Allahabad High Court
Badri Narayan Tiwari vs Directorate Of Enforcement (Lko. Zonal ... on 22 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:56022 A.F.R. Judgment reserved on 17.07.2023 Judgment delivered on 22.08.2023 Court No. - 16 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3817 of 2023 Applicant :- Badri Narayan Tiwari Opposite Party :- Directorate Of Enforcement (Lko. Zonal Office ) Lko. Counsel for Applicant :- Purnendu Chakravarty,Shivanshu Goswami Counsel for Opposite Party :- Rohit Tripathi Hon'ble Subhash Vidyarthi J.
1. Heard Sri Purnendu Chakravarty Advocate, the learned Counsel for the applicant and Sri Rohit Tripathi, the learned counsel for the respondent-Directorate of Enforcement (hereinafter referred to as 'the E.D.').
2. The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Session Case No. 1485/2022 in the Court of Session Judge / Special Court PMLA, Lucknow, arising out of ECIR/LKZO/05/2019, under Section 3/4 Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow.
3. The E.D. registered ECIR/LKZO/05/2019 on 29.06.2019 when Senior Superintendent of Police, Gautam Budh Nagar had forwarded copies of 25 F.I.Rs. 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 unknown persons / entities between 12.02.2019 and 25.04.2019, on the allegations that the aforesaid Company had lured the public to invest in its schemes with the promise of good returns, but the Company did not fulfill its promise and did not return even the invested amounts.
4. The applicant is not named as an accused in any of the aforesaid FIRs or in the ECIR.
5. The E.D. recorded the statements of the applicant under Section 50 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'the PMLA'), on 22.10.2019, 23.10.2019 and 20.10.2020.
6. The ED filed a complaint on 17.02.2021 against one Manoj Tyagi.
7. The applicant's name was included as an accused person for the first time in the supplementary complaint filed by the E.D. on 13.01.2022 stating that statements of some of the complainants in the F.I.Rs. were recorded under Section 50 of the PMLA and gist of their statements is that they had invested in the Bikebot scheme of GIPL and did not receive the returns promised by the company.
8. The applicant was arrested on 21.07.2022. House No. B-2/138, Vijay Khand, Gomti Nagar, Lucknow worth Rs.6,50,00,000/- belonging to the applicant has been seized by the E.D.
9. Statement of the main accused Sanjay Bhati, a promoter and director of GIPL, was recorded on 04.11.2019, 22.11.2019 and 23.11.2019. He stated that since incorporation of GIPL, there was negligible business and almost nil income till 2016. Only a few plots of land were bought by the company. In Nov-Dec-2016, they started working on an app named BIKEBOT. In 2017, they bought bikes and introduced them as bike taxis. He stated that the applicant Badri Narayan Tiwari was one of the key decision makers for property purchase and development, alongwith Montu Bhasin, Anil Saha and Vijender Hudda.
10. Sanjay Bhati further stated that all transactions with accounts Section were looked after by the team of Noble Cooperative Bank comprising of V. K. Sharma, his son Govind and other bank officials. All works related to running of vehicles, franchisees and registration / delivery of bikes were looked after by Vijaypal Kasana. The initial capital for purchasing bikes was invested by him and later other people were invited to invest in the bikes. However, due to difficulties in registration of bikes, they started accepting money from people in the account of the company and gave sale letters to them after purchasing the bikes. The investment plans of Bikebot were conceptualized by Sanjay Bhati, Rajesh Bhardwaj, Karanpal Singh, Atul Thakur and Virendra Malik between Jan 2017 to June 2017. Money from Bikebot investors was taken through bank accounts only. In the event of system failures or after Noble Bank stepped in August, cash was also accepted. However, payouts were made through bank accounts only. Cash counter in the company was handled by Noble Bank staff only. Cash collected at GIPL was transferred to Noble Bank and Grand Venice Mall from where it was invested in projects of Noble Buildtech, Grand Venice and Saha. He further submitted that cash was given to the applicant on two occasions.
