Rajasthan High Court - Jaipur
Ram Kripal Meena S/O Nonda Ram vs Director Of Enforcement on 16 February, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:7257]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 12723/2023
Ram Kripal Meena S/o Nonda Ram, R/o 48A, Uday Nagar, Near
Rama Hospital, Jaipur (Presently Confined In Central Jail Jaipur)
----Petitioner
Versus
Director Of Enforcement, (Through Assistant Director Mr Vikas)
Enforcement Directorate, Govt. Of India.
----Respondent
For Petitioner(s) : Mr. S.S. Hora with
Mr. Sahajveer Baweja
For Respondent(s) : Mr. R.D. Rastogi, ASG with
Mr. Akshay Bhardwaj
Mr. Devesh Yadav
Mr. Ayush Agarwal
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
16/02/2024
1. This criminal misc. bail application is preferred under Section
439 of Cr.P.C. against the impugned order dated 16.09.2023
passed by learned Sessions Judge (Prevention of Money
Laundering Act, 2002) and Special Judge CBI Cases No.3, Jaipur
Metropolitan-I in Criminal Regular Bail Application No.83/2023
(CIS No.241/2023) by which the bail application of the accused
petitioner- Ram Kripal Meena was dismissed.
2. Learned counsel for the petitioner submits that prima facie
no criminal case is made out under Section 3/4 of the Prevention
of Money Laundering Act, 2002 against the petitioner. He further
submits that two FIRs bearing Nos.402/2021 and 298/2021 were
registered by Rajasthan Police. First FIR bearing No.402/2021 was
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registered on 27.09.2021 under Sections 420 & 120-B of IPC and
under Sections 4 & 6 of Rajasthan Public Examination (Prevention
of Unfair Means) Act, 1992 and second FIR bearing No.298/2021
was registered on 28.09.2021 at Police Station Balghat, District
Karauli, Rajasthan under Sections 302, 365 and 120-B of IPC and
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989. He further submits that as per FIR No.402/2021, the
main allegation is against Udaram Bishnoi, who purchased the
papers of Rajasthan Eligibility Examination for Teachers, 2021
(hereinafter to be referred as 'REET, 2021') for Rs.1.20 Crores and
distributed it further. The rajasthan Police filed three charge sheets
222, 222A and 222B. He also submits that the Enforcement
Department can initiate the proceeding only for the offences
prescribed in Part-A and Part-B of the Schedule. He also submits
that the offences pertaining to Rajasthan Public Examination
(Prevention of Unfair Means) Act, 1992 does not fell in the
'scheduled offence' specified under Part-A and Part-B of the
Schedule. He further submits that the offence under Section 3 of
Prevention of Money Laundering Act 2002 is an independent
offence and the investigation so far conducted does not indicate
that accused petitioner procured the amount in predicate offence
and used or concealed it. He also submits that the main allegation
of purchasing the stolen paper was against the accused Udaram
Bishnoi and prima facie no case under Section 420 of IPC is made
out against the present petitioner. The ingredients of Section 420
of IPC are entirely missing in the charge-sheet filed against the
petitioner under Sections 420 and 120-B of the IPC and under
Sections 4 & 6 of Rajasthan Public Examination (Prevention of
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Unfair Means) Act, 1992. There is no evidence that the accused
petitioner fraudulently or dishonestly induced any person or
persons with an intention to cause damage or harm and obtained
money from them, therefore, in the absence of evidence regarding
any inducement to any person, the offence under Section 420 of
IPC is not made out. Hence, the proceedings under Section 3/4 of
Prevention of Money Laundering Act 2002 (hereinafter to be
referred as 'PMLA') are perse illegal. He further submits that in
absence of main offence of Section 420 of IPC the offence under
Section 120-B is also not made out. Therefore, prosecuting the
accused under Section 3/4 of PMLA is illegal. He further submits
that SOG of Rajasthan has recovered the money from Sh. Ram
Kripal Meena from Kahnaiya Lal Sharma, Bhanwar Singh
Shekhawat, Bhagwan Shay Bairwa and Shankar Lal in tune to
Rs.36,00,000/-. He further submits that Sanjay Mama, Sansuia
Nagar, Varun Tiwari and Ramavtar Meena do not corroborate the
prosecution story. Varun Tiwar and Sanjay Mama filed a revision
petition before the learned District & Sessions Judge, Gangapur
against the order dated 20.04.2023 whereby the application of
Sanjay Mama for handing over of Rs.40,00,000/- was dismissed.
Similarly, Varun Tiwari has also preferred revision petition against
the order dated 10.02.2023 passed by ACJM, Gangapur, whereby
the application for returning the amount of Rs.10,00,000/- and
Rs.15,00,000/- on supurdaginama was dismissed. The application
filed by the Varun Tiwari and Sanjay Mama shows that recovery of
amount of Rs.65,00,000/- was wrongfully shown, therefore, that
amount cannot be taken into consideration as proceeds of crime.
Similarly, statements of Sansuia & Ramavtar were also not
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recorded, therefore, the alleged recovery from them also does not
fall within the ambit of proceeds of crime.
