Jharkhand High Court
Abhishek Jha vs Directorate Of Enforcement on 18 May, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 10195 of 2022
------
Abhishek Jha .... .... .... Petitioner
Versus
Directorate of Enforcement, Government of India, represented by Assistant Director, Directorate of Enforcement, Ranchi .... .... .... Opp. Party CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate For the E.D. : Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate
------
Order No.07 Dated : 18.05.2023
1. Anticipatory bail application filed on behalf of petitioner, who is apprehending his arrest in connection with ECIR 03 of 2018 (in ECIR/14/PAT/2012 dated 18.05.2012) for the offence registered under Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred PMLA) pending in the Court of learned Special Judge, PMLA, Ranchi, is pressed into motion.
2. As per the prosecution case, financial fortune of the petitioner shored up after his marriage to Puja Singhal, IAS, and cash started flowing into his Bank accounts, which were crime proceeds of his wife generated by corrupt practices in discharge of her official duties. Contra the case of the petitioner is that they were legitimate income of the petitioner from his job in which he was employed at Australia.
PROSECUTION CASE
3. The petitioner was married to Puja Singhal on 20.06.2011 who was posted earlier as Deputy Commissioner, Khunti during the period 16.02.2009 to 19.07.2010.
4. Large scale embezzlement of public fund was detected and 16 F.I.Rs. were lodged detailed in para 1.6 of the prosecution complaint in the District of Khunti where Puja Singhal was the Deputy Commissioner at the relevant time. The total amount alleged to have been embezzled as per the 16 F.I.Rs. were to the tune of Rs.18,00,76,144/-.
5. In all the 16 F.I.Rs., charge sheets were filed against Ram Binod Prasad Sinha, R.K. Jain & Others.
6. The investigation under PMLA revealed that proceeds of crime in 2 various layers of money laundering were unearthed and properties worth Rs.4.28 Crore including the interest on these properties were attached by issuing two provisional attachment order vide EOA No.2/18 which was duly confirmed by the Adjudicating Authority.
7. Search and seizures were conducted under Section 17(1) of PMLA at 24 premises related to accused No.2- Puja Singhal and her associates on 06.05.2022 and further searches at five premises were conducted on 24.05.2022 and searches at two premises were conducted on 25.05.2022 at Ranchi, Chandigarh, Kolkata, Faridabad, Gurugram and Muzaffarpur. During search proceedings, huge cash amounting to Rs.19.76 Crores was recovered and seized. Apart from the aforesaid cash, other document, record, digital devices etc. related to the investigation were found and seized for further investigation.
8. The main case against Puja Singhal, who happens to be the wife of the present petitioner is that during her tenure as Deputy Commissioner in Khunti from 16.02.2009 to 19.07.2010, she connived with the Engineers of the Special Division and District Board, embezzled the said amount of Rs.18.06 Crore. The accused No.7, C.A. Suman Kumar in his statement stated that the majority of cash recovered from his house was of Puja Singhal (A2). She failed to account for legal source regarding the cash deposited in ICICI Bank Account. She purchased Insurance Policies from the cash deposited in the Bank, especially during the period 2008-10. Later, these investments in Insurance were withdrawn by way of premature closure of those policies and she projected them as untainted money.
9. The material appearing against the petitioner is that the Chartered Accountant, Suman Kumar (A 7) has stated in his statement that he was making investment and payments on behalf of Puja Singhal. He further stated in his statement that on couple of occasion on the instruction of Abhishek Jha, he gave cash amount to the tune of Rupees Ten Lakhs for 4-5 times at the cash counter of Pulse Hospital to make false bills to inflate the receipt of the Pulse Hospital. This was basically done to accommodate ill earned money of Puja Singhal in Pulse Hospital and projected the same as profit earned from the hospital. He stated that during the period of last 12 months, he had handed over 40-60 Lakhs to Abhishek Jha on the instruction of Puja Singhal.
10. Commissions were collected from Ram Binod Prasad Sinha, the cash was deposited in the accounts of Puja Singhal and Abhishek Jha.
311. Pulse Hospital which was owned by Abhishek Jha was constructed by M/s Unique Construction. Akshat Katiyal son of Ajay Katiyal, one of the partner in M/s Unique Construction has stated that Rs.6.19 Crore had been received for the construction of Pulse Hospital. He further stated that he received cash from Puja Singhal and this petitioner at their residence to the tune of Rupees Two Crore for purchase of construction material and payments to labourers.