11. Regarding the applicant, Sanjay Bhati stated that the applicant, Atul Mishra, Manoj Tyagi and Vijender Hooda had introduced him to V. K. Sharma, Managing Director & C.E.O. of Noble Co-op Bank, for selling the Noble Co-op Bank for Rs. 50 Crores. The decisions regarding payments were usually taken by V. K. Sharma, Vijender Hooda, Manoj Tyagi and the applicant.
12. Snajay Bhati stated that there were around 1,70,000 investors in Bikebot who had paid Rs. 2,800 Crores approximately and approximately Rs. 1800- 2000 Crores had been returned to them and about 10,000 bikes had been purchased. E-bikes were launched on 11.01.2019 at New Delhi and the applicant was also present at that time. Sanjay Bhati further stated that accountant Chauhan and CA team reported to Balwant. Technical aspects viz. GPS, app development, customer care, bike operations, etc. were looked after by Tarun Sharma. Property development & purchase was looked after by Anil Saha, B. N. Tiwari (the applicant), Vijendra Hudda and Montu (Satinder) Bhasin, etc.
13. As regards, the profit model of Bikebot, Sanjay Bhati claimed that on each bike, the company was saving Rs. 12,000/- even after meeting the registration, accessories, insurance, etc. Further, after one year, the bike would become the asset of the company. The rental plan for bikes started at Rs.10/- for the 1st Km and subsequently Rs. 4/- per km + Re.1/- per minute for travelling time and Re.1/- per min extra for the waiting time.
14. Statements of Manoj Kumar Tyagi were recorded under Section 50 of PMLA on 29.08.2019, 30.08.2019, 12.03.2020 and 04.09.2020 wherein he stated that he was an Additional Director in Independent TV Ltd. from 05.01.2016 to 15.12.2018. He was also working with M/s Pantel Technologies Pvt. Ltd. and Prema Services Pvt. Ltd. on consolidated salary basis. In addition, he was a director in Pimex Plastic (P) Ltd., Independent TV Ltd., A-one News, News Chanel Pimex Broadcast Pvt. Ltd., Time Broadcast Pvt. Ltd., Pantel Technologies Pvt. Ltd., Prema Services Pvt. Ltd., Pimex Broadcast (P) Ltd., IProf Learning Solution India Pvt. Ltd., Ethics Media Trust (P) Ltd., Macro Commerce (P) Ltd. In the year 2017, Vijender Singh took over Independent TV Ltd. (which was previously known as Reliance Big TV Ltd.) through Pantel Technologies Pvt. Ltd., from Reliance Group. He became an Additional Director in Independent TV Ltd. on 05.01.2018. He become a director in M/s Pantel Technologies Pvt. Ltd on 20.01.2015 and resigned in Dec-2018. Vijender Singh had introduced Sanjay Bhati to him as Sanjay Bhati was acquiring the companies of Vijender Singh. Vijender Singh and Sanjay Bhati told him about GIPL. He had met the applicant B. N. Tiwari in March-2018 at ITVL office in Noida when Vijender Singh required funds for ITVL operations and offered the applicant to invest in ITVL but the applicant did not invest any money then. Later when the companies of Vijender Singh were acquired by Sanjay Bhati, the applicant started looking after those companies and exercised great control over them after Sanjay Bhati resigned.
15. Manoj Tyagi also submitted copies of Share Purchase Agreement dated 31.05.2018 entered into between himself, Vijender Singh, Sanjay Bhati, Sachin Bhati and the companies viz. Pantel Technologies Pvt. Ltd., Independent TV Ltd., Prema Services Pvt. Ltd., Pimex Broadcast Pvt. Ltd. and Pimex Plastics Pvt. Ltd., etc. and a settlement agreement was entered into between the aforesaid parties, from which the E.D. came to know that all shareholding in the abovementioned companies stood transferred to Sanjay Bhati and his brother Sachin Bhati for a total consideration of Rs. 135.00 Crores. Vijender Singh and Manoj Tyagi remained on the Board of Directors of these companies till 15.12.2018. There were differences and disputes regarding payment of the consideration for shareholding and the parties had gone for Mediation in Delhi High Court in Dec-2018 and had arrived at a settlement agreement on 29.01.2019.
