Jharkhand High Court
Bishnu Kumar Agarwala @ Bishnu Kumar ... vs Union Of India Through Directorate Of ... on 12 January, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 10166 of 2023
Bishnu Kumar Agarwala @ Bishnu Kumar Agarwal
..... Petitioner
Versus
Union of India through Directorate of Enforcement
..... Opposite party
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CORAM: Hon'ble Mr. Justice Deepak Roshan
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For the Petitioner : Mr. S.D. Sanjay, Sr. Adv.
Mr. Indrajeet Sinha, Adv.
Mr. Sumeet Gadodia, Adv.
Mr. Anshuman Sinha, Adv.
Mr. Arpan Mishra, Adv.
Mr. Vinay Prakash, Adv.
Mr. Yash Badkar, Adv.
For the O.P.-E.D. : Mr. Anil Kumar, ASGI
Ms. Chandana Kumari, Adv.
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CAV on :-05.01.2024 Pronounced on:-12/01/2024
The instant application has been preferred by the
petitioner for the grant of regular bail for the offences
registered under Sections 3 and Section 4 of the Prevention of
Money Laundering Act, 2002 (herein after to be referred as
PMLA).
2. Ms. S.D. Sanjay, Sr. Advocate, assisted by Mr.
Anshuman Sinha and Indrajit Sinha, Advocates, while
arguing on behalf of the Petitioner, invited attention of this
Court to an F.I.R. being Sadar P.S. Case No. 399/2022 dated
08.09.2022 registered at the instance of one Umesh Gope for
alleged offences under Sections 406, 420, 467, 468, 447, 504,
506, 341, 323 & 34 of the Indian Penal Code, 1860 against
various individuals including the petitioner. In the said F.I.R.,
Umesh Gope has alleged, inter alia, that various individuals
including petitioner fraudulently acquired Plot of land having
an area of 1.00 Acre (One Acre) situated at Plot No. 28, Khata
No. 27 at Village Gari, Chesire Home Road, Sadar, Ranchi.
In respect of aforesaid F.I.R., investigation was
carried out by Sadar Police Station and Final Form No. 10 of
2023 dated 25.01.2023 was filed, wherein it was concluded by
the Investigating Officer that none of the accused persons
were required to be sent up for trial, as the concerned case
was a civil dispute. The said Final Form was taken on record
by Chief Judicial Magistrate, Ranchi and appropriate notice
was issued to the Informant for his response. It has been
submitted that in spite of the fact that in respect of aforesaid
F.I.R., being F.I.R. No. 399 of 2022, Investigating Agency has
submitted Final Form stating, inter alia, that as no case is
made out, the Enforcement Directorate, on the basis of F.I.R.
No. 399/2022 treating it to be a predicate offence registered
an ECIR/RNZO/10/2023 dated 07.03.2023.
It has been further submitted that the Petitioner,
after registration of the aforesaid ECIR case, was summoned
by Enforcement Directorate and he duly cooperated with the
investigation. The Petitioner was summoned on several dates
i.e. on 16.04.2023, 26.04.2023, 28.04.2023 and 08.05.2023
and even a search was conducted at the office and residential
premises of the Petitioner. By placing reliance upon the
Judgment of Hon'ble Supreme Court in the case of 'Pankaj
Bansal Vs. Union of India, reported in (2023) SCC OnLine
1244, it has been submitted that Petitioner all along
cooperated with the investigation and, merely because
Petitioner did not give reply in the manner as it suited the
Enforcement Directorate (for short 'ED'), it cannot be said that
Petitioner did not cooperate with the investigation.
3. It has been further submitted that despite the
fact that Petitioner fully cooperated throghout the
investigation, ED on 31.07.2023, arrested the Petitioner and,
at the time of arrest, ED in contravention of Section 19(1) of
PMLA Act, did not provide any written grounds of arrest to the
Petitioner.
It has been further submitted that on
01.09.2023, Respondent-ED filed prosecution complaint in
ECIR No. RNZO/10/2023 before Special Judge, PMLA, Ranchi
and Petitioner was arrayed as Accused No.9. At the time of
filing of prosecution complaint, ED also merged another F.I.R.
bearing No. 137 of 2023 registered with Hare Street Police
Station, Kolkata under Sections 120-B, 465, 467, 468 and
471 of IPC. It has been vehemently submitted that the
Petitioner has not been named as an accused and/or
summoned in the said F.I.R.
