Rajasthan High Court - Jaipur
Anoop Bartaria S/O Late Shri Virendra ... vs Dy. Director, Enforcement ... on 21 February, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ No. 704/2018
Anoop Bartaria S/o Late Shri Virendra Bartaria, Director World
Trade Park Ltd., Aged About 50 Years, R/o 61, Jai Jawan Scheme
3 JLN Marg, Jaipur
----Petitioner
Versus
1. Dy. Director, Enforcement Directorate, Jaipur, Jaipur,
Zonal Office 2nd Floor, Jeewan Nidhi II, LIC Building
Bhawani Singh Marg, Jaipur.
2. Asstt. Director Enforcement Directorate, Jaipur, Jaipur
Zonal Office, 2nd Floor, Jeewan Nidhi II, LIC Building
Bhawani Singh Marg, Jaipur.
----Respondents
S.B. Criminal Writ No. 757/2018
1. Anoop Bartaria S/o Late Shri Virendra Bartaria, Aged
About 50 Years, R/o 61, Jai Jawan, Scheme 3, J.l.n. Marg,
Jaipur.
2. M/s World Trade Park Ltd., A Company Registered Under
The Companies Act 1956, Registered Office At 215, Laxmi
Plaza, Laxmi Industrial Estate, New Link Road, Andheri
(W), Mumbai And Its Corporate Office At World Trade
Park, Jaipur, Through Its Chairman And Managing Director
Shri Anoop Bartaria.
----Petitioners
Versus
Assistant Director, Directorate Of Enforcement, 2nd Floor,
Jeewan Nidhi II, LIC Building, Bhawani Singh Road, Jaipur.
----Respondent
For Petitioner(s) : Mr. Swadeep Singh Hora
For Respondent(s) : Mr. Rajeev Awasthi, Special counsel
for E.D. and
Mr. Anand Sharma
HON'BLE MR. JUSTICE PANKAJ BHANDARI
(2 of 20) [CRLW-704/2018]
Judgment
21/02/2019
1. Petitioner has filed Criminal Writ Petition No.704/2018
with a prayer that ECIR No.JPZO/01/2016, registered by Jaipur
Zonal Office of Enforcement Directorate qua the petitioner be
quashed. The other prayer is that respondents be directed not to
file any criminal complaint against the petitioner in respect of the
said ECIR and not to take coercive steps against the petitioner in
respect of ECIR.
2. It is contended by learned counsel appearing for the
Enforcement Directorate that complaint has already been filed,
hence writ petition for quashing ECIR has become infructuous.
3. Petitioners have preferred Criminal Writ Petition
No.757/2018, with a prayer to quash and set aside the
prosecution complaint in ECIR No.JPZO/01/2016.
4. As per the petitioners, the facts of the case are that
petitioners are the Chairman & Managing Director of World Trade
Park Ltd. which has constructed an urban infrastructure project
popularly known as WTP at J.L.N. Marg, Jaipur. Bharat Bomb
booked spaces through their company M/S Raj Darbar Material
Trading Pvt. Ltd. and paid advance amount. Bharat Bomb sent
communication that the commercial units booked, should be
registered in the name of third parties. Petitioners, therefore,
returned back the amount deposited by M/S Raj Darbar Material
Trading Pvt. Ltd. and after obtaining money from new entities,
registered the properties in the name of new entities. The
possession of such units was also handed over to the buyers.
5. An F.I.R. No. RCBD1/2016/E/02 dated 07.03.2016 was
registered by CBI, BS&FC, New Delhi against the officials of
(3 of 20) [CRLW-704/2018]
Syndicate Bank's three branches for offence under Sections 120-B,
420, 467, 468, 471, 472 & 474 of IPC and Sections 13 (2) read
with 13(1)(d) of the Prevention of Corruption Act, 1988. The
allegation was of siphoning Rs.1055.79/- crores. Charge-sheet
was also filed in that case. Since some of the offences registered
by CBI were scheduled offences under the Prevention of Money
Laundering Act, 2002 (hereinafter referred as 'PMLA Act'),
Directorate of Enforcement official initiated investigation for the
offence of money laundering by registering ECIR dated
11.07.2016.