12. The vendor from whom the land for Pulse Hospital was purchased, has stated that he received Rupees Three Crore from Suman Kumar (A 7) on the instruction of Abhishek Jha. The petitioner claimed in his statement made under Section 50 of PMLA that the source of infusion of money in M/s Pulse Sanjeevani Healthcare Pvt. Ltd. was the Australian savings and gifts in his Tilak and in his marriage ceremony. Only three source income was stated by him being cash, gift from Tilak and marriage ceremony and cash brought from Australia. He failed to give the details of the persons who had given such cash gifts. Puja Singhal did not submit any documentary evidence to show that she declared any cash as mandated under Rule 13(2) of CCS Conduct Rule, 1964 for public servant. During investigation, it was found that most of the cash claimed to have been withdrawn from Australian Common Wealth Bank Account was preceded by cash deposits.
PETITIONER'S CASE
13. It is submitted by the learned counsel on behalf of petitioner that he was married to Puja Singhal on 20.06.2011 and before that he was working in Australia. Cash brought from Australia and then deposited at Daltonganj Bank, were his self-earned money in Australia.
14. The main thrust of argument on behalf of petitioner is that nexus and link between alleged ill earned money of his wife and the deposit in his account, has not been established by any evidence. There is no evidence to connect cash that had been detected in his account to those ill-gotten money allegedly generated in scheduled offence, regarding which 16 F.I.Rs. have been lodged. It is submitted that there can be unexplained income but that is not itself sufficient to attract the provision of PMLA in view of ratio laid down in Vijay Madanlal Choudhary & Others Versus Union of India & Others; 2022 SCC OnLine SC 929( para 249, 250, 251, 253 & 282). An unexplained income can give rise to tax liability and penalty under the Income Tax Act, but unless the nexus with proceeds of crime is established it cannot 4 constitute proceed of crime under Section 2 (u). To be proceeds of crime, the property must be derived or obtained, directly or indirectly, "as a result of"
criminal activity relating to a scheduled offence.
15. With regard to ill-gotten money of Puja Singhal regarding her tenure at Palamau & Khunti, no predicate offence has been alleged and therefore, E.D. cannot proceed on assumption that they were part of predicate offence. With regard to statement of Suman Kumar (A7) that cash were deposited in Pulse Hospital to generate fake bill, it is submitted that there is no documentary evidence to show that any such fake bills were generated.
16. It is submitted by way of rejoinder to the counter affidavit that Rupees Five Crore had been taken loan from Bank of Baroda and Rupees Five Crore from Yes Bank for construction and purchase of machine and equipment in diagnostic centre.
17. Lastly, it is submitted that after investigation prosecution complaint has been submitted and there cannot be any justification for custody of the accused. The principles and guidelines regarding bail laid down in Satender Kumar Antil Vs CBI reported in (2022) 10 SCC 51 will apply to anticipatory bail in view of the order passed in this case on 21.03.2023. Further, it has been held in Siddharth v. State of U.P., (2022) 1 SCC 676 that criminal courts cannot refuse to accept a charge-sheet simply because the accused has not been arrested and produced before the court. Further in Aman Preet Singh Vs CBI, 2021 SCC Online SC 941, it has been held that for the submission of charge sheet, there is no requirement of arrest of the accused. The Court in such cases empowered to take cognizance or try the accused has to accept the charge sheet forthwith and is required to invariably issue a process of summons and not warrant of arrest.
STAND OF E.D.
18. Anticipatory Bail Application has been opposed and counter affidavit has been filed on behalf of the Enforcement Directorate to that effect.
19. It has been established during investigation of the scheduled offence pertaining to the 16 FIR which were registered by Jharkhand police that Ram Binod Sinha while working as a Junior Engineer in Jila Parishad, Khunti District, Jharkhand, from 05.07.2006 till 31.03.2010 had embezzled huge sum allocated for completion of various project works. As per the audit report the combined embezzlement runs to ₹ 18.06 crores.
520. In the investigation conducted by the Enforcement Directorate in ECIR No. PAT/14/2012 role of Pooja Singhal has surfaced as the main accused for the offence under section 3 of PMLA, 2002.
21. As per the statement of Ram Binod Prasad Sinha (Accused) recorded under Section 50 of PMLA, 5% commission was paid to the D.C. office and 5% commission to the Engineering side, for smooth clearance offence.