4. By referring to Prosecution Complaint, it has been
submitted that from bare perusal of the prosecution
complaint, it would be evident that allegation against the
Petitioner primarily pertains to charges of three landed
properties, for which the prosecution alleges that Petitioner
could not have purchased said three landed properties, which
have been described in the Prosecution Complaint as under:-
(1) Cheshire Home Road Land;
(2) Siram Mauza Land; and
(3) Pugru Mauza Land.
It has been submitted that after submission of
prosecution complaint, learned Special Judge, PMLA,
Ranchi took cognizance of the prosecution complaint on
04.09.2023 and, at present, said complaint is pending for
appearance of accused persons.
It has been submitted that Petitioner is a
Businessman engaged in the business of Real Estate and
Wholesale Trade since last 24 years in the State of
Jharkhand and State of West Bengal and about 5000
people are gainfully employed in various companies owned
and operated by Petitioner. On the strength of the above, it
has been submitted that Petitioner, admittedly, is not at
flight risk and since the prosecution complaint has already
been filed and there is no allegation against the Petitioner of
tampering with any evidence and/or trying to influence any
witness etc., no purpose would be served in keeping the
Petitioner in judicial custody and, even otherwise,
Petitioner's participation in trial is duly secured, as he is
not at flight risk.
5. With regard to hardships being faced by the
Petitioner while in judicial custody, it has been submitted
that Petitioner has availed various financial facilities for
residential and commercial projects being undertaken by
him and equal monthly installment (EMI) of over Rs. 8.00
crores per month is being paid to various Banks and
financial institutions and, as yet, Petitioner has neither
defaulted in repayment of loans nor any complaint has been
filed by any of the financial institutions for wrongful
utilization of the loans availed. It has been emphatically
submitted that due to judicial custody of the Petitioner,
Petitioner's business is immensely suffering.
The counsel for the Petitioner further highlighted
medical condition of the Petitioner by stating, inter alia,
that Petitioner is aged about 56 years of age and has
undergone Hernia Surgery on 24.04.2023 due to which
Petitioner is suffering from High Blood Pressure and Sugar
and strictly directed by his Doctor to comply with
substantial diet restriction. It has been further stated that
Petitioner also has heart issue wherein one of his arteries
has over 70% blockage and it has been further submitted
that Petitioner, since the date of his arrest, is under
continuous medical treatment either in Jail Hospital or in
Government Hospital at RIMS, Ranchi, which itself clearly
demonstrates that medical condition of the Petitioner is not
good.
6. Ld. Counsel for the Petitioner further invited
attention of this Court to the allegation levelled in the
prosecution complaint and has advanced detailed
arguments on merits of the case. In respect of Cheshire
Home Road Land, by referring to Para 10.6.1 of the
Complaint it has been submitted that in respect of said
land, it has been alleged that same was acquired in a
deceitful manner by conspiracy and criminal activity of the
accused persons including the Petitioner, who were
indulged in fabrication of documents and forging records.
In respect of the aforesaid allegation, it has been
submitted that from bare perusal of the complaint itself, it
would be evident that allegation regarding creation of forged
document is upon the accused Rajesh Rai in connivance
with Bharat Prasad, Md. Sadam Hussain, Afsar Ali and
Imtiaz Ahmad. By drawing the attention of the prosecution
complaint, it has been stated that alleged forged Deed being
Deed No. 184 of 1948, which is alleged to have been created
regarding ownership of the aforesaid land is a creation of
other accused persons, stated above and in the prosecution
complaint, it is nowhere alleged that Petitioner was
instrumental in creation of aforesaid forged document in
respect of the land in question.
It has been submitted that vide two separate Sale
Deeds being Sale Deed Nos. 2784 and 2483 both dated
01.04.2021, Petitioner purchased aforesaid piece of land
through his companies, namely, Adarsh Heights Pvt. Ltd.
and Chalice Real Estate LLP for an amount of Rs. 1.80
crore which has been paid through banking channels.
It has been emphatically contended that it is the
Petitioner who has been cheated by other accused persons
who have created forged documents for selling the aforesaid
land to the Petitioner and. In this regard, it has been
further submitted that the petitioner being a bonafide
purchaser no offence can be said to have been committed
by him and in support of such submission, the Learned
Senior Counsel for the petitioner has placed reliance upon
the Judgment of 'Md. Ibrahim & Ors. Vs. State of Bihar
& Ors'., reported in (2009) 8 SCC 751 (Para-23).
