Jharkhand High Court
Naresh Kumar Kejriwal vs Directorate Of Enforcement ... on 3 April, 2019
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
A.B.A.No.299 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No.299 of 2019
------
Naresh Kumar Kejriwal .... .... .... Petitioner
Versus
Directorate of Enforcement (Prevention of Money Laundering Act),
Ranchi .... .... ... Opposite Party
------
For the Petitioner : Mr. Anil Kumar, Sr. Advocate
For the Opposite Party : Mr. Prashant Vidyarthi, Advocate
------
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
C.A.V. ON:- 28/03/2019 PRONOUNCED ON:-03/04/2019
Per Anil Kumar Choudhary, J.:
Apprehending his arrest, the petitioner has moved this Court for grant of privilege of anticipatory bail in connection with Complaint Case No.ECIR-02/2018 arising out of ECIR/12/PAT/2012 & ECIR/13/PAT/2012 in which cognizance has been taken under Section 3 punishable under Section 4 of the Prevention of Money Laundering Act, 2002.
2. Heard the parties.
3. The brief facts of this case is that three cases have been registered against the co-accused Dr. Pradeep Kumar and he has been charged inter alia for causing loss to the Government Exchequer. Investigation revealed that the co-accused Dr. Pradeep Kumar has acquired immovable and movable property from his criminal activities amounting to Rs.1,76,38,527/-. The allegation against the present petitioner is that he being the Chartered Accountant of Dr. Pradeep Kumar, the petitioner arranged purchase of a property vide sale deed No.9786 dated 31.08.2009 from Sri Arun Kumar Agrawal and the loan of Rs.20,00,000/- was taken from M/s. Pathak Telecom Company Private Limited arranged by the 1 A.B.A.No.299 of 2019 petitioner for the co-accused Rajendra Kumar about which loan, the co- accused Rajendra Kumar was not having much knowledge. It is further alleged that Sri Sita Ram Pathak of M/s. Pathak Telecom Company Private Limited was neither knowing the co-accused Rajendra Kumar to whom he gave the loan nor Sri Sita Ram Pathak was knowing Dr. Pradeep Kumar but the petitioner-who was also the Chartered Accountant of Sita Ram Pathak had asked Sita Ram Pathak to transfer a sum of Rs.20,00,000/- in the name of Nandlal HUF which was done without any loan agreement. The repayment of loan was made only after action of C.B.I. in an attempt to project the transaction as genuine and thus, proceeds of crime were actually utilized to make the payments for acquisition of the property and Sita Ram Pathak provided an illegal accommodation entry on the advice of the petitioner to cover this illegal transaction. Thus, the transaction made by M/s. Pathak Telecom Company Private Limited is involved in money laundering. It is further alleged that co-accused Rajendra Kumar has denied his acquaintance with Sri Indra Lal Kejriwal from whom he has earlier claimed to have received loan of Rs.4,95,000/- for the purchase of the said property and he also denied acquaintance with Arun Kumar Agrawal from whom this property was purchased. It is evident that inter alia the petitioner knowingly was involved in concealment and transfer of proceeds of the crime generated by co-accused Dr. Pradeep Kumar so as to project the tainted property an untainted. It is alleged that a credit of Rs.4,00,000/- was made to the account of co-accused Rajendra Kumar on 26.12.2008, which Rajendra Kumar claimed to be a loan taken from Hindustan Credit Corporation but as Rajendra Kumar denied any acquaintance with Sri Indra Lal Kejriwal- who is the brother of the petitioner, from whom he has taken this amount and this establishes that the co-accused Rajendra Kumar was only used as a front to launder the proceeds of the crime routed through Sri Indra Lal Kejriwal, by the petitioner. It is also alleged that Nandlal HUF was formed as an afterthought on the advice of the petitioner and the income-tax return of this HUF was filed by the petitioner about whom the co-accused Rajendra Kumar was unaware. It is further alleged that the petitioner being the Chartered Accountant of the 2 A.B.A.No.299 of 2019 co-accused Dr. Pradeep Kumar and M/s. Nandlal HUF, has made an accommodation entry so far as loan of Rs.20,00,000/- from M/s. Pathak Telecom Company Private Limited and the loan from M/s. Hindustan Credit Corporation in favour of the co-accused Rajendra Kumar to launder the proceeds of the crime and project the same as untainted. The fact that Indra Lal Kejriwal has stated that the petitioner can explain the transactions of Rs.4,00,000/- given by him to M/s. Nandlal HUF and that he did not have any idea about the said transaction and as the petitioner, in his statement stated that Rs.3,00,000/- cash was received from the customers but no supporting documents were produced and Rs.1,00,000/- transferred from Classic Finance which is run by the petitioner himself shows that the petitioner knowingly involved in concealment and transfer of proceeds of the crime acquired by co-accused Dr. Pradeep Kumar. It is also alleged that Dr. Pradeep Kumar has laundered illicit wealth inter alia with the help of the petitioner. A failure on the part of Dr. Pradeep Kumar