16. The applicant's statement was recorded under Section 50 of PMLA on 22.10.2019, 23.10.2019 and 20.03.2020 wherein he inter-alia stated that Mars Envirotech Limited was engaged in construction and operation of solid waste management / waste to energy plants. Vijender Singh had introduced the applicant to Sanjay Bhati in Sep-2018 and had told that he was doing business with Sanjay Bhati and SanjayBhati needed electric bikes immediately. Sanjay Bhati had also said that there was too much pollution in Delhi and Ghaziabad due to burning of "puwal" and waste materials and he wanted to install a mini power plant in his fields in Dadri. The applicant had talked to Sanjay Bhati a couple of times regarding the supply of Garvit branded e-bikes to be manufactured by the applicant's company Accord Hydraulics Pvt. Ltd. An agreement was entered into between Accord Hydraulics and GIPL for supply of e-bikes. Another agreement was entered into between GIPL and Mars Envirotech Pvt. Ltd. for supply of biomass/ multi fuel Power Plant for which G15IPL had paid Rs. 3 Crores to Mars Envirotech. Supply of equipment was made in excess of the payment received but since balance payment was not received, further supply was not done. Pimex Plastics Pvt. Ltd. had purchased shares of Mars Envirotech Ltd. for Rs. 5 Crores. Vijender Singh had assured the applicant that after taking shares of the applicant's companies, he will expand the business and give support to develop it as a brand. Vijender Singh had also induced the applicant to become a director and operate Independent T.V. Ltd. However, when he became director of Pantel Technology Pvt. Ltd. on 03.04.2020 and read the Internal Audit Report of Independent T.V. Ltd. and discussed with the staff, he came to know that there were no documents in respect of payments made to third parties and nobody was refunding the money and all such companies were shell companies. Therefore, he resigned from directorship. When someone informed Vijender Singh that the applicant had resigned from the companies and was going to lodge an F.I.R., Vijender Singh had called the applicant through whatsapp and had abused him. After this episode, the applicant's relations with Vijender Singh got sour. As per the applicant's knowledge, Vijender Singh had taken citizenship of Malta and was residing there. The applicant further stated that Vijender Singh wanted to take shares of his companies and, therefore, Independent TV Ltd. had deposited Rs. 7.50 Crores in the account of his company under an agreement. After adding interest thereon, shares for a total of Rs. 7.70 Crores shares were issued to Independent TV Ltd. and the requisite information was given to the Registrar of Companies. Other than this, there was no other transaction between him, his family and ITVL. The applicant stated that his sons became directors in the ITVL, but when the correct particulars were not provided to them, they had resigned on same day after remaining directors for merely 6 hours.
17. The applicant stated that he became a director of Pantel Technologies Pvt. Ltd., but when he came to know about the company, he resigned immediately, only after 03 hours. He had joined as a director in Pantel Mobility Health Pvt. Ltd. on assurance of Vijender Singh, but when in the provisional balance sheet of 31.03.2019 was prepared, he got to know that the company was in losses of approx. 14-15 Crores which was very high and, therefore, he resigned.
18. The E.D. has alleged in the Supplementary Complaint that the applicant was close to Sanjay Bhati and became his consultant and remained connected to GIPL. After Sanjay Bhati resigned, the applicant's influence increased with continued interaction with Karanpal and other associates of Sanjay Bhati. As per Sanjay Bhati himself, the applicant was one of the key decision makers for property purchase and development of GIPL. Also, cash collected at GIPL office was given twice to the applicant. After accounts were opened at Noble Cooperative Bank, the decisions regarding payments were usually taken by V. K. Sharma, Vijender Hooda, Manoj Tyagi and the applicant, who used to present the cheques to Sanjay Bhati for his signatures.
