TaxTMI 
TaxTMI 
2025 (5) TMI 2295
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....has falsely been named as accused in the above titled case. 4. Necessary facts, for the registration of the present ECIR, as pleaded in the application are that the police of State Vigilance and Anti Corruption Bureau, Solan registered the case FIR No. 4/19, dated 21.08.2019, under Section 11 of Prevention of Corruption Act (hereinafter referred to as 'the PC Act'), against one Nishant Sareen. After completion of the investigation, report under Section 173(2) Cr.PC was submitted by the SV & ACB, Solan on 09.11.2021, before the Court of learned Special Judge, Solan. 4.1. As per the applicant, learned Special Judge, Solan has also taken the cognizance against the applicant for allegedly committing the offence punishable, under Section 12 of the PC Act. It was alleged in the said case that accused Nishant Sareen took undue advantage to the tune of Rs. 43,07,641/- by misusing his official position as Drugs Inspector and Assistant Drugs Controller. 4.2. It is the further case of the applicant that Jagbir Singh son of late Shri Om Pal, had entered into a partnership agreement, under the name and style of M/s Zhenia Pharmaceuticals, vide partnership deed dated 02.05.2016. Both we....
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....t he was partner in Zhenia Pharmaceutical to the extent of 5% and the applicant to the extent of 95%. His application has been annexed as Annexure A-9. 4.7. On the basis of FIR No.215, dated 29.10.2022, the present ECIR was registered, under the provisions of PMLA. When, the grounds of arrest, under Section 19 of the PMLA, were supplied to Nishant Sareen, certain allegations were also raised/leveled against the applicant. 4.8. The relief has also been sought on the ground that the respondent-ED has examined certain persons, under Section 15 of the PMLA, who allegedly had stated that they have extended certain benefits to Nishant Sareen, directly or through the applicant. It was alleged that M/s Zenia Pharmaceutical is being run by the applicant, as a proxy on behalf of Mr. Nishant Sareen. 4.9. In addition to this, statements of 13 individuals from different Pharma Companies were recorded wherein, it has been mentioned that certain business transactions have been carried out with Ms. Nia Pharma, which was proprietary concern of the applicant with M/s Zhenia Pharmaceuticals also. As per the applicant, both these establishments, i.e., M/s Nia Pharma and M/s Zhenia Pharmaceuti....
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....ho owed some amount to M/s Zhenia Pharmaceuticals and suit has been filed for recovery of Rs.54,53,060/-, whereas, Paresh and Aditya, partners of M/s Anand Packaging, have some business dealings with Jagbir Singh. 4.16. All these facts have been pleaded to show that all the witnesses against her are interested witnesses. Alleging against the star witness of the ED Jagbir Singh, it has been pleaded that he has caused great loss to the firm M/s Zhenia Pharmaceuticals, as such, the applicant decided to work independently, and with the intervention of some common friends, the matter was settled between the applicant and Jagbir Singh and Jagbir Singh was to surrender his remaining 5% shareholding in the firm, M/s Zhenia Pharmaceuticals in favour of the applicant and memorandum of understanding was to be signed between them. Jagbir Singh also agreed to settle all pending liabilities of M/s Zhenia Pharmaceuticals and in lieu of that, the applicant issued a post dated cheque dated 11.11.2020, in the sum of Rs.25,00,000/-, in favour of a Company of Shri Jagbir Singh. 4.17. The cheque was given to one Vinay Aggarwal, who has to hand over the cheque to Jagbir Singh, after the needful wi....
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.... with Nishant Sareen, a public servant. According to the respondent-ED, she is not entitled to the extraordinary relief. 6.1. The relief has also been opposed, on the ground, that the mandatory twin conditions, as envisaged under Section 45 of the PMLA, are not existing, in favour of the applicant, at this stage, as there is nothing on the file to demonstrate that she is not guilty of offence under the PMLA, nor, likely to commit any offence, while on bail. According to the respondent-ED, the provisions of Section 45 of the PMLA are also applicable to the anticipatory bail, filed under Section 482 of the BNSS. 6.2. On merits, the prayer has been opposed on the ground that after registration of the FIR No. 4 of 2019, dated 21.08.2019, by the State Vigilance and Anti Corruption Bureau, under Section 11 of the PC Act, against Nishant Sareen, on 09.11.2021, charge sheet has been filed before the learned Special Judge, Solan, for the commission of offence under Section 11 of the PC Act and Section 201 of the IPC and against the applicant under Section 12 of the PC Act. 6.3. It is their further case that as per the investigation by the SV & ACB, it has been found that Nishant Sa....
