Allahabad High Court
Siddh Narain Sharma vs Assistant Director Directorate Of ... on 23 September, 2022
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 13 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1105 of 2022 Applicant :- Siddh Narain Sharma Opposite Party :- Assistant Director Directorate Of Enforcement Lucknow Zonal Office Counsel for Applicant :- Purnendu Chakravarty,Anuuj Taandon Counsel for Opposite Party :- A.G.A.,Kuldeep Srivastava,Shiv P. Shukla Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Purnendu Chakravarty, learned counsel for the applicant and Sri Kuldeep Srivastava, learned counsel for the Enforcement Directorate, the opposite party.
2. As per learned counsel for the applicant, the present applicant is apprehending his arrest in Complaint Case No.1003 of 2021 in ECIR No.ECIR/01/LKZO/2018 dated 18.02.2018, under Sections 3/4 of the Prevention of Money-Laundering Act, 2002, Police Station - Directorate of Enforcement, Lucknow.
3. Counter affidavit and rejoinder affidavit have been filed and the parties have requested that the matter may be heard and disposed of finally.
4. Sri Purnendu Chakravarty, learned counsel for the applicant has submitted that the present applicant is a retired Chief Engineer. One FIR was lodged by the Central Bureau of Investigation (hereinafter referred to as "CBI") on 30.11.2017 at RC-26A/2017 against so many persons including the present applicant. The CBI has filed charge sheet against so many persons but no charge sheet has been filed against the present applicant as nothing incriminating has been found against him by the CBI.
5. As per Sri Chakravarty, the Enforcement Directorate (hereinafter referred to as "E.D.") lodged one ECIR No.01/LKZO/2018 on 18.02.2018 pursuant to the FIR and investigation so carried out by the CBI in the year 2017. In such complaint, E.D. investigated the aspect relating to money laundering against all persons either have been charge sheeted by the CBI or have not been charge sheeted by the CBI. However, nothing incriminating has been received from the possession of the present applicant and nothing incriminating was found by the CBI against the present applicant, even then the E.D. summoned the present applicant couple of times for recording his statement and producing material. Specific recital to this effect has been given in para-16 of the application wherein the applicant has indicated the dates when the applicant appeared before the investigating agency i.e. E.D. and recorded his statement under Section 50 of the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as "PMLA, 2002") i.e. 25.05.2018, 07.06.2018, 26.06.2018, 23.07.2018 and 19.06.2019. Sri Chakravarty has submitted that the E.D. has recorded statements of various persons including one Sri Amit Yadav, the Contractor, on various dates i.e. 29.01.2019 and 05.02.2019. As per E.D., the said Contractor Sri Amit Yadav has stated in his statement dated 29.01.2019 and 05.02.2019 that he (Sri Amit Yadav) had withdrawn a sum of Rs.15 lakh in cash through his "self cheque" and he paid this amount to the present applicant. Sri Chakravarty has submitted that except the aforesaid statement of Sri Amit Yadav, the Contractor, E.D. is having no material to suggest that there was any involvement of the present applicant in the instant matter. Sri Chakravarty has further submitted that there was no eye witness to say that the aforesaid amount of Rs.15 lakh has been given to the present applicant by Sri Amit Yadav. Besides, after the aforesaid statement of Sri Amit Yadav being recorded by the E.D. on 29.01.2019 and 05.02.2019, the present applicant was summoned to record his statement under Section 50 of the PMLA, 2002 on 19.06.2019, but the present applicant has not been confronted with such statement of Sri Amit Yadav and no question relating to such alleged transaction has been asked from the present applicant. Therefore, that material i.e. the statement of Sri Amit Yadav dated 29.01.2019 and 05.02.2019 may not, prima facie, be treated as sufficient material to suggest that such amount has been withdrawn by Sri Yadav to make payment the same to the present applicant. As per Sri Chakravarty, the Bank Accounts etc. of the present applicant have been investigated by the E.D. and the aforesaid allegation of Sri Yadav has not been corroborated. The applicant has not been named as an accused in the charge sheet arising out of the FIR No.RC-26A/2017 and no independent investigation has been conducted by the E.D. as the investigation conducted by the CBI is reiterated in the complaint filed by the E.D.