7. While referring to the definition of 'proceeds of
crime, as defined under Section 2(u) of PMLA Act, 2002, it
has been submitted that proceeds of crime means any
property derived or obtained, directly or indirectly, by any
person as a result of criminal activity relating to a
scheduled offence. In this regard, it has been submitted
that Petitioner, out of his own legal sources, purchased the
land in question and the payment made by Petitioner in
respect of the said land cannot be treated to be 'proceeds of
crime'. Extensive reliance has been made to the decision of
Hon'ble Apex Court in the case of 'Vijay Madan Lal
Choudhary Vs. Union of India & Ors.' reported in (2022)
SCC OnLine SC 929, more particularly paragraphs 251,
253, 269, 271, 280, 281, 282, 283, 284, 290 and 295, to
contend, inter alia, that merely because Petitioner
purchased the property by paying valuable consideration
which has been sold to him by certain persons by creating
forged and fabricated documents, would not make the
payment made by the Petitioner in respect of the said
property as a 'proceeds of crime' as payment made by
Petitioner was out of his legal and valid sources and not
derived or obtained, directly or indirectly, as a result of
criminal activity.
8. It has been further argued by placing reliance
upon the Judgment in 'Vijay Madan Lal Choudhary'
(supra) that an offence under Section 3 of PMLA Act is
dependent on the illegal gain of property as a result of
criminal activity relating to a scheduled offence. It has been
submitted that Enforcement Directorate cannot prosecute
the Petitioner merely on a 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 criminal complaint
before a competent forum.
The second allegation against the Petitioner which
pertains to purchase of Siram Mauza land vide Sale Deed
dated 07.02.2018 from Mahua Mitra and Sanjay Ghosh at a
valuation of Rs. 15.00 crores. By referring to prosecution
complaint, it has been submitted that aforesaid property
pertaining to Siram Mauza land, in the prosecution
complaint, it has been described to be the land acquired by
Army and it has been stated that Petitioner, knowing fully
well that aforesaid land was acquired by Army, purchased
the said land from its owners Mahua Mitra and Sanjay
Ghosh.
In respect of Siram Mauza land, Petitioner
vehemently submitted that there is no criminal proceeding
pending before any court of law in respect of the said land,
where Petitioner is an accused and in absence of any
predicate offence and/or any FIR, etc. relating to a
scheduled offence, no investigation could have been carried
out by ED for allegedly unearthing the offence in respect of
Siram Mauza land. Reference, in this regard has been made
to the Judgment of Hon'ble Supreme Court in the case of
Vijay Madan Lal Choudhary (supra).
9. With regard to Pugru Mauza land, attention of
this Court has been drawn to the allegation made in the
prosecution complaint, wherein it has been alleged that
Petitioner purchased Pugru Mauza land in the year 2019
from Ashish Kumar Ganguli and 16 others for a total
consideration of Rs. 5.00 crores, out of which only a sum of
Rs. 2.5 crore was paid. It has been further alleged in the
prosecution complaint that said land is 'Khas Mahal' land
i.e. the land owned by State of Jharkhand, but Petitioner,
despite knowing the aforesaid fact, purchased the said land
in question.
Refuting to aforesaid allegation levelled in the
prosecution complaint, it has been argued that in respect of
Pugru Mauza land also, there is no criminal proceeding
before any court of law in which Petitioner is an accused
and it has been submitted that ED cannot conduct any
investigation of scheduled offence, but it is only required to
conduct investigation as to whether any proceeds of crime
has been generated on commission of a scheduled offence.
With regard to nature of land being Khas Mahal land, Mr.
S.D. Sanjay, learned Sr. Counsel vehemently relied upon an
order passed by a Coordinate Bench of this Court in M.A.
No. 631 of 2017, being order dated 03.01.2023, though he
fairly submitted that the said order has been stayed in a
petition to Special Leave by the Hon'ble Supreme Court of
India.