19. The E.D. has further alleged that the Special Audit was conducted at the instance of the applicant, but he merely provided the Tally data and bank transaction details and he did not provide all the relevant documents for the audit.
20. The complaint further alleges that after December 2018, the entire management of ITVL was being carried out by the applicant as a close confidante of Mr. Sanjay Bhati. The applicant was introduced by the Management of GIPL in the launch event of e-bikes of Bikebot, as an investment advisor and trustee of the Independent TV Ltd. and nominee of Sanjay Bhati. All employees of ITVL were supposed to report to the applicant, who was actively participating in the responsibility of arranging fresh funds for Independent TV Ltd.
21. The E.D. contends that most of the contentions of the applicant in his statements are in stark contrast to the revelations from bank and the data given by the registrar of Companies and the assertions of other persons examined during the course of investigation in the instant matter. The applicant had initially concealed that he was15 a director in Pantel Mobility Health Pvt. Ltd. and Iprof Learning Solutions Pvt. Ltd. The E.D. has further contended that the applicant's claim that he had joined Independent TV Ltd just for a day, appears to be far from true.
22. Rs. 25 Crores in total have been transferred to M/s Mars Envirotech Ltd. from M/s Pantel Technologies Pvt. Ltd., M/s Independent TV Ltd. and M/s Pimex Broadcast Pvt. Ltd. and the same have been portrayed as payment towards allotment of compulsorily convertible preference shares (CCPS) although the allotment process is flawed and manipulated and all relevant documents have not been submitted by the applicant during his examination. Even the appointment of the Chartered Accountant for valuation of the shares of Mars Envirotech Ltd. was in June-2019 i.e. much after the allotment process was over. The MCA filings were also done much later.
23. The E.D. claims that the funds so received were used for purchase of a house in Lucknow and a power plant in Nashik, Maharashtra. In addition, funds were transferred to a newly incorporated company named Axle Energy Pvt. Ltd. and ultimately used for purchase of a plot in Lucknow which are nothing but proceeds of crime generated by Sanjay Bhati and GIPL and laundered with the active connivance of the applicant using companies under his control. As per the E.D., upon a scrutiny of the data obtained from the Ministry of Corporate Affairs it was observed that the applicant had deliberately alienated himself from such companies so as to avoid investigation.
24. The E.D. asserts that on 06.07.2018, Independent TV Ltd. had transferred Rs.5.00 Crores to M/s Pantel Mobility Health Pvt. Ltd. On the very same date, Rs. 2.75 Crores and Rs. 2.00 Crores were transferred towards payment for acquisition of immovable property situated at H-67, Sector- 63, Noida. This property was sold off to one M/s Cimco Projects Ltd., ostensibly on the directions of the applicant through Pushpendra Singh, who remained a Director in the company and resigned immediately after the sale was effected.
25. Sri. Purnendu Chakravarty, the learned Counsel for the applicant has submitted that the E.D. had registered the ECIR on 29.06.2019 and statement of applicant was recorded under Section 50 PMLA on 22.10.2019, 23.10.2019 and 20.03.2020, but he was not taken into custody. The applicant was taken in custody in connection with the scheduled offences on 26.02.2021, and although the applicant was named as accused in supplementary compliant filed on 30.01.2022, the E.D. did not seek his custody when the applicant was already in custody. The E.D. took the applicant into custody only on 21.07.2022, after he was granted bail by the Hon'ble Supreme Court on 13.07.2022.
