Allahabad High Court
Manoj Kumar Tyagi vs Directorate Of Enforcement (Lko. Zonal ... on 26 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6190 of 2022 Applicant :- Manoj Kumar Tyagi Opposite Party :- Directorate Of Enforcement (Lko. Zonal Office) Counsel for Applicant :- Purnendu Chakravarty,Anuuj Taandon,Mohd. Yasir Abbasi,Mohit Mishra,Sharad Kumar Shukla Counsel for Opposite Party :- A.S.G.I.,Kuldeep Srivastava,Shiv P.,Shiv P. Shukla Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Satish Chandra Mishra, Senior Advocate assisted by Dr. Farrukh Khan and Sri Aditya Tyagi, Advocates, the learned Counsel for the applicant and Sri Kuldeep Srivastava, the learned counsel for the respondent-Directorate of Enforcement.
2. The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Complaint Case No. 173/2021 arising out of ECIR/05/PMLA/LKZO/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow.
3. The aforesaid case has been registered on the basis of a complaint lodged by an Assistant Director of Directorate of Enforcement against the applicant stating that SSP, Gautambudh Nagar had forwarded copies of 25 FIRs registered under various Sections including Sections 406, 420, 467, 468, 471, 506 IPC against M/s Garvit Innovative Promoters Ltd. (GIPL) and its promoter Sri Sanjay Bhati and other directors and various other accused persons between 12.02.2019 and 25.04.2019.
4. The company GIPL had launched a scheme inviting investments and it had assured to purchase motorcycles from the invested money and to use it as online taxi but the money invested was misappropriated and the same was not returned to the investors.
5. The applicant is not named as accused in any of the aforesaid FIRs and those had been filed against GIPL, its promoters, associates and other related persons alleging cheating and misappropriation of money by making false promises and forging documents.
6. After investigation, the police had submitted charge sheets in 5 FIRs mentioned in para 2.1 of the complaint and several persons were arrested.
7. Regarding the applicant, the allegations is that he was a director in various companies related to Pantel Group, promoted by one Vijendra Singh, namely, Independent TV, Pantel Technologies Pvt. Ltd., Pimex Broadcast Pvt. Ltd., Pimex Plastic Pvt. Ltd. and Prerna Services Pvt. Ltd. etc., which received funds to the tune of Rs. 600 crore approximately from the public as well as from GIPL. On 31.05.2018, a share purchase agreement was eCourt No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6190 of 2022 Applicant :- Manoj Kumar Tyagi Opposite Party :- Directorate Of Enforcement (Lko. Zonal Office) Counsel for Applicant :- Purnendu Chakravarty,Anuuj Taandon,Mohd. Yasir Abbasi,Mohit Mishra,Sharad Kumar Shukla Counsel for Opposite Party :- A.S.G.I.,Kuldeep Srivastava,Shiv P.,Shiv P. Shukla Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Satish Chandra Mishra, Senior Advocate assisted by Dr. Farrukh Khan and Sri Aditya Tyagi, Advocates, the learned Counsel for the applicant and Sri Kuldeep Srivastava, the learned counsel for the respondent-Directorate of Enforcement.
2. The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Complaint Case No. 173/2021 arising out of ECIR/05/PMLA/LKZO/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow.
3. The aforesaid case has been registered on the basis of a complaint lodged by an Assistant Director of Directorate of Enforcement against the applicant stating that SSP, Gautambudh Nagar had forwarded copies of 25 FIRs registered under various Sections including Sections 406, 420, 467, 468, 471, 506 IPC against M/s Garvit Innovative Promoters Ltd. (GIPL) and its promoter Sri Sanjay Bhati and other directors and various other accused persons between 12.02.2019 and 25.04.2019.
4. The company GIPL had launched a scheme inviting investments and it had assured to purchase motorcycles from the invested money and to use it as online taxi but the money invested was misappropriated and the same was not returned to the investors.
5. The applicant is not named as accused in any of the aforesaid FIRs and those had been filed against GIPL, its promoters, associates and other related persons alleging cheating and misappropriation of money by making false promises and forging documents.
6. After investigation, the police had submitted charge sheets in 5 FIRs mentioned in para 2.1 of the complaint and several persons were arrested.
