Professional Documents
Culture Documents
2023 17 1501 48447 Judgement 20-Nov-2023
2023 17 1501 48447 Judgement 20-Nov-2023
VERSUS
JUDGMENT
BELA M. TRIVEDI, J.
1. Leave granted.
Bail Application No. 152 of 2023 has preferred the present appeal.
The High Court vide the impugned order has dismissed the said bail
Signature Not Verified Complaint Case No. 20/2021 bearing ECIR /DLZO-1/12/2021 arising
Digitally signed by
NEETA SAPRA
Date: 2023.11.20
16:41:27 IST
Reason:
out of FIR No. RC0742020E0014, registered for the offence under
3. The broad facts and events as discernible from the record may be
stated as under:
employees in SBFL.
(ii) The consortium of banks led by the State Bank of India vide the
2
of a Forensic Auditor – BDO India LLP for conducting the
(iii) The Forensic Auditor conducted audit review for the period
had failed to discharge its loan liability and caused loss to the
Delhi for the offences under Section 13(2) read with 13(1)(d) of
read with Sections 420, 465, 467, 468 and 471 of IPC, on the
(v) Since the offences under Section 120B read with Sections 420,
467 and 471 of IPC and Section 13(2) read with Section
3
ECIR bearing No. ECIR/DLZO-1/12/2021 came to be recorded
the said FIR registered by the CBI against the accused for
three complaints.
4
dismissed by the Special Judge vide the order dated
23.12.2022.
(ix) The bail application being No. 152 of 2023 preferred by the
paragraph nos. 7, 7.1,7.2, & 7.11 and the summary thereof is stated
5
Tarun Kumar along with his directed company Goal Securities Pvt.
Ltd. acquired proceeds of crime to the tune of Rs.3.69 Crore.
Tarun Kumar was knowingly a party and actually involved in
process and activity connected with proceeds of crime including its
acquisition, use, possession, concealment and/or projecting as
well claiming the same as untainted. He was beneficiary of
proceed of crime acquired through the criminal activities related to
scheduled offences. Therefore, Tarun Kumar has committed
offence of money laundering u/s r.w.s. 4 of PMLA, 2002.”
5. The learned Senior Counsel Mr. Sidharth Luthra for the appellant
following submissions:
and FIR were common, yet the appellant was not named in the
appellant has been granted bail by the High Court of Delhi vide
(iii) The investigation qua the appellant is complete and the further
persons, if any, and the trial of the case is likely to take long
Appeal arising out of SLP (Crl) No. 8167 of 2023 and in case of
Enforcement2.
economic offence. In this regard, Mr. Luthra has relied upon the
between the appellant and the individuals with similar roles who
(vi) Taking the Court to the allegations made against the appellant,
7
the roles attributed to the appellant in the commission of the
(vii) Lastly, Mr. Luthra submitted that the parameters of bail under
Section 45 of the PML Act having been made out, and the
6. The learned Additional Solicitor General, Mr. S.V. Raju for the
(ii) The appellant along with other accused who were the Directors,
8
availed by the SBFL to shell entities on the basis of fake bills
(iii) The appellant was also involved in the export activities of SBFL.
(iv) The twin conditions contained in Section 45(1) of the PML Act
the offence and the investigation qua other accused being still
ground that the other persons allegedly involved have not been
learned counsels for the parties, it would be apt to note that the PML
thereto. The said Act was enacted in view of the political declaration
9
8. Section 3 of the PML Act which pertains to the offence of money
9. Section 45 of the said Act being relevant for the purpose of the
10
(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:
Provided that a person, who, is under the age of sixteen years, or
is a woman or is sick or infirm, or is accused either on his own or
along with other co-accused of money-laundering a sum of less
than one crore rupees may be released on bail, if the Special
Court so directs:
Provided further that the Special Court shall not take cognizance of
any offence punishable undersection 4 except upon a complaint in
writing made by—
(i) the Director; or
(ii) any officer of the Central Government or a State Government
authorised in writing in this behalf by the Central Government by a
general or special order made in this behalf by that Government.
(1A) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), or any other provision of this Act, no
police officer shall investigate into an offence under this Act unless
specifically authorised, by the Central Government by a general or
special order, and, subject to such conditions as may be
prescribed.
(2) The limitation on granting of bail specified in sub-section (1) is
in addition to the limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in force on
granting of bail.
Explanation. —For the removal of doubts, it is clarified 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 (2 of 1974), and accordingly the
officers authorised under this Act are empowered to arrest an
accused without warrant, subject to the fulfillment of conditions
under section 19 and subject to the conditions enshrined under
this section.
10. The constitutional validity of certain provisions of the PML Act and
inquiring into/ investigating offences under the said Act having been
11
challenged before this Court in case of Vijay Madanlal Choudhary
and Others vs. Union of India and Others5, a three Judge Bench
11. As regards the twin conditions for the grant of bail contained in
Section 45(1) of the said Act, it has been held in the said decision of
13
“412. 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.”
under: -
6(2015) 16 SCC 1
14
13. Keeping in view of the aforestated legal position let us consider the
14. The first and foremost contention raised by learned Senior Counsel
Mr. Luthra would be that the appellant was not named in the FIR nor
15
pursuant to the summons issued under Section 50 of the PML Act,
15. In our opinion, there is hardly any merit in the said submission of
50 of the said Act and such statements may make out a formidable
predicate offence has been committed. The relevant date is the date
7(2018) 11 SCC 46
16
acquisition, use of proceeds of crime as much as projecting it as
said Act, there has been sufficient material collected in the form of
believing that the accused is not guilty of such offence and he is not
17
contrary is proved, that in any proceedings relating to proceeds of
crime under the Act, in the case of a person charged with the
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.
18. The submission of learned Counsel Mr. Luthra to grant bail to the
cannot be accepted. It may be noted that parity is not the law. While
18
Bhuraria, who was the internal auditor of SBFL has been granted
bail by the High Court, however the said order of High Court has
SLP (Crl.) No. 9047 of 2023 and the same is pending under
SBFL (for a brief period statutory auditor of SBFL), the applicant was
also observed that the appellant’s role was made out from the
financials, where direct loan funds have been siphoned off to the
observation with regard to the said order passed by the High Court.
19
Constitution. However, if any illegality or irregularity has been
Mr. Luthra that the investigation qua the appellant is complete and
the trial of the cases likely to take long time. According to him the
this regard, it may be noted that the appellant has not been able to
namely he has failed to prima facie prove that he is not guilty of the
alleged offence and is not likely to commit any offence while on bail.
It cannot be gainsaid that the burden of proof lies on the accused for
20
the purpose of the condition set out in the Section 45 that he is not
laundering under Section 3 of the said Act, the Court is not inclined
21. The apprehension of the learned counsel for the appellant that the
21
conditions so as to ensure that after release, the accused makes
himself/herself available for expeditious completion of the trial.”
cite a few judgments in this regard are Y.S. Jagan Mohan Reddy
vs. Amit Kumar alias Bachcha Rai10. This court taking a serious
22
as in 1987 in case of State of Gujarat vs. Mohanlal Jitamalji
by the Court, the courts are also expected to conclude the trials within
…………………………. J.
[ANIRUDDHA BOSE]
…………………………. J.
[BELA M. TRIVEDI]
NEW DELHI;
NOVEMBER 20th, 2023
24