26. Sri. Chakravarty submitted that one of the co-accused persons Manoj Tyagi, has been granted bail by means of an order dated 26.04.2023 passed by this Court in Criminal Miscellaneous Bail Application No. 6190 of 2022. Anther co-accused Vijendra Singh, who has also been made an accused in the supplementary compliant, has been granted anticipatory bail by means of an order dated 20.05.2023 passed by the trial court on the main ground that the aforesaid co-accused was not arrested under Section 19 of the PMLA. The learned Counsel for the applicant has submitted that the applicant is also entitled for the bail on the ground of parity, as one person has been granted Anticipatory bail and other person has been granted bail, whereas the applicant is languishing in jail since 21.07.2022 and the trial has not commenced till date. Trial will take many years to be complete because many of the named accused persons have not appeared yet or they have not been arrested yet. Investigation is still continuing. Documents running into 5,000 pages have been filed with the supplementary Complaint, which are required to be proved before the Trial Court and 11 witnesses have been named in the supplementary compliant.
27. The learned Counsel for the applicant has further submitted that the applicant is not a signatory in any of the bank accounts and he has been implicated because of allotment of Cumulative Compulsory Convertible Preference Share (CCCPS) to M/S Mars Envirotech Limited. The equity shares CCCPS have been provided in accordance with the provisions of Sections 23, 42, 55, 62(1)(c) of the Companies Act 2013, read with Companies Prospectus and Allotment of Scrutiny Rules 2014 and the Companies Share Capital and Debenture Rules 2014. The CCCPS are being issued in accordance with the Rule 9 of the Companies Share Capital and Debenture Rules 2014 as per share holder agreement of the companies.
28. The learned Counsel for the applicant has submitted that if any irregularity has been committed in allotment of shares under CCCPS, the same would lie within the jurisdiction of Ministry of Corporate Affairs and NCLT and any discrepancy in the allotment of shares or any tax evasion would not give rise to proceedings of PMLA against applicant.
29. Opposing the bail application, Sri Rohit Tripathi, the learned counsel for the respondent - Directorate of Enforcement has submitted that the allegations in the FIR and the resultant charge-sheets was that the companies involved in the wrong doing had solicited and accepted deposits from public under several money multiplier schemes, of which the Bikebot scheme was the most publicized and popular. Under the scheme unrealistic and exorbitant returns were promised without there being any corresponding resource generating and meaningful business. Essentially, it was a ponzi scheme which was bound to fail. When the investors demanded the returns, they were handed over cheques, which were dishonored. As per the statements of the witnesses, the applicant was one of the key decision makers for property purchase and GIPL and appropriated the cash at the GIPL office. The applicant was involved in decision regarding payments made from the GIPL's account in the Nobel Cooperative Bank. A special audit of one of the companies was conducted at the behest of the applicant, who deliberately withheld the relevant documents from the charted Accountant, who is a witness in the matter. After December, 2018, the applicant managed the affairs of the Independent TV Ltd. on behalf of Sanjay Bhati as the latter's close confidante.
30. Sri Tripathi has submitted that there is evidence to demonstrate that the applicant was introduced as an investment advisor and the Trustee of the ITV and nominee of the Mr.Sanjay Bhati at the companies event on 19/20.01.2019. All the employees were mandated to report to the applicant. As per the banking records, Mars Envirotech Ltd., of which the applicant was a Director, had received money directly as well, though the receipts were shown to be part of intermediate transactions by portraying the same as payments towards allotment of Cumulative Compulsory Convertible Preference Shares. Thus the applicant was a direct beneficiary of the proceeds of crime.
31. Relying upon the law laid down by the Hon'ble Supreme Court in the judgment reported in (2018) 11 SCC 46, Rohit Tandon Versus Directorate Of Enforcement, Sri. Tripathi has submitted that the applicant / accused in a money laundering case must succeed in overcoming the threshold of the rigors of Section 45 of the PMLA.
32. Sri. Tripathi has further submitted that the main accused Sanjay Bhati is absconding and there is a reasonable and well founded apprehension of the applicant fleeing the course of justice if he is released on bail.
33. 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".
