Abhai Kumar Bajpai vs Directorate Of Enforcement Lko.
2023 Latest Caselaw 21063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:53480
 
Court No. - 16
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 981 of 2023
 

 
Applicant :- Abhai Kumar Bajpai
 
Opposite Party :- Directorate Of Enforcement Lko.
 
Counsel for Applicant :- Purnendu Chakravarty,Anuuj Taandon
 
Counsel for Opposite Party :- Rohit Tripathi
 

 
Hon'ble Subhash Vidyarthi,J. 

1. On 26.04.2023, after hearing the learned counsel for the applicant and the learned counsel for the respondent-Directorate of Enforcement, this Court had passed the following interim order -

?1. Heard Sri Purnendu Chakravarty & Sri Anuj Tandon, learned counsel for the applicant and Sri Rohit Tripathi, learned counsel for the respondent/Directorate of Enforcement and perused the record.

2. This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant after rejection of his anticipatory bail application by the order dated 24.03.2023, passed by learned Sessions Judge/Special Court, PMLA, Lucknow in Anticipatory Bail Application No.1999 of 2023, seeking Anticipatory Bail in connection with Complaint Case No.115 of 2018, ECIR No.01/PMLA/LZO/2012, under Section 3/4 of Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, District Lucknow.

3. The aforesaid case arises out of a complaint filed by the Directorate of Enforcement against four named accused persons (i) M/s Surgicoin Medequip Pvt. Ltd., (ii) Naresh Grover, (iii) Pankaj Grover and (iv) Abhai Kumar Bajpai (the applicant. The complaint has been filed in respect of certain irregularities and illegalities committed in procurement of supplies under National Rural Health Mission Scheme in the State of U.P. The allegation against the applicant is that he was Managing Director of U.P. Small Industries Corporation Limited and he had obtained huge sums of money as bribe/commission from the award of contracts of under National Rural Health Mission Scheme and that he had laundered the proceeds of crime by layering and routing the same through his acquaintances. One Lakhadatar is said to have given an unsecured loan of Rs.17,00,000/- to the applicant's wife for purchasing a property at Ghaziabad. The applicant's wife is said to have purchased vikas patra for Rs.6,00,000/- without any explanation for the source of the funds. The applicant had obtained bank draft of Rs.30,00,000/- from one Aditya Goyal which was utilized for purchase of property. The complaint records that the applicant claims that the aforesaid amount was paid by Aditya Goyal for purchase of an apartment, although the agreement to purchase the apartment is not registered. On the basis of the aforesaid allegations, the Enforcement Directorate has concluded that the proceeds of crime have been utilized to create assets in the aforesaid manner and the applicant's property valued at Rs.93,00,000/- has been identified and attached.

4. The complaint further alleges that the properties worth Rs.23,54,42,42,000/- have been attached in lieu of proceeds of crime under Section 5 (1) of Prevention of Money Laundering Act, although it does not specify as to whom those property belong. In any case there is no allegation that the properties worth the aforesaid amounts belong to the applicant. A list of properties attached has been annexed with the complaint, wherein it is mentioned that a property situated at New Delhi in the name of co-accused Naresh Grover, worth Rs.17,11,42,000/-, a factory worth Rs.5,50,00,000/- situated at Sonipat, Haryana in the name of M/s Surgicoin Medequip Pvt. Ltd. and an apartment situated at Kanpur worth Rs.93,00,000/- in the name of the applicant, which have been attached by the Directorate of Enforcement.

5. In the affidavit filed in support of application, it has been stated that the applicant is innocent he has been falsely implicated in the present case and he has no criminal history except for the predicate offence i.e. F.I.R. No.RC/DST/2012/A/2001 dated 23.02.2012 lodged by C.B.I. New Delhi, in which the applicant has already been granted bail.

6. Sri Purnendu Chankravarty, learned counsel for the applicant submitted that the applicant has retired from the post of Managing Director of UPSIC in the year 2016 and presently he is aged about 67 years. He has further submitted that both the other co-accused persons Naresh Grover and Pankaj Grover have been granted protection by this Court. Naresh Grover had filed Application U/s 482 No.9748 of 2022, which has been disposed of by this court by means of order dated 22.12.2022 directing the accused-applicant to surrender before the trial court and providing that he should be enlarged on bail upon his surrender. A similar direction has also been issued to the other co-accused Pankaj Grover by this court by means of order dated 14.12.2022, passed in Application U/s 482 No.9209 of 2022.

7. Per contra, Sri Rohit Tripathi, learned counsel appearing on behalf of the respondent/Directorate of Enforcement has vehemently opposed the prayer for grant of interim anticipatory bail to the applicant and he has submitted that before granting interim anticipatory bail the court should take into consideration the statutory mandate provided under Section 45 of Prevention of Money Laundering Act, 2002. He has relied upon the judgment of Hon'ble Supreme Court in the case of Rohit Tandon Vs. Directorate of Enforcement:(2018) 11 SCC 46. In the aforesaid case the Hon'ble Supreme Court was dealing with an appeal filed against an order passed by the High Court ordering interim release to a person accused of commission of offences under Prevention of Money Laundering Act on the following conditions:

"i) Petitioner never tried to evade the investigation;

ii) The period of incarceration (7months);

iii) Submission of chargesheet in the main case on 24/6/17;

iv) Illness of the mother of the Petitioner;

v) No definite reasons assigned by the Counsel for the Respondent to substantiate allegation that Petitioner would tamper with evidence especially when chargesheet in the main case has been submitted."

8. One more peculiar fact of the aforesaid case was that the accused applicant in that case had withdrawn the regular bail application and thereafter the interim release was ordered by the High Court on the aforesaid considerations. The Hon'ble Supreme Court reiterated in the aforesaid that "the Court is not required to record a positive finding that the accused had not committed an offence under the Act. The Court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail."

9. When this court examines the facts of the case in the light of the aforesaid law laid down by Hon'ble Supreme Court, as per the complaint allegations, one Aditya Goyal has paid Rs.30,00,000/- to the applicant through a bank draft. There is no allegation that Aditya Goyal had paid the aforesaid amount as bribe to the applicant. The applicant's case is that the amount was paid as advance for purchasing some property. The other amounts are said to have been paid to the applicant's wife, for which the applicant cannot be saddled with criminal consequences. The amount paid to the applicant' wife is also to the tune of Rs.23,00,000/- only. As against the aforesaid alleged payments made to the applicant and his wife, the applicant's property worth Rs.93,00,000/- already stands attached by Enforcement Directorate. So far as the objection raised by Sri Rohit Tripathi regarding applicability of Section 45 of the Prevention of Money Laundering Act, 2002 is concerned, proviso appended to Section 45 (1) provides as follows:

"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."

10. The allegation against the applicant is of receiving Rs.30,00,000/- and therefore the present anticipatory bail false under the proviso appended to Section 45 (1) of Prevention of Money Laundering Act.

11. The matter requires consideration.

12. Learned counsel for the respondent may file a counter affidavit within a period of four weeks.

13. Rejoinder affidavit, if any, may be filed by the applicant within two weeks thereafter.

14. List this case in the week commencing 03rd July, 2023.

15. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the applicant has already retired from service, he is presently aged about 67 years, having retired from service he is no more in a position to tamper with the evidence of the case or influence the witnesses; that as the applicant's property worth Rs.93,00,000/- stands already attached, there appears to be no reasonable probability of his escaping from the process of law and no specific material has been placed in this regard along with the complaint; that both the other co-accused persons have already been granted protection by this Court, I am of the view that pending final disposal of the instant anticipatory bail application the applicant is also entitled to be granted interim anticipatory bail. As such, as an interim measure, it is directed that till the next date of listing, in the event of arrest/ appearance of applicant before the learned Trial Court, he shall be released on interim anticipatory bail in the aforesaid case crime on his furnishing personal bond and two solvent sureties each in the like amount to the satisfaction of S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court:

(i). That the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(ii). 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;

(iii). That the applicant shall not leave India without the previous permission of the court;

(iv). That the applicant shall not pressurize/ intimidate the prosecution witness;

(vi) The applicant shall appear before the trial court on each date fixed unless personal presence is exempted.

16. In default of any of the conditions mentioned above or it is found that applicant has obtained this order concealing any material facts, the Investigating Officer shall be at liberty to file appropriate application for vacation of this interim order.?

2. While passing the aforesaid interim order, the respondent was granted four weeks' time for filing counter affidavit. On 06.07.2023, the learned counsel for the informant was granted one week and no more time for filing counter affidavit. However, no counter affidavit has been filed till date.

3. No counter affidavit has been filed nor anything has come to light, which may persuade this Court to take a view, different from the view taken while passing the aforesaid order, nor the learned counsel for the respondent-Directorate of Enforcement has pointed out violation of any of the conditions of interim anticipatory bail committed by the applicant.

4. Learned counsel for the applicant informs that the applicant has already furnished bail bonds in furtherance of the interim order dated 26.04.2023.

5. In view of the aforesaid circumstances, the interim order dated 26.04.2023 is hereby made absolute and the application is allowed in terms of the aforesaid order.

Order Date :- 8.8.2023

Pradeep/-