3. He also argues that as per the proviso appended under
Section 45(1) of the PMLA, the accused is entitled to be released
on bail as the amount recovered alleged to be proceeds of crime,
is less than one crore rupees.
4. Learned counsel for the petitioner places reliance on
following judgments:
(i) Pavana Dibbur Vs. Directorate of Enforcement
reported in 2023SCC OnLine SC 1748.
(ii) M. Sivasankar Vs. Vinion of India
reported in 2021 SCC OnLine Ker 395
(iii) Pasumarthi Venkata Satyanarayana Sarma Vs.
Assistant Director, Enforcement Directorate
reported in 2021 SCC OnLine Guj 2401
(iv) Mohammed Ibrahim & Ors. Vs. State of Bihar & Ars.
reported in 2009 (8) SCC 751
(v) Mariam Fasihuddin and Another Vs. State by Adugodi
Police Station and Another.
Reported in 2024 SCC OnLine SC 58
5. On the other hand, learned ASG vehemently opposes the bail
application and submits that two FIR bearing Nos.402/2021 and
298/2021 were registered by Rajasthan Police relating to REET,
2021 paper leak case. In both the FIRs and complaints, it is
alleged that REET, 2021 examination paper were leaked by an
organized group receiving kickbacks and, the fiasco also lead to
the murder of one Sh. Kailash Meena (driver). From the perusal of
FIR and complaint it reveals that Dr. Pradeep Parashar, District
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Coordinator of the District Level Committee to conduct REET, 2021
engaged Shri Ram Kripal Meena as his personal assistant and gave
unauthorized access to the strong room of Siksha Sankul, Jaipur,
wherein the question papers of REET, 2021 were stored. The
petitioner Ram Kripal Meena in the night of 24.09.2021 stole the
reserve bundle of question papers from Siksha Sankul, Jaipur and
handed over to Sh. Udaram Bishnoi and obtained Rs. 1.20 Crores
from him. The accused petitioner circulated the question papers
for substantial amount of money and provided it to Udaram
Bishnoi and others for an amount of Rs.5 Crores. After perusing
the contents of the FIR, ECIR of the case was recorded and
investigation was duly initiated against Ram Kripal Meena, who
was traced and subsequently arrested and SOG, Rajasthan Police
had recovered the proceeds of crime amounting to Rs.1.06 Crores
laundered by present petitioner Ram Kripal Meena from Kanhiya
Lal Sharma, Varun Tiwari, Sanjay Mama, Sunsuia Nagar, Bhanwar
Singh Shekhawat, Bhagwan Sahai Bairwa, Shankar Lal and
Ramavtar Meena.
6. Learned counsel for the petitioner further submits that all the
persons did not produce any documents evidencing the initial
payment of loan by accused petitioner. The accused himself has
admitted that he had access to the strong room of Siksha Sankul,
Jaipur, where the question papers of REET, 2021 were stored. The
accused took advantage of the same, while illegally engaged in
the unloading of the question papers at Siksha Sankul, Jaipur on
the night of 24.09.2023. The accused has used and utilized the
proceeds of crime in his hand by parking the same with eight
persons and tried to colour the same in the name of loan
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repayment to these eight individuals. The criminal activity of the
present petitioner falls within the ambit of Sections 420 & 120-B
of IPC and it has been clearly mentioned in the charge-sheet filed
by the SOG, Rajasthan Police. The accused petitioner has also
tried to influence the persons to give statements in his favour. The
accused petitioner received money from Rajuram Iram and
Udaram Bishnoi amounting to Rs.1.06 Crores as proceeds of crime
and later on the same amount was recovered from eight persons,
therefore, the money which was recovered from the hands of eight
people had reportedly been paid to them by the accused petitioner
as proceeds of crime. The investigation is still pending under
Section 173 of Cr.P.C. as against the other co-accused. Thus,
looking to the gravity of the offence, the bail application of the
present petitioner may be dismissed.
7. It is settled law that to establish offence under the PMLA the
Enforcement Directorate must demonstrate that procurement of
the property as the "proceeds of crime" are derived from criminal
activity from the predicate offences prescribed under Part-A and
Part-B of the scheduled offence. It is also an established
preposition that though the offence of money laundering is
separate standalone offence, the proceeds of crime ought to have
preceded the commission of predicate offences and thereafter
laundered over. Section 45 of the PMLA, which deals with the
conditions for bail pending trial provides that the Court may grant
bail to an accused if Court is satisfied that (i) There are reasonable
grounds for believing that the accused is not guilty of such offence
and (ii) That the accused is not likely to commit any offence while
on bail.
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8. From the above provision, it is apparent that to enlarge the
accused on bail under the PMLA, the Court has to see the grounds
for believing that accused is not guilty of such offence.
9. It is pertinent to mention that under Section 24 of PMLA,
reverse burden is imposed upon the accused to disprove the
allegations.
10. A perusal of Section 45 coupled with Section 24 of PMLA
makes it manifest that these conditions reverse the burden on the
accused to demonstrate that he is not guilty.