34. Section 2 (u) of the PMLA defines 'proceeds of crime' as follows:-
(u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;
Explanation.--For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;
35. In Vijay Madanlal Choudhary and others versus Union of India and others, 2022 SCC OnLine SC 929, the Hon'ble Supreme Court held that: -
251. The "proceeds of crime" being the core of the ingredients constituting the offence of money-laundering, that expression needs to be construed strictly. In that, all properties recovered or attached by the investigating agency in connection with the criminal activity relating to a scheduled offence under the general law cannot be regarded as proceeds of crime. There may be cases where the property involved in the commission of scheduled offence attached by the investigating agency dealing with that offence, cannot be wholly or partly regarded as proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act -- so long as the whole or some portion of the property has been derived or obtained by any person "as a result of" criminal activity relating to the stated scheduled offence. To be proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, "as a result of" criminal activity relating to a scheduled offence. To put it differently, the vehicle used in commission of scheduled offence may be attached as property in the concerned case (crime), it may still not be proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act. Similarly, possession of unaccounted property acquired by legal means may be actionable for tax violation and yet, will not be regarded as proceeds of crime unless the concerned tax legislation prescribes such violation as an offence and such offence is included in the Schedule of the 2002 Act. For being regarded as proceeds of crime, the property associated with the scheduled offence must have been derived or obtained by a person "as a result of" criminal activity relating to the concerned scheduled offence. This distinction must be borne in mind while reckoning any property referred to in the scheduled offence as proceeds of crime for the purpose of the 2002 Act. Dealing with proceeds of crime by way of any process or activity constitutes offence of money-laundering under Section 3 of the Act."
* * *
284. In other words, the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of "proceeds of crime". Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
36. The initial action of the main accused Sanjay Bhati was of launching a Bikebot Scheme, in which around 1,70,000 persons had invested Rs. 2,800 Crores approximately. About 10,000 bikes had been purchased by the Company. E-bikes were launched on 11.01.2019 at New Delhi and thereafter bikes had started operating in several other cities also.
37. The E.D. claims that the BIKEBOT scheme promised unrealistic and exorbitant returns, without there being any corresponding resource generating and meaningful business. E.D. claims that it was a ponzi scheme which was bound to fail. However, Sanjay Bhati has stated that on each bike, the company would have saved Rs. 12,000/- even after meeting the expenses of registration, accessories, insurance, etc. and after one year, the bike would become the asset of the company. The rental plan for bikes started at Rs.10/- for the 1st Km and subsequently Rs.4/- per km + Re.1/- per minute for travelling time and Re.1/- per minute extra for the waiting time.
38. As per the statement of the main accused Sanjay Bhati, even after failure of the scheme, approximately Rs. 1800- 2000 Crores had been returned to the investors. The role of the applicant is alleged to be property development & purchase. There is nothing on record to prima facie establish that the applicant was instrumental behind planning the scheme.
39. It is said that cash collected at GIPL office was given twice to the applicant but nothing has been said about the amount of cash paid to the applicant or the nature of the payment.
40. The E.D. claims that Rs. 25 Crores have been transferred to M/s Mars Envirotech Ltd. towards allotment of Cumulative Compulsorily Convertible Preference Shares (CCCPS) but the allotment process is flawed and manipulated. The applicant claims that CCCPS have been provided in accordance with the provisions of Sections 23, 42, 55, 62(1)(c) of the Companies Act 2013, read with Companies Prospectus and Allotment of Scrutiny Rules 2014 and the Companies Share Capital and Debenture Rules 2014. The CCCPS are being issued as per Rule 9 of Companies Share Capital and Debenture Rules 2014 as per share holder agreement of companies.
41. The learned Counsel for the E.D. has filed his written submissions, but he has not given any reply to the submission made on behalf of the applicant that even if any irregularity has been committed in allotment of shares under CCCPS, the same would lie within the jurisdiction of Ministry of Corporate Affairs and NCLT and any discrepancy in the allotment of shares or any tax evasion would not give rise to proceedings of PMLA against applicant.
