TaxTMI 
TaxTMI 
2025 (1) TMI 1265
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....uled Offence) 08.01.2020 3. Prosecuting Agency ECIR Enforcement Directorate Scheduled Offences Shivaji Nagar Police Station, Pune 4. Sections invoked (ECIR) Section 3 r/w. 70 of the Prevention of Money Laundering Act, 2002 Scheduled offences Sections 420 r/w. 34, 406, 408, 409, 465, 468 & 471 of the Indian Penal Code, 1860 5. Date of arrest of the Applicant in Scheduled Offence 25.02.2020 Date of arrest in ECIR 05.03.2021 6. Date of filing of Charge-sheet in Scheduled Offence Charge-sheet bearing No. 32/2020 dated 18^th May 2020 ECIR Complaint April 2021 7. Status of Bail Application in scheduled offence Scheduled Offence - Bail granted on 19^th August 2024 by this Court in B. A. No. 653 of 2023 8. Main grounds for seeking bail The Applicant has undergone 3 years 10 months in ECIR i. e. more than half of the punishment. The maximum punishment which can be awarded is 7 years. The Applicant is in custody for more than 4 years and 11 months. 3. Respondent - the Directorate of Enforcement ("ED") by filing affidavit-in-reply of Mr. Venkata Naren Garapaty, Assistant Director, Zonal Office-II, Mumbai....
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....ale 06.03.2021 06.09.24 Tanaji Dattu Padwal 06.03.2021 14.10.24 7. ROLE OF THE APPLICANT 7.1. Mr. Anil S Bhosale was the chairman and promoter of Shivajirao Bhosale Sahakari Bank Limited. Shivajirao Bhosale Sahakari Bank Limited (SBSBL) is a family-oriented bank which Mr. Anil S Bhosale inherited from his father. He had the sole authority to take decisions and dictate terms to staff and Board of Directors. 7.2. On the instructions of Mr. Anil S Bhosale Rs. 27,13,70,000/- in cash were withdrawn from 24 Nationalized and Co-operative banks where the account of Shivajirao Bhosale Sahakari Bank Limited was maintained. Out of the said Rs. 27.13 Crores Rs. 23.89 Crore was withdrawn by Anil Bhosale. The remaining amount was available with SBSBL 7.3. Further, Mr. Anil S Bhosale withdrawn Rs. 168.74 Lakhs in cash from Deccan Gymkhana branch of SBSBL. However, Rs 98.99 Lacs were paid back by Mr. Anil S Bhosale. In total, net cash of Rs. 69.75 Lacs was withdrawn from Deccan Gymkhana Branch on the instructions of Mr. Anil S Bhosale. 7.4. It is observed that RTGS transfers of Rs 2.75 Crore were made from Head Office of SBSBL on the instructio....
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....hav and Mrs. Aruna Jadhav, by the bank itself. The amounts transferred to Interest and Loan accounts on 31st March 2017 were reversed on 31st March 2019. It is clear that the intention of SBSBL was to reduce NPA position also to mislead to the depositors of the bank and to increase profit as on 31st March 2017 7.12. Commission income of Rs 31.90 Lacs from the account of Amar Jadhav and Rs 24.81 Lacs from Aruna Amar Jadhav is taken to income General Ledger. This has led to manipulation of accounts by overstating profit of Rs 56.71 Lacs. 7.13. Mr. Anil S Bhosale, in conspiracy with Mr. Mangaldas Bandal and officials of the bank sanctioned several fraudulent loans for their personal benefit. It is revealed during investigation that during sanctioning loan to various borrowers, the bank had failed to comply with By-laws of the Cooperative Bank, and rules, regulations, guidelines issued by the RBI and rules made under Maharashtra Cooperative Societies Act, 1960. Consequently, most of the loan accounts slipped to NPA category. There was total 432 NPA accounts and outstanding principle amount was Rs 392 Crore. 7.14. Bank used to maintain bifurcated lists of 96 l....