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....plicant Komal Khanna, however, later the applicant allegedly forged the partnership agreement falsely reducing the share of Jagbir Singh from 50% to 5%, without his consent. Jagbir Singh was also threatened by Nishant Sareen and the applicant to withdraw all the complaints. 6.7. Investigating agency further relied upon the statement of Jagbir Singh recorded on 3.12.2024, under Section 50 of the PMLA, in which, he has stated that the applicant used to handle the operations and daily affairs of M/s Zhenia Pharmaceutical on the directions of Mr. Nishant Sareen, whereas, the role of Jagbir Singh was limited to making an investment of Rs.4-5 crores in the partnership firm. Jagbir Singh also used to provide furnished pharmaceutical products to M/s Zhenia Pharmaceutical, Panchkula from his pharmaceutical companies namely, M/s symbiosis Pharmaceuticals Pvt. Ltd. And M/s Saitech Medicare Pvt. Ltd., on the directions and pressure/threat of Mr. Nishant Sareen. Zhenia Pharmaceuticals, Panchkula being run as a partnership firm, is indirectly managed and handled by Mr. Nishant Sareen. 6.8. It is their further stand that while serving as Drugs Inspector and Assistant Drugs Controller, Nisha....
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....the contents of the bail applications have been contested on the ground that from the perusal of the statement of Jagbir Singh, recorded under Section 50 of the PMLA, as well as, statements of independent pharmaceutical manufacturers, it transpired that the partnership was structured under pressure exerted by Nishant Sareen, as, legally, he could not run a business. The applicant is stated to be integral part of the conceal system created by Nishant Sareen. 6.13. Highlighting the fact that the learned Special Judge has already recorded a prima facie satisfaction that M/s Zhenia Pharmaceuticals was operated by the applicant, as the nominal owner, whereas, the real controal, beneficial interest and ultimate decision making power was with Nishant Sareen, the ED has also given the details of the summons issued against the applicant, which are reproduced, as under:- Sl.No. Date of summons Date of required appearance Status Remarks 1. 05.04.2024 23.04.2024 Appeared (23.04.2024) 2. 12.06.2024 17.06.2024 Appeared (18.06.2024) The petitioner appeared one day after the scheduled date 3. 13.08.2022 18.08.2025 Appeared (18.08.2....
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....PPLICANT 10. Mr. Rajnish Maniktala, learned Senior Advocate, assisted by Mr. Dinkar Bhaskar, Advocate, appearing for the applicant has submitted that very base of the ECIR, in which, the applicant is seeking bail under Section 482 Cr.PC, is FIR No.215 of 2022, dated 29.10.2022 and the police has filed the cancellation report in the said case, before the competent Court of law. It has fairly been conceded by learned Senior counsel that the cancellation report, although has not been accepted, but, from the factum of submission of cancellation report by the Police, it can be deduced, at this stage, that the very base of the present ECIR is no more available to the investigating agency. 10.1. In addition to this, a prayer has also been made that the star witness of the prosecution-Jagbir Singh, has changed the version in different proceedings with regard to the alleged partnership with applicant in M/s Zhenia Pharmaceuticals. Heavily relying upon the provisions, added with Section 45 of the PMLA, a prayer has been made to allow the application. 10.2. Lastly, it has been argued that the applicant, being a female, is entitled to the relief, as sought in the application, on accou....
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....ch shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: 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. 12.1. The present ECIR is stated to be based upon the FIR No.215 of 2022, dated 29.10.2022, registered under Sections 177, 195, 406, 420, 467, 468, 471, 120-B and 506 IPC, with Police Station Sector 20, Panchkula, as well as, FIR No. 4 of 2019, dated 21.08.2019, registered with SV & ACB, Solan under Sections 11 and 12 of the PC Act, read with Section 201 of the IPC. 12.2. It is not in dispute that the police has submitted the cancellation report in FIR No,215 of 2022, in the competent Court of Law, whereas, in FIR No. 4 of 2019, dated 21.08.2019, registered with SV&ACB, Solan, after completion of investigation, the police has filed the charge sheet agianst accused Nishant Sareen, under Section 11 of the PC Act and Section ....