6. As per the Enforcement Directorate, the facts of the
case are that a complaint was received by CBI that Bharat Bomb
Chartered Accountant and his associates have cheated the Bank
by discounting fake cheques, withdrawing money through
overdraft facility using forged life insurance policies and
discounting fake inland bills that were raised against letters of
credit shown to have been issued by another bank. The total
amount cycled or recycled was about 18.685.566 crores which
resulted in siphoning of Rs.1055.79 crores. Enforcement
Directorate, Zonal Officer, Jaipur initiated investigation for offence
of money-laundering by registering ECIR No.JPZO/01/2016 dated
11.07.2016 as the offence registered by DBI were scheduled
offences under the PMLA, 2002.
7. From investigation it was revealed that petitioners and
his companies vig M/S World Trade Park Pvt Ltd, M/S RF Trading &
Properties and M/S Sincere Infrastructure Pvt Ltd received more
than Rs.160 crores defrauded fund from October, 2013 till
unearthing of fraud from the accounts of fictitious firms created by
Bharat Bomb. It is also revealed from investigation that petitioners
(4 of 20) [CRLW-704/2018]
contrary to the terms and conditions of finance by IDBI & DHFL
opened two current accounts with Syndicate Bank to receive
accommodation loan to repay Bharat Bomb instead of depositing
the sale proceeds in escrow account. The total amount received
was 160 crores whereas the sale consideration was only 78.99
crores. It is also revealed that DGM Syndicate Bank has filed an
FIR against the petitioners for obtaining accommodation loan of
Rs.4.80 crores even when net income of petitioners was less than
Rs.5,00,000/- per annum.
8. The investigation has also revealed that even after
purchasing few properties, petitioners sought for NOC from Bank
for selling the property to Raj Darbar Ltd.
9. It is contended by counsel for the petitioners that the
petitioners were not named as an accused in the charge-sheet
filed in relation to the fraud committed with the banks. He was
made an accused in the ECIR dated 11.07.2016. It is contended
that the petitioners were not aware that the sale proceeds were
relating to any scheduled offence hence they executed the sale
deed after receiving money from the purchasers. It is also
contended that Bharat Bomb and his employees have cheated the
bank and petitioners were not aware of the same.
10. It is also contended that offence under the PMLA Act is
non-cognizable hence, Enforcement Directorate could not have
proceeded without sanction of the Magistrate in accordance with
Code of Criminal Procedure (Cr.P.C.) and since the respondents
have proceeded without following the safeguards provided under
Cr.P.C., the entire proceedings are bad in law.
11. Counsel for the petitioners have further contended that
the mandate provided under Section 155 (2) Cr.P.C. was not
(5 of 20) [CRLW-704/2018]
followed which has vitiated the investigation. Reliance has been
placed on "H.N. Rishbud vs. State of Delhi" AIR 1995 SC 196.
Reliance has also been placed on "State of Haryana vs Bhajan
Lal & Ors." AIR 1992 SC 604, wherein the Apex Court has laid
down the categories in which the proceedings can be quashed
under Article 226 and Section 482 of Cr.P.C.
12 Counsel for the petitioners contends that criminal
proceedings at the stage of charge-sheet/complaint/cognizance
can be quashed. In this respect, reliance has been placed on
"Pepsi Foods Ltd. vs. Special Judicial Magistrate" (1998) 5
SCC 749 and "Anand Kumar Mohatta vs. State (Govt. NCT of
Delhi)" (2018) SCC online SC 2447.
13. It is contended that after amendment in 2005, offence
under the PMLA Act has become a non-cognizable offence.
Reliance has been placed on "Rajbhushan Omprakash Dixit Vs.
