TaxTMI 
TaxTMI 
2024 (11) TMI 1566
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....from its inception. It is alleged that on 24.09.2011, TCL availed credit facility from Bank of India, Model Town Branch, Ludhiana to the tune of Rs.35 crore and subsequently it was enhanced to Rs.46 crore. 2.2 It is also alleged that petitioner stood as a guarantor for the aforesaid credit facility. Initially, TCL paid instalments well in time; but later on, committed default resulting into accumulation of about Rs.41 crore as outstanding dues. On 31.03.2014, the account of TCL was declared as NPA (Non-Performing Asset). 2.3 In order to show its bona fide, TCL made attempt to settle the outstanding dues through "One Time Settlement" (OTS) with the Bank on 09.01.2017, but it could not materialize due to certain reasons. Later on, the account of TCL was declared as a "Wilful Defaulter", which was challenged by way of CWP-25192-2018 and the same was allowed by then Division Bench vide order dated 24.02.2020 (P-1). As a result of the above, order of the bank, declaring TCL as "Wilful Defaulter" was quashed and set aside. 2.4 Thereafter, the Bank submitted a written complaint to the Central Bureau of Investigation (CBI) and on the basis of which, FIR No.RCCHG2022A0012 dated 28.....
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....s, including serious heart problem and even petitioner was taken to different hospitals by the E.D itself for medical examination; thus, petitioner being a sick person deserves the concession of bail on medical ground also. 3.6 Yet again contends that petitioner has suffered a long incarceration for a period of about one year and the principle of bail being rule and its rejection, an exception, would squarely apply to the facts of present case. 3.7 Still further contends that petitioner was arrested by the E.D on 06.11.2023; thereafter, he was sent to judicial custody and for the last about one year, petitioner is being incarcerated without there being any progress of the trial. Also contends that petitioner is an elected member of Legislative Assembly from Amargarh Constituency, Malerkotla in Punjab and as such, being a responsible person, not likely to flee from justice. 3.8 Again contended that petitioner fully cooperated with the investigating agency and replied to all the summons sent by E.D, from time to time. On 04.08.2023, petitioner received first summons requiring his personal appearance for 08.08.2023, but he could not appear due to his prior commitments to visi....
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....of 2024 decided on 26.09.2024); and x. Sunil Dammani Versus Directorate of Enforcement; (Criminal Appeal No.4108 of 2024 decided on 03.10.2024). ON BEHALF OF RESPONDENT: - 4.1 Learned Addl. Solicitor General of India appearing for the respondent, submits that loan facility to the tune of Rs.46 crore was fraudulently availed by TCL while showing bogus share capital and fictitious turnovers. Further submits that above amount was never used for the intended purposes; instead, diverted to the accounts of sister concerns and other shell companies to misuse the loan amount. 4.2 Again submits that petitioner is the main kingpin of entire bank fraud as he stood guarantor for the credit facility availed by TCL and caused loss to the public exchequer to the tune of Rs. 41 Crore. 4.3 Vehemently submits that out of total loan availed by TCL, an amount of Rs. 3.12 crore was credited into the account of petitioner, which would be termed as "proceeds of crime" and the same is yet to be recovered from him. 4.4 Further submits that after issuance of first summons on 04.08.2023, petitioner, intentionally flew to Canada on 05.08.2023 and came back to India via Nepal in order t....
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....1920 decided on 09.08.2024, Hon'ble the Supreme Court held that the right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PMLA and reference in this regard can be made to para 28 of the above judgment which reads as under: - "28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, the cases of murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for ....
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....ably relaxed to afford conditional liberty. Further, Manish Sisodia (II) reiterated the holding in Javed Gulam Nabi Sheikh (supra), that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial. ................... ................. ................... It is in this background that Section 45 of PMLA needs to be understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict." 8. Yet again, Hon'ble the Supreme Court in Vijay Nair Versus Directorate of Enforcement, in SLP (Crl.) Diary No.22137/2024 decided on 02.09.2024 held that bail is the rule and jail is an exception. For reference, relevant part of the judgment reads as under:- "12. Here the accused is lodged in jail for a considerable period and there is little possibility of trial reaching finality in the near future. The liberty guaranteed ....
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....eworthy that initially, petitioner was taken to Civil Lines Hospital, Jalandhar by the E.D from where he was referred to Government Medical College (GMC), Amritsar and later on, he was taken to PGIMER, Chandigarh and remained in the Critical Care Unit (CCU) under the care of Cardiology, Head of the Department. Thereafter petitioner was admitted in Government Rajendra Hospital, Patiala; thus there would be no difficulty to say that petitioner is not keeping good health and he can be safely termed as a "sick person" within the ambit of Section 45 of PMLA. 16. Although, learned counsel for E.D raised an objection that in case petitioner is granted bail, he may hamper the ongoing investigation and may even threaten the prosecution witnesses; but it is based merely on surmises and there is no material to substantiate the same; hence the objection to that effect is hereby rejected. 17. Although, learned counsel for E.D cited various judicial precedents while opposing the bail, but the same are not helpful for the following reasons: - i. Vijay Madanlal Choudhary; Aditya Tripathi; Radha Mohan Lakhotia; J. Sekar; P. Rajendran; Gautam Kundu; Shri Debabrata Halder's cases (supr....