Allahabad High Court
Krishna Mohan Tripathi vs State Thru. Directorate Of Enforcement on 25 November, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- BAIL No. - 12568 of 2019 Applicant :- Krishna Mohan Tripathi Opposite Party :- State Thru. Directorate Of Enforcement Counsel for Applicant :- Rohit Tripathi,Chandra Bhushan Pandey Counsel for Opposite Party :- A.S.G.,Shiv P. Shukla Hon'ble Rajeev Singh,J.
Heard Shri C.B. Pandey and Rohit Tripathi, learned counsel for the applicant, Shri Shiv P. Shukla, learned A.S.G. for the respondent and perused the record.
The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Complaint Case No. 8 of 2017, under Section 3/4 Prevention of Money Laundering Act, 2002 pending in the court of Sessions Judge, Lucknow.
Facts of the case, in brief, are that in pursuance to a trap instituted by the CBI, the applicant, who was working on the post of Chief Regional Manager, IRCTC at Regional Office, Lucknow, was implicated in F.I.R. No. RC0062009A0033 lodged on 30th October, 2009 under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ''P.C. Act'). Charge sheet in the aforesaid case was filed on 27.09.2010 and the trial of the aforesaid case was conducted in the court of Special Judge, Anti Corruption, West, Lucknow. In relation to the aforesaid case, CBI conducted search in the residential and office premises of the applicant and with the allegation that applicant, by misusing his official position, acquired disproportionate assets, F.I.R. No. RC0062010A0010 under Section 13(2) read with Section 13(1)(e) of the P.C. Act was lodged on 24th February, 2010. After investigation, charge sheet was filed on 13th November, 2010 with the allegation that applicant was found in the possession of moveable and immoveable assets to the tune of Rs.2,13,81,313/- and the income, in the said check period, was computed to the tune of Rs.1,51,24,983/-. In the meantime, after conclusion of the trial in F.I.R. No. RC0062009A0033, vide order dated 11th August, 2014, the applicant was convicted by the trial court under Sections 7, 13(1)(d) read with Section 13(2) of P.C. Act. Against the said conviction order, applicant preferred appeal before this Court bearing No. 1109 of 2014, in which he had been enlarged on bail vide order dated 25.09.2014. With reference to the aforesaid investigation of Predicate Offences in F.I.R. No. RC0062009A0033 dated 30.10.2009 and F.I.R. No. RC0062010A0010 dated 24.02.2010 respectively, investigation under the provisions of Prevention of Money Laundering Act, 2002 (for short ''PML Act') was initiated on 23.03.2010 vide ECIR/02/PMLA/LZ0/2010. Thereafter, Complaint Case No. 8 of 2017 (supra) has been lodged under Section 3/4 PML Act.
Submission of the learned counsel for the applicant is that applicant has falsely been implicated in the present complaint case by the Enforcement Directorate. He further submitted that with the allegation that applicant acquired disproportionate assets by misusing his official position, F.I.R. No. RC00620100010 was lodged on 24th February, 2010 under Section 13(2) read with Section 13(1)(e) of the P.C. Act. Learned counsel for the applicant also submitted that in the said case, without considering the reply of the applicant, only on the basis of presumption, charge sheet was filed on 13th November, 2010 with the allegation that applicant was found in the possession of moveable and immoveable assets to the tune of Rs.2,13,81,313/- and the income was computed to the tune of Rs.1,51,24,983/- in the check period. He also submitted that trial of the aforesaid case is pending and the applicant is on bail in the said case also.
