Jharkhand High Court
Sanjay Kumar Tiwary @ Sanjay Kumar ... vs The Union Of India Through Enforcement ... on 6 April, 2022
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.1804 of 2022
Sanjay Kumar Tiwary @ Sanjay Kumar Tiwari
@ Sanjay Tiwary ..... ... Petitioner
Versus
The Union of India through Enforcement Directorate .... .... Opp. Party
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. Anil Kumar, Sr. Advocate Ms. Chandana Kumari, Advocate For the Opposite Party : Mr. Amit Kumar Das, Advocate
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C.A.V. on 06.04.2022 Pronounced on 13.04.2022 Heard learned counsel for the applicant and learned counsel for the Opposite Party.
2. Ms. Chandana Kumari, learned assisting counsel to Mr. Anil Kumar, learned Sr. Advocate undertakes to remove the defects, as pointed out by the office within a period of one week.
3. This bail application has been filed on behalf of the above named applicant with prayer to release on bail in connection with Enforcement Case Information Report (in short "ECIR") No.03 of 2021 registered under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (hereinafter to be referred as "the Act, 2002") pending in the court of learned Additional Judicial Commissioner-I-cum-Special Judge, C.B.I.- cum-PMLA, Ranchi.
4. The complaint was filed by the informant -- Assistant Director (PMLA), Directorate of Enforcement based on first information report being R.C. No.12(A)/2017-R dated 5th December, 2017 which was registered by the Central Bureau of Investigation, Ranchi against M/s. Bhanu Construction and Ors. on the basis of written information dated 20th November, 2017 received from Assistant General Manager, State Bank of India, Hatia Branch in regard to commission of the offence by -2- M/s. Bhanu Construction (a partnership firm) under Sections 120-B read with Sections 406, 409, 420 of the Indian Penal Code (in short "IPC") and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short "the Act, 1988") and the charge-sheet was filed against 1. Sanjay Kumar Tiwari (the applicant herein), partner of M/s. Bhanu Construction, 2. Suresh Kumar, partner of M/s. Bhanu Construction, 3. M/s. Bhanu Construction, partnership firm and 4. Ajay Oraon, the Deputy Manager of SBI, Hatia Branch, Ranchi and others under Section 120-B read with Sections 406, 409 and 420 of IPC and under Sections 13(2) read with Sections 13(1)(d) of the Act, 1988.
5. The matrix of the prosecution case are that a saving bank account no.33954815459 of Jharkhand Rajya Madhyan Bhojan Pradhikaran was opened and maintained at State Bank of India, Hatia Branch, Ranchi. On 4th August, 2017, SBI Hatia Branch received total six numbers of debit advices dated 3rd August, 2017 from the department of Jharkhand Rajya Madhyan Bhojan Pradhikaran for transfer Rs.120.31 crores from its saving account to multiple accounts maintained with different banks. As per advice, Rs.20.29 crores were to be transferred to SBI accounts and Rs.100.01 crores were to be transferred to other bank accounts. Accordingly, Rs.20.29 crores were transferred to different SBI accounts on 5th August, 2017 by debiting the aforesaid saving bank account of Jharkhand Rajya Madhyan Bhojan Pradhikaran. Four bulk transfer through RTGS/NEFT, Rs.100.01 crores were debited from the said account of Jharkhand Rajya Madhyan Bhojan Pradhikaran and temporarily parked in office/suspense account of the branch but due to failure in transaction, the entire amount got returned to the office/suspense account of the branch.
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It was revealed that the then Deputy Manager (Business Development Department) SBI instead of crediting back the amount of Rs.100.01 crores to the saving bank account of Jharkhand Rajya Madhyan Bhojan Pradhikaran authorized the transfer of entire amount to the current account no.36310149578 of M/s. Bhanu Construction on 5th August, 2017. The accused/applicant - Sanjay Kumar Tiwari, one of the partners of M/s. Bhanu Construction began to transfer the amount to different accounts from the account of M/s. Bhanu Construction from 11 th August, 2017 till 19th September, 2017 i.e., the date of detection of fraud. Further out of Rs.100.01 crores, SBI Hatia Branch, Ranchi had managed to recover a sum of Rs.76,29,13,000/- till 20th November, 2017 and rest amount of Rs.23,72,28,016/- could not be recovered from M/s. Bhanu Construction which resulted into wrongful loss to the State Bank of India, Hatia Branch and corresponding wrongful gain to M/s. Bhanu Construction. An ECIR was recorded on 24th October, 2018 under the Act, 2002 under Sections 120-B and 420 of the IPC and Sections 13(2) read with Section 13(1)(d) of the Act, 1988, as scheduled offences under the Act, 2002. As per F.I.R. and ECIR, proceeds of the crime involved was to the tune of Rs.23,72,28,016/-. During course of investigation, it was found that the applicant - Sanjay Kumar Tiwary was the sole signatory on behalf of the M/s. Bhanu Construction to operate all the accounts. It was revealed that Sanjay Kumar Tiwary, Managing Partner of M/s. Bhanu Construction dishonestly transferred the said amount to various accounts and misappropriated the same by keeping it as liquid security/margin for credit facility extended to them by Axis Bank Ltd., Ashok Nagar, Ranchi, HDFC Bank Ltd., Ashok Nagar Branch, SREI Equipment Finance Ltd., Ranchi, Cholamandalam Investment and Finance Co. Ltd., Ranchi and has -4- also purchased as many as 53 vehicles out of the alleged proceeds of crime from August, 2018 to September, 2018. Many vehicles were confiscated and auctioned by SBI which further resulted in reduction of proceeds of crime to Rs.19,60,17,457/-. The charge-sheet bearing no.04 of 2019 dated 26th June, 2019 was filed by CBI, ACB, Ranchi before the court of Special Judge, CBI, Ranchi against Sanjay Kumar Tiwary, Ajay Oraon, Suresh Kumar and M/s. Bhanu Construction, a partnership firm. As per charge-sheet, the proceeds of crime was Rs.19,60,17,457/-. The accused/applicant--Sanjay Kumar Tiwary evaded to appear before Directorate of Enforcement and he was arrested on 23rd November, 2021 in exercise of power conferred under Section 19 of the Act, 2002.