It was further submitted that in respect of the
land at Pugru, a Special Investigating Team (SIT) was
constituted by State of Jharkhand and SIT gave its clear
opinion that the land in question is not a 'Khas Mahal'
land. It has been submitted that although the land in
question was not a 'Khas Mahal' land, the same was being
included in the list of Khas Mahal land, prepared by Circle
Officer, Namkum and, under the said circumstances,
Petitioner filed an Interlocutory application in aforesaid
Pending Appeal being M.A. No. 631 of 2017, wherein this
Court was dealing with illegal sale and purchase of Khas
Mahal land in the State of Jharkhand. In the said
Interlocutory application, Petitioner prayed for exclusion of
the land pertaining to Pugru Mauza land from the list of
'Khas Mahal' land prepared by the office of the Circle
Officer, Namkum and, in response to said Interlocutory
application filed by the Petitioner, an Affidavit was filed by
the Chief Secretary, Govt. of Jharkhand relying upon a
report of Special Investigating Team dated 01.04.2021,
wherein SIT has held that the land in question is not a
'Khas Mahal' land.
On the basis of aforesaid submissions, prayer has
been made for grant of regular bail to the Petitioner.
10. Per contra, Mr. Anil Kumar, Ld. Sr. Advocate cum
ASGI has vehemently opposed the prayer for bail of the
Petitioner. He has submitted that Petitioner has been
involved in purchase of disputed lands and investigation
has revealed that Petitioner was aware about the nature of
the land including forgery committed by other co-accused
persons in order to transfer the land in favour of the
Petitioner, and, with willful connivance with accused
persons, Petitioner purchased the lands in question.
Ld. ASGI while referring to the definition of
'proceeds of crime' as defined under Section 2(u) of the PMLA
Act, 2002, has contended that the lands purchased by
Petitioner are the properties derived and obtained by him
directly or indirectly as a result of criminal activity relating
to a scheduled offence and, thus, prima facie case is made
out against the Petitioner under Section 3 of the PMLA Act.
Mr. Kumar has painstakingly invited attention of this Court
to the statements made in the prosecution complaint and
has submitted that in the prosecution complaint, elaborate
details have been given of the mode and manner in which
Petitioner has been benefitted by dealing in lands which
were disputed and is a creation on the basis of forged and
fabricated documents.
11. In respect of Cheshire Home Road land, reference
was made to Para 9.4 and 9.5 of the prosecution complaint
by stating, inter alia, that one Rajesh Rai, son of Jagdish
Rai, illegally and fraudulently made Power of Attorney in
the name of Imtiaz Ahmad and Bharat Prasad and, on the
basis of said Power of Attorney, he prepared forged Sale
Deed and sold the above-mentioned parcel of land
admeasuring an area of 1.00 Acre to one Punit Bhargav
and, thereafter, Punit Bhargav sold the land to Bishnu
Kumar Agarwal vide two Sale Deeds. While referring to
aforesaid paragraphs, it has been submitted that the land
admeasuring an area of 1.00 Acre at Cheshire Home Road
was acquired in fraudulent manner by above persons
including the Petitioner, who indulged in fabricating
documents and forging records, on the basis of which,
Power of Attorney was fraudulently executed and land was,
subsequently, transferred to Punit Bhargav who
immediately sold the land to Bishnu Kumar Agarwal.
12. With respect to Pugru Mauza land, reference was
made to Para 9.11 onwards of the prosecution complaint, to
contend, inter alia, that in the investigation, it has been
established that the property situated at Khata No.93, Plot
No. 543, 544, 546, 547, having total area of 9.30 Acres,
which was acquired by Petitioner-Bishnu Kumar Agarwal,
was a government property i.e. 'Khas Mahal' land. It has
been submitted that although said land was Khas Mahal
land, the other co-accused person, assisted the Petitioner
for acquisition of the said land by suppressing material
facts and official records.
13. With respect to Siram Mauza land, reliance has
been placed to Para 9.12 of the prosecution complaint
wherein it has been stated that the land admeasuring an
area of 5.883 Acres was acquired by the Army in the year
1949 itself vide Gazette Notification dated 03.08.1949 and
Petitioner was aware about the said Notification, but
despite the said fact, Petitioner purchased the said land
from the so-called owners Mahua Mitra and Sanjay Ghosh,
whereas the land never belonged to them.
14. Learned ASGI has invited attention of this Court
to the provisions of Section 45 of PMLA Act including twin
conditions enumerated under Section 45(1)(ii) of the said
Act and has emphasized that the materials available in the
prosecution complaint clearly demonstrate that there exists
reasonable grounds for believing that Petitioner is guilty of
the offences alleged and privilege of bail should not be
extended to the Petitioner.
