.... The Court is required to record satisfaction that the Applicant is not likely to commit any offence while on bail. 15. In this Bail Application, the Respondent No. 1 - ED filed affidavit opposing the Bail Application and Mr. Venegavkar, learned Special Public Prosecutor for Respondent No. 1 has opposed the Bail Application. Thus, requirement as set out in Clause (i) herein above is satisfied. Thus, now what is required to be seen is whether twin conditions as contained in Clause (ii) noted hereinabove are fulfilled and effect of the said twin conditions on the entitlement of the Applicant in getting bail. 16. In this background of the matter, it is required to be noted that the Supreme Court in the case of Vijay Madanlal Choudhary (supra) in Paragraph Nos.412 to 421 considered the applicability of Section 436A of the CrPC which is concerning the maximum punishment for which an under trial prisoner can be detained to the offence punishable under PMLA, in view of Section 45 of PMLA imposing twin conditions before considering application of the Accused facing prosecution for the offences under the PMLA. It has been held that Section 436A of the CrPC has come into effect on 23rd....
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.... be excluded.] 415. In Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, this Court stated that the right to speedy trial is one of the facets of Article 21 and recognized the right to speedy trial as a fundamental right. This dictum has been consistently followed by this Court in several cases. The Parliament in its wisdom inserted Section 436A under the 1973 Code recognizing the deteriorating state of undertrial prisoners so as to provide them with a remedy in case of unjustified detention. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, the Court, relying on Hussainara Khatoon, directed the release of prisoners charged under the Narcotic Drugs and Psychotropic Act after completion of one-half of the maximum term prescribed under the Act. The Court issued such direction after taking into account the non obstante provision of Section 37 of the NDPS Act, which imposed the rigors of twin conditions for release on bail. It was observed: "15 We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence u....
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.... in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself. 417. Be that as it may, in our opinion, this provision is comparable with the statutory bail provision or, so to say, the default bail, to be granted in terms of section 167 of the 1973 Code consequent to failure period of the investigating agency to file the chargesheet within the statutory and, in the context of the 2002 Act, complaint within the specified period after arrest of the person concerned. In the case of Section 167 of the 1973 Code, an indefeasible right is triggered in favour of the accused the moment the investigating agency commits default in filing the chargesheet/complaint within the statutory period. The provision in the form of Section 436A of the 1973 Code, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution. For, it is a sanguine hope of every accused, who is in custody in particular, that he/she should be tried expeditiously - so as to uphold the tenets of speedy justice. If the trial cannot proceed....
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....e Representing Under trial Prisoners, to ameliorate the agony and pain of persons kept in jail for unreasonably long time, even without trial, can be whittled down on such specious plea of the State. If the Parliament/Legislature provides for stringent provision of no bail, unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time, at least before the accused undergoes detention for a period extending up to one-half of the maximum period of imprisonment specified for the concerned offence by law. [Be it noted, this provision (Section 436A of the 1973 Code) is not available to accused who is facing trial for offences punishable with death sentence] 421. In our opinion, therefore, Section 436A needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code. Notably, learned Solicitor General has fairly accepted during the arguments and also restated in the written notes that the mandate of Section 167 of the 1973 Code would apply with full force even to cases falling under Section 3 of the 2002 Act, regarding money-laundering offences. On....
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....esses are proposed to be examined by the prosecution. The Charge-sheet in both the cases is voluminous. It is an admitted position that both the cases will be tried simultaneously and trial has not yet commenced. Thus, this is a case where the trial is unlikely to conclude any time soon and is likely to take a considerably long time. As noted herein above, the Applicant has completed more than half of the punishment and therefore, entitled to the benefit of Section 436A of the CrPC. There is no material on record to show that the Applicant is responsible for delay in conducting the trial. There is no other circumstance brought to the notice of this Court which will disentitle the Applicant to seek benefit of Section 436A of CrPC. 21. In the present case, the Applicant has been arrested in the scheduled offences on 24th February 2020. The Applicant has been arrested in the PMLA case on 5th March 2021 when he was in custoday in scheduled offences. Thus, the Applicant is behind bar for about 4 years and 8 months. As the Applicant has been arrested in the PMLA case on 5th March 2021 and therefore even if the date of arrest in the PMLA case i.e. 5th March 2021 is taken into considera....