6. Learned counsel for the applicant has submitted that the applicant was the partner of M/s. Bhanu Construction. On 5th August, 2017, the then Deputy Manager, SBI Hatia Branch, Ranchi had negligently transferred an amount of Rs.100.01 crores of Jharkhand Rajya Madhyan Bhojan Pradhikaran to the bank account of M/s. Bhanu Construction. During that period the applicant was expecting that Rs.50 crores was to be credited from Nabadurga Construction Pvt. Ltd. to the account of applicant, therefore, he utilized the money for his business purpose under the bona fide belief. It is further submitted that the bank account with SBI of M/s. Bhanu Construction did not have the facility of SMS alert activated and on account of same reason he could not get any intimation of credit made to his account through SMS. On 21st September, 2017, the applicant was apprised that on 5th August, 2017, an amount of Rs.100.01 crores had recently been transferred to the applicant's account which belonged to Jharkhand Rajya Madhyan Bhojan Pradhikaran and he was also asked to return the same immediately. It is also submitted that the -5- applicant made several efforts to transfer the amount, however, all the transfer were reversed to the applicant purporting as wrong credits. The State Bank of India, Hatia Branch, Ranchi had also unilaterally directed all other banks to freeze and suspend the operation of the account of the applicant. Consequently, the applicant was unable to transact any banking business. Moreover, the vehicles and the machineries purchased by the applicant on behalf of the M/s. Bhanu Construction had been seized by the State Bank of India, despite the proposal was made for full and final settlement. It is further submitted that vide letter dated 20th August, 2019, the bank informed to the M/s. Bhanu Construction that 50% of the outstanding amount shall be deposited within 45 days and remaining amount was to be deposited in two equal quarterly installments. As such being bona fide, no offence is made out against the applicant and he may be given the privilege of bail.
In support of his contention, the learned counsel for the applicant, relied upon the following case law:-
i. Deepak Virendra Kochhar vs. Directorate of Enforcement and Another (Criminal Bail Application No.1322 of 2020) Judgment dated 25th March, 2021 (Bombay High Court). ii. Most. Ahilya Devi @ Ahilya Devi vs. The State of Bihar & Ors. (Criminal Miscellaneous No.41413 of 2019) Judgment dated 28th May, 2020 (Patna High Court). iii. Sai Chandrasekhar vs. Directorate of Enforcement reported in 2021 SCC Online Del 1081.
iv. Upendra Rai vs. Directorate of Enforcement (Bail Application No.249 of 2019) Judgment dated 9th July, 2019 Delhi High Court.
v. Dr. Vinod Bhandari vs. Asstt. Director, Directorate of Enforcement reported in 2018 SCC Online MP 1559. vi. Okram Ibobi Singh vs. Directorate of Enforcement with -6- its Headquarter at New Delhi reported in 2020 SCC Online Mani 365.
7. Learned counsel appearing on behalf of the Directorate of Enforcement opposed the contentions made by the learned counsel for the applicant and contended that offence under Sections 3 and 4 of the Act, 2002 along with predicate offence under Section 120-B read with Sections 406/409/420 of the IPC and Section 13(2) read with Section 13(1) (d) of the Act, 1988 is made out against the applicant and no bona fide was shown on the part of the applicant, as submitted by the learned counsel for the applicant. It is further submitted that from the evidence collected, it is evident that the applicant had dishonestly transferred Rs.53.38 crores to his various bank accounts and misappropriated the same for his business transactions. The applicant also layered the huge amounts of the proceeds of crime into different account of various persons which are well supported with the documentary evidence. During the said period he had also purchased 53 numbers of heavy commercial vehicles out of the proceeds of the crime. It is lastly submitted that in view of the evidence and materials on the record, the applicant may not be given the privilege of bail.
