Vijay Narendra Kumar Kothari vs Directororate Of Enforcement And ...
2021 Latest Caselaw 6191 Bom

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
      CRIMINAL APPELLATE JURISDICTION

           BAIL APPLICATION NO.1437 OF 2020

Vijay Narendra Kumar Kothari
Aged: 35 years, Occ: Business,
R/o. Nalegaon, Ajmer,
Rajasthan- 305 207
At present in Judicial Custody at
Taloja Jail                             ... Applicant

          Vs

1 Directorate of Enforcement
Through its Deputy Director,
Mumbai Zonal Ofce,
Mumbai

2 The State of Maharashtra           ... Respondents
                          ...

Dr. Sujay Kantawala with Mr. Sujit Sahoo with Mr. Aditya Talpade for the Applicant.

Mr. H.S.Venegaonkar, advocate for Respondent No.1.

Mr. S.R.Agarkar, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

RESERVED ON : 9th MARCH, 2021.

PRONOUNCED ON: 7th APRIL, 2021.

ORAL JUDGMENT :

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This application was heard on 9th March,

2021. Pending order, applicant moved the Court for

making further submissions. Accordingly, he was heard

on 17th March, 2021. Again, the applicant moved an

application to place on record order passed by the Co-

ordinate Bench in Criminal Bail Application No.1322 of

2020.

2 Applicant is seeking his enlargement on bail

in Special Case No.09 of 2017 in ECIR/05/MBZO/2016

registered by the Directorate of Enforcement, Bombay

for the ofence of money laundering punishable under

Sections 3 and 4 of the Prevention of Money

Laundering Act, 2002 as amended.

3 It is the second bail application. The frst

bail application was rejected by this Court vide order

dated 29th November, 2019. Grounds urged in support

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of this application, were also urged in the frst bail

application except to say that orders granting bail to

co-accused Sanjay Jain on 2nd May, 2018 and Saurabh

Pandit on 4th October, 2018 were not brought to the

notice of this Court. Thus, applicant relies on orders

granting bail, to co-accused. Yet, another ground is that

applicant is in custody since March, 2019 and since

investigation is over and trial is not likely to commence

in near future, applicant be released on bail on such

terms to ensure and secure his presence for the trial.

Besides, applicant has also relied on the order of the

Co-ordinate Bench of this Court in Criminal Bail

Application No.1322 of 2020 in the case of Deepak

Kochar v. Directorate of Enforcement.

4 Heard Dr. Sujay Kantawala,the learned

counsel for the applicant and Mr. Venegaokar, the

learned prosecutor for the respondent no.1.

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5               Briefly, stated, prosecution case is that;

(i)       On a complaint, fled by the IndusInd Bank,

Mumbai,           D.B.Marg         Police    Station,       Mumbai,            FIR

No.365/2015 dated 24.12.2015 was lodged against,

M/s. Yogeshwar Diamonds Pvt. Ltd., M/s. Shree

Charbhuja Diamonds Pvt. Ltd., M/s. Kanika Gems Pvt.

Ltd. and Directors Shri Anil Kumar Moolchand

Toshniwal, Sunil Kumar Chokhara and Anil Chokhara

under Sections 420, 465, 467, 468 and 120B, of IPC,

1860. Investigation revealed that the accused company

and its Directors, remitted Indian Currency to the tune

of Rs.304,35,77,609/- (US$ 4,90,11,147.07) illegally

abroad by submitting bogus import documents. The

case was subsequently transferred to the Economic

Ofence Wing, Unit-I Mumbai Police, who registered

C.R.No.93/2015 and investigating the case.

(ii)            That the said ofences, i.e., Section 420 and

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120B of IPC are covered under Part A of Paragraph 1 of

the Schedule under the provisions of Prevention of

Money Laundering Act, 2002 (PMLA, 2002), as

amended (hereinafter referred to as the said Act).

Accordingly, the Directorate of Enforcement, MZO

recorded an ECIR vide ECIR/05/MZO/2016 dated

11.05.2016 under the provisions of PMLA, 2002 against

M/s. Yogeshwar Diamonds Pvt. Ltd., M/s. Shree

Charbhuja Diamonds Pvt. Ltd., M/s. Kanika Gems Pvt.

Ltd. and its Directors viz. Mr. Anil Kumar Moolchand

Toshniwal, Sunil Kumar Chokhara and Anil Chokhara for

investigation.