7. Regarding the applicant, the allegations is that he was a director in various companies related to Pantel Group, promoted by one Vijendra Singh, namely, Independent TV, Pantel Technologies Pvt. Ltd., Pimex Broadcast Pvt. Ltd., Pimex Plastic Pvt. Ltd. and Prerna Services Pvt. Ltd. etc., which received funds to the tune of Rs. 600 crore approximately from the public as well as from GIPL. On 31.05.2018, a share purchase agreement was entered into between the applicant, Vijendra Singh, Sanjay Bhati, Sachin Bhati and the aforesaid companies and a settlement agreement was entered into by the aforesaid parties, pursuant to which Rs. 135 crore were to be transferred to Vijendra Singh. However, the agreed amount was not paid.
8. The applicant claims that the payment as per the aforesaid settlement agreement was not made and, therefore, OMP(I) (COMM) No. 22/2019: titled Vijendra Singh and another v. Independent TV Ltd. and others, was filed in Delhi High Court under Section 9 of Arbitration and Conciliation Act, 1996. The aforesaid petition was referred for mediation and a settlement was arrived at between the parties in the aforesaid case on 29.01.2019. On 30.01.2019, the Delhi High Court passed an order in terms of the settlement arrived at through mediation. In spite of the aforesaid order, Sachin Bhati did not comply with the settlement agreement or the order and, therefore, an execution petition bearing No. OMP (ENF) (COMM) NO. 110/2020 has been filed for enforcement of the aforesaid order dated 30.01.2019 passed by the Delhi High Court, which is pending before the Court.
9. It is stated in the complaint itself that the applicant had submitted copies of the share purchase agreement dated 31.05.2018 and that pursuant to the settlement agreement, Rs. 135 crore were to be transferred but no payment was made and disputes occurred regarding transfer of funds. The complaint records that the applicant has feigned ignorance of such funds transfer and has claimed that since Vijender alone was the bank's authorized signatory and, therefore, the applicant was not aware of the financial transactions and their purposes.
10. Although the complaint mentions certain financial transactions between the companies, the allegation against the applicant is that he was a director in five companies, all of which have been transferred by way of share transfer agreements to the accused Sachin Bhati and Sanjay Bhati.
11. In the affidavit filed in support of the bail application it has been stated that the applicant is innocent, he has falsely been implicated in the present case and besides the predicate offence the applicant has no criminal history. After lodging of the present case and after his arrest in the present case, the applicant has been implicated in another case bearing Case Crime No. 558/2021, under Section 2 & 3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. The applicant has already been granted bail in the predicate offences by means of an order dated 09.06.2022 passed by this Court in Bail Application Nos. 6272/2022, 6585/2022, 6901/2022, 7104/2022 & 7143/2022 all of which have been decided by a common order. The applicant has been granted bail in Case Crime No. 558/2021 also by means of an order dated 11.08.2022 passed by this Court in Bail Application No. 33926 of 2022.
12. Sri S.C. Misra, the learned Senior Advocate appearing for the applicant has submitted that the applicant had already transferred the companies before lodging of the instant ECIR and he was not a Director of the company on the date of lodging of the FIR. He has further submitted that only allegation is that the applicant was Director in the company and there is no allegation of any financial transaction having been carried out by the applicant himself and there is even no allegation that the applicant was having any financial powers in the company.
13. Opposing the bail application, Sri Kuldeep Srivastava, the learned counsel for the respondent-Directorate of Enforcement has submitted that the bail application has to be decided keeping in view the requirements of Section 45 of the Prevention of Money Laundering Act. He has relied upon a decision of the Hon'ble Supreme Court in Rohit Tondon v. Directorate of Enforcement, (2018) 11 SCC 46.
14. The learned counsel for the respondent has further submitted that a supplementary complaint was filed in which Sachin Bhati was also made an accused and his bail application has been rejected by means of an order dated 15.11.2022 passed by a Coordto theinate Bench of this Court in Criminal Misc. Bail Application No. 13116/2022. In the aforesaid order dated 15.11.2022, this Court has recorded that:-
"11. Investigation would reveal that M/s Garvit Innovative Promoters Ltd. and its promoters/directors and related persons of the company embezzled the public money received as investment in the bike taxi scheme floated in the name and style of BIKEBOT and siphoned off the same for personal gains, creation of assets and various other purposes hitherto unknown.