Learned counsel for the applicant submitted that proceeding under the provisions of PML Act was initiated vide ECIR/02/PMLA/L20/2010 on 23.03.2010 with reference to the aforesaid investigation of Predicate Offences initiated vide F.I.R. No. RC0062009A0033 dated 30.10.2009 and F.I.R. No. RC0062010A0010 dated 24th February, 2010 respectively and the relevant documents were called for from the CBI ACB, Lucknow, Sub-Registrar-III, Lucknow and various Banks etc. In response to the summons issued to the applicant, he filed letter dated 12th January, 2011 addressed to the Directorate with the details of income and assets of himself and family members along with the copies of the Bank statements and Income Tax Returns etc. Submission of the learned counsel for the applicant is that a large part of the assets were acquired by the applicant out of gifts received by him and his family, which were given by his friends and relatives. Applicant also utilised the cash received in advance against his properties proposed to be sold, for acquiring the assets. Learned counsel for the applicant submitted that along with the letter dated 12.01.2011, applicant also annexed the copies of letters signed by his friends and relatives (total 31 in number) confirming that they had given gifts in cash as well as in the shape of jewellery to the applicant and his family members from time to time in the check period. (Details of persons are mentioned in Annexure 3 of the application). Learned counsel for the applicant also submitted that during the course of investigation under the provisions of PML Act, statement of only 12 persons were recorded from the list given by the applicant. Investigating Officer has wrongly discarded the documentary evidence provided by the applicant. He also submitted that the claim of the applicant was rejected without giving any finding in relation to the genuineness of the agreement of sale, pursuance to which an amount of Rs.25 lacs, was paid to the applicant by one Ajay Raj Tripathi.
It has next been submitted by the learned counsel for the applicant that complaint was filed on 31.03.2017, which was registered in the court of Special Judge (Anti Corruption) as Complaint No. 8 of 2017, in which, summoning order was passed on 04.04.2017. He submitted that when the said order came into the knowledge of the applicant, he filed Application under Section 482 Cr.P.C. bearing No. 7785 of 2019 (Krishna Mohan Tripathi Vs. Union of India) for quashing of the aforesaid summoning order. Vide order dated 5th November, 2019, while dismissing the application, liberty was given to the applicant to appear before the trial court and apply for bail with the direction that the same shall be considered and decided in view of the settled law. It has lastly been submitted that applicant moved Bail Application No. 8384 of 2019 before the court below, which was rejected on 06.12.2019 and the applicant was taken into custody. He also submitted that till today, no charge has been framed by the court below. Relying on the decision of Hon'ble Supreme Court in the case of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 (para 41 to 43), learned counsel for the applicant submitted that when under trial prisoners are detained in judicial custody for an indefinite period, Article 21 of the Constitution of India is violated. Every person, detained or arrested, is entitled to speedy trial. In such circumstances, the applicant is entitled for bail. He also placed reliance on the judgment of the Hon'ble Apex Court in the case of P. Chidambaram Vs. Directorate of Enforcement, Manu/SC/1670/2019.
On the other hand, while opposing the bail application, learned counsel appearing for the Enforcement Directorate submitted that against the applicant, who was holding the post of Chief Regional Manager, IRCTC at Regional Office, Lucknow, a complaint of demand of bribe was received by the CBI, in pursuance to which, the trap was laid against him on 30.10.2009, in which, he was caught red handed with the bribe money of Rs.70,000/- and F.I.R. No. RC0062009A0033 dated 30.10.2009 (supra) was lodged against the applicant. Thereafter, during the course of investigation, search was conducted in the residential as well as office premises of the applicant and as it was found that applicant was having disproportionate assets, another F.I.R. was lodged on 24.02.2020 as F.I.R. No. RC0062010A0010 (supra). He further submitted that case was also registered under the provisions of PML Act as ECIR/02/PMLA/LZ0/2010. Thereafter, detail investigation was conducted and persons were called, whose names were given by the applicant, and those appeared before the authority, their statements were recorded under Section 50 of PML Act. He also submitted that in the statement of Ajay Raj Tripathi, who appeared on 19th March, 2014, he categorically denied in relation to any advance to the applicant in respect of any proposed agreement to sale of his property.