and Rajendra Kumar to submit any evidence regarding source of creation of IVPs and KVPs which form the basis of Nandal HUF shows that the proceeds of crime generated by co-accused Dr. Pradeep Kumar were invested in Nandlal HUF which was done on the advice of the petitioner only for the only purpose of concealment of proceeds of crime so that the tainted property could be projected as untainted. The fact that the loan taken by Rajendra Kumar from M/s. Pathak Telecom Company Private Limited and Hindustan Credit Corporation which is a firm managed by the petitioner for acquisition of immovable property but he could not produce any loan agreement and as all the payments for acquisition of immovable property has already been done much prior of the receipt of the loans and the loans have not been reflected in the books of the accounts. Both the transfers made with the bank account of Rajendra Kumar from the M/s. Pathak Telecom Company Private Limited and Hindustan Credit Corporation was arranged by the petitioner and from this, it is evident that Dr. Pradeep Kumar has invested proceeds of the crime of acquisition of the immovable property and the petitioner has arranged the transactions involved in the money laundering from M/s. Pathak Telecom Company Private Limited and Hindustan Credit 3 A.B.A.No.299 of 2019 Corporation without any basis in an attempt to conceal the proceeds of crime so that tainted property could be projected as untainted. Though once the investigation of the C.B.I. was initiated, the transferred amount was repaid to these firms to project these transactions as genuine by taking money for repayment from M/s. Rhea Enterprises, a firm controlled by the co-accused Shyamal Chakravarti but as Rajendra Kumar has himself denied any financial transaction with M/s. Rhea Enterprises, it is alleged that this shows that Dr. Pradeep Kumar and Rajendra Kumar are only trying to hide the origin of tainted property and to frustrate the proceedings of PMLA in connivance inter alia with the petitioner and the petitioner with sole intention of disguising the actual purchase of property by the co-accused Dr. Pradeep Kumar through proceeds of crime parked with Shyamal Chakravarti arranged the transactions so that the tainted property could be projected as untainted. Hence, it is alleged that the petitioner is knowingly involved in acquisition, concealment, transfer of proceeds of crime and is also knowingly involved in process or activity connected with proceeds of crime and projection of the same is untainted and has therefore, committed the offence of money laundering as defined under Section 3 of PMLA and punishable under Section 4 of the PMLA Act, 2002.
4. Mr. Anil Kumar the learned senior advocate appearing for the petitioner submits that the petitioner is quite innocent and has been falsely implicated in this case with ulterior motive. It is then submitted that the petitioner has been made an accused in the predicate/schedule offence of instant case instituted by C.B.I. vide RC-01/A/2011-R registered against the co-accused Dr. Pradeep Kumar in which the same allegation has been levelled against the petitioner that on his advice, loan of Rs.20,00,000/- was given by M/s. Pathak Telecom Company Private Limited and a loan of Rs.5,95,000/- was given by Hindustan Credit Corporation for purchase of flat in Sugam Hemant Apartment in Kolkata but the petitioner filed an application for quashing the cognizance in the said case for the offence punishable under Section 109 of the I.P.C. and under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 vide Cr.M.P. No.2651 of 2013 and a coordinate bench 4 A.B.A.No.299 of 2019 of this Court held that the question of abetment under Section 109 I.P.C does not arise and quashed the order taking cognizance dated 10.09.2013. It is further submitted that as in the said Cr.M.P. No.2651 of 2013, a co- ordinate Bench of this Court has observed that Rs.25.95 lakhs that is the loan amount from M/s. Pathak Telecom Company Private Limited and Hindustan Credit Corporation has not been included in disproportionate assets of Dr. Pradeeep Kumar. The petitioner ought not have been made an accused in the instant case with the allegation that he remained involved in acquisition, concealment and transfer of proceeds of crime and projection of the same as untainted. It is then submitted that Rs.4,00,000/- were transferred from the account of Hindustan Credit Corporation to the account of Nandlal HUF on 26.12.2008, Rs.20,00,000/- from Cash Credit account of Nandlal HUF on 18.07.2009 and Rs.1,95,000/- from the account of Hindustan Credit Corporation to the account of Nandlal HUF on 31.07.2009. All these transactions were made through bank to bank transactions and that too without any cash deposit and the transfer of Rs.4,00,000/- on 26.12.2008 in the account of Nandlal HUF has been duly shown in the bank statement as well as balance-sheet of Hindustan Credit Corporation under the heading of loan and advance and the said bank statement and the balance-sheet were filed before the Income-Tax Authorities in the name of Hindustan Credit Corporation for the