Union of India" (2018) 361 ELT 1007, "Om Prakash vs. Union
of India" (2011) 14 SCC, "Raja Ram Jaiswal vs. State of
Bihar" AIR 1964 SC 828, "Noor Aga Vs. State of Punjab"
(2008) 16 SCC 417, "Abdul Rashid vs. State of Bihar" (2001)
9 SCC 578, "Rakesh Manekchand Kothari vs. Union of India"
SCA 4247/2015, "Gurucharan Singh Vs. Union of India"
(2017) 355 ELT 95 (Del.), "Gorav Kathuria vs. Union of India"
(2017) 348 ELT 24, "KeshavLal Thakur vs. State of Bihar"
(1996) 11 SCC 557 & "Ashok Munilal Jain vs. Assistant
Director" (2017) SCC Online SC 1573.
14. It is also contended that appeal of petitioners is coming
up for arguments before the Appellate Tribunal PMLA. In these
circumstances simultaneous proceedings should not be allowed to
be continued. Reliance has been placed on "Commissioner of
(6 of 20) [CRLW-704/2018]
Income Tax vs. Bhupen Champak Lal Dalal" (2001) 3 SCC
459, "Detinners Pvt. Ltd. Vs. Assistant Collector of Central
Excise" (1993) 66 ELT 161, "K.C. Builders vs. Assistant
Commissioner of Income Tax" (2004) 2 SCC 731, "Uttam
Chand vs. Income Tax Officer" (1982) 2 SCC 543, "G.L.
Didwania vs. Income Tax officer" (1995) Supp (2) SCC 724 &
"Radheshyam Kejriwal vs. State of West Bengal" (2011) 3
SCC 581.
15. It is also contended that for constituting an offence
under Section 3 of Prevention of Money Laundering Act,
knowledge that the money is a proceed of the crime is an
essential ingredient. Reliance in this regard has been placed on
"Nikesh Tarachand Shah vs. UOI" (2018) 11 SCC 1, "Jafar
Mohammed Hasanfatta vs. Deputy Director" (2017) 353 ELT
55 (Guj.), "C.Chellamuthu vs. The Deputy Director" (2016)
(2) CTC 90, "Santosh Naik vs. Deputy Director" 2018 (361)
123 (Guj.), "Ajanta Merchants Pvt. Ltd. Vs. Directorate of
Enforcement" 2015 SCC Online Del 8659, "Tech Mahindra
Limited vs. Joint Director Directorate of Enforcement"
MANU/AP/2921/2014, "United States of America vs. Bobby C.
DcDougald" 990 F.2d 259 & "Regina vs. Geary" (2010) EWCA
Crim 1925.
16. Counsel appearing for Enforcement Directorate has
vehemently opposed the writ petition. It is contended that the
Prevention of Money Laundering Act, 2002 is a self contained code
and gives overriding effects to any other law for the time being in
force. It is also contended that the offences under the Act are
cognizable and the only bar is that the Special Court shall not take
cognizance of any offence punishable under section 4 except upon
(7 of 20) [CRLW-704/2018]
a complaint in writing made by the Director; or any officer
authorized by the Government in this behalf by that Government.
17. Counsel for Enforcement Directorate has drawn the
attention of the Court to the provisions of the Act, investigation is
defined in sub-clause (na) of Section 2 of the Act which reads as
under:-
"investigation" includes all the
proceedings under this Act conducted
by the Director or by an authority
authorised by the Central Government
under this Act for the collection of
evidence"
18. Chapter V of the Act deals with the summons, searches
and seizure etc. The authority, on the basis of material in its
possession and after recording the reason for such belief in writing
may enter any place for the purpose of survey. Similarly the
Director or any other officer not below the rank of the Deputy
Director, on the basis of information in his possession and after
recording his reason for such beliefs that the person has
committed any act which constitutes money laundering, or is in
possession of any proceeds of crime involved in money laundering,
or is in possession of any records relating to money-laundering, or
is in possession of any property related to crime, he may authorise
any officer to enter and search. The restriction is provided in the
proviso that no search shall be conducted unless, in relation to the
scheduled offence, a report has been forwarded to a Magistrate
under Section 157 of Cr.P.C. or a complaint has been filed by a
person, authorised to investigate the offence mentioned in the
(8 of 20) [CRLW-704/2018]
Schedule, before a Magistrate or court for taking cognizance of the
scheduled offence.
