Gujarat High Court

Niketa (Nikita) D/O Baldevbhai ... vs Assistant Director, Directorate ... on 16 February, 2021

Bench: A.Y. Kogje

       R/CR.MA/18263/2020                                ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 18263 of 2020
================================================================
             NIKETA (NIKITA) D/O BALDEVBHAI DAVE
                             Versus
     ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT,
================================================================
Appearance:
MR. I.H.SYED, SENIOR ADVOCATE with MR LAXMANSINH M ZALA(5787)
for the Applicant(s) No. 1
MR.H.K.PATEL, APP for the Respondent(s) No. 2
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
===============================================================
 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                            Date : 16/02/2021
                             ORAL ORDER

1. RULE. Learned APP waives service of Rule on behalf of

the respondent State.

2. The present application is filed under Section 439 of the

Code of Criminal Procedure, 1973, for regular bail in connection

with Complaint No.ECIR/56/AZO/2010 registered with

Directorate of Enforcement, Ahmedabad under Sections 3

and 4 of the Prevention of Money Laundering Act, 2002.

3. Learned senior advocate appearing on behalf of the

applicant submits that considering the nature of the offence,

the applicant may be enlarged on regular bail by imposing

suitable conditions.

R/CR.MA/18263/2020 ORDER

4. Learned senior advocate submitted that Submission of

learned advocate for the applicant that PMLA Case No.12 of

2018 is arising out of ECIR/56/AZO/2010, wherein originally the

applicant not even arraigned as an accused. He submits that

Submission of learned advocate for the applicant that the

applicant was only employee and started her career as data

entry operator and thereafter, had progress in the company. It

is the case of the applicant that she was merely working under

the direction of the main Director Pratik R. Shah, who is the

perpetrator of the crime and at his instance that the applicant

was made the Director in the company. The applicant has not

received any financial benefit otherwise. He submitted that

The applicant insofar as the main offence is concerned namely

C.R.No.I-04 of 2009 with CID Crime, Gandhinagar Zone Police

Station for offences punishable under Sections 406, 409, 420,

467, 468, 471 and 114 of the Indian Penal Code, the applicant

has been enlarged on anticipatory bail by this Court vide order

dated 06.05.2011 in Criminal Misc. Application No.3662 of

2011 and the applicant has complied with conditions of bail.

5. Learned APP appearing on behalf of the respondent-State

has opposed grant of regular bail looking to the nature and

gravity of the offence.

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6. Learned Additional Solicitor General Mr. Devang Vyas for

respondent No.1 submits that the magnitude of crime is huge.

The main accused Pratik R. Shah is absconding. The applicant

has played a role in attempting to dispose of immovable

properties which were purchased by the ill-gotten money and

that is how had played an active role. The applicant is also one

of the Directors in various companies in whose favour loan has

taken from the bank. Learned ASG has cited several judgments

on the issue of Section 45 of Prevention of Money Laundering

Act, 2002 more particularly Section 45(1)(ii) which requires the

Court to be satisfied that there are reasonable grounds for

believing that he is not guilty of such offence and he is not

likely to commit any offence while on bail. Learned ASG

submits that the offence on hand is of serious nature simply on

account of the magnitude fraud and that the applicant being

one of the Directors in know of the offence being committed.

7. Learned Advocates appearing on behalf of the respective

parties do not press for further reasoned order.

8. I have heard the learned advocates appearing on behalf

of the respective parties and perused the papers. Following

aspects are considered:-

I. The Complaint is registered on 09.07.2018 for

R/CR.MA/18263/2020 ORDER

the offence which is alleged to have taken place on 30.09.2010.

II. The applicant is in jail since 13.10.2020.

III. The investigation qua the applicant is concluded as remand period is over and that the applicant is in custody since 13.10.2020.

     IV.      The applicant is a lady accused.

     V.       Submission of learned advocate for the

applicant that PMLA Case No.12 of 2018 is arising out of ECIR/56/AZO/2010, wherein originally the applicant not even arraigned as an accused.

VI. Submission of learned advocate for the applicant that the applicant was only employee and started her career as data entry operator and thereafter, had progress in the company. It is the case of the applicant that she was merely working under the direction of the main Director Pratik R. Shah, who is the perpetrator of the crime and at his instance that the applicant was made the Director in the company. The applicant has not received any financial benefit otherwise.

VII. The applicant insofar as the main offence is concerned namely C.R.No.I-04 of 2009 with CID Crime, Gandhinagar Zone Police Station for offences punishable under Sections 406, 409, 420, 467, 468, 471 and 114 of the Indian Penal Code, the applicant has been enlarged on anticipatory bail by this Court vide order dated 06.05.2011 in Criminal Misc. Application No.3662 of 2011 and the applicant has complied with conditions of bail.

VIII. With regards to arguments made by learned ASG on Section 45 of the Prevention of Money Laundering Act, 2002, the proviso to Section 45 carves out an exception for a person who is under the age of sixteen years or is a women

R/CR.MA/18263/2020 ORDER

or is sick or infirm and this proviso provides for release on aforementioned categories a person on bail, without referring to the requirement of Section 45(1)(ii) of PMLA.

IX. Prima-faice, for the main offence where the role of the applicant is stated, the applicant has been granted anticipatory bail by this Court on several conditions and the applicant has complied with all the conditions.

Moreover, with regards to this offence, it is not in dispute that the applicant had entered into group of companies as a employee and thereafter, has been promoted within the group. Therefore, in view of the proviso to Section 45, the case would be exempted from the rigor of Section 45(1)(ii).

X. There is nothing on record to indicate that applicant has received any monetary benefit or any proceeds out of the main scheduled offence from where the under PMLA is registered.

XI. Over and above this, in the original offence registered, the applicant is not named as an accused and even during the course of investigation, the role that is attributed to the applicant appears to be in the due course of her service in the group of companies, where the decision making authorities were the superior of the applicant. Hence, also the case of the applicant deserves consideration.

XII. Learned APP under instructions of IO is unable to bring on record any special circumstances against the applicant.

9. In the facts and circumstances of the case and

considering the nature of the allegations made against the

applicant in the FIR, without discussing the evidence in detail,

prima facie, this Court is of the opinion that this is a fit case to

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exercise the discretion and enlarge the applicant on regular

bail.

10. Hence, the present application is allowed. The applicant

is ordered to be released on regular bail in connection with

Complaint No.ECIR/56/AZO/2010 registered with

Directorate of Enforcement, Ahmedabad, on executing a

personal bond of Rs.10,000/- (Rupees Ten Thousand only) with

one surety of the like amount to the satisfaction of the trial

Court and subject to the conditions that she shall;

(a) not take undue advantage of liberty or misuse liberty;

(b) not act in a manner injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;

(c) surrender passport, if any, to the Trial Court within a week;

(d) not leave the State of Gujarat without prior permission of the Trial Court concerned;

(e) mark presence before the concerned Police Station once in a month for a period of six months between 11.00 a.m. and 2.00 p.m.;

              (f)     furnish the present address of her residence to






             R/CR.MA/18263/2020                                       ORDER

the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Trial Court;

11. The authorities will release the applicant only if she is not

required in connection with any other offence for the time

being. If breach of any of the above conditions is committed,

the Sessions Judge concerned will be free to issue warrant or

take appropriate action in the matter.

12. Bail bond to be executed before the lower Court having

jurisdiction to try the case. It will be open for the concerned

Court to delete, modify and/or relax any of the above

conditions, in accordance with law.

13. At the trial, the trial Court shall not be influenced by the

observations of preliminary nature qua the evidence at this

stage made by this Court while enlarging the applicant on bail.