It has been vehemently argued that Petitioner is,
prima facie, guilty of commission of economic offence and it
has been submitted that parameters for grant of bail
pertaining to economic offences are quite different than any
other offences, and, having regard to the fact that Petitioner
is guilty of commission of economic offences, he does not
deserve the privilege of bail. On the strength of the above
arguments, prayer has been made for rejecting the
application for grant of bail to the Petitioner.
15. Having heard learned counsel for the parties and
after going through the averments made in the respective
affidavits and the records of the case it appears that the
Petitioner is a resident of Ranchi, Jharkhand and claims
that he has been engaged in the business of real estate and
wholesale trade, for the last 24 years in the state of
Jharkhand and West Bengal. A further claim has been
made that 5000 people are gainfully employed in various
companies owned and operated by the Petitioner. The
Petitioner was summoned by the investigating officer
during the investigation and accordingly the Petitioner
appeared on the following dates: 09.11.2022, 11.11.2022,
27.01.2023, 08.05.2023, 21.06.2023, and 31.07.2023
to 13.08.2023 (refer remand period). The Petitioner was
arrested on 31.07.2023 and his statement was recorded
during the period of remand from 31.07.2023 to
13.08.2023. The investigating agency filed the prosecution
complaint in ECIR No. ENZO/10/2023 making the
petitioner accused before the Special Judge, PMLA,
Ranchi on 01.09.2023. The special judge PMLA Ranchi
took cognizance on 04.09.2023. The Petitioner applied for
Bail which was rejected by PMLA Special Judge on
18.09.2023.
16. At the outset it is observed that this Court is not
persuaded to consider the prayer for bail on the Medical
grounds for two reasons: Firstly, the learned Senior
Counsel for the Petitioner did not press this point at the
time of arguments though the same has been averred in
some detail in the application and briefly in the written
submissions filed by the petitioner; and secondly, the PMLA
does not provide for Bail, as a matter of right, solely on
health grounds. As such, the prayer for Bail on medical
grounds is not being considered. Further, the Directorate of
Enforcement may be correct in stating in its affidavit that
the ailments are not life threatening and are not of such a
nature which would call for release on bail solely on health
grounds.
Further, this Court is also not impressed with the
arguments of the petitioner for grant of bail on the ground
of non-compliance of the requirement of section 19 of PMLA
in view of the recent decision rendered in the Case of Ram
Kishor Arora v. Directorate of Enforcement, 2023 INSC
1082, which is squarely applicable to the present case.
17. Now coming to the merits of the matter it is seen
that the allegations pertain to the acquisition of three
immovable properties by the petitioner. The First property
is situated on Cheshire Home Road Land, which was
purchased through two Sale Deeds executed on 01.04.2021
by two companies alleged to be controlled by this petitioner.
It has been further alleged that co-accused Rajesh Rai in
connivance with Bharat Prasad, Md Saddam Hussain, Afsar
Ali, Imtiaz Ahmad and others created forged deed no. 184 of
1948 and on that basis executed Power of Attorney in
favour of Imtiaz Ahmad and Bharat Prasad with one
Lakhan Singh as confirming party, executed Sale Deed
dated 06.02.2021 in favour of Punit Bhargav for an amount
of Rs 1.78 Cr approx and Punit Bhargav further sold the
land to this petitioner vide two sale deeds dated 01.04.2021
for an amount of Rs 1.80 Cr approx.. The petitioner is
charged with the offence of money laundering for acquiring,
possessing, concealing, using and projecting and claiming
the said Proceed of Crime, in the form of land, as untainted
by purchasing the land from Punit Bhargav (Refer Para
10.6.1 & Para 13.2 of the Complaint).
18. With regards to the aforesaid allegation, it
transpires from the record that the Petitioner purchased the
said piece of land vide two registered Sale Deed No. 2784
and 2483 dated 01.04.2021 through two companies (a)
Adarsh Heights Private Limited (AHPL) and (b) Chalice Real
Estate LLP (CRE LLP) for an amount of Rs 1.80 Cr approx.
from co-accused Punit Bhargav.
On behalf of the petitioner it was submitted that
at the time of negotiation Punit Bhargav had given the
impression that due to COVID he wanted to sell the
aforesaid property and shift to his hometown Sasaram,
Bihar. The land was sold, and the sale consideration of Rs
1.80 Cr has been duly received by the seller Punit Bhargav
in his bank account. It has been submitted on behalf of the
petitioner that the sale consideration paid by AHPL (i.e.