19. Section 18 of the Act, authorises an authority,
authorised by the Central Government, for reason to be recorded
in writing, to search any person who is in possession, ownership
or control of any record or proceeds of crime. Sub-Section 3 of
Section 18 of the Act safeguards the person who is being
searched, he is required to be produced before the nearest
Gazetted Officer or a Magistrate within twenty four hours.
20. Section 19 of the Act deals with the powers to arrest.
The Director, Deputy Director, Assistant Director, or any other
officer authorised by the Central Government, on the basis of
material in his possession can arrest any person, if he has reason
to believe that the person is guilty of an offence punishable under
this Act. There is yet another restriction under Sub-section (3) of
Section 19 of the Act that any person arrested under sub-section
(1) shall within twenty-four hours, be taken to a Judicial
Magistrate or a Metropolitan Magistrate, having jurisdiction.
21. Since Section 71 of the Act gives overriding effect to
the provision of the Act notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
22. It is argued that the procedure of search, seizure,
arrest and investigation is provided in the Act, hence contention of
the petitioners that a person cannot be arrested without warrant
has no force.
23. Section 44 of the Act provides that notwithstanding
anything contained in Cr.P.C. the offences are triable by Special
Courts and a Special Court may, upon a complaint made by an
authority authorised in this behalf under this Act take cognizance
(9 of 20) [CRLW-704/2018]
of offence under section 3. It is further contended that a complaint
is required to be filed before the Special Court and Special Court
has authority to take cognizance of offence under section 3,
without the accused being committed to it for trial. Sub-clause (c)
of Sub-section (1) of Section 44 of the Act further provides that, if
the court which has taken cognizance of the scheduled offence is
other than the Special Court which has taken cognizance of the
complaint of the offence of money-laundering, the court which has
taken cognizance of the scheduled offence shall commit the case
to the Special Courts.
24. It is contended that the procedure for investigation,
search, seizure and arrest is provided in the Act itself and all
safeguards have been provided under the Act.
25. It is contended that the petitioners initially took money
from Bharat Bomb and his associate companies and subsequently,
siphoned the amount back to Bharat Bomb and took money from
fake companies which were proceeds of crime and has thus
committed offence of money laundering.
26. It is contended that the Enforcement Directorate had
powers to file a complaint before the Special Court and offence
under Section 3 of the Act is made out against the petitioners as
they have knowingly assisted or knowingly were a party and were
actually involved in any process or activity connected to proceeds
of crime including its use. It is argued that complaint has been
filed after following the provision of the Act and there is no
justification for quashing the complaint qua the petitioners.
27. Counsel for the respondents has placed reliance on
"Chhagan Chandrakant Bhujbal vs Union Of India And Ors "
AIR Bom.R (Cri.) 929, wherein, the Division Bench of Bombay
(10 of 20) [CRLW-704/2018]
High Court has held that the scheme of the Act makes it patently
clear that this Act is a complete Code in itself, thereby indicating
that Legislature intended that the procedure laid down in the Act
is to be followed in respect of the offences punishable under the
Act.
28. Reliance has also been placed on "Mukesh Kumar Vs.
State of Gujrat" 2016 Criminal Law Reporter 3464, where High
Court of Gujrat has held that the offences under the Prevention of
Money Laundering Act are cognizable and authorised authority can
file complaint after completion of investigation which shall be the
basis of taking cognizance.