12. Out of proceeds of crime received by M/s. Garvit Innovative Promoters Ltd., Sanjay Bhati and the accused-applicant acquired shareholding in few companies namely, M/s. Independent TV Ltd., M/s. Pimex Plastics, M/s. Pimex Broadcast Ltd., M/s.Prerna Services Ltd. etc. and other related companies and the accused-applicant was director of three companies namely, M/s. Pimex Plastics Pvt. Ltd., M/s Prerna Services Pvt. Ltd. and M/s Pimex Broadcast Pvt. Ltd. Share purchase agreements in respect of the said three companies entered into between accused-Sanjay Bhati, Sachin Bhati, the present accused-applicant, Manoj Tyagi and Vijender Singh would disclose that shareholdings of the aforesaid three companies stood transferred in favour of Sanjay Bhati and present accused-applicant for Rs.135 crores. Then the money so collected was transferred to other bank accounts of related persons/entities/trust for acquisition of various immovable properties and creation of beneficial ownership in Trusts/Societies. The funds have also been moved to shell companies for rotation and concealing of true purpose of the transactions."
15. I have considered the aforesaid facts and circumstances of the case and the submissions made by the learned counsel for the parties. In Rohit Tondan (supra), the Hon'ble Supreme Court has held that ' The Court is not required to record a positive finding that the accused had not committed an offence under the Act. The Court ought to maintain a delicate balance between a subsequent judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail'.
16. A supplementary affidavit has been filed on behalf of the applicant annexing therewith a copy of the statement of tto thehe first prosecution witness recorded by the trial court and in his cross examination, the said witness has categorically stated that he never met the applicant, he does not know him and he did not have any transaction with the applicant.
17. In paragraph 42 of the affidavit filed in support of the bail application, it has been stated that the applicant personally appeared in response to the summons issued by the Directorate of Enforcement on 12.03.2019, 29.08.2019, 30.08.2019, 02.01.2020, 02.03.2020, 05.08.2020 & 04.09.2020. After having appeared on as many as seven continuous dates, he was again summoned to appear on 21.09.2020 and the applicant expressed his inability to appear on that date by sending an e-mail informing that a close family member had died and he requested for fixing another date. The applicant was again summoned on 08.10.2020 but on that date also thto thee applicant could not appear and he had sent an e-mail on 07.10.2020 informing that he was suffering from high fever for the past 2-3 days and he had requested the Investigating Officer to fix another date. However, the applicant was arrested from his house on 20.12.2020 and a sum of Rs. 6,980/- were recovered from the room of the applicant in his house. Rs. 1,41,440/- were found in the room of the applicant's father on a separate floor in the house, which amount was not seized by the officers of the Enforcement Directorate.
18. For attracting the offence of money laundering, the requirement is of 'Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting it as untainted property'.
19. What prima facie appears from the material placed before the Court at this stage is that the allegations against the applicant is only that he was director in five companies, all of which were sold by the accused persons to Sachin Bhati and Sanjay Bhati, who have subsequently been made co-accused in the case by filing supplementary complaint. The companies were transferred by the applicant under agreements dated 31.05.2018 and 05.06.2018 and agreements provided that the applicant will continue to remain director till 15.12.2018. Even after transfer of the to thecompany, settlement money was not paid to the applicant and he had to take recourse to the legal remedies by filing an application under Section 9 of the Arbitration and Conciliation Act, which was decided in terms of the settlement arrived at through the process of mediation under which Rs. 135 crore were agreed to be paid to the applicant but the same was not done in spite of the settlement and the consequent orders passed by the High Court and thereafter the applicant has initiated execution proceedings for recovery of the amount which is still pending. The only allegation against the applicant is of having transferred the company and there is no allegation against the applicant of having acquired any company or any other property. Even while the applicant was a director in the company, there is no allegation that he was having the authority to make financial transactions and that he in fact did make any transaction which may amount to commission of any offence. What prima facie appears from the allegation levelled in the complaint is that there is absolutely no allegation of commission of any of act which may amount to commission of any offence and he has been charged with the alleged offences merely for the reason that he held the position of director in the company.
20. From the material placed before the Court at this stage, apart from being a director of the company which had been sold away to the persons accused of launching a Bike Bot scheme, there appears to be no allegation that the applicant has actually committed any such act, as would attract the offence described in Section 3 of the Prevention of Money Laundering Act.
21. The aforesaid prima facie satisfaction finds support by the statement of PW-1 recorded by the trial court, which witness has categorically stated that he does not know the applicant and he has not made any transaction with the applicant, as has been held in Rohit Tandon (supra), this Court is not required to record the finding of innocence for granting bail. The facts discussed above clearly makes out a prima facie satisfaction for grant of bail to the applicant.