In support of his contention, the learned counsel for the ED placed reliance on the following judgments:-
i. Cr. O.P. Nos.3381, 3383 and 3385 of 2021 (N. Umashankar @ N.M. Umashankar and Ors. Vs. The Assistant Director, Directorate of Enforcement, Government of India. Judgment dated 03.01.2022 (High Court of Judicature at Madras).
ii. Order dated 25.02.2022 passed in the case of N. -7- Umashankar @ N.M. Umasangarr vs. The Assistant Director, Directorate of Enforcement in SLP (Crl.) Nos.620-622 of 2022 by the Hon'ble Supreme Court of India.
8. For disposal of this bail application, the following provisions of the Act, 2002 are being reproduced as under:-
Section 2(p) of the Act, 2002 provides:-
"(p) "money-laundering" has the meaning assigned to it in Section 3."
Sections 2(y) of the Act, 2002 provides:-
"(y) "scheduled offence" means -
(i) the offences specified under Part A of the Schedule; or [(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or
(iii) the offences specified under Part C of the Schedule;]"
Sections 3 and 4 of the Act, 2002 provides as under:-
"3.Offence of money-laundering - Whosoever directly or indirectly attempts to indulged or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money laundering.
4. Punishment for money-laundering. - Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted."
9. Learned counsel for the applicant has submitted that there are no reasonable ground from the materials on record, against the applicant, that he has committed the alleged offence of money laundering. It is further submitted that the provisions of Section 45 of the Act, 2002 has been declared unconstitutional by the Hon'ble Apex Court in the case of Nikesh Tarachand Shah vs. Union of India & Anr. reported in -8- (2018) 11 SCC 1. After that judgment, the Section 45 of the Act, 2002 was amended by the Parliament by Act 13 of 2018 w.e.f. 19th April, 2018 and the amended provisions of Section 45 of the said act are under challenge before the Hon'ble Apex Court, therefore, the Section 45 of the Act, 2002 would not apply in the present case.
10. Learned counsel for the Directorate of Enforcement opposed this contention and contended that the provisions of Section 45 which was declared unconstitutional by the Hon'ble Apex Court in the case of Nikesh Tarachand Shah (supra) was amended by Act 13 of 2018. Consequently, the presumption in regard to the constitutionality of the Section 45 of the Act, 2002 would be raised. It is further submitted that the amendment in Section 45 of the said act is under consideration before the Hon'ble Apex Court but the amended provision has not been stayed by the said Court, therefore, the same will be applied while considering the bail application of the applicant.
11. The provisions of Section 45 of the Act, 2002 prior to judgment of Hon'ble Apex Court in the case of Nikesh Tarachand Shah (supra) was declared unconstitutional, the defects of provisions of the said act was cured by the Parliament by way of Amendment Act 13 of 2018 and consequently, the twin conditions of Section 45 while disposing of the bail applicant under the Act, 2002 stood revived.
12. The Hon'ble Apex Court in the case of Cheviti Venkanna Yadav vs. State of Telangana reported in 2017 (1) SCC 283 has held as under :-
"27. In State of Himachal Pradesh v. Narain Singh while dealing with the validation of statute the court ruled that:-
"It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation."-9-
13. The twin conditions under Section 45 (1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah (supra). Subsequently, the Section 45 of the Act, 2002 has been amended by Amendment Act 13 of 2008, whereby the words "imprisonment for a terms of imprisonment of more than three years under Part A of the schedule" has been substituted with "accused of an offence under this Act......"
14. The Hon'ble Apex Court in the case of Prakash Gurbaxani v. The Directorate of Enforcement reported in 2021 SCC Online P & H 1567 has held as under :-
"...............18. By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" as occurring in Section 45(1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words "under this Act". As per learned ASG, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PMLA to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45(1) stood revived.
15. The Hon'ble Apex Court in the case of YS Jagan Mohan Reddy vs. C.B.I. reported in 2013 (7) SCC 439 has held as under :-
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
16. The Hon'ble Apex Court in the case of State Of Gujarat vs. Mohanlal Jitamalji Porwal and Ors. reported in 1987 (2) SCC 3645 has held as under:-
"..........5. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon
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passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest............"
17. In view of the submissions made and materials on record as well as keeping in view the documentary evidence collected by the E.D., it is found that the conduct of the applicant in transferring the huge amount which was proceeds of the crime to the several bank accounts and also purchasing 53 vehicles revealed that there are reasonable ground to believe that the applicant is guilty of the offence of money laundering and he is likely to commit the offence, if enlarged on bail. Accordingly, the bail application of the applicant is, hereby, rejected.
(Subhash Chand, J.) Rohit