Jharkhand High Court
Nagwant Pandey vs The Union Of India Through The ... on 21 March, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.7317 of 2024
-----
Nagwant Pandey, aged about 52 years, son of Rajkumar Pandey, resident of B-203, Vishwanath Apartment, Devi Mandap Road, P.O. and P.S. Sukhdeo Nagar, District-Ranchi ... ... Petitioner Versus The Union of India through the Directorate of Enforcement, Government of India, Zonal Office, Ranchi.
... ... Opp. Party
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioner : Mr. Chandrajit Mukherjee, Advocate For the Opp. Party : Mr. Amit Kumar Das, Advocate : Mr. Saurav Kumar, Advocate : Mr. Vineet Sinha, Advocate
------
CAV on 07.02.2025 Pronounced on 21/03/2025 Prayer
1. The instant application has been filed under Sections 483 and 484 of BNSS for grant of regular bail to the petitioner, in connection with ECIR Case No.03 of 2023, registered for alleged offence under Section 3 and 70 of Prevention of Money Laundering Act, 2002 (PML Act 2002) punishable under Section 4 of Act, 2002, pending in the Court of Special Judge, P.M.L. Act, Ranchi. Factual matrix
2. The prosecution case in brief is that investigation under the Prevention of Money Laundering Act, 2002 was initiated against the petitioner by recording ECIR No. ECIR/05/PAT/2012 dated 13.03.2012 against the applicant/petitioner and other co-accused on the basis of 1 information received from FIR No. RC-19(A)/09-R dated 22.10.2009 registered by CBI, ACB, Ranchi.
3. Subsequently, the chargesheet has been filed by the investigating agency under the various Sections which are covered under the definition of scheduled offence in terms of Section 2(1) (y) of PMLA.
4. It has been alleged that co-accused Mahesh Mehra, Nagwant Pandey (petitioner) and their corporation/firms have entered into criminal conspiracy with others through M/s Kaushalya Infrastructure Development Corporation Ltd. (M/s KIDCL) and submitted 26 forged/fake bitumen invoices worth Rs. 1,08,95,583/- through the contractor company/authorized representative and claimed bills against purported execution of strengthening of Parwa- Garhwa Road during 2004-06 against the work awarded by Road Construction Department (RCD), Daltonganj.
5. The proceeds of crime amounting to Rs.1,08,95,583/- was received by the contractor company as a part of the total receipt from the RCD amounting to Rs. 4,03,03,179/- in its different bank account.
6. Further in the complaint it has been stated that during investigation as on 31.03.2022 M/s Kaushalya Township Private Limited and M/s Kaushalya Nirman Privae Limited are associates companies and M/s Bengal KDC Housing Development Limited is a subsidiary company of 2 M/s Kaushalya Infrastructure Development Corporation Limited (M/s KIDCL).
7. The present petitioner was proprietor of M/s Nagraj Construction authorized by the M/s KIDCL vide letter issued to the Executive Engineer, RCD, Daltonganj to represent the contractor company before RCD.
8. It has been alleged that the materials on record further show that the accused person came in possession of proceeds of crime and were involved in activities claiming proceeds of crime as untainted property and further alleged that the aforesaid were covered under the definition of money laundering and there was no explanation for the ill-gotten money.
9. Consequent upon investigation conducted by the CBI, ACB, Ranchi, Charge-Sheet No. 02/2011 dated 31.01.2011 for contravention of section 120-B read with 420, 468 & 471 of IPC, 1860 and section 13(2) read with 13(1)(d) of PC Act, 1988 was filed before the Special Court, CBI, Ranchi against the present applicant along with other co-accused.
10. In the backdrop of the aforesaid alleged offences the present petitioner has been arrested and he is in custody since 21.06.2024.
11. The present petitioner accordingly, had preferred Miscellaneous Criminal Application (MCA No. 1999 of 2024) 3 but the same was rejected on 03.07.2024, hence, the instant bail application.
Argument advanced by the learned counsel for the petitioner:
12. The learned counsel appearing for the petitioner has taken the following grounds :-
(i) That the petitioner was neither an office bearer in the RCD, Daltonganj nor the officer bearer in M/s Kaushalya Infrastructure Development Corporation Ltd. and at best the role of the petitioner was of caretaker of M/s Kaushalya Infrastructure Development Corporation Ltd.
(ii) The petitioner has never signed on any invoice as alleged during the check period and the petitioner was only responsible for supply of labourers in the different road construction projects undertaken by M/s Kaushalya Infrastructure Development Corporation Ltd and was remunerated by the construction company for the same.