29. Reliance has also been placed on judgment of Delhi
High Court in "Virbhadra Singh & Anr. Vs. Enforcement
Directorate & Anr." Writ Petition (Criminal) No.856/2016,
decided on 03.07.2017, has held that there is nothing in the Act to
indicate that the power to arrest conferred on the Director or the
other specified officers is contingent upon formal authorisation by
the court. The law does not contain any clause from which it could
be deduced that the authorization to the Director or other
specified officers to take up the investigation or exercise any of
the powers thereby conferred requires prior approval from the
Court. Court further held that even after the deletion of clause (a)
of the then existing sub- section (1) of Section 45 of the Act, the
offences under the Act continue to be cognizable in the sense that
a person respecting whom there is reason to believe, to be guilty
for such offence, may be arrested by the officer empowered by
the law in terms of Section 19 without the need of obtaining
warrant of arrest from the court.
(11 of 20) [CRLW-704/2018]
30. Reliance has also been placed on "Karam Singh &
Ors. vs. Union of India & Ors." 2015 SCC Online P.N.H. 19739,
wherein Punjab and Haryana High Court has held that the
Prevention of Money Laundering Act has given ample power to the
authorities and methodology has been prescribed which prima
facie goes to show that sufficient safeguards are in place and
adjudicating authority is to monitor the investigation and the
arrest can only be on the basis of reason to be recorded in writing.
31. Reliance has also been placed on "Hari Narayan Rai
vs. Union of India and Ors." 2012 (21) RCR (Cri.) 932,
wherein, the Jharkhand High Court has held that provisions of the
Act have been given overriding effect and provisions of Cr.P.C.
shall apply in so far as they are not inconsistent with provisions of
the Act. Being a special statute, the procedure for dealing with the
offences are regulated by the provisions contained in the said Act
and that cognizance for the offence punishable under the Act shall
be taken only upon a complaint made by an authority authorized
on behalf of the Section 44 of the Act.
32. I have considered the contentions.
33. The prevention of Money Laundering Act, 2002 was
enacted to prevent money-laundering and to provide for
confiscation of property derived from, or involved in, money-
laundering and for matters connected therewith or incidental
thereto. The Act is a complete Code in itself dealing with the
powers of investigation, attachment, adjudication and
confiscation, summons, searches and seizures. Special Courts
have been constituted under the Act for trial of offence punishable
under the Money Laundering Act. Offences under the Act have
been made cognizable and non-bailable and restrictions have been
(12 of 20) [CRLW-704/2018]
put on the powers of the Special Court. A Special Court cannot
take cognizance except upon a complaint in writing made by the
Director or Officer Authorized by the Central Government. A non-
obstinate clause has also been added as Sub-Section (na) of
Section 45 of the Act barring Police Officer from investigating
under the Act unless specifically authorized by the Central
Government.
34. The moot question placed before the Court is as to
whether after amendment of Section 45 of the Act and deletion of
Sub-section "(a) every offence punishable under this act
shall be cognizable", the offences under the Act have become
non-cognizable.
35. "Ashok Munilal Jain vs. Assistant Director of
Enforcement" (supra) referred to by counsel for the petitioners,
was a case where the Apex Court held that in a case under the
Prevention of Money-Laundering Act, Section 167 (2) Cr.P.C. would
apply and since no complaint was filed within sixty days from the
date when the appellant was taken into custody, he was entitled to
statutory bail. The said judgment does not have any applicability
to the moot question raised before this Court. It is crystal clear
that as per Section 65 of the Act, provisions of the Code of
Criminal Procedure shall apply, in so far as they are not
inconsistent with the provisions of this Act, to arrest, search and
seizure, attachment, confiscation, investigation, prosecution and
all other proceedings under this Act. Since Section 167 (2) Cr.P.C.
was not inconsistent with the provisions of the Act. The Apex
Court held that Section 167 (2) of Cr.P.C. would apply.
36. Division Bench of Bombay High Court in "Chhagan
Chandrakant Bhujbal vs Union Of India And Ors " (supra) has
(13 of 20) [CRLW-704/2018]
categorically dealt with the provisions of Section 45 of the Act and
has observed that the Act is a complete Code and the provisions
of the Code can be looked into only and only when the provisions
of this Act are silent as to the particular aspects. Bombay High
Court has held that by deletion of clause (a) of Sub-section (1) of
Section 45 of the Act, the offence would not become non-
cognizable as the said clause was deleted with an intention to
ensure that there is no conflict in the power of arrest exercised by
the Police Officers and the Authorities authorized under the Act.