22. As the applicant has no previous criminal history, apart from the predicate offences, there appears to be no likelihood that the applicant would again indulge in commission of similar offence in case he is released on bail and no material has been plato theced in the counter affidavit to give rise to a reasonable apprehension to this effect. The applicant is languishing in jail since 20.12.2020 and he has already been granted bail in the predicate offence as also in case Case Crime No. 558/2021, under Section 2 & 3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, in which the applicant has been implicated after his arrest in the present case.
23. Keeping in view the aforesaid facts and circumstances of the case, this application stands allowed.
24. Let the applicant Manoj Kumar Tyagi be released on bail in Complaint Case No. 173/2021 arising out of ECIR/05/PMLA/LKZO/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow on furnishing a bail bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) the applicant shall not temper with the prosecution evidence;
(ii) the applicant shall not pressurize the prosecution witnesses;
(iii) the applicant shall appear on each and every date fixed by the trial court.to the
25. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 26.4.2023 Pradeep/-
ntered into between the applicant, Vijendra Singh, Sanjay Bhati, Sachin Bhati and the aforesaid companies and a settlement agreement was entered into by the aforesaid parties, pursuant to which Rs. 135 crore were to be transferred to Vijendra Singh. However, the agreed amount was not paid.
8. The applicant claims that the payment as per the aforesaid settlement agreement was not made and, therefore, OMP(I) (COMM) No. 22/2019: titled Vijendra Singh and another v. Independent TV Ltd. and others, was filed in Delhi High Court under Section 9 of Arbitration and Conciliation Act, 1996. The aforesaid petition was referred for mediation and a settlement was arrived at between the parties in the aforesaid case on 29.01.2019. On 30.01.2019, the Delhi High Court passed an order in terms of the settlement arrived at through mediation. In spite of the aforesaid order, Sachin Bhati did not comply with the settlement agreement or the order and, therefore, an execution petition bearing No. OMP (ENF) (COMM) NO. 110/2020 has been filed for enforcement of the aforesaid order dated 30.01.2019 passed by the Delhi High Court, which is pending before the Court.
9. It is stated in the complaint itself that the applicant had submitted copies of the share purchase agreement dated 31.05.2018 and that pursuant to the settlement agreement, Rs. 135 crore were to be transferred but no payment was made and disputes occurred regarding transfer of funds. The complaint records that the applicant has feigned ignorance of such funds transfer and has claimed that since Vijender alone was the bank's authorized signatory and, therefore, the applicant was not aware of the financial transactions and their purposes.
10. Although the complaint mentions certain financial transactions between the companies, the allegation against the applicant is that he was a director in five companies, all of which have been transferred by way of share transfer agreements to the accused Sachin Bhati and Sanjay Bhati.
11. In the affidavit filed in support of the bail application it has been stated that the applicant is innocent, he has falsely been implicated in the present case and besides the predicate offence the applicant has no criminal history. After lodging of the present case and after his arrest in the present case, the applicant has been implicated in another case bearing Case Crime No. 558/2021, under Section 2 & 3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. The applicant has already been granted bail in the predicate offences by means of an order dated 09.06.2022 passed by this Court in Bail Application Nos. 6272/2022, 6585/2022, 6901/2022, 7104/2022 & 7143/2022 all of which have been decided by a common order. The applicant has been granted bail in Case Crime No. 558/2021 also by means of an order dated Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6190 of 2022 Applicant :- Manoj Kumar Tyagi Opposite Party :- Directorate Of Enforcement (Lko. Zonal Office) Counsel for Applicant :- Purnendu Chakravarty,Anuuj Taandon,Mohd. Yasir Abbasi,Mohit Mishra,Sharad Kumar Shukla Counsel for Opposite Party :- A.S.G.I.,Kuldeep Srivastava,Shiv P.,Shiv P. Shukla Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Satish Chandra Mishra, Senior Advocate assisted by Dr. Farrukh Khan and Sri Aditya Tyagi, Advocates, the learned Counsel for the applicant and Sri Kuldeep Srivastava, the learned counsel for the respondent-Directorate of Enforcement.
2. The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Complaint Case No. 173/2021 arising out of ECIR/05/PMLA/LKZO/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow.
3. The aforesaid case has been registered on the basis of a complaint lodged by an Assistant Director of Directorate of Enforcement against the applicant stating that SSP, Gautambudh Nagar had forwarded copies of 25 FIRs registered under various Sections including Sections 406, 420, 467, 468, 471, 506 IPC against M/s Garvit Innovative Promoters Ltd. (GIPL) and its promoter Sri Sanjay Bhati and other directors and various other accused persons between 12.02.2019 and 25.04.2019.