financial year 2008-09 and assessment year 2009-10. It is also submitted that it has erroneously been mentioned in the complaint that the Nandlal HUF in its income-tax return has not shown the said transactions. It is submitted that Arun Kumar Agrawal entered into an agreement with the developer for purchase of flat No.1A of Sugam Hemant Apartment and in terms of the said agreement, Mr. Arun Kumar Agrawal had paid a sum of Rs.38,58,700/- to purchase the said flat and Nandlal HUF made payment to Mr. Arun Kumar Agrawal after taking loan from the above mentioned company. Learned senior counsel appearing for the petitioner relied upon the judgment of Hon'ble Supreme Court of India in the case of Nikesh Tarachand Shah vs. Union of India and Others reported in MANU/SC/1480/2017 and submits that the Hon'ble Supreme Court of India has been pleased to declare Section 45 (1) 5 A.B.A.No.299 of 2019 of the Prevention of Money Laundering Act, 2002 in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Article 14 and 21 of the Constitution of India. Hence, it is submitted that the petitioner be given the privileges of anticipatory bail.
5. Mr. Prashant Vidyarthi the learned counsel for the opposite party, on the other hand vehemently opposes the prayer for anticipatory bail and submits that consequent upon the declaration of Section 45 (1) of the P.M.L.A. Act, 2002, to be unconstitutional by the Hon'ble Supreme Court of India in the case of Nikesh Tarachand (supra), Section 45 of the Prevention of Money Laundering Act, 2002 has been amended by Finance Act, 2018 (13 of 2018) by Section 208 (e) of the Finance Act, 2018 (13 of 2018) which reads as follows:-
(e) in Section 45, sub-section (1),-
(i) for the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" the words this Act" shall be substituted;
(ii) in the proviso, after the words "sick and infirm," the words "or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees" shall be inserted.
Learned counsel for the opposite party further submits that the amended Section 45 of the Prevention of Money Laundering Act, 2002 does not suffer from the vice of violation Article 14 and 21 of the Constitution of India for which the said provision of law was declared unconstitutional by the Hon'ble Supreme Court of India in the case of Nikesh Tarachand (supra). Section 45 of the Prevention of Money Laundering Act, 2002 reads as under:-
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 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, 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-6 A.B.A.No.299 of 2019
(i) the Director; or
(ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a 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 [***] of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
It is next submitted by the learned counsel for the opposite party that in the judgment of Nikesh Tarachand (supra) in para-7, the Hon'ble Supreme Court of India has categorically mentioned the wideness of the kind of persons responsible for money laundering by observing as under:-
7. ....... Under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as "whosoever", "directly or indirectly" and "attempts to indulge" would show that all persons who are even remotely involved in this offence are sought to be roped in. An important ingredient of the offence is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and "proceeds of crime" is defined under the Act, by Section 2 (u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is referred to in our judgment as the predicate offence). Thus, whosoever is involved as aforesaid, in a process or activity connected with "proceeds of crime" as defined, which would include concealing, possessing, acquiring or using such property, would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 3, therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as guilty under the said provision, the said person must not only be involved in any process or activity connected with proceeds of crime, but must also project or claim it as being untainted property.
......."
It is submitted that it is thus, not necessary that the petitioner must be involved in the predicate/schedule offence. Hence, the contention of the petitioner that cognizance against the petitioner has been quashed vide Cr.M.P. No.2651 of 2013, is not a valid ground for not proceeding against him in this case. It is next submitted that the petitioner is an influential person and there is every chance of his tampering with the evidence once he is given the privileges of anticipatory bail. Hence, keeping in view the seriousness of offence, it is submitted that the petitioner ought not be given the privileges of anticipatory bail.
7 A.B.A.No.299 of 20196. Considering the serious nature of allegation against the petitioner of money laundering and the chance of his tampering with the evidence, this Court is of the considered view that this is not a fit case where the privileges of anticipatory bail be granted to the petitioner. Accordingly, the prayer for anticipatory bail of the above named petitioner is rejected.
(Anil Kumar Choudhary, J.) AFR/ Animesh 8