37. Gujrat High Court in "Mukesh Kumar Vs. State of
Gujrat" (supra), held that the offences under the Act are
cognizable and authorized authority can file a complaint after
completion of investigation which shall be the basis of taking
cognizance and Delhi High Court in "Virbhadra Singh & Anr. Vs.
Enforcement Directorate & Anr." (supra), has held that the
power to arrest conferred on the Director or the other specified
officers is contingent upon formal authorization by the court. The
Court held that prior approval from the Court is not required and
even after deletion of Clause (a) of Sub-section (1) of Section 45
of the Act, the offence continues to be cognizable.
38. 14. Reliance has been placed by counsel for the
petitioners on "Rajbhushan Omprakash Dixit Vs. Union of
India" 2018 SCC OnLine Del 7281 wherein Division Bench of
Delhi High Court did not agree with the view taken by the Division
Bench of the same High Court in Moin Akhtar Qureshi Vs. Union of
India & Ors., Writ Petition (Criminal) No.2465/2017 and Vakamulla
Chandrashekhar v. Enforcement Directorate (supra) and referred
the matter to Larger Bench framing the following question:
(14 of 20) [CRLW-704/2018]
"(i) Consequent upon the amendment in Section 45 of the PMLA
with effect from 1st July 2005, are the offences under the PMLA
cognizable or non- cognizable?"
39. Though, the matter as to whether the offence is
cognizable or not is referred to Larger Bench of Delhi High Court, I
am of the considered view that the view taken by the Bombay
High Court in "Chhagan Chandrakant Bhujbal v. Union of
India" (supra) and "Karam Singh v. Union of Indi a" is correct
interpretation of Section 45 of PMLA Act and offences under the
PMLA Act cannot be considered as non-cognizable.
40. The contention of counsel for the petitioners that the
offence under the Act is non-cognizable, cannot be accepted as
the Act does not specifically make the offences under the Act to be
non-cognizable. Further in the first schedule, as to whether
offences against other laws would be cognizable or non-
cognizable. Part-II of the First Schedule provides that where the
punishment with imprisonment is three years or upwards, the
offence would be cognizable and where the imprisonment is less
than three years, the offence would be non-cognizable. Offences
under the Prevention of Money Laundering Act provides for
imprisonment for three years and upwards, hence even
considering that as per Section 65 of the Act, Code of Criminal
Procedure would be applicable, if it is not consistent with the
provision of the Act, offences under the Prevention of Money-
Laundering Act would be cognizable.
41. The other judgments referred to by the counsel for the
petitioners with the written arguments under the head note PMLA
after amendment became non-cognizable are not dealing with the
(15 of 20) [CRLW-704/2018]
said point and hence, this Court is not inclined to deal with the
judgments referred to by the counsel for the petitioners.
42. Yet another ground taken by the counsel for the petitioners is that the appeal of the petitioners and Syndicate Bank is coming up for arguments before the Appellate Tribunal prevention of money Money Laundering Act hence, criminal proceedings should not be allowed to be continued. Judgement of Commissioner of Income Tax vs. Bhupen Champak Lal Dalal (supra), Uttam Chand Vs. Income Tax Officer (supra) relied upon by the counsel for the petitioners are cases pertaining to the Income Tax Act. The proceedings were stayed before the Criminal Court as the assessment was pending before the appellate authority of the Income Tax Department. The facts of those cases have no applicability to the present case before the Court. Proceedings before the Special Court which is dealing with the offence of Money Laundering Act cannot be stayed till the disposal of the appeal before the appellate authority under the Act, as in the appeal proceedings pertaining to the attachment of the property are in challenge, whereas in the criminal proceedings the Court has to deal with the offence of money laundering. It is clearly made out in the complaint that fraud was committed with Syndicate Bank to the tune of more than Rs.1000 crores and the proceeds of the crime were used to purchase properties in World Trade Park, there is no bar under the PMLA Act from proceeding with the trial of the case. The appeal before the Appellate Tribunal lies when the Director or any person is aggrieved by any order made by the adjudicating authority under the Act whereas all the offences under the Act are triable by Special Courts. Hence, there (16 of 20) [CRLW-704/2018] is no question of staying the proceedings pending before the Special Court.