4. The company GIPL had launched a scheme inviting investments and it had assured to purchase motorcycles from the invested money and to use it as online taxi but the money invested was misappropriated and the same was not returned to the investors.
5. The applicant is not named as accused in any of the aforesaid FIRs and those had been filed against GIPL, its promoters, associates and other related persons alleging cheating and misappropriation of money by making false promises and forging documents.
6. After investigation, the police had submitted charge sheets in 5 FIRs mentioned in para 2.1 of the complaint and several persons were arrested.
7. Regarding the applicant, the allegations is that he was a director in various companies related to Pantel Group, promoted by one Vijendra Singh, namely, Independent TV, Pantel Technologies Pvt. Ltd., Pimex Broadcast Pvt. Ltd., Pimex Plastic Pvt. Ltd. and Prerna Services Pvt. Ltd. etc., which received funds to the tune of Rs. 600 crore approximately from the public as well as from GIPL. On 31.05.2018, a share purchase agreement was entered into between the applicant, Vijendra Singh, Sanjay Bhati, Sachin Bhati and the aforesaid companies and a settlement agreement was entered into by the aforesaid parties, pursuant to which Rs. 135 crore were to be transferred to Vijendra Singh. However, the agreed amount was not paid.
8. The applicant claims that the payment as per the aforesaid settlement agreement was not made and, therefore, OMP(I) (COMM) No. 22/2019: titled Vijendra Singh and another v. Independent TV Ltd. and others, was filed in Delhi High Court under Section 9 of Arbitration and Conciliation Act, 1996. The aforesaid petition was referred for mediation and a settlement was arrived at between the parties in the aforesaid case on 29.01.2019. On 30.01.2019, the Delhi High Court passed an order in terms of the settlement arrived at through mediation. In spite of the aforesaid order, Sachin Bhati did not comply with the settlement agreement or the order and, therefore, an execution petition bearing No. OMP (ENF) (COMM) NO. 110/2020 has been filed for enforcement of the aforesaid order dated 30.01.2019 passed by the Delhi High Court, which is pending before the Court.
9. It is stated in the complaint itself that the applicant had submitted copies of the share purchase agreement dated 31.05.2018 and that pursuant to the settlement agreement, Rs. 135 crore were to be transferred but no payment was made and disputes occurred regarding transfer of funds. The complaint records that the applicant has feigned ignorance of such funds transfer and has claimed that since Vijender alone was the bank's authorized signatory and, therefore, the applicant was not aware of the financial transactions and their purposes.
10. Although the complaint mentions certain financial transactions between the companies, the allegation against the applicant is that he was a director in five companies, all of which have been transferred by way of share transfer agreements to the accused Sachin Bhati and Sanjay Bhati.
11. In the affidavit filed in support of the bail application it has been stated that the applicant is innocent, he has falsely been implicated in the present case and besides the predicate offence the applicant has no criminal history. After lodging of the present case and after his arrest in the present case, the applicant has been implicated in another case bearing Case Crime No. 558/2021, under Section 2 & 3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986. The applicant has already been granted bail in the predicate offences by means of an order dated 09.06.2022 passed by this Court in Bail Application Nos. 6272/2022, 6585/2022, 6901/2022, 7104/2022 & 7143/2022 all of which have been decided by a common order. The applicant has been granted bail in Case Crime No. 558/2021 also by means of an order dated 11.08.2022 passed by this Court in Bail Application No. 33926 of 2022.
12. Sri S.C. Misra, the learned Senior Advocate appearing for the applicant has submitted that the applicant had already transferred the companies before lodging of the instant ECIR and he was not a Director of the company on the date of lodging of the FIR. He has further submitted that only allegation is that the applicant was Director in the company and there is no allegation of any financial transaction having been carried out by the applicant himself and there is even no allegation that the applicant was having any financial powers in the company.
13. Opposing the bail application, Sri Kuldeep Srivastava, the learned counsel for the respondent-Directorate of Enforcement has submitted that the bail application has to be decided keeping in view the requirements of Section 45 of the Prevention of Money Laundering Act. He has relied upon a decision of the Hon'ble Supreme Court in Rohit Tondon v. Directorate of Enforcement, (2018) 11 SCC 46.