42. It has been held in Vijay Madanlal Choudhary (Supra), that possession of unaccounted property acquired by legal means may be actionable for tax violation and yet, will not be regarded as proceeds of crime. Applying the same principle, unless the irregularities in transfer of shares are an offence under any law and such offence is included in the Schedule of the 2002 Act, the money involved in such a transfer cannot be termed as 'proceeds of crime'.
43. 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 make out a prima facie satisfaction required for grant of bail to the applicant.
44. PMLA contains stringent provisions like Section 24 providing for a reverse burden of proof and Section 45 laying down additional conditions for grant of bail only after recording a prima facie satisfaction of innocence of the accused. While dealing with similar statutory provisions contained in the Narcotic Drugs and Psychotropic Substances Act, in Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC 305, the Hon'ble Supreme Court held that: -
"5. The NDPS Act provides for a reverse burden of proof upon the accused, contrary to the normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This shall not dispense with the requirement of the prosecution to having first establish a prima facie case, only whereafter the burden will shift to the accused. The mere registration of a case under the Act will not ipso facto shift the burden on to the accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and the scrutiny stringent. If there is any iota of doubt the benefit shall have to be given to the accused."
45. Prima facie it appears that the applicant has been implicated in the present case merely on the basis of suspicion. It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt.
46. This fact is also relevant that the E.D. had registered the ECIR on 29.06.2019 and statement of applicant was recorded under Section 50 PMLA on 22.10.2019, 23.10.2019 and 20.03.2020, but he was not taken into custody. The applicant remained in custody in connection with the scheduled offences since 26.02.2021, and although the applicant was named as accused in supplementary compliant filed on 30.01.2022, the E.D. did not seek his custody even during that period. Criminal Miscellaneous Bail Application Nos. 18772 of 2021, 18775 of 2021, 19022 of 2021, 19214 of 2021 and 19379 of 2021 filed by the applicant for grant of bail in scheduled offences had been rejected by this Court, but he was granted bail in all the scheduled offences by means of an order dated 13.07.2022 passed by the Hon'ble Supreme Court, applying the principle of parity, though the Hon'ble Supreme Court recorded that the applicant's role may be overlapping or somewhat different. The E.D. took the applicant into custody on 21.07.2022, only after he was granted bail by the Hon'ble Supreme Court on 13.07.2022, after having spent about one and a half years in custody and the investigation of the case already stood completed long ago and there was no need for his custodial interrogation.
47. The trial is likely to take many years to conclude because many of the named accused persons have not appeared yet or they have not been arrested yet and 11 witnesses are to be examined by the Prosecution and documents running into 5,000 pages have to be proved.
48. Although the E.D. has expressed an apprehension that the applicant would again indulge in commission of similar offence in case he is released on bail, the applicant has no previous criminal history, apart from the predicate offences, and no material has been placed in the counter affidavit which may give rise to a reasonable basis for the aforesaid apprehension.
49. The applicant is said to be one of the key decision makers for purchase of property by GIPL, alongwith Vijender Singh and Vijender Singh has already been granted bail and, therefore, the applicant is also entitled to be released on bail on the ground of parity.
50. Keeping in view the aforesaid facts and circumstances of the case, I am of the view that the applicant is also entitled to be released on bail. Accordingly, he the bail application stands allowed.
51. Let the applicant Badri Narayan Tiwari be released on bail in Session Case No. 1485/2022 in the Court of Session Judge / Special Court PMLA, Lucknow, arising out of ECIR/LKZO/05/2019, 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 Court concerned, subject to following conditions:-
(i) the applicant shall not tamper 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, unless his personal appearance is exempted.
(iv) that the applicant will surrender his passport before the trial Court to ensure that he cannot go outside India without prior permission of the Court.
52. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of the bail.
(Hon'ble Subhash Vidyarthi J.) Order Date - 22.08.2023 Pradeep/-