Rs.1,02,60,000/-) and CRELLP (i.e. Rs. 77,40,000/-) were
above the prevailing circle rate. The Petitioner has also
provided to the investigating agency (ED) the sources from
which the amount was earned by AHPL and CRELLP. It has
been contended on behalf of the petitioner that the said
amounts were duly reflected in the books of accounts of
AHPL as well as CRELLP and also featured in the respective
audited balance sheets of both the companies.
Admittedly, there is no cash transaction involved
in the said sale of the property. Prior to the purchase of the
aforesaid property, the Petitioner claims to have caused a
due diligence to be carried out in respect of this property by
getting the sale deeds/documents, mutation papers,
possession etc. verified and cross checked, which is
normally done by any prospective purchaser. No ordinary
citizen can be expected to get a forensic investigation done
with respect to a deed which is found in the records of
Registrar. There is nothing to show that the petitioner was
instrumental in getting the forged deed of 1948 prepared
rather on the contrary it has been submitted on behalf of
the petitioner that one Bharat Prasad in his statement
recorded under section 50 PMLA has described that modus
operandi for preparing the forged documents and has
named the people involved in the process, which does not
include the petitioner. It has been urged that in this regard,
the statements of Afsar Ali (Para 8.12), Imtiaz Ahmed (Para
8.13), and Saddam Hussain (Para 8.15) are also relevant.
An FIR was registered with the Hare Street Police
Station, Kolkata bearing FIR No. 137 of 2023 on 10.05.2023
especially with respect to the creation of the forged deed of
1948. In the said FIR the Petitioner is not named as an
accused. This also shows that there are no materials to
connect this petitioner with the forgery of the deed of 1948.
Having noticed that there are no materials
indicating that the petitioner was involved in the
preparation of forged documents, the next issue which
arises for consideration is whether the petitioner was aware
that the land was disputed and despite such knowledge he
agreed to purchase it. The Enforcement Directorate to
highlight the above has relied upon the statement of Afshar
Ali who has stated that the petitioner had knowledge about
the disputes involved in the land for which he first asked
Prem Prakash to fence the above land with boundary walls.
In response to this the learned Senior Counsel for the
petitioner had submitted that on a holistic reading of the
statements made by the other person such as Bharat
Prasad, Afsar Ali, Imtiyaz Ahmed, Rajdeep Kumar, Saddam
Hussain and Lakhan Singh it would be clear that the
petitioner was neither involved nor had knowledge of the
forged document. It has been sought to be contended on
behalf of the petitioner that the "dispute" referred to by
Afsar Ali in his statement refers to the dispute arising out of
the Title Suit instituted by Umesh Gope and not to the
forged document. On behalf of the petitioner, it has been
further argued that Prem Prakash in his statement has
denied having discussed about the land deal with anyone
except Puneet Bhargav which also establishes that the
petitioner had no means to know about the forged
document. It cannot be said that by purchasing a property
under litigation any crime has been committed. At best
such a purchase would be hit by the doctrine of lis
pendens.
Thus, prima-facie it appears that the Petitioner
was neither involved in the creation of the forged deed nor
had any knowledge of the alleged forged Deed No. 184 of
1948. The element of mens rea appears to be absent qua
this petitioner. The contention of the petitioner that he is a
bonafide purchaser seems to be plausible.
In respect of this land an FIR No. 399 of 2022
was registered by jurisdictional State Police for investigating
the alleged cheating and forgery upon the complaint of one
Umesh Kumar Gope. On the basis of FIR No. 399 of 2022
ED registered the ECIR No. RNZO/10/2023 on 07.03.2023.
The police after investigation filed Final Form in FIR No 399
of 2022 on 25.01.2023 inter alia stating that the same is a
civil dispute. However further investigation is presently
going on and ED in its investigation in Para 10.6.6 @Pg. 79
of Prosecution Complain has concluded that the said land
does not even belong to the informant of FIR No 399 of
2022 i.e. Umesh Kumar Gope. The Learned Senior Counsel
appearing on behalf of the petitioner further argued that the
allegations made in the First Information Report lodged by
Umesh Gope lacks substance and in the light of the
judgment rendered in the case of Md. Ibrahim, (Supra) it
can easily be inferred that the allegations therein do not
constitute any offence. In effect the Senior Counsel for the
petitioner seeks to contend that the very basis of the
present prosecution being the above first information
report, by itself does not disclose commission of any
cognizable offence or for that matter any offence and hence
to allege that the petitioner is guilty of money laundering
would be an abuse of law. He would further urge that the
since the no predicate offence is made out it cannot be said
that the petitioner has committed an offence under the
provisions of PMLA.