14. The learned counsel for the respondent has further submitted that a supplementary complaint was filed in which Sachin Bhati was also made an accused and his bail application has been rejected by means of an order dated 15.11.2022 passed by a Coordto theinate Bench of this Court in Criminal Misc. Bail Application No. 13116/2022. In the aforesaid order dated 15.11.2022, this Court has recorded that:-
"11. Investigation would reveal that M/s Garvit Innovative Promoters Ltd. and its promoters/directors and related persons of the company embezzled the public money received as investment in the bike taxi scheme floated in the name and style of BIKEBOT and siphoned off the same for personal gains, creation of assets and various other purposes hitherto unknown.
12. Out of proceeds of crime received by M/s. Garvit Innovative Promoters Ltd., Sanjay Bhati and the accused-applicant acquired shareholding in few companies namely, M/s. Independent TV Ltd., M/s. Pimex Plastics, M/s. Pimex Broadcast Ltd., M/s.Prerna Services Ltd. etc. and other related companies and the accused-applicant was director of three companies namely, M/s. Pimex Plastics Pvt. Ltd., M/s Prerna Services Pvt. Ltd. and M/s Pimex Broadcast Pvt. Ltd. Share purchase agreements in respect of the said three companies entered into between accused-Sanjay Bhati, Sachin Bhati, the present accused-applicant, Manoj Tyagi and Vijender Singh would disclose that shareholdings of the aforesaid three companies stood transferred in favour of Sanjay Bhati and present accused-applicant for Rs.135 crores. Then the money so collected was transferred to other bank accounts of related persons/entities/trust for acquisition of various immovable properties and creation of beneficial ownership in Trusts/Societies. The funds have also been moved to shell companies for rotation and concealing of true purpose of the transactions."
15. I have considered the aforesaid facts and circumstances of the case and the submissions made by the learned counsel for the parties. In Rohit Tondan (supra), the Hon'ble Supreme Court has held that ' The Court is not required to record a positive finding that the accused had not committed an offence under the Act. The Court ought to maintain a delicate balance between a subsequent judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail'.
16. A supplementary affidavit has been filed on behalf of the applicant annexing therewith a copy of the statement of tto thehe first prosecution witness recorded by the trial court and in his cross examination, the said witness has categorically stated that he never met the applicant, he does not know him and he did not have any transaction with the applicant.
17. In paragraph 42 of the affidavit filed in support of the bail application, it has been stated that the applicant personally appeared in response to the summons issued by the Directorate of Enforcement on 12.03.2019, 29.08.2019, 30.08.2019, 02.01.2020, 02.03.2020, 05.08.2020 & 04.09.2020. After having appeared on as many as seven continuous dates, he was again summoned to appear on 21.09.2020 and the applicant expressed his inability to appear on that date by sending an e-mail informing that a close family member had died and he requested for fixing another date. The applicant was again summoned on 08.10.2020 but on that date also thto thee applicant could not appear and he had sent an e-mail on 07.10.2020 informing that he was suffering from high fever for the past 2-3 days and he had requested the Investigating Officer to fix another date. However, the applicant was arrested from his house on 20.12.2020 and a sum of Rs. 6,980/- were recovered from the room of the applicant in his house. Rs. 1,41,440/- were found in the room of the applicant's father on a separate floor in the house, which amount was not seized by the officers of the Enforcement Directorate.
18. For attracting the offence of money laundering, the requirement is of 'Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting it as untainted property'.
19. What prima facie appears from the material placed before the Court at this stage is that the allegations against the applicant is only that he was director in five companies, all of which were sold by the accused persons to Sachin Bhati and Sanjay Bhati, who have subsequently been made co-accused in the case by filing supplementary complaint. The companies were transferred by the applicant under agreements dated 31.05.2018 and 05.06.2018 and agreements provided that the applicant will continue to remain director till 15.12.2018. Even after transfer of the to thecompany, settlement money was not paid to the applicant and he had to take recourse to the legal remedies by filing an application under Section 9 of the Arbitration and Conciliation Act, which was decided in terms of the settlement arrived at through the process of mediation under which Rs. 135 crore were agreed to be paid to the applicant but the same was not done in spite of the settlement and the consequent orders passed by the High Court and thereafter the applicant has initiated execution proceedings for recovery of the amount which is still pending. The only allegation against the applicant is of having transferred the company and there is no allegation against the applicant of having acquired any company or any other property. Even while the applicant was a director in the company, there is no allegation that he was having the authority to make financial transactions and that he in fact did make any transaction which may amount to commission of any offence. What prima facie appears from the allegation levelled in the complaint is that there is absolutely no allegation of commission of any of act which may amount to commission of any offence and he has been charged with the alleged offences merely for the reason that he held the position of director in the company.