(iii) That investigation resulted into fling of

Complaint Case No.09 of 2017 before the Hon'ble Court

of Sessions Judge, City Civil and Sessions Court for

Greater Bombay at Mumbai, (Designated Court under

the Prevention of Money Laundering Act, 2002) in

which Vijay Kothari (applicant), Anil Chokara, Sanjay

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Jain, M/s. Yogeshwar Diamonds Pvt. Ltd., M/s. Shree

Charbhuja Diamonds Pvt. Ltd. and M/s. Kanika Gems

Pvt. Ltd. were made accused nos.1,2,3,4,5 and 6

respectively;

(iv)            The investigation revealed;

(a)       that, the Accused Nos.4,5 and 6, fraudulently

remitted funds, to the Hong Kong based company by

submitting forged bills of entry and other import

documents to Indusind Bank Ltd;

(b) That M/s. Yogeshwar Diamonds had remitted a

total amount of USD $ 21165198.96 equivalent to

Indian Rs.131,37,40,510/-; USD $ 1253115.10

equivalent to Rs.7,81,48,789.38 + USD $ 19912083.86

equivalent to Rs.123,55,91,720.62 to Hong Kong based

entities/company in the guise of import advance and

post import under forged Bill of Entries and bogus

Invoices; and

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(c) That M/s. Shree Charbhuja remitted a total

amount of USD $ 25620839.27 equivalent to

Rs.236,12,07,930 (i.e. USD $ 11138245.48 equivalent

to Rs.69,18,48,927 as import advance and USD $

14482593.79 equivalent to Rs.166,93,59,003) to Hong

Kong based entities/company in the guise of import

advance and post import remittances using forged Bills

of Entry and bogus Invoices submitted the bank and

(d) That M/s. Kanika Gems had remitted a total

amount of USD $ 24420751.76 equivalent to Indian

Rs.1507411522/- i.e. {Advance Import - USD $

9804282.04 USD (equivalent to Rs.608030398/-) + Post

import USD 14616469.72 (equivalent to

Rs.89,93,81,124/-)} to Hong Kong based

entities/companies in the guise of import advance and

post import remittances using forged Bills of Entry and

bogus Invoices submitted to the bank and

(v) The Investigation revealed the following

facts/material, in respect of Vijay Kothari, Accused

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No.1-Applicant in Complaint Case No.09 of 2017:

(a) He was the proprietor of M/s. Kothari Impex;

(b) He was one of the Directors in the four companies

viz a) M/s. Parasmani Exim Pvt. Ltd., b) M/s. Keshariya

Diamonds Pvt. Ltd., c) M/s. Khushi Gems Pvt. Ltd., and

d) M/s. Sanskar Exim Pvt. Ltd.;

(c) That during 2013-14, M/s. Kothari Impex and

aforesaid four companies, wherein he was director,

transferred amounts to the accused companies viz M/s.

Yogeshwar Diamonds Pvt. Ltd., M/s. Charbhuja

Diamonds Pvt. Ltd., and M/s. Kanika Gems Pvt. Ltd.

(d) That in his capacity as proprietor and director of

the above frm/company, he generated huge funds and

has also managed various bank accounts with the

intention of laundering of funds through dubious

companies through scores of such bank accounts

controlled by him.

(e) As a result, he has remitted huge funds to Hong

Kong based bogus companies.

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(f)       He has floated various fctitious companies for

routing of funds with the help of other co-accused.

(g) The funds amounting to Rs.19,76,89,000/- have

been transferred from the aforementioned his

frm/companies to the accused companies.

(h) That from his companies huge funds to the tune of

Rs.1,52,90,000/- has been transferred to the account of

his wife Mrs. Kushboo Kothari;

(I) That his father Shri Narendra Kothari received an

amount of Rs.54,00,000/- from the account of M/s.

Mangalmurti Diamonds Pvt. Ltd.;

(j) That during the period from 04.08.09 to 21.03.14,

his father, Shri Narendra Kothari and his wife have

amassed six immovable properties having purchase

value INR 55,93,000/-;

(k) That he is the master mind behind the entire

criminal act of Money Laundering in this case;

(l) That he has indulged in criminal activities of

generation of proceeds of crime by criminal conspiracy,

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forgery of documents, fraudulent transactions, creating

fctitious companies by carrying out criminal activities

related to scheduled ofences, as defned in Section 2

(1)(u) of PMLA, 2002.