6. Therefore, as per Sri Chakravarty, if the applicant has not been named as an accused in the charge sheet arising out of the FIR No.RC-26A/2017 of CBI predicate offence and no independent investigation has been conducted by the E.D. as the investigation conducted by the CBI is reiterated in the complaint filed by the E.D., the present applicant may not be implicated, only on the basis of statement of one co-accused Sri Amit Yadav against whom the CBI has filed charge sheet, in absence of any corroborative evidence.
7. Not only the above, when the present applicant has cooperated with the investigation so conducted by the CBI and never flouted the process of law, then no adverse inference of any kind whatsoever may be drawn against him. Despite being not charge sheeted by the CBI, the present applicant always appeared before the E.D. to record his statement on each and every date. The present applicant has not been confronted by the E.D. in respect of the statement so given by Sri Amit Yadav against the present applicant, therefore, the E.D. may not implicate the present applicant in the present case in any manner whatsoever. The present applicant is an old aged retired Government Officer, who is having no criminal history of any kind whatsoever and there is no possibility of the applicant to flee from justice, therefore, there may not be any requirement for his custodial interrogation. Hence, as per Sri Chakravarty, liberty of the present applicant may be protected till conclusion of the trial proceedings pending before the learned trial court as the present applicant undertakes that he shall cooperate with the proceedings pending before the learned trial court and shall not misuse the liberty of bail, if so granted.
8. Per contra, Sri Kuldeep Srivastava, learned counsel for the opposite party has opposed the aforesaid prayer of Sri Purnendu Chakravarty, learned counsel for the applicant. Sri Srivastava has submitted that bail application of one co-accused, namely, Roop Singh Yadav, who has filed his regular bail application before this Court bearing Criminal Misc. Bail Application No.1831 of 2022, has been rejected on 29.04.2022, therefore, the anticipatory bail application of the present applicant may be rejected and he may be directed to file his regular bail application. He has also submitted that the present applicant while serving on the post of Chief Engineer did not follow the financial rules to deposit the centage charges whereas the due amount was Rs.71 crore. Sri Srivastava has also pressed the statement of Sri Amit Yadav, the Contractor, dated 29.01.2019 and 05.02.2019 wherein such Contractor has stated that he had withdrawn a sum of Rs.15 lakh cash from the Bank through his "self cheque" and paid this amount to the present applicant.
9. However, on being confronted Sri Kuldeep Srivastava, learned counsel for the opposite party as to whether the present applicant has been asked/ confronted on such statement of Sri Amit Yadav when the statement of the present applicant was recorded under Section 50 of the PMLA, 2002 on 19.06.2019, Sri Srivastava has fairly submitted that the present applicant has not been confronted/ asked on such statement of Sri Amit Yadav, the Contractor. On being further confronted Sri Srivastava as to whether on the basis of aforesaid statement of Sri Amit Yadav anything incriminating has been recovered from the possession of the present applicant or found by the E.D., no satisfactory reply could be given by the learned counsel for the opposite party. Sri Srivastava has also been asked a pin point query to the effect that when the CBI has not charge sheeted the present applicant where the applicant was accused in the FIR and the E.D. has not conducted any independent investigation except to reiterate the charge sheet filed by the CBI; as to what material has been recovered by the E.D. to implicate the present applicant in the present case of E.D., Sri Srivastava has only reiterated the aforesaid submission that on the basis of the statement of Sri Amit Yadav, the Contractor, the present applicant has been implicated. However, he could not demonstrate any material/ document to show that the present applicant has been confronted on the statement of Sri Amit Yadav, the Contractor.
10. Thereafter, Sri Srivastava has raised one legal submission referring Section 45 of the PMLA, 2002 wherein Sub Section (1) (i) & (ii) lays down the following conditions:-
"45. Offences to be cognizable and non-bailable.?(1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [punishable for a term of imprisonment of more than three years under Part A of the Schedule] shall be released on bail or on his own bond unless?]
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:"
11. As per Sri Srivastava, the Apex Court in re; Assistant Director, Enforcement Directorate vs. V.C. Mohan, Criminal Appeal No.21 of 2022 (Arising out of SLP (Crl.) No.8441 of 2021), observed as under:-
"......It is one thing to say that Section 45 of the PMLA Act to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered - although the application is under Section 438 of the Code of Criminal Procedure....."
(emphasis supplied)
12. The Hon'ble Apex Court in re; Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors, in its judgment dated 27.07.2022 passed in Special Leave Petition (Criminal) No.4634 of 2014, observed as under:-
"......As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering....."