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....ompleted more than half of the total punishment. He, therefore, submitted that the Applicant is entitled to be released on bail. He relied on the following Judgments : (i) Javed Gulam Nabi Shaikh vs. State of Maharashtra 2024 SCC OnLine SC 1693; (ii) Vijay Madanlal Choudhary vs. Union of India 2022 SCC OnLine SC 929; (iii) Manish Sisodia vs. Directorate of Enforcement 2024 SCC OnLine SC 1920; (iv) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari vs. The State of Uttar Pradesh 2024 SCC OnLine SC 1755. 5. He submitted that it is well established that speedy trial is a right guaranteed to the Applicant under Article 21 of the Constitution of India. He submitted that the factual position on record clearly shows that the said fundamental right of the Applicant is violated. In support of the said contention, he also relied on Section 436A of the Cr.P.C.. He submitted that he is seeking bail only on the ground of long incarceration. He also submitted that the Applicant is senior citizen of 60 years. He, therefore, submitted that the Applicant is entitled to be enlarged on bail. 6. On the other hand, Mr. Venegavkar, learned PP for Respondent - ED ....
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....osale and also the liability attributable towards the Applicant. The said Chart is reproduced herein below for ready reference: "RECOVERY CHART - ANIL BHOSALE 1. LIABILITY ATTRIBUTABLE TOWARDS MR. ANIL BHOSALE: Embezzlement of Short cash- 103 Crores (@pg 181 of B.A) Amount attributable to Mr. Anil Bhosale 34.16 Crore (@pg 127 of B.A) 96 NPA Account - 247 Crores (@pg 133 of B.A) 44 NPA Accounts attributed to Mr. Anil Bhosale 113.14 crore TOTAL ATTRIBUTABLE 146.63 Crore 2. ACTUAL RECOVERY AGAINST LIABILITY ATTRIBUTABLE: 1. Amount Recovered from Applicant by auctioning land by Shivaji Rao Bhosale Sahakari Bank Ltd. u/s 101 of MCS Act. 53.17 Crore (@pg 21 of CoD) 2. Amount recovered out of 02 NPA Accounts from 44 NPA Accounts. 10.88 Lakh (@OTS chart) TOTAL Rs. 53.27 Crore 3. AMOUNT RECEIVABLE Sr. no Receivable Amount Amount Reference 1. OTS offer proposed in 13 NPA Accounts out of 44 NPA Accounts. (Sanction pending) 43.21 Crore @Correspondence to Registrar of Cooperative Society. 2. Valuation of properties of Mr. Anil Bhosale attached by EOW/ED/Bank as on 2017. Applicant has no obj....
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....hakari Bank Ltd u/s 101 of MCS Act 53.17 Crore @pg 21 of cod 2 Amount recovered out of 02 NPA Accounts from 44 NPA accounts 10.88 lakh @OTS chart Total 53.27 Crore Explanation - The above chart as submitted by the applicant is true and correct to the best of my knowledge based on documents on record. 8. I say that in the aforesaid matter, the compilation was filed by the Applicant/Accused in support of his claim mentioned in Point No.3 under the title as amount receivable which is as under:- Sr.No. Receivable Amount Amount Reference 1 OTS offer proposed in 13 NPA Accounts out of 44 NPA Accounts (Sanction pending) 43.21 Crore @ Correspondence to Registrar of Co-operative Society. 2 Valuation of properties of Mr. Anil Bhosale attached by EOW/ED/Bank as on 2017 Applicant has no objection if sale of the attached properties is made absolute. 14.05 Crores (Approx.) @ Valuation reports 3 Govt Valuation (as per IGR) of properties mortgaged and attached in lieu of loan in balance 31 NPA Accounts out of 44 NPA accounts received Recovery certificate u/s 101 of MCS Act of 29 NPA accounts out of 44 ....
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....of loan account holders, it will not be proper to expect this is a receivable amount in favour of the petitioner. 9. I say that in the aforesaid matter, the compilation was filed by the Applicant/Accused in support of his claim mentioned in point No. 4 under the title as Amount Receivable which is as under:- Summary Sr.NO Particulars Amount (in Crores) 1 Liability attributed 146.63 2 Actual realisation and amount to be received 151.60 Explanation - I say that, applicant has showed total liability of Rs. 146.63 Cr., which is not a matter of fact. As per details of investigation, total liability would be Rs. 190,82,50,901/-.(Rs.34.16 Cr + 113.14 Cr + 43.51 Cr (Interest Amount)) As regards the actual realisation, details have been submitted in preceding paragraphs. This is subject to the condition that the petitioner clears the outstanding on 5 OTS NPA accounts and also clears the OTS once sanctioned in case of the other NPA accounts. A chart of the present status is enclosed herewith for the sake of clarity. A) Amount recovered from applicant by Shivajirao Bhosale Co Op Bank Ltd, Pune Sr.No Particulars Amount (in Cr....
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....t he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm 113[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 [....