(iii) The payments made by the RCD, Daltonganj were always made through cheques and demand drafts drawn in favour of M/s KIDCL and its subsidiary company. In so far as supply of bitumen is concerned, the same was made from M/s HPCL and M/s Indian Oil Corporation. The payment for the bitumen was directly made to the petroleum companies by M/s KIDCL through its authorized signatories namely, S.N. Mehra, 4 Mahesh Mehra and Prashant Mehra and the petitioner has neither received any bitumen nor he ever made payment for the same.
(iv) Further, the payment made by RCD to M/s KIDCL in their respective bank account was under control of authorized signatory/director/share holder of the said company. The petitioner was neither a signatory nor authorized representative of the company so as to withdraw any funds whatsoever.
(v) The payment made by RCD to M/s KIDCL in their respective bank account was under control of authorized signatory/director/share holder of the said company. The petitioner was neither a signatory nor authorized representative of the company so as to withdraw any funds whatsoever.
(vi) The Present Petitioner had cooperated in the investigation as well therefore in in the light of the judgement passed by the Hon'ble Supreme Court in the case of Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office, reported in (2024) 7 SCC 61 the present petitioner deserves to be enlarge on bail.
(vii) Further the ground of parity has also been taken, since, the anticipatory bail application of other co-accused person namely Mahesh Mehra has been disposed of by this Court vide order dated 16.08.2024 passed in A.B.A. No. 7187 of 2023 by which the said co-accused 5 has been directed to comply the direction of the Hon'ble Supreme Court rendered in the case of Tarsem Lal (supra) as disclosed in paragraph 20 of the said judgment, within two weeks and the learned Court will pass order on the basis of the judgment passed by the Hon'ble Supreme Court in the case of Tarsem Lal (supra).
(viii) According to the petitioner, the case of the present petitioner is on better footing than the co-accused Mahesh Mehra and hence, applying the principle of parity, the petitioner of the present case is also fit to be released on bail.
(ix) It has been submitted that the petitioner is in custody since 21.06.2024 and as such, taking into consideration the involvement of the petitioner even it will be considered from the ECIR, there is no ingredient of commission of any predicate offence of the schedule offence and as such, the petitioner may be granted the privilege of bail.
Argument advanced by the learned counsel for the respondent/Directorate of Enforcement:
13. Per contra, Mr. Amit Kumar Das, learned counsel for the Enforcement Directorate, has vehemently opposed the prayer for bail and has submitted that the present petitioner is involved in the offence of money laundering and he has committed the said offence either directly or indirectly by 6 involving himself in the process or activities connected with the proceeds of crime and laundered the ill-gotten money.
14. It has further been submitted that Shri Baleshwar Baitha & Heeraman Mahto, both Executive Engineers, Road Construction Department (RCD), Daltonganj, during the period 2004-06, entered into a criminal conspiracy with M/s Kaushalya Infrastructure Development Corporation Ltd. and unknown others and in pursuance thereof M/s Kaushalya infrastructure Development Corporation Ltd. submitted false/bogus invoices showing procurement of bitumen for the execution of contractual works awarded in its favour, which caused wrongful gain to the contractor and official concerned and corresponding to huge wrongful loss to the Government of Jharkhand to the tune of crores of rupees. Therefore, the prayer of the present applicant for bail is not fit to be allowed.
15. Further, it has also come in the investigation that the fabricated document has been created on the behest of this petitioner, therefore, on fact the petitioner is not entitled to get the advantage of parity on the basis of the order granting bail in favour of the co-accused Mahesh Mehra.
16. On the aforesaid ground the learned counsel for the ED has submitted that it is not a fit case wherein the petitioner may enlarge on the bail.
7 Analysis
17. Heard the learned counsel for the parties and perused the documents available on record.
18. This Court before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provision of law as contained under the PML Act, 2002 (Act 2002) with its object and intent as also the legal proposition as settled by the Hon'ble Apex Court in various judgments.
19. The Act 2002 was enacted in order to answer the urgent requirement to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime.
20. It needs to refer herein the definition of "proceeds of crime" as provided under Section 2(1)(u) of the Act, 2002, wherefrom the "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad.
21. The "property" has been defined under Section 2(1)(v) which means any property or assets of every 8 description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located.