19. In so far as the FIR registered with Hare Street
Police Station is concerned, the Enforcement Directorate is
right in submitting that investigation into a scheduled
offence is underway and hence it cannot be contended that
there is lack of jurisdiction. It is trite that existence of
jurisdiction is different from exercising jurisdiction and
merely because power exists it is not necessary to exercise
the same. In this case in absence of any material on record
which would suggest that petitioner had the requisite
intention to commit an offence of money laundering, merely
because an investigating is pending into an alleged
scheduled offence would by no means justify the
incarceration of the petitioner. This by itself will not give
rise to reasons to believe that the petitioner has committed
an offence of money laundering.
However, the Enforcement Directorate in its
Complaint as well as in the affidavit and written
submissions has contended that evidences such as the
statement of Circle Officer, Manoj Kumar regarding the
pressure exerted by Co accused Chhavi Ranjan, the then
Deputy Commissioner of Ranchi for mutation in favour of
the purchaser by overlooking the contention of Umesh
Kumar Gope that too in one day are some of the
circumstances which go against the petitioner. Having gone
through the such material it is observed that such
circumstance /evidence have no relevance in so far as the
petitioner is concerned because the said acts relate to a
period prior to the execution of the sale deed in favour of
the petitioner. So far as the mutation in the name of the
companies with which the petitioner is concerned, it is
observed that on a plain reading of the statement of Manoj
Kumar in its entirety would reveal that he had stated in
detail the reasons as to why mutation was done in favour of
those companies and that he had no reasons, at that
relevant point of time, to doubt the transaction which was
backed by sale deeds duly registered with the office of Sub
Registrar at Ranchi.
Another contention was raised by the Directorate
of Enforcement with respect to the payment of
consideration amount by the companies of the petitioner to
Puneet Bhargav in lieu of execution of the sale deed being
belated. It was argued that the two sale deeds were
executed and registered on 1 April 2021 whereas payments
were made subsequently on 05 April 2021 and 24 June
2021 by M/s Chalice Real Estate (Rs. 56,62,600/-) and
Adarsh Heights Pvt Ltd (Rs. 1,01,57,400). Though such an
allegation is not a part of the prosecution complaint, nor
any statement has been brought through the notice of this
court which makes such an allegation, suffice would it be to
mention that such acts of commission and omission would
by itself not attract the provisions of the Prevention of
Money Laundering Act, 2002 and therefore according to
this Court, these accusations are of no relevance and
consequence. Having said that, it may be pertinent to refer
to section 54 of the Transfer of Property Act, 1882 which
defines sale as a transfer of ownership in exchange for a
price paid or promised or part- paid and part- promised.
Subsequent payment of the consideration amount therefore
would not make the sale bad if it is otherwise valid and as
long as there exists a promise to pay. No criminality can be
found in making the payment of consideration amount at a
later point of time. The records do not disclose that the
vendor of the petitioner has raised any grievance at any
point of time for the late payment of the consideration
amount.