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.... material on record shows that the Applicant is involved in commission of very serious offence under Section 3 of the PMLA. The manner in which the offence is committed clearly show that the Applicant is not able to fulfill the twin conditions as contemplated under Section 45 of the MPLA. Thus, the Applicant is not entitled to be released on bail on merits. 15. In the above background, it is necessary to consider whether the Applicant is entitled to be released on bail inspite of failing to fulfill the twin conditions as contemplated under Section 45 of the MPLA. 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 Cr. P. C. which is concerning the maximum punishment for which an under trial prisoner can be detained, held that Section 436A of the Cr. P .C. has come into effect on 23.06.2006 and the said provision is the subsequent law enacted by the Parliament and the same will prevail and will apply in spite of rigors of Section 45 of the PMLA Act. The relevant part of the said paragraphs 412 to 421 read as under....
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....y 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 under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh V. State of Punj....
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....n 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 even after the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate conditions, including to ....
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....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 the same logic, we must hold that Section 436A of the 1973 Code could be invoked by accused arrested for offence punishable under the 2002 Act, being a statutory bail." (Emphasis added) 17. The Supreme Court in the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Ja....
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...."51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State of Punjab, Hussainara Khatoon (1) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb(r)and Satender Kumar Antil v. Central Bureau of Investigation. The Court observed thus: "19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime." 52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: ....
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....'issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process'. The principle has further been expanded to establish that the prolonged incarceration of an accused person, pending trial, amounts to an unjust deprivation of personal liberty. This Court in Union of India v. K.A. Najeeb has expanded this principle even in a case under the provisions of the Unlawful Activities (Prevention) Act, 1967 (hereinafter 'UAPA') notwithstanding the statutory embargo contained in Section 43-D(5) of that Act, laying down that the legislative policy against the grant of bail will melt down where there is no likelihood of trial being completed within a reasonable time. The courts would invariably bend towards 'liberty' with a flexible approach towards an undertrial, save and except when the release of such person is likely to shatter societal aspirations, derail the trial or deface the very criminal justice system which is integral to rule of law." (Emphasis added) 21. Following position emerges from the analysis of the above decisions of the Sup....
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....) Section 436A of the CrPC, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the CrPC also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the CrPC. Under Section 436A of the CrPC, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by imposing such terms and conditions so as to ensure that after release, the accused makes himself/herself available for expeditious completion of the trial. G) Right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained....
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....bstantial part of the prescribed sentence. 23. Thus, inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India. 24. The Supreme Court in the case of V. Senthil Balaji vs. Deputy Director, Directorate of Enforcement 2024 SCC OnLine SC 2626 discussed the duty of the Constitutional Courts while considering bail applications under the provisions of the PMLA. The Supreme Court held as follows: "27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act. When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45 (1) (ii) does not confer power on the State to detain an accused for an unr....
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....l Courts, will have to take a call on a peculiar situation that arises in our justice delivery system. There are cases where clean acquittal is granted by the criminal courts to the accused after very long incarceration as an undertrial. When we say clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the accused are lost. In a given case, it may amount to violation of rights of the accused under Article 21 of the Constitution which may give rise to a claim for compensation." (Emphasis added) 25. With regard to Section 45 of the PMLA, the Supreme Court in the said case of V. Senthil Balaji (supra) in paragraph No. 25 held as under: 26. "25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expediti....
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....fund is involved, substantial part of money is either recovered or secured. Thus, by taking into consideration overall circumstances, the Applicant is entitled to the benefit of Section 436A of the CrPC. The Judgment cited by Mr. Venegavkar, learned PP in the case of Tarun Kumar (Supra) is not applicable to the facts of the present case, as in that case, the Accused has not completed half of the punishment. 32. However, as the offence is very serious, stringent conditions are required to be imposed on the Applicant. 33. Mr. Mundargi, learned Counsel appearing for the Applicant, after taking instructions, states that as most of the witnesses are from District-Pune, the Applicant will therefore, not reside within District-Pune and that the Applicant will reside at Sukhada Building, Sir Pochkhanawala Road, Worli, Mumbai and he will report to the Worli Police Station, Mumbai. 34. The Applicant does not appear to be at risk of flight. 35. Accordingly, the Applicant can be enlarged on bail by imposing conditions. In view thereof, the following order: ORDER (a) The Applicant - Anil Shivajirao Bhosale be released on bail in connection with ECIR No. ECIR/MBZO-II/20/2....