43. Yet another ground taken by the petitioners is that the Courts are competent to quash the criminal proceedings at the stage of complaint. The judgment referred by the counsel for the petitioners Pepsi Foods Ltd. V/s Anand Kumar Mohatta (supra) was a case where the Apex Court was of the view that when the complaint and the preliminary evidence recorded does not make out a case against the party then continuing the proceedings would amount to an abuse of the process of the law and the High Court to advance justice should exercise powers under Articles 226 and 227 of the Constitution and Section 482 of Cr.P.C. Similar is the view taken by the Apex Court in Anand Kumar Mohatta V/s State (Govt. of NCT of Delhi) (supra). There cannot be any contrary proposition as once the Courts come to the conclusion that no case is made out, from perusal of the complaint and the evidence produced by the prosecution it should exercise powers under Article 226 of the Constitution or Section 482 of Cr.P.C. to prevent the abuse of process of any court or to secure the ends of justice. On facts the said judgments have no applicability, as there is ample evidence to the effect that the petitioners were a party to the proceeds of the crime.
44. Yet another argument advanced by the counsel for the petitioners is that the petitioners were not aware and were not knowing that the money which was given to him was proceed of crime, hence, the proceedings qua the petitioners deserve to be quashed. The judgment referred by the petitioners Nikesh Tarachand Shah V/s UOI (supra) was pertaining to grant of bail. Jafar Mohammed Hasanfatta V/s Deputy Director (17 of 20) [CRLW-704/2018] (supra) was a case where the contention of the petitioners was that there is no prima facie grounds and lack of material evidence qua the petitioners, for constituting the necessary pre-requisite of Section 3 of PMLA Act. As discussed earlier in the preceding paragraphs, petitioners initially entered into an agreement with Bharat Bomb, a Chartered Accountant and obtained money to the tune of Rs. 160 crores from him. Subsequently he got the property transferred in the name of different persons by returning the money to Bharat Bomb who is involved in Bank scam of Rs.1000 crores. The petitioners have instead of transferring the sale proceeds directly to escrow account opened accounts and has transferred the proceeds and hence, his involvement is writ large. The judgments referred to by the counsel for the petitioners thus have no applicability.
45. From the investigation done, it is revealed that from the account of fictitious firms/companies created by Bharat Bomb, huge amount was transferred to the World Trade Park Ltd and sincere infrastructure Pvt Ltd of which petitioners is Chairman and Managing Director. It is revealed from the reply that Bharat Bomb transferred more than Rs.160/- crores to petitioner No.1 and his companies from his fictitious firms. Petitioner No.1 facilitated Bharat Bomb in placement, layering and integration of proceeds of crime by selling the property in name of different persons including fictitious firms controlled by Bharat Bomb.
46. It is also revealed from the reply submitted by the Enforcement Directorate that the petitioners had got the project financed by World Trade Park from IDBI Bank, DHFL Bank and UCO Bank and World Trade Park was mortgaged with the banks. As per the terms of sanction, World Trade Park Ltd. had opened an (18 of 20) [CRLW-704/2018] escrow account with IDBI Bank and petitioners were required to obtain NOC from IDBI Bank and DHFL before effecting sale of property and all sale proceed were to be deposited in the said escrow accounts only and petitioners were not authorized to open any other account for the purpose.