20. From the material placed before the Court at this stage, apart from being a director of the company which had been sold away to the persons accused of launching a Bike Bot scheme, there appears to be no allegation that the applicant has actually committed any such act, as would attract the offence described in Section 3 of the Prevention of Money Laundering Act.
21. The aforesaid prima facie satisfaction finds support by the statement of PW-1 recorded by the trial court, which witness has categorically stated that he does not know the applicant and he has not made any transaction with the applicant, as has been held in Rohit Tandon (supra), this Court is not required to record the finding of innocence for granting bail. The facts discussed above clearly makes out a prima facie satisfaction for grant of bail to the applicant.
22. As the applicant has no previous criminal history, apart from the predicate offences, there appears to be no likelihood that the applicant would again indulge in commission of similar offence in case he is released on bail and no material has been plato theced in the counter affidavit to give rise to a reasonable apprehension to this effect. The applicant is languishing in jail since 20.12.2020 and he has already been granted bail in the predicate offence as also in case Case Crime No. 558/2021, under Section 2 & 3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, in which the applicant has been implicated after his arrest in the present case.
23. Keeping in view the aforesaid facts and circumstances of the case, this application stands allowed.
24. Let the applicant Manoj Kumar Tyagi be released on bail in Complaint Case No. 173/2021 arising out of ECIR/05/PMLA/LKZO/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow on furnishing a bail bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) the applicant shall not temper with the prosecution evidence;
(ii) the applicant shall not pressurize the prosecution witnesses;
(iii) the applicant shall appear on each and every date fixed by the trial court.to the
25. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 26.4.2023 Pradeep/-
11.08.2022 passed by this Court in Bail Application No. 33926 of 2022.
12. Sri S.C. Misra, the learned Senior Advocate appearing for the applicant has submitted that the applicant had already transferred the companies before lodging of the instant ECIR and he was not a Director of the company on the date of lodging of the FIR. He has further submitted that only allegation is that the applicant was Director in the company and there is no allegation of any financial transaction having been carried out by the applicant himself and there is even no allegation that the applicant was having any financial powers in the company.
13. Opposing the bail application, Sri Kuldeep Srivastava, the learned counsel for the respondent-Directorate of Enforcement has submitted that the bail application has to be decided keeping in view the requirements of Section 45 of the Prevention of Money Laundering Act. He has relied upon a decision of the Hon'ble Supreme Court in Rohit Tondon v. Directorate of Enforcement, (2018) 11 SCC 46.
14. The learned counsel for the respondent has further submitted that a supplementary complaint was filed in which Sachin Bhati was also made an accused and his bail application has been rejected by means of an order dated 15.11.2022 passed by a Coordto theinate Bench of this Court in Criminal Misc. Bail Application No. 13116/2022. In the aforesaid order dated 15.11.2022, this Court has recorded that:-
"11. Investigation would reveal that M/s Garvit Innovative Promoters Ltd. and its promoters/directors and related persons of the company embezzled the public money received as investment in the bike taxi scheme floated in the name and style of BIKEBOT and siphoned off the same for personal gains, creation of assets and various other purposes hitherto unknown.
12. Out of proceeds of crime received by M/s. Garvit Innovative Promoters Ltd., Sanjay Bhati and the accused-applicant acquired shareholding in few companies namely, M/s. Independent TV Ltd., M/s. Pimex Plastics, M/s. Pimex Broadcast Ltd., M/s.Prerna Services Ltd. etc. and other related companies and the accused-applicant was director of three companies namely, M/s. Pimex Plastics Pvt. Ltd., M/s Prerna Services Pvt. Ltd. and M/s Pimex Broadcast Pvt. Ltd. Share purchase agreements in respect of the said three companies entered into between accused-Sanjay Bhati, Sachin Bhati, the present accused-applicant, Manoj Tyagi and Vijender Singh would disclose that shareholdings of the aforesaid three companies stood transferred in favour of Sanjay Bhati and present accused-applicant for Rs.135 crores. Then the money so collected was transferred to other bank accounts of related persons/entities/trust for acquisition of various immovable properties and creation of beneficial ownership in Trusts/Societies. The funds have also been moved to shell companies for rotation and concealing of true purpose of the transactions."