11. In the instant case, the accused-petitioner was charge
sheeted under Sections 420 & 120-B of I.P.C. along with Sections
4 and 6 of Rajasthan Public Examination (Prevention of Unfair
Means) Act, 1992.
12. Admittedly, Rajasthan Public Examination (Prevention of
Unfair Means) Act, 1992 is not scheduled offence as prescribed
under Section 2 (Y) of the PMLA but the offences under Sections
420 and 120-B of I.P.C. fall within the ambit of the scheduled
offence as specified under Part-A of the schedule.
13. In the present case, accused-petitioner in connivance with
the Pradeep Kumar without any authority got the access to the
strong room, where the papers for REET, 2021 were stored and
after getting the access stole the REET, 2021 papers and sold to
Udaram Bishnoi and Rajuram Iram in Rs.1.20 Crores. The
investigation conducted by the S.O.G., Rajasthan Police also
demonstrates that on the information of accused-petitioner Ram
Kripal Meena following amount was recovered from eight
persons:-
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S.No. Name Amount (In
Lakhs)
1. Kahnaiya Lal Sharma 8
2. Varun Tiwari S/o Krishan Tiwari 25
3. Sanjay Mama S/o Late. Mahesh 40
Narayan
4. Sansuiya Nagar D/o Giraj Nagar 3
5. Bhawar Singh Shekhawat S/o 15
Vikram Singh Shekhawat
6. Bhagwan Shay Bairwa S/o Munna 10
Lal Bairwa
7. Shankar Lal S/o Sita Ram 3
8. Ramavtar Meena S/o Ramji Lal 2
Meena
Total 106
14. Thus, there is ample evidence available against the accused
implying that he obtained an amount of Rs.1.06 Crores by selling
the REET, 2021 papers. The recovery of aforesaid amount from
above eight persons further shows that the accused siphoned the
proceeds of the crime to various persons. The recovery of Rs.1.06
Crores from the above persons exemplifies the use/concealment of
the proceeds of crime by the present petitioner.
15. Whether, the predicate offence under Sections 420 and
120-B of I.P.C. is made out or not and whether the amount
recovered from various persons is their legitimate amount or not,
are the questions to be ascertained by the trial court, this Court
cannot proceed into the intricacies of the case with regard to
above issues, at the stage of bail. This Court has only to see
whether there is prima facie evidence available against the
accused-petitioner that he has committed the offence under
Section 3 of Money Laundering Act.
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16. The aforesaid facts are enough to infer that accused-
petitioner was involved in stealing the paper of REET, 2021 and
thereafter, selling it to the Udaram Bishnoi and Rajuram Iram.
17. At this stage, this cannot be said that accused-petitioner is
not guilty of such offence. Similarly, whether the amount
recovered from aforesaid eight persons is their legitimate amount
or not, are the questions to ascertain by the trial court. Merely
filing of the application by Sanjay Mama and Varun Tiwari for
claiming the amount cannot be a ground to disbelieve the
recovery of Rs.1.06 Crores.
18. As far as applicability of proviso appended to Section 45 (1)
of the PMLA is concerned, the above facts clearly show that the
amount recovered from the above persons as proceeds of crime is
more than Rs.1 Crore, therefore, the case of the present petitioner
does not fall within the ambit of proviso appended to Section 45
(1) of PMLA.
19. The reliance placed by the learned counsel for the petitioner
on the above cited judgments is also misplaced as the facts of these cases were entirely different from the instant case.
20. In the matter of Pavana Dibbur (supra), it was held that the authority under the Prevention of Money Laundering Act, 2002 cannot resolve to action against any person for money laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered within the jurisdictional police or pending inquiry by way of complaint before the competent firm.
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21. In the matter of M. Sivasankar (supra), accused-petitioner was enlarged on bail under proviso appended to Section 45 (1) of PMLA as the laundering amount was below Rs.1 Crore.
22. In the matter of Pasumarthi Venkata Satyanarayana Sarma (supra), the Hon'ble Gujarat High Court enlarged the petitioner on the grounds of proviso appended to Section 45 (1) of PMLA.
23. In the matter of Mohammed Ibrahim & Ors. (supra), the Hon'ble Apex Court held that offences under Sections 420, 467, 471 and 504 of the Code are not made out and set aside the order of the High Court.
24. In the matter of Mariam Fasihuddin and Another (supra), Hon'ble Supreme Court while deciding the appeal against framing of charge under Sections 420, 467, 471 read with Section 34 of I.P.C. held that the offence under Section 420, 468 & 471 read with Section 34 is not made out and therefore, allowed the appeal of the appellant.
25. In the instant case, all the above judgments cited by learned counsel for the petitioner are not attracted as the facts of the instant case are entirely different. Therefore, I am not inclined to enlarge the petitioner on bail.
26. Accordingly, the instant bail application under Section 439 Cr.P.C. is dismissed.
(PRAVEER BHATNAGAR),J 48-Mohit (Downloaded on 16/02/2024 at 10:52:22 PM) Powered by TCPDF (www.tcpdf.org)