22. The schedule has been defined under Section 2(1)(x) which means schedule to the Prevention of Money Laundering Act, 2002. The "scheduled offence"
has been defined under Section 2(1)(y) and "scheduled offence" means the offences specified under Part A of the Schedule; or the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or the offences specified under Part C of the Schedule.
23. The offence of money laundering has been defined under Section 3 of the Act, 2002 and it is evident from the aforesaid provision that "offence of money-laundering"
means whosoever directly or indirectly attempts to indulge 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.
24. It is further evident that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or 9 possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.
25. The various provisions of the Act, 2002 along with interpretation of the definition of "proceeds of crime" has been dealt with by the Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., reported in (2022) SCC OnLine SC 929 wherein the Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court have decided the issue by taking into consideration the object and intent of the Act, 2002.
26. The predicate offence has been considered in the aforesaid judgment wherein by taking into consideration the explanation as inserted by way of Act 23 of 2019 under the definition of the "proceeds of crime" as contained under Section 2(1)(u), whereby and whereunder, it has been clarified for the purpose of removal of doubts that, the "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence, meaning thereby, the words "any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence" will come under the fold of the proceeds of crime. 10
27. At this juncture it needs to refer herein the purport of Section 45(1)(i)(ii) wherein the aforesaid provision starts from the non-obstante clause that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence under this Act 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.
28. Sub-section (2) thereof puts limitation on granting bail specific in sub-section (1) in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.
The explanation is also there as under sub-section (2) thereof which is for the purpose of removal of doubts, a clarification has been inserted that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of 11 conditions under section 19 and subject to the conditions enshrined under this section.
29. The fact about the implication of Section 45 has been interpreted by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) at paragraphs-371 to 374. For ready reference, the said paragraphs are being referred as under:-
"371. The relevant provisions regarding bail in the 2002 Act can be traced to Sections 44(2), 45 and 46 in Chapter VII concerning the offence under this Act. The principal grievance is about the twin conditions specified in Section 45 of the 2002 Act. Before we elaborate further, it would be apposite to reproduce Section 45, as amended. --
---
372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Subsection (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are:
(i) that there are reasonable grounds for believing that he is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail.
373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur.
374. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 2018, the declaration by this Court will be of no consequence. This argument need not detain us 12 for long. We say so because the observation in State of Manipur in paragraph 29 of the judgment that owing to the declaration by a Court that the statute is unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of legislative power. In the process of reasoning, it did advert to the exposition in Behram Khurshid Pesikaka and Deep Chand7 including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County."
30. Subsequently, the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, (2023) SCC OnLine SC 1486 by taking into consideration the law laid down by the Larger Bench of the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra), it has been laid down that since the conditions specified under Section 45 are mandatory, they need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.
31. It has further been observed that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will 13 have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. For ready reference, paragraph-17 of the said judgment reads as under:-
"17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act."
32. The Hon'ble Apex Court in the said judgment has further laid down that the twin conditions as to fulfil the requirement of Section 45 of the Act, 2002 before granting the benefit of bail is to be adhered to which has been dealt with by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) wherein it has been observed that the accused is not guilty 14 of the offence and is not likely to commit any offence while on bail.
33. In the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) as under paragraph-284, it has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of "proceeds of crime". Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
34. The Hon'ble Apex Court in the case of Gautam Kundu vs. Directorate of Enforcement (Prevention of Money-Laundering Act), Government of India through Manoj Kumar, Assistant Director, Eastern Region, reported in (2015) 16 SCC 1 has been pleased to hold at paragraph -30 that the conditions specified under Section 45 of PMLA are mandatory and need 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 CrPC shall apply insofar as they are not 15 inconsistent with the provisions of this Act and Section 71 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 has an overriding effect and the provisions of CrPC would apply only if they are 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 CrPC. 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 the proceeds of crime are not involved, lies on the petitioner.
35. The Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra) has again reiterated the implication of Sections 45 and the principle of parity at paragraphs-17 and 18. The issue of parity has been considered by the Hon'ble Apex Court at paragraph-18 by making observation therein that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.
36. In the backdrop of the aforesaid proposition of law this Court is now coming to the grounds as has been raised on behalf of the learned counsel for the petitioner that even 16 if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002.