It is next submitted that these facts are categorically mentioned in the complaint, but in the bail application, applicant has not made any averments to contradict the facts mentioned in the complaint. He also submitted that during the course of investigation, Proceed of Crime is found to be Rs.1,38,63,445/-. Provisional attachment order of the property of the applicant was passed on 30.09.2016, which has also been confirmed by the competent authority under Section 5 of the PML Act. Shri Shiv P. Shukla further submitted that under Section 24 of the PML Act, burden of proof relating to Proceed of Crime lies on the applicant, unless the trial is proved. He also submitted that Section 50(4) of PML Act provides that every proceeding under sub-sections (2) and (3) shall be deemed to be judicial proceeding within the meaning of Section 193 and Section 228 I.P.C. But, in the present case, applicant has not made any averment in his bail application to contradict the fact and elements mentioned in the complaint and in the statement of witnesses recorded under Section 50 of the PML Act. It has, thus, been submitted that the present application is not liable to be entertained. In support of his argument, learned A.S.G. relied on the decision of the Hon'ble Apex Court in the case of Union of India Vs. Hasan Ali, 2011 (10) SCC 235.
I have considered the arguments advanced by the learned counsel for the parties and gone through the record.
As the applicant, who was working on the post of Chief Regional Manager, IRCTC at Lucknow, was trapped red handed by the CBI on 30.10.2009 while receiving Rs.70,000/- as bribe money, on account of which, F.I.R. No. RC0062009A0033 under Section 7 of the P.C. Act was registered against him. During the course of investigation, CBI also found that the applicant acquired disproportionate assets by misusing his official position, therefore, another F.I.R. No. RC0062010A0010 under Section 13(2) read with Section 13(1)(e) of P.C. Act was lodged on 24th February, 2010. After investigation, it was found that the applicant was in possession of the moveable and immoveable assets to the tune of Rs.2,13,81,313/- and income computed for the check period was to the tune of Rs.1,51,24,983/-. It is also evident that after trial in F.I.R. No. RC0062009A0033 (supra), the applicant was convicted vide order dated 11th August, 2014 under Sections 7, 13 (1)(d) read with Section 13(2) of P.C. Act and the appeal filed against the said conviction order is pending before this Court. Trial of the case in relation to disproportionate asset is also pending. In the meantime, on 23rd March, 2010, proceeding under the provisions of PML Act was also initiated by registering a case in the office of Enforcement Directorate as ECIR/02/PMLA/LZ0/2010 and notice was issued to the applicant, reply of which was given by the applicant along with the details of the friends and relatives, who allegedly gifted the applicant the cash or ornaments etc. Thereafter, notices were also issued to the said persons. Out of 31 members, 12 members appeared before the Enforcement Directorate and their statements were also recorded. It is also evident from the record that Ajay Raj Tripathi, who appeared on 13th March, 2014 before the authorities, categorically denied that any advance was given to the applicant. After investigation, evidence in relation to money laundering was also found against the applicant and the Proceed of Crime was found to be Rs.1,38,63,445/-. Thereafter, provisional attachment order of property was passed on 30.09.2016, which was confirmed by the competent authority under Section 5 of the PML Act. After investigation, a complaint was filed on 31st March, 2017 before the Special Judge, which was registered as Complaint Case No. 8 of 2017 under Section 3/4 of PML Act. Summoning order was passed on 4th April, 2017, but since applicant failed to appear before the trial court, non-bailable warrant was issued on 17th March, 2018.
The ratio of judgments cited by the learned counsel for the applicant in the cases of Sanjay Chandra (supra) or P. Chidambaram (supra) are not applicable in the present case, as in the case in hand, along with other conducts of the applicant in regard to misuse of his official post, he was also trapped red handed at the time of taking bribe.
In view of above, no case for bail is made out at this stage. Accordingly, bail application is rejected.
However, trial court is directed to conclude the trial of Complaint Case No. 8 of 2017, under Section 3/4 of PML Act expeditiously, on day to day basis and no adjournment would be given without recording reasons. Additional Director, Enforcement Directorate of concerned region is directed to ensure the presence of witnesses before the trial court for necessary compliance.
In case, the trial is not concluded within six months from the date of production of a certified copy of this order, it will be open to the applicant to approach either the court below or this Court for bail afresh.
Office is directed to communicate this order to the authorities concerned for necessary compliance, forthwith.
Dated : November 25, 2020 VKS