Shri Ram Pratap Verma @ Ram Pratap ... vs The State Through Directorate Of ...
2022 Latest Caselaw 2572 Jhar

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            B.A. No. 4043 of 2022

Shri Ram Pratap Verma @ Ram Pratap Verma.             .... ... Petitioner
                               Versus
The State through Directorate of Enforcement, Govt. of
India, Ranchi Sub Zonal Office, Kaushalya Chambers-II,
P.P. Compound, Main Road, Ranchi-834001                ....  .... Opp. Party
                            --------

CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner            : Mr. Alok Anand, Advocate
For the State (E.D.)          : Mr. Amit Kumar Das, A.P.P.
                            --------
C.A.V. on 22.06.2022                    :     Pronounced on 12.07.2022

This bail application has been filed on behalf of the applicant- Shri Ram

Pratap Verma @ Ram Pratap Verma with prayer to release on bail in connection with ECIR

No. 02/2020, arising out of ECIR No. RNSZO/02/2017 (CNR No. JHRNO1-002548-2020)

for the alleged commission of offences under Section 3 read with Section 4 of Prevention

of Money Laundering Act, 2002, pending in the court of the Addl. Judicial Commissioner-

XVIII-cum-Special Judge, PMLA, Ranchi.

2. Learned counsel for the applicant has submitted that a complaint under

Section 44 read with Section 45 of Prevention of Money Laundering Act, 2002 for

commission of offence under Section 3 read with Section 70, punishable under Section 4

of PMLA, 2002 has been filed with these allegations that an F.I.R. under Section 120B

read with Sections 420,467,468,471,472 of the Indian Penal Code and Section 138 of N.I.

Act against M/s Sanjeevani Buildcon Pvt. Ltd. & 34 others including the applicant was

lodged.

3. Applicant Shri Ram Pratap Verma @ Ram Pratap Verma was the Director of

S.B.P.L. and charge-sheet for the same was filed before the court concerned. In that case

Company and its Directors had cheated a large number of investors of Jharkhand by

inducing them to purchase plots of land. Money used to be received from the prospective

purchasers but the possession of the same was never given to them. Company had also

closed its office and the Directors of the same had fled away from Ranchi to escape

themselves from the clutches of law. Money received from the investors was credited to

the Bank accounts of the Company which was subsequently withdrawn or transferred to

other accounts and siphoned off. During investigation under the P.M.L.A, 2002, it was

revealed that Jayant Dayal Nandy and his wife Smt. Anita Dayal Nandy had started a firm

in the name of M/s Sanjeevani Housing Company of which they were the proprietors. This

firm was incorporated on 15.07.2008 as M/s Sanjeevani Buildcon Pvt. Ltd. Shri Ram Pratap

Verma @ Ram Pratap Verma was Director of the Company since 01.04.2011. Jayanat

Dayal Nandy and Smt. Anamika Nandy were the mastermind behind the scam. It was

also revealed that M/s Smart Peoples Developers Private Ltd. was also incorporated on

18.02.2010 which was classified as a non-Government Company. The Directors of the

said Company were Prakash Prasad Lala, Shyam Kishore Gupta, Manoj Kumar and Smt.

Ranjana Srivastav for the purpose of transferring the funds from the account of M/s SBPL

to the account of M/s SPDPL, three bank accounts were opened in the name of M/s SPDPL

wherein Prakash Prasad Lala and his wife Smt. Ranjana Srivastav were the authorised

signatories. It was also revealed that a total of 39 number of bank accounts were in the

name of the Companies and its Directors including Ram Pratap Verma for the purpose of

laundering of proceeds of crime. During scrutiny on the basis of the statement of accounts

of the Bank Accounts of M/s S.B.P.L. an amount to the tune of Rs. 49,62,77,876/- was

received from several customers during the period of 14.06.2010 to 31.12.2012. The said

amount of Rs. 14.9 crores was either directly received from the customers or deposited

in cash by collecting the same from the customers. During investigation it was also

revealed that in the account of S.B.P.L. and its Directors approximately an amount of Rs.

65,45,09,876/- was received from the customers which was suspected to be proceeds of

crime having been indulged in criminal activities related to the schedule offence by way

of cheating people in the name of selling the plots of land. During investigation, it was

also revealed that in the bank account of Ram Pratap Verma an amount of Rs. 20,73,749/-

was transferred from the bank account of SBPL. It was salary account of Ram Pratap

Verma. In his statement he stated that the said amount was transferred by Jayant Dayal

Nandy and Anamika Nandy with the instruction to withdraw the same in cash and hand

over the same to Shyam Kishore Gupta. As such all the accused persons being the

Directors of the Company had committed the offence of money laundering under Section

3 of PMLA which is punishable under Section 4 of PMLA.