37. In the context of aforesaid argument, it is pertinent to mention here that at this juncture this court thinks fit to discuss the twin condition as available under Section 45 of the Act is concerned, in order to come to the conclusion as to whether the condition stipulated in these sections have been followed or not, is required to consider the paragraphs of the prosecution complaint which has been appended to the instant application. For ready reference, the relevant paragraph of the same is being reproduced as under:-
"11.3.3 Shri Nagwant Pandey (Accused No. 3)
a) Shri Nagwant Pandey was proprietor of M/s Nagraj Construction which was later dissolved to form a company viz. M/s Nagraj Construction Pvt. Limited in 2011.
b) As deposed by Shri Nagwant Pandey during his statements recorded u/s 50 of PMLA, 2002, it was only upon the advice of the Accused No. 1 that Shri Nagwant Pandey floated the abovementioned proprietorship concern and a bank account in the name of this entity was also opened with Federal Bank for which the Accused No. 1 became guarantor and the said bank account was opened to get the money transferred/ deposited for execution of the said road work awarded to the Accused No. 1.
c) Shri Nagwant Pandey was authorized by the Accused No. 1 vide a letter issued in this regard to Executive Engineer, RCD, Daltonganj to represent the contractor company before the RCD.
d) Upon request of the Accused No. 1, the then Executive Engineer of the RCD, Daltonganj authorized him to receive bitumen from IOCL, Ranchi.17
e) Accused No. 3 has deposed during his statement recorded under section 50 of the PMLA, 2002 that a Memorandum of Understanding (MoU) dated 12.08.2004 was signed between M/s Nagraj Construction (Proprietorship concern of the Accused No.3) and Accused No. 1, this MoU, though appearing to be dated before initiation of the said road work, was signed during the execution of work for maintaining accounts and payments and not before the initiation of the said road work.
f) Accused No. 1 had also authorized him to sign MB and receive cheques from RCD, Daltonganj.
g) Accused No. 3 conspired with other accused peraons and dishonestly & fraudulently submitted three numbers of fake and forged bitumen invoices to the Road Division, RCD, Daltonganj for processing of the bills and also received the cheques of payment from the department. He deposited the amount of the said cheques in different bank accounts of the accused contractor company M/s Kaushalya Infrastructure Development Corporation Limited.
h) Hence, Shri Nagwant Pandey (Accused No. 3) has knowingly assisted and was a party to the activities (ie acquisition & possession) connected with the offence of the money laundering as defined under section 3 of the PMLA, 2002, committed by the Accused No. 1, accordingly, Shri Nagwant Pandey is guilty of the offence of money laundering u/s 3 and punishable u/s 4 of the PMLA, 2002."
38. It transpires from record that the prosecution complaint has already been submitted and based upon that cognizance has been taken by the special court on 06.04.2023 for the offence u/s 3 and 70 punishable u/s 4 of PML Act, 2002 against the present accused and his other associates.
39. As per the prosecution complaint there are specific allegations against the petitioner that the entity i.e. M/s 18 Nagraj Construction managed and controlled by him has committed the offence of money laundering with respect to the proceeds of crime obtained through the predicate offence.
40. It has been alleged that the accused contractor company, dishonestly and fraudulently, concealed the fact that a lesser quantity of bitumen was utilized. It has further, been alleged that Government officials by abusing their respective official positions, in connivance with the accused Mahesh Mehra, Director, Sidh Nath Mehra (since expired), Nagwant Pandey, present petitioner who has alleged to be Authorized Representative of the contractor company i.e. M/s Kaushalya Infrastructure Development Corporation Ltd., dishonestly and fraudulently, certified/countersigned the Measurement Books and On Account bills/Final Bill, in order to extend undue benefit to the accused contractor company by facilitating payment of bills of the contractor company which resulted into wrongful gain of Rs. 1,08,95,583/- to the contractor company and corresponding wrongful loss to the Government of Jharkhand.
41. In the context of aforesaid allegation It needs to refer herein that as per the provision of law rendered by the Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., bail can be granted to a money-laundering accused only if the twin conditions u/s 45 (1) of PMLA are satisfied. These conditions for granting bail are - (i) where the Public 19 Prosecutor opposes such application, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and (ii) he is not likely to commit any offence while on bail.
42. Now this Court is applying the aforesaid principle in the instant case. It is apparent from record that M/s KIDCL entered into a Memorandum of Understanding (MoU) dated 12.08.2004 with M/s Nagraj Construction for the construction of Parwa-Garhwa Road 0 to 30 KM. All the materials, bitumen and labour were provided by Shri Nagwant Pandey as per the MoU dated 12.08.2004.
43. Further it has come on record that the contractor company (M/s KIDCL) was ultimately responsible to RCD for the execution of the work as they were the contracting company, the company with which the RCD entered into agreements while awarding the contract for road construction.