(emphasis supplied)
13. Sri Kuldeep Srivastava, learned counsel for the opposite party has submitted that the present anticipatory bail application may be rejected.
14. Heard learned counsel for the parties and perused the material available on record.
15. At the very outset, I would like to observe that this is a case wherein FIR No.RC-26A/2017 has been lodged by the CBI wherein so many persons including the present applicant were accused but after thorough investigation by the CBI, no charge sheet has been filed against the present applicant, meaning thereby nothing incriminating has been recovered from the possession of the present applicant nor found during investigation. Notably, the present applicant has properly cooperated with the investigation being conducted by the CBI and has never flouted the process of law. Thereafter, on the basis of aforesaid investigation of the CBI, E.D. started recording statement of some persons including the present applicant as no independent investigation has been conducted by the E.D. and the present applicant has been summoned to record his statement under Section 50 of the PMLA, 2002 on various dates i.e. 25.05.2018, 07.06.2018, 26.06.2018, 23.07.2018 and 19.06.2019. It is not a case of the E.D. that the present applicant has ever flouted the process of the law or he did not appear to record his statement on the aforesaid dates. The present applicant has been implicated on the basis of statement of one Sri Amit Yadav, the Contractor, which was recorded by the E.D. on 29.01.2019 and 05.02.2019 wherein he has stated that he had withdrawn a sum of Rs.15 lakh cash from the Bank through his "self cheque" and paid this amount to the present applicant but there is no eye witness/ witness/ document of any kind whatsoever to suggest that the aforesaid sum of Rs.15 lakh has been given to the present applicant. Even after recording the aforesaid statement of Sri Amit Yadav on 29.01.2019 and 05.02.2019, the present applicant was summoned on 19.06.2019 to record his statement under Section 50 of the PMLA, 2002, but he has not been confronted on the aforesaid statement of Sri Yadav nor anything has been asked from the present applicant regarding the aforesaid statement of Sri Amit Yadav. Therefore, even if one Contractor in the name of Sri Amit Yadav has levelled any allegation against the present applicant, the same allegation has not been verified from the present applicant during investigation. As a matter of fact, no exercise has been carried out by the E.D. to collect any corroborative evidence.
16. Since no material has been filed with the counter affidavit of the opposite party to suggest that the allegation so levelled against the present applicant by Sri Amit Yadav, the Contractor, has been verified or corroborated and during the course of the arguments, Sri Kuldeep Srivastava, learned counsel for the opposite party has been asked to demonstrate the Court that the E.D. is having any corroborative material or any piece of material suggesting the involvement of the present applicant in accepting a sum of Rs.15 lakh, except the bald allegation of Sri Amit Yadav through his statement, Sri Kuldeep Srivastava could not demonstrate anything suggesting, prima facie, involvement of the present applicant. However, trial proceedings are going on and the allegations may be proved or disproved before the learned trial court by adducing the evidences from both the sides, therefore, I am not giving any finding on this point inasmuch as this is the domain of the learned trial court to conduct and conclude the trial independently strictly in accordance with law and without being influenced from any observation of this order. So far as argument of Sri Srivastava that regular bail of one co-accused Roop Singh Yadav has been rejected by this Court vide order dated 29.04.2022 (supra) is concerned, notably, the CBI had filed charge sheet against Roop Singh Yadav whereas no charge sheet was filed against the present applicant by the CBI. Further, Roop Singh Yadav had not filed any anticipatory bail application whereas the present applicant has filed the present anticipatory bail application. Law is trite that there may not be parity in rejection of bail.
17. Therefore, on the basis of aforesaid facts and circumstances, I am convinced that the twin requirements of Section 45 of PMLA, 2002 are satisfied inasmuch as the Public Prosecutor has been given ample opportunity to establish his case as the counter affidavit so filed and his arguments so advanced have been considered. Further, since thorough investigation has been conducted by the CBI pursuant to one FIR wherein the present applicant was accused and when nothing incriminating has been found against the present applicant, he has not been charge sheeted. The E.D. has not conducted its independent investigation and has reiterated the investigation of the CBI, therefore, prima facie, it appears that the present applicant is not guilty of such offence and being an old aged retired employee, his liberty may be protected. It further appears that he may not likely to commit such offence while on anticipatory bail.
18. The Hon'ble Apex Court in re; Vijay Madanlal Choudhary & Ors. vs Union of India & Ors. [Special Leave Petition (Criminal) No.4634 of 2014], has observed as under:-
"187....... (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money laundering against him or any one claiming such property being the property linked to stated scheduled offence through him."