4. Learned Counsel for the applicant has submitted that though the applicant

was neither the share-holder of the Company nor the Director and was only salaried

employee of M/s Sanjeevani Buildcon Pvt. Ltd. yet erroneous transactions have been

shown in his account as proceeds of crime which is absolutely illegal. To conduct business

of the Company, it was Jayanat Dayal Nandy and Smt. Anamika Nandy and Shyam Kishore

Gupta. The applicant was not party to any illegal deeds having been committed by the

Company. The statement of applicant under Section 50 of PMLA is not self-exculpatory

but it was earnest endeavor to bring out the truth by co-operating with the Investigating

Agency. As per prosecution case, the amount alleged against the account of the applicant

is Rs. 20,00,000/- and is entitled to be released on bail and is also ready to abide by any

terms and conditions as imposed by the Court.

5. Learned Counsel for the E.D. vehemently opposed the contention made by

the learned Counsel for the applicant and contended that from the documentary

evidence, it is well proved that the applicant was the Director of the Company and he

actively participated in all the activities in conducting the business of the Company and

is liable for the offence as alleged against him in view of Section 70 of PMLA.

6. For disposal of this bail application, the following provisions of the Act,

2002 are being reproduced as under:-

Section 2(p) of the Act, 2002 provides:-

"(p) "money-laundering" has the meaning assigned to it in Section 3."

Sections 2(y) of the Act, 2002 provides:-

"(y) "scheduled offence" means -

(i) the offences specified under Part A of the Schedule; or [(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or

(iii) the offences specified under Part C of the Schedule;]"

Sections 3 and 4 of the Act, 2002 provides as under:- "3.Offence of money-laundering - Whosoever directly or indirectly attempts to indulged or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money laundering.

4. Punishment for money-laundering. - Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted."

70. Offences by companies.- (1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company, for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of any company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

1[Explanation 1].- For the purpose of this section,-

(i) "company" means any body corporate and includes a firm or other association of individuals; and

(ii) "director", in relation to a firm, means a partner in the firm.

2[Explanation 2.- For the removal of doubts, it is hereby clarified

that a company may be prosecuted, notwithstanding whether the prosecution or conviction of any legal juridical person shall be contingent on the prosecution or conviction of any individual.

7. This Court is of the considered view that the provisions of Section 45 of the

Act, 2002 prior to judgment of Ho'ble Apex Court in the case of "Nikesh Tarachand

Shah vs. Union of India & Anr. reported in (2018) 11 SCC 1. had been declared

unconstitutional; but the defects in provisions of the said Act was cured by Parliament by

way of Amendment Act 13 of 2018 and consequently, the twin conditions of Section 45

while disposing of the bail application under the Act, 2002 stood revived.

8. The Hon'ble Apex Court in the case of "Cheviti Venkanna Yadav vs.

State of Telangana" reported in 2017 (1) SCC 283 has held as under:

"27. In State of Himachal Pradesh v. Narain Singh while dealing with the validation of statute the court ruled that:-

"It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation."

9. The twin conditions under Section 45 (1) for the offences classified

thereunder a Part-A of the Schedule was held arbitrary and discriminatory and invalid in

the case of Nikesh Tarachand Shah (supra). Subsequently, the Section 45 of the Act,

2002 has been amended by Amendment Act, 13 of 2008, whereby the words

"imprisonment for a terms of imprisonment of more than three years under Part

A of the schedule" has been substituted with "accused of an offence under this

Act......"

10. The Hon'ble Apex Court in "Assistant Director Enforcement Directorate

vs. Dr. V.C. Mohan" 2022 LL (SC) 16 held once the prayer for bail is made for the

offence under PMLA 2002, the rigors & principle underlying Section of 45 get triggered on.

11. The Hon'ble Apex Court in the case of "Prakash Gurbaxami v. The

Directorate of Enforcement" reported in 2021 SCC Online P & H 1567 has held as

under:-

"............18. By Act 13 of 2018 Section 45 (1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" as occurring in Section 45 (1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words "under this Act". As per learned ASG, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45 (1) of the PMLA to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45 (1) stood revived.

12. The Hon'ble Apex Court in the case of "YS Jagan Mohan Reddy vs. C.B.I."

reported in 2013 (7) SCC 439 has held as under:-

"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious

threat to the financial health of the country."

13. The Hon'ble Apex Court in the case of "State of Gujarat vs. Mohanlal

Jitamalji Porwal and ors.", reported in 1987 (2) SCC 3645 has held as under:-

".............5. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.........."

14. In view of submissions made and material on record there are reasonable

grounds for believing that applicant is guilty of the offences of money laundering and he is

likely to commit any offence, if enlarged on bail. Accordingly, the prayer for bail of the

Applicant is hereby refused.

(Subhash Chand,J.) P.K.S./A.F.R.