15. I have considered the aforesaid facts and circumstances of the case and the submissions made by the learned counsel for the parties. In Rohit Tondan (supra), the Hon'ble Supreme Court has held that ' The Court is not required to record a positive finding that the accused had not committed an offence under the Act. The Court ought to maintain a delicate balance between a subsequent judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail'.
16. A supplementary affidavit has been filed on behalf of the applicant annexing therewith a copy of the statement of tto thehe first prosecution witness recorded by the trial court and in his cross examination, the said witness has categorically stated that he never met the applicant, he does not know him and he did not have any transaction with the applicant.
17. In paragraph 42 of the affidavit filed in support of the bail application, it has been stated that the applicant personally appeared in response to the summons issued by the Directorate of Enforcement on 12.03.2019, 29.08.2019, 30.08.2019, 02.01.2020, 02.03.2020, 05.08.2020 & 04.09.2020. After having appeared on as many as seven continuous dates, he was again summoned to appear on 21.09.2020 and the applicant expressed his inability to appear on that date by sending an e-mail informing that a close family member had died and he requested for fixing another date. The applicant was again summoned on 08.10.2020 but on that date also thto thee applicant could not appear and he had sent an e-mail on 07.10.2020 informing that he was suffering from high fever for the past 2-3 days and he had requested the Investigating Officer to fix another date. However, the applicant was arrested from his house on 20.12.2020 and a sum of Rs. 6,980/- were recovered from the room of the applicant in his house. Rs. 1,41,440/- were found in the room of the applicant's father on a separate floor in the house, which amount was not seized by the officers of the Enforcement Directorate.
18. For attracting the offence of money laundering, the requirement is of 'Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting it as untainted property'.
19. What prima facie appears from the material placed before the Court at this stage is that the allegations against the applicant is only that he was director in five companies, all of which were sold by the accused persons to Sachin Bhati and Sanjay Bhati, who have subsequently been made co-accused in the case by filing supplementary complaint. The companies were transferred by the applicant under agreements dated 31.05.2018 and 05.06.2018 and agreements provided that the applicant will continue to remain director till 15.12.2018. Even after transfer of the to thecompany, settlement money was not paid to the applicant and he had to take recourse to the legal remedies by filing an application under Section 9 of the Arbitration and Conciliation Act, which was decided in terms of the settlement arrived at through the process of mediation under which Rs. 135 crore were agreed to be paid to the applicant but the same was not done in spite of the settlement and the consequent orders passed by the High Court and thereafter the applicant has initiated execution proceedings for recovery of the amount which is still pending. The only allegation against the applicant is of having transferred the company and there is no allegation against the applicant of having acquired any company or any other property. Even while the applicant was a director in the company, there is no allegation that he was having the authority to make financial transactions and that he in fact did make any transaction which may amount to commission of any offence. What prima facie appears from the allegation levelled in the complaint is that there is absolutely no allegation of commission of any of act which may amount to commission of any offence and he has been charged with the alleged offences merely for the reason that he held the position of director in the company.
20. From the material placed before the Court at this stage, apart from being a director of the company which had been sold away to the persons accused of launching a Bike Bot scheme, there appears to be no allegation that the applicant has actually committed any such act, as would attract the offence described in Section 3 of the Prevention of Money Laundering Act.
21. The aforesaid prima facie satisfaction finds support by the statement of PW-1 recorded by the trial court, which witness has categorically stated that he does not know the applicant and he has not made any transaction with the applicant, as has been held in Rohit Tandon (supra), this Court is not required to record the finding of innocence for granting bail. The facts discussed above clearly makes out a prima facie satisfaction for grant of bail to the applicant.
22. As the applicant has no previous criminal history, apart from the predicate offences, there appears to be no likelihood that the applicant would again indulge in commission of similar offence in case he is released on bail and no material has been plato theced in the counter affidavit to give rise to a reasonable apprehension to this effect. The applicant is languishing in jail since 20.12.2020 and he has already been granted bail in the predicate offence as also in case Case Crime No. 558/2021, under Section 2 & 3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, in which the applicant has been implicated after his arrest in the present case.
23. Keeping in view the aforesaid facts and circumstances of the case, this application stands allowed.
24. Let the applicant Manoj Kumar Tyagi be released on bail in Complaint Case No. 173/2021 arising out of ECIR/05/PMLA/LKZO/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow on furnishing a bail bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) the applicant shall not temper with the prosecution evidence;
(ii) the applicant shall not pressurize the prosecution witnesses;
(iii) the applicant shall appear on each and every date fixed by the trial court.to the
25. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 26.4.2023 Pradeep/-