20. In so far as the other two properties are
concerned that is the land situated at Pugru and Siram, it
is an admitted position that no schedule offence has been
reported to be committed in respect of these lands and
further it has not brought to the notice of this Court that as
a result of such commission of an offence any investigation
or enquiry is pending. The Hon'ble Supreme Court in the
case of Vijay Madanlal Choudhry (Supra) at paragraph
253 has held that the authorities under the 2002 Act
cannot resort to action against any person for a money
laundering on an assumption that the property recovered
by them must be proceeds of crime and the schedule
offence has been committed unless the same is registered
with the jurisdictional police or pending enquiry by way of a
complaint before the competent forum. It was further held
that the expression "derived or obtained" is indicative of
criminal activity relating to a scheduled offence already
accomplished. Both parties have extensively argued on the
merits and otherwise of the title with respect to these
properties but having regard to the fact that there is no
investigation or inquiry pending with respect to any
scheduled offence allegedly committed qua these two
properties and in view of the clear enunciation of law by the
Hon'ble Supreme Court, as noted above, it would be
pointless to deal with all the contentions and render a
finding or make an observation at this stage when the same
does not appear to be of any worth. At present having
regard to the nature of allegations levelled against the
petitioner with respect to these two properties the only
thing which can be deciphered is that the petitioner has
purchased properties from persons who are alleged to be
incompetent to sell the same. The rival contentions with
respect to title over these lands cannot form a subject
matter of the present application. However, it is not in
dispute that the petitioner has paid or partly paid
consideration amount for purchase of these properties and
the people who have sold these properties to the petitioner
have not been made accused in the present prosecution
complaint. Both the properties are subject matter of
litigation pending before this Court and the Hon'ble
Supreme Court. It is important to note that the Hon'ble
Supreme Court has consistently held starting from Vijay
Madanlal Choudhary (Supra) that an acquittal, discharge
from or quashment of the proceedings relating to the
predicate offence will automatically result in dropping of the
proceedings under PMLA and hence in absence of any
predicate offence will result in denial of opportunity to the
petitioner or other accused to prove their innocence in
respect of the hypothetical predicate offence and thus the
continuation of the proceedings in respect of these two
properties appear to cause grave miscarriage of justice. This
touches upon the jurisdiction of the Enforcement
Directorate to investigate and prosecute the petitioner qua
these two properties. Be that as it may. In view of the clear
legal position, as set out above, this issue is not being
dilated further.
21. In view of the discussions made above, it is now
to be examined whether the petitioner has met the twin
conditions laid down by section 45 of the PMLA.
Section 45(1)(ii) of the PMLA Act stipulates that
where the public prosecutor opposes the application, then
the Court on being satisfied that there are reasonable
grounds for believing that the accused is not guilty of such
offence and that he is not likely to commit any offence while
on bail can order release of an accused on bail. In the case
of Vijay Madanlal Choudhary (Supra) it was held that no
meticulous examination is required and only prima facie
satisfaction that the accused is not guilty is to be invoked
by the Court.
From the facts of the present case, it transpires
that the petitioner has satisfied both the conditions
engrafted in Section 45(1)(ii) of the PMLA Act.
Briefly put, in absence of any cogent material that
the petitioner despite knowledge that a forged sale deed is
involved in the claim supporting the title of the property
situated at Chesire Home Road had purchased the same as
a part of a larger conspiracy to launder proceeds of crime
and that the petitioner had no role in the creation of the
false document, this Court is satisfied that there are
reasons to believe that the petitioner is not guilty of an
offence punishable under the PMLA. It needs to be iterated
that materials on record do not establish, even prima facie,
that the petitioner had the intention to commit an offence
punishable under the PMLA.
Likewise in view of the fact that with respect to
lands situated at Mouza Pugru and Siram no scheduled
offence has been reportedly committed and the criminal law
has not been set in motion, in view of the judgment of the
Supreme Court of India in Vijay Madanlal Choudhary
(supra) no offence punishable under section 4 PMLA can be
said to have to committed by the petitioner. Viewed thus, it
can be held without any hesitance that the allegations qua
the land situated at Pugru and Siram prima facie do not
make out an offence of money laundering and thus this
Court is satisfied that there are reasons to believe that the
petitioner is not guilty of an offence punishable under the
PMLA.
Coming to the second of the twin condition it is
held that prima facie with the available records it does not
transpire that the petitioner has committed crime under the
Act and / or is likely to commit any offence while on bail, as
the prosecution has not produced any material which
would make apparent that the petitioner might commit a
similar offence. The petitioner does not have any criminal
antecedent save and except Sadar P.S. Case No. 399 of
2022. Since it is difficult to predict the future conduct of
the petitioner, the Court must necessarily consider this
accept of the matter having regard to the antecedent of the
petitioner, its propensities and the nature and manner in
which the petitioner has alleged to have committed to
offence. Reliance is placed on the judgment of Ranjit Singh
Brahmajeetsing Sharma vs. State of Maharashtra and
Another reported in (2005) 5 SCC 294, which was also
noted in the Vijay Madanlal Choudhary (supra).
22. The petitioner is in custody from 31.07.2023. The
trial is yet to commence. There are 34 witnesses and more
than 6000 of documentary evidence. The scheduled offence
in respect of Chesire Home Road property is still at