CONDUCT OF APPLICANT:

6 At the outset, it may be stated that although

the ofences under the PML Act was registered in 2017

as applicant was not available for investigation, though

process was issued on 19th June, 2017, he had, not

joined investigation until he was declared proclaimed

ofender on 12th February 2018.

SUBMISSIONS:

7 The learned counsel for the applicant

submitted, the co-accused Sanjay Jain and Saurabh

Pandit were released on bail on 2nd May, 2018 and 14th

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October, 2018 respectively, but for some reasons,

these two orders were not brought to the notice of the

Court when the frst bail application was heard on 29 th

November, 2019.

. I have perused the order granting bail to

Saurabh Pandit. It appears, from the order that on 24 th

December, 2015, FIR was registered vide C.R.No.365 of

2015 at the instance of Manager, Indusind Bank under

Sections 420, 465, 467, 468, 471 read with 120B of the

Indian Penal Code, 1860 against the four companies, its

directors as aforesaid. Investigation revealed the sum

of Rs.17,82,75,411/- was fraudulently remitted by the

accused companies, to M/s. Link Fai Ltd. and M/s. Sky

Light Ltd. under the pretext of payment of import of

loose and rough diamonds by using fake/forged bill of

entries and bogus invoices. Fact revealed, the Saurabh

Pandit was director of M/s. Link Fai Limited and M/s. Sky

Light Ltd. However, the accusations against the

applicant are diferent and in fact, while granting bail to

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co-accused Saurabh Pandit, Court had observed "Vijay

Kothari was king-pin and primary role was attributed to

him." In so far as the order granting bail to Sanjay Jain

is concerned, it appears, he was working as a

accountant in the company M/s. Raghukul Diamonds

Ltd. Also records shows, Sanjay Jain had responded to

summons issued by the Enforcement Directorate and

co-operated in the investigation. Therefore,

accusations made against Sanjay Jain and Saurabh

Pandit and role attributed to them is quite diferent

than the accusations made against this applicant. As

it appears from record, the applicant has floated

various bogus entities, several money

transactions/transfers, have been traced between the

companies/frms owned by applicant and accused

companies. Prima-facie, evidence suggests, applicant

was managing and controlling fnancial afairs of

accused and benefciary companies. Whereas, one co-

accused was an employee of a benefciary company

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and another, was director. Besides, evidence suggests,

both co-accused had joined the investigation; soon

after they were summoned and co-operated

investigation. Thus, in my view, these two orders,

granting bail to the co-accused do not further the case

of the applicant.

8               Be that as it may, reply fled by the

Enforcement                Directorate   suggests,        that          the

investigation is not complete and non-co-operation of

the applicant has resulted into lack of fnancial

information available with the respondent in respect of

over-seas companies, their bank accounts and fnancial

transaction. Prosecution in their reply has submitted

that the applicant has not co-operated in respect of

fnancial information of over-seas companies; that

investigation is still going on and there is likelihood of

applicant meddling with the investigation, if released

on bail.

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9 It may be stated, that economic ofences are

to be view seriously as it constitutes class apart and

need to be visited with diferent approach in the matter

of bail. This Court in the case of Rana Kapur v.

Directorate of Enforcement and Anr. in Criminal

Bail Application No.4999 of 2020 has observed that

since economic ofence involves and causes huge loss

to the public funds, it need to be viewed seriously,

since it afects economy of the country as a whole.

10 In so far as order granting bail to Deepak

Kochar is concerned, therein it is observed, "The

transactions in question were for the period of 2009.

The entire loan of ICICI Bank was repaid in 2012. Prior

to arrest, applicant had appeared before the

respondent on several occasions. The arrest was

efected 18 months after registration of ECIR. However,

herein, applicant, was not available for interrogation

since June, 2017 till February, 2018; investigation is in

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progress; and it could not be completed for want of co-

operation of the applicant.

11 Thus, in consideration of the facts of the case

and nature of accusations against the applicant, his

conduct as noted here-in-above and non-co-operation

in the investigation, I am not inclined to release the

applicant on bail. Application is, therefore, rejected.

12 It is made clear that observations made here-in-

above be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

influence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)

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