22. Asst Engineer R. K. Jain (Accused) stated that despite several verbal and written requests, Ram Binod Sinha never submitted related measurement books, vouchers and muster roll timely. This was reported by him in writing to the then D.C., Pooja Singhal as well as the then Executive Engineer, but despite his complains, no action was initiated against the accused. The prime role of Pooja Singhal has also come in the statement of Jai Kishore Chaudhary (Accused), Abhay Nandan Ambashta Nazarat Decputy Collector.
23. The accounts of Pooja Singhal and Abhisek Jha (petitioner) were having huge cash deposits to the tune of ₹ 1.43 crore during the same crime. The cash deposited in different financial years were over and above the salary of Pooja Singhal.
24. Rs. 37,40,180/- was deposited in his ICICI Bank account at Daltonanj, from December 2010 till March 2012, where Pooja Singhal was posted as DC from 19.07.2010 to 08.06.2013.
25. Petitioner had withdrawn huge cash Australian dollars from his Commonwealth Bank account which was mostly sourced/preceded by - deposited or received from some individual such as Fareed Sekh, details of whom or about such transaction could not be provided by the petitioner.
26. The documentary evidence to explain the source of cash in the Australian Bank account was not provided by the petitioner. No documentary evidence was furnished to show that he had brought such huge foreign currency in India. He never filed Currency Declaration Form (CDF) which was mandatory for the person bringing foreign currency notes of 5000 USD equivalent or above. Most of the cash deposited in his bank account was at Palamau where his wife Pooja Singhal was posted as DC from19.7.2010 to 8.6.2013.
27. Another explanation regarding receipt of the cash was that it was received at the marriage engagement ceremony held at Muzaffarpur (Bihar). The cash was however deposited at Dalatonganj (Jharkhand) in a small-small tranche and not in one transaction.
628. On the legal plea of bail on the ground that prosecution complaint has been filed and there is no further requirement of custodial interrogation, it is submitted that the nature of evidence against the accused shows and there are reasonable grounds for believing that he is guilty of the office of money laundering, and therefore, considering the nature of offence he does not deserve to be enlarged on anticipatory bail in view of the mandate of Section 45 of the PMLA. The nature of offence comes under the category of economic offence and there is long line of judicial precedents which lays down the principles for considering the bail application in such cases. Reliance has been placed on the following authorities:
a. Y.S Jagan Mohan Reddy Vs CBI; (2013) 7 SCC 439 wherein it has been held that economic offences constitute a class apart and to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public fund needed to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country.
b. Nimgadda Prasad Vs CBI; (2013) 7 SCC 466 c. CBI Vs V.Vijay Sai Reddy; (2013) 7 SCC 466 d. Gautam Kundu v. Directorate of Enforcement (Prevention of Money- Laundering Act), (2015) 16 SCC 1 :
The conditions specified under Section 45 of PMLA are mandatory and needed to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of Cr.P.C shall apply insofar as they had not inconsistent with the provisions of this act and Section71A provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA hasn't overriding effect and the provisions of Cr.P.C would apply only if they had not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 Cr.P.C. that coupled with the provisions of section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that proceeds of crime are not involved, lies on the appellant.
e. P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 :
Economic offences
78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of 7 Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510] , it was held that in economic offences, the accused is not entitled to anticipatory bail.
f. In Vijay Madan Lal Choudhary Vs UOI; 2022 SCC Online SC 929 above principle of law has been reiterated. It was held that it can never be the intention of the Parliament to exclude the operation of Section 45 of 2002 Act in the case of anticipatory bail which not only will be irrational but also discriminatory and arbitral. Rigors of Section 45 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act.
I find much force in the argument on behalf of the E.D. that submission of charge sheet may be one of the ground for grant of bail, but it cannot be a ground to give an indefeasible right for bail. While considering an anticipatory bail application different factors like nature and ramification of offence, evidence appearing against the petitioner, position of the accused to influence/pressurize the witnesses, flight risk and the criminal antecedent of the petitioner cannot be altogether ignored. After chargesheet is filed, the Court need to apply its mind to these factors before grant or refusal of bail.
As held by Hon'ble Supreme Court, in offences under PMLA rigors of Section 45, will apply. Considering the magnitude of crime involving proceeds of crime to the tune of crores with evidence of it being carefully layered and laundered through investments, materials on record, risk of flight and for the plea taken on behalf of the ED, I do not find this a case fit for grant anticipatory bail.
The prayer for anticipatory bail of the petitioner, is hereby, rejected. Petitioner is directed to surrender before the Court below within four weeks.
(Gautam Kumar Choudhary, J.) Anit