(emphasis supplied)
19. The Hon'ble Apex Court in re; Parvathi Kollur & Anr. vs. State by Directorate of Enforcement [Criminal Appeal No.1254 of 2022], observed as under:-
"Thereafter, the Trial Court, by its judgment and order dated 04.01.2019, allowed the application and discharged the appellants from the offences pertaining to the Act of 2002 while observing that occurrence of a scheduled offences was the basic condition for giving rise to "proceeds of crime"; and commission of scheduled offence was a precondition for proceeding under the Act of 2002."
(emphasis supplied)
20. As per this Judgement, the case of the applicant is fully covered within the ratio because pre-condition of "scheduled offence" is not there against the applicant.
21. This Court in re; Rajeev Wadhwa vs. Union of India Thru. Joint Dir. Directorate of Enforcement [Bail No.5867 of 2016], has observed as under:-
"Learned counsel for the applicant has next argued that the court below has erroneously held that the applicant is accused of "Schedule Offence" The F.I.R. No.17/15, Police Station Kavi Nagar, Ghaziabad shows that the applicant is not an accused in the said F.I.R. He submits that the entire matter has basically been investigated by the Directorate of Revenue Intelligence and the F.I.R has been lodged against co-accused Manish Jain and Rakesh Jain only, hence the applicant is entitled for bail."
(emphasis supplied)
22. Since no charge sheet was filed against Rajeev Wadhwa, he was granted bail. The ratio of this judgement is applicable, as admittedly, for applicant also, CBI has not filed charge sheet for scheduled offence.
23. There is one more aspect in the present case that the present applicant has cooperated with the investigation being conducted by the CBI and after completion of the investigation, no charge sheet has been filed against the present applicant. He has further cooperated with the Enforcement Directorate as he always appeared before the E.D. to record his statement under Section 50 of the PMLA, 2002, therefore, there is no need to take him into judicial custody inasmuch as liberty of a person may not be infringed mechanically.
24. In the judgment of Apex Court rendered in re: Joginder Kumar vs. State of Utter Pradesh, (1994) 4 SCC 260, wherein it has been observed that arrest is not mandatory if an accused person co-operates with the investigation as well as in the trial proceedings unless there is any specific or cogent reason to arrest him. The issuance of direction regarding arrest is the prerogative of the learned trial court concerned but such discretion should not be unreasoned inasmuch as the liberty of any person, which is guaranteed under Article 21 of the Constitution of India, may not be compromised in a cursory manner. Therefore, before issuing such order to arrest such person the settled proposition of law and the parameters so fixed by the Apex Court should be considered.
25. The Apex Court in re: Siddharth vs. State of U.P. and another, (2021) 1 SCC 676, has observed as under:
"We are in agreement with the aforesaid view of the High Courts and would like to give out imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, some across cases where the accused has co-operated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/ she is not required to be produced in custody. The word "custody" appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge-sheet."
(emphasis supplied)
26. The Apex Court in re: Aman Preet Singh vs. C.B.I. through Director, Criminal Appeal No.929 of 2021, has observed as under:
"Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitled him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has bot even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."
(emphasis supplied)
27. In view of the aforesaid facts and circumstances as well as the settled legal proposition, I find it appropriate that liberty of the present applicant may be protected till conclusion of the trial proceedings in view of the dictum of the Hon'ble Apex Court in re; Sushila Aggarwal vs. State (NCT of Delhi), 2020 SCC online SC 98.
28. Therefore, it is directed that in the event of arrest, applicant- Siddh Narain Sharma shall be released on anticipatory bail in the aforesaid complaint case number till conclusion of trial on his furnishing a personal bond of Rs.2,00,000/- with two sureties of Rs.1,00,000/- each before the court concerned with the following conditions:-
I. that the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence;
II. that the applicant shall not leave India during pendency of the trial without prior permission from the concerned court and shall also surrender his passport, if any, before the concerned court forthwith;
III. that the applicant shall not pressurize/ intimidate the prosecution witness;
IV. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
V. that in case of breach of any of the above conditions, the court below shall have the liberty to cancel the bail.
29. Accordingly, the instant anticipatory bail application is allowed.
[Rajesh Singh Chauhan,J.] Order Date :- 23.9.2022 RBS/-