47. From the investigation done by the Enforcement Directorate, it is revealed that the petitioners in connivance with Syndicate Bank's Officials opened two current accounts in the name of World Trade Park Ltd for receiving the tainted money of Bharat Bomb and instead of depositing in the sale proceed in the escrow accounts, as per the terms and conditions of finance, got the amount deposited in the current account opened at Syndicate Bank. It is also revealed from the investigation that the sale consideration of the property sold to Bharat Bomb and his associates was shown as Rs.37.9/- crores to the banks, whereas, actual sale consideration was Rs.78.99/- crores. The total sale consideration received by the petitioners and his companies i.e. M/S World Trade Park Ltd., M/S R.F. Trading and Properties and M/S Sincere Infrastructure Pvt. Ltd was more than Rs.160/- crores, whereas, the sale consideration was Rs.78.99/- crores. It is also revealed from the investigation that even after execution of the last sale deed in August, 2015, 27 crores was received by the petitioners. The amount received was the tainted money of Bharat Bomb.
48. It is also revealed from the investigation that the persons who have appeared on behalf of the firms for getting the properties registered have categorically stated that they have no concern with the properties and firms in which they are shown as partners, the properties actually belong to Bharat Bomb.
(19 of 20) [CRLW-704/2018]
49. It has come in the investigation that the petitioners after getting the property registered in his name on 03.11.2014, in capacity of Chairman and Managing Director of World Trade Park Ltd vide three separate letters dated 19.12.2014 requested IDBI Bank to issue separate NOC in respect of No.407, 408 & 409 mentioning the customer name as M/S Raj Darbar Material Trading Pvt. Ltd. and was the status of properties as unsold. The petitioners did not pay a single rupee to the escrow account of the IDBI Bank of whom the said properties were mortgaged. The petitioners also did not disclose the purchase of property as per requirement of Income Tax. It is also revealed that the loan amount in relation to the said properties was paid from the tainted money by Bharat Bomb.
50. From investigation done by the Enforcement Directorate, it is also revealed that petitioners opened two accounts and had transferred amount directly to those accounts and had thus utilized the proceeds of crime and offence under the Money Laundering Act is made out.
51. Complaint has already been filed against the petitioners in the Special Court constituted under the Money Laundering Act and Special Court have already taken cognizance against the petitioners.
52. Writ Petition No.704/2018 was preferred with a prayer to quash and set aside ECIR No.JPZO/01/2016, registered by Jaipur Zonal Office of Enforcement Directorate qua the petitioners. Since the investigation has been completed and complaint has been filed, the Criminal Writ Petition No.704/2018 has become infructuous and the same is, accordingly, dismissed.
(20 of 20) [CRLW-704/2018]
53. As far as the Writ petition No.757/2018 is concerned, the prayer in the writ petition is for quashing the complaint. Judgment of "State of Haryana vs Bhajan Lal & Ors." AIR 1992 SC 604 which had laid down guidelines and has permitted for quashing the proceedings by the High Court in rarest of rare cases where allegations, if taken on the their face value do not prima facie constitute any offence has no applicability to the present case in hand, there is specific allegation of laundering of money which was proceed of crime and in the investigation done by the authorized Officer, offence is made out against the petitioners. Court has also taken cognizance against the petitioners for the alleged offence, hence proceedings cannot be quashed exercising the writ jurisdiction. The investigation was done by an authorized officer and from the investigation, it is revealed that the petitioners are involved and have connived with Bharat Bomb in siphoning the crime proceeds to the tune of more than Rs.160/- crores. Hence no ground is made out for entertaining the Writ Petition No.757/2018. Both the writ petitions accordingly deserves to be dismissed.
54. Before parting with the case, considering the fact that writ petitions are frivolous and have resulted into loss of precious Court time, this Court imposes a cost of Rs.50,000/-. The cost be deposited with the Rajasthan High Court Legal Services Authority within one month from the date of this order. The writ petitions are accordingly, dismissed with cost of Rs.50,000/-.
55. A copy of this order be placed in Criminal Writ No.757/2018. Stay applications and pending interim applications also disposed of.
(PANKAJ BHANDARI),J.
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