44. It was also specifically mentioned in the Notice Inviting Tender (NIT) dated 08.05.2004 (part and parcel of the Agreement dated 19.07.2004) that "the contractor would himself purchase the packed bitumen of Grade-60/70 from the Government Oil Companies and will submit the Proof of the quality of bitumen/Proof of purchase/Receipt to the Road Construction Department.
45. Thus it is evident that the contractor company (M/s KIDCL) had signed Memorandum of Understanding (MoU) 20 dated 12.08.2004 with M/s Nagraj Construction(managed as proprietor by the present applicant) by which All the materials, bitumen and labour were provided by Shri Nagwant Pandey as per the MoU dated 12.08.2004.
46. Thus, the contractor company (M/s KIDCL) was ultimately responsible to RCD for the execution of the work as M/s KIDCL was the contracting company for the sanctioned work.
47. Further the bill raised by M/s KIDCL before the RCD, Daltonganj were paid to the construction company directly in their respective bank account and not in the individual account.
48. Further it is the case of the petitioner that he was only responsible for supply of labour in the different road construction projects undertaken by M/s Kaushalya Infrastructure Development Corporation Ltd (Accused no.1) and was remunerated by the construction company for the same.
49. The applicant in his statement recorded under section 50 of PML Act 2002 has categorically stated that the requirement of bitumen at site was conveyed to M/s KIDCL which was subsequently provided by M/s KIDCL and payment for bitumen was not made by him or his entity namely M/s Nagraj Construction.
50. Thus, it appears that M/s KIDCL was directly involved in the road work and records of bitumen purchase 21 which were required for invoices to be submitted before RCD for processing and payments were maintained by M/s KIDCL only.
51. It has come in the investigation that so far as the supply of bitumen is concerned, the same was made from M/s HPCL and M/s Indian Oil Corporation and the payment for the bitumen was directly made to the petroleum companies by M/s KIDCL through its authorized signatories namely S.N. Mehra, Mahesh Mehra and Prashant Mehra.
52. Thus, the payment made by RCD to M/s KIDCL in their respective account was under control of authorized signatory/director/share holder of the said company. It has not cogently established that the petitioner was signatory or authorized representative of the said accused company so as to withdrawn any funds whatsoever.
53. Thus, on the basis of the discussion made herein above this Court has considered view that twin condition as stipulated in Section 45 of the Act 2002 is fully available herein.
54. At this juncture it needs to refer herein that the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and while allowing refusing bail the nature of accusation and the nature of the materials relied upon by the prosecution must be taken care of, reference in this regard may be made to the judgment as 22 rendered by the Hon'ble Apex Court in the case of P. Chidambaram v. Central of Investigation reported in (2020) 13 SCC 337. Relevant extract from the decision is reproduced hereunder:-
"21. The jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;
(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations.
22. There is no hard-and-fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits.--
55. In view of the aforesaid settled legal position as referred in the preceding paragraphs, on the basis of discussion made hereinabove and further taking in to consideration the observation as made by this Court in view of the judgment rendered by the Hon'ble Apex Court in the case of Tarsem Lal (supra), in the anticipatory bail application of the co-accused Mahesh Mehra who is the director of the main accused company (M/s KIDCL), this Court inclined to grant bail to the petitioner, named above. 23
56. Accordingly, the petitioner, named above, is directed to be released on regular bail, on furnishing bail bond of Rs.50,000/-(Rupees Fifty Thousand) with two sureties of the like amount each to the satisfaction of learned Special Judge, PMLA, Ranchi, in connection with ECIR Case No. 03 of 2023.
57. However, the bail granted by this Court is subject to following conditions:-
"(i) The petitioner shall surrender his passport before the learned trial court and if he wishes for release of the same, he shall make proper application before the concerned court who shall decide the application for release of passport on its on merit.
(ii) The petitioner will not tamper with any evidence and/or will not threaten any of the witnesses.
(iii) The petitioner shall appear before the learned Special Judge on each and every date unless exempted by the learned Trial court on being satisfied with the causes shown by the petitioner in this regard."
58. With the above observation, this bail application stands allowed and disposed of.
59. The observations made in the course of this order, are only for considering the case of the applicant on the 24 application for the grant of bail. The concerned trial Court shall not be influenced or bound by any observations made hereinabove.
(Sujit Narayan Prasad, J.) Birendra / A.F.R. 25