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....undue advantage, which has been taken by Nishant Sareen, was to the tune of Rs. 43,07,641/-. Admittedly, the said amount is lessor than the amount as mentioned, in proviso to Section 45(1) of the PMLA. 12.5. Now, the question, which arises for determination before this Court, is as to whether the applicant being woman is entitled to the relief, as claimed in the application. 12.6. This question has arisen before the Hon'ble Supreme Court in Saumya Chaurasia versus Directorate of Enforcement, Neutral citation No. 2023 INSC 1073. Relevant paragraphs 22 to 24 of the judgment, are reproduced, as under:- 22. The next question that falls for consideration before the Court is whether the appellant being a woman should be granted the benefit of the first proviso to Section 45 of the PMLA, which reads as under: - "45. Offences to be cognizable and non-bailable.- (1) ................................ Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm [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 speci....
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....ons mentioned therein. The extent of involvement of the persons falling in such category in the alleged offences, the nature of evidence collected by the investigating agency etc., would be material considerations. 12.7. In view of the above decision, the decision to grant relief, on the basis of the proviso to Section 45 of the PMLA, is left to the discretion of the Court, considering the facts and circumstances of each case. 12.8. The role, as alleged, against the applicant has already been highlighted, by this Court, in the preceding paragraphs. The role, which has been assigned to him is that the applicant, on behalf of Nishant Sareen has entered into a partnership deed with Jagbir Singh and both of them had initially constituted a partnership firm by determining their share as 50% each. Later on, Jagbir Singh was forced to sign the partnership deed, by virtue of which, his share has been reduced to 5%. 12.9. The applicant has annexed the copy of FIR No.215 of 2022, dated 29.10.2022, registered with Police Station Sector 20 Panchkula, lodged by complainant Jagbir Singh, who is also stated to be the star witness of the ED, in the present case, alleging threat and pressu....
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....l. Estate, Panchkula for doing the business of Pharmaceuticals vide Partnership Deed dated 20-05-2016; may kindly be passed in favour of the plaintiff and against the defendant alongwith costs of the suit. It is further prayed that a decree for Rendition of Accounts and for distribution of assets and profits of the firm as per share of the plaintiff and defendant to the extent of 50:50 as per registered partnership deed dated 20-05-2016 including the Indl.Shed No. 456, HSIIDC, Phase I, Indl.Area Panchkula and for rendering the accounts on account of selling the pharmaceuticals goods to different persons without the permission and consent of the plaintiff and for recovery of the amount which would be ascertained as due against the defendant to the plaintiff as well as for rendering the account statement qua the rent received by the defendant from the tenants of Indl. Plot No. 456, situated at HSIIDC, Phase I, Indl.Area Panchkula, may kindly be passed in favour of the plaintiff and against the defendant alongwith costs of the suit. It is further prayed that a decree for Declaration to the effect that the alleged unregistered Agreement Modifying the Partnership Deed ....
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....nt. Whereas, the allegations of exerting the pressure by the applicant and other persons, who were named as accused in FIR No.215 of 2022, due to which, the applicant had entered into the partnership deed with him, have not been mentioned in the suit. In the FIR, he has also taken the defence that he has not signed the deed dated 6.12.2018, whereas, in the statement under Section 164 Cr.PC, he has taken the defence that he was forced to sign the deed, by virtue of which, his share has been reduced to 5%, whereas, these facts have not been mentioned in the civil suit filed by the said star witness. 12.15. If the above facts are seen in the light of the decision of Hon'ble Supreme Court in Saumya Chaurasia's case supra applicant is able to make out a case for exercising the discretion in her favour, as per proviso to Section 45 of PMLA. 12.16. The decision of Hon'ble Supreme Court in Saumya Chaurasia's case supra has also been taken into consideration by the Hon'ble Supreme Court in Kalvakuntla Kavitha versus Directorate of Enforcement, 2024 SCC OnLine SC 2269, and held that in view of the proviso to Section 45(1) of PMLA, woman is entitled to special treatment, while consideri....
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....1 : 2023 INSC 1073 activities. The Court therefore puts a caution that the Courts, while deciding such matters, should exercise the discretion judiciously using their prudence. 26. This Court in the case of Saumya Chaurasia (supra), while paraphrasing proviso to Section 45(1) of the PMLA stated in paragraph 23 as follows: "23. ..... No doubt the courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements ......." 27. This Court, in the carefully couched paragraph extracted above used the phrase "persons of tender age and woman who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements". This is vastly different from saying that the proviso to Section 45(1) of the PMLA applies only to "vulnerable woman". Further, this Court in the case of Saumya Chaurasia (supra) does not say that merely because a woman is highly educated or sophisticated or a Member of Parliament or a Member of Legislative....