Allahabad High Court
Sunil Kumar Gupta vs Directorate Of Enforcement Lko. ... on 11 January, 2023
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 56 of 2023
Applicant :- Sunil Kumar Gupta
Opposite Party :- Directorate Of Enforcement Lko. Zonal Office Lko.
Counsel for Applicant :- Purnendu Chakravarty,Pranjal Jain
Counsel for Opposite Party :- Rohit Tripathi
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Purnendu Chakravarty, learned counsel for the applicant and Sri Rohit Tripathi, learned counsel for the Enforcement Directorate/ opposite party.
As per learned counsel for the applicant, the present applicant is apprehending his arrest in ECIR No.ECIR/02/PMLA/ LKZO/2018, under Sections 3/4 of Prevention of Money Laundering Act, 2002, Police Station- Enforcement Directorate, District- Lucknow.
Sri Chakravarty has submitted that the present applicant has been falsely implicated in a complaint filed by the Enforcement Directorate bearing ECIR/02/PMLA/LKZO/2018 inasmuch as admittedly, in a predicate case registered by the CBI bearing Crime No.RC BD 1/2018/E/0002 dated 22.02.2018, under Sections 120-B r/w 420 & 409 IPC and Sections 13 (2) r/w 13 (1)(d) of PC Act, 1988, at Police Station- CBI, BS&FC, New Delhi against twelve accused persons, namely, 1. Simbhaoli Sugars Ltd. having its registered address at Simbhaoli Hapur, Ghaziabad, UP-245207; 2. Mr. Gurmit Singh Mann (Chairman & Managing Director); 3. Mr. Gurpal Singh (Dy Managing Director); 4. Mr. G.S.C. Rao (Chief Executive Officer); 5. Mr. Sanjay Tapriya (CFO); 6. Ms. Gursimran Kaur Mann (Executive Director, Commercial); 7. Mr. S.K. Ganguly (Non Executive Director); 8. Mr. S.C. Kumar (Non Executive Director); 9. Mr. B.K. Goswami (Non Executive Director); 10. Mr. Yashwant Varma (Non Executive Director); 11. Mr. Ram Sharma (Non Executive Director) and 12. Unknown bank officials & other private persons. In the list of aforesaid accused persons, name of the present applicant is not there. Sri Chakravarty has stated that after lodging of the FIR by the C.B.I. on 22.02.2018, the Enforcement Directorate did not wait as after five days from the aforesaid FIR of the CBI lodged complaint bearing bearing ECIR/02/PMLA/LKZO/2018 on 27.02.2018. The aforesaid case registered by the Enforcement Directorate is based upon the allegations of the FIR of the CBI. Sri Chakravarty has stated that there might be possibilities that after concluding the investigation by the CBI, any role of the present applicant would have not been emerged.
Sri Chakravarty has drawn attention of this Court towards para-21 of the aforesaid complaint of Enforcement Directorate wherein it has been indicated that the present applicant has cooperated in the investigation as he recorded his statement on 04.06.2019. There is no allegation against the present applicant that he has not cooperated in the investigation or he is flouting the process of the law. Thereafter, further attention has been drawn towards para-34 of such complaint referring specific para-34.5 thereof wherein it has been categorically indicated that when enquired about who in the company was responsible for the decisions regarding diversion of loan funds received from OBC towards cane payments, loan repayments and other operating expenses, he stated that the decisions were mainly taken by the Management consisting of CFO Mr. Sanjay Tapriya, CEO Dr. G.S.C. Rao, ED (C) Ms. Gursimran Kaur Mann and DMD Mr. Gurpal Singh in the Monthly Cash Flow Meetings. However, only on the allegation that the present applicant was looking after the regular works related to accounts and finance and had actively facilitated the CFO of the Company in arranging the finance and responsibility for its day-to-day affairs related to the finance, he has been implicated.
Sri Chakravarty has further submitted that no proceeds of the crime in terms of Section 5 of the Prevention of Money Laundering Act, 2002 has been attached. Sri Chakravarty has drawn attention of this Court towards the dictum of the Apex Court in re; Parvathi Kollur & Anr. Vs. State by Directorate of Enforcement, 2022 LiveLaw (SC) 688, referring the relevant para wherein the earlier judgment of the Apex Court in re; Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors., 2022 SCC OnLine SC 929, has been considered, which reads as under:-
"Learned counsel for the appellants has contended that the issue as involved in this matter is no more res integra, particularly for the view taken by a 3-Judge Bench of this Court in the case of Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. decided on 27.07.2022 where, the consequence of failure of prosecution for the scheduled offence has been clearly provided in the following terms:
"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."
Sri Chakravarty has further submitted that admittedly, in the FIR of the CBI, the present applicant has not been named and in the complaint lodged by the Enforcement Directorate, the present applicant is properly cooperating in the proceedings, therefore, at this stage, his arrest may not be said to be warranted. He has further submitted that this has been the consistent view of the Hon'ble Apex Court that any person may be arrested or taken into the judicial custody only if the learned court concerned is of the view that his/her arrest is warranted in the interest of justice. The step of arrest may not be taken in a routine course or in a casual manner. Since the present applicant is cooperating in the proceedings from the very beginning and there is no complaint of any kind against him regarding non-cooperation with the process of law, he may be granted anticipatory bail till conclusion of the proceedings. Sri Chakravarty has stated that the present applicant is giving undertaking that he shall not misuse the process of law and shall cooperate with the proceedings properly. Further, the applicant shall not misuse the liberty of anticipatory bail, if he is granted and shall abide by all terms and conditions of the bail order.
Per contra, Sri Rohit Tripathi, learned counsel for the Enforcement Directorate, has stated that even if any person is not named in the predicate offence, even then on the basis of credible evidences and material, the complaint can be filed against such person by the Enforcement Directorate. He has also stated that the investigation of the CBI is pending consideration and on the basis of credible evidence/ material, the complaint has been filed by the Enforcement Directorate against the present applicant.
On being confronted Sri Tripathi as to whether the present applicant is avoiding the process of law or there is any complaint of his non-cooperation with the proceedings, Sri Tripathi has stated on the basis of instructions that there is no such complaint against the present applicant.
Without entering into merits of the issue; considering the arguments of the learned counsel for the parties; the fact that in the predicate offence for which the FIR has been lodged by the CBI on 22.02.2018, the present applicant is not named; after five days of the FIR being lodged by the CBI, the Enforcement Directorate has filed complaint bearing no.ECIR/02/ PMLA/LKZO/2018 on 27.02.2022 implicating the present applicant; the present applicant appeared before the Enforcement Directorate on 04.06.2019 to record his statement; admittedly, the main responsibility for decision regarding diversion of loan funds received from OBC towards cane payments, loan repayments and other operating expenses was of the then CFO Mr. Sanjay Tapriya, CEO Dr. G.S.C. Rao, ED (C) Ms. Gursimran Kaur Mann and DMD Mr. Gurpal Singh and the present applicant has been implicated for the reason that at the particular point of time, he was the General Manager, Finance, of the Sugar Mill concerned and was looking after the regular works related to accounts and finance and also considering the dictums of the Apex Court in re; Vijay Madanlal Choudhary (supra) and Parvathi Kollur (supra) as well as the undertaking of the present applicant that he shall not misuse the liberty of anticipatory bail and shall cooperate in the proceedings properly, I find it appropriate that liberty of the present applicant be protected till conclusion of the proceedings of the Enforcement Directorate. However, it is made clear that no unnecessary adjournment shall be taken by the present applicant and shall cooperate in the proceedings properly.
Therefore, it is directed that in the event of arrest, applicant- Sunil Kumar Gupta shall be released on anticipatory bail in the aforesaid case till conclusion of the proceedings of the Enforcement Directorate on his furnishing a personal bond of Rs.1,00,000/- and two sureties of Rs.1,00,000/- each before the court concerned with the following conditions:-
1. that the applicant shall make himself available for interrogation by a police officer as and when required;
2. 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;
3. that the applicant shall not leave India without the previous permission of the court;
4. that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;
5. that the applicant shall not pressurize/ intimidate the prosecution witness;
6. It is always open for the prosecution to file any appropriate application before the court concerned if any of the conditions of this order are flouted by the applicant.
In the aforesaid terms, the instant anticipatory bail application is disposed of.
[Rajesh Singh Chauhan,J.]
Order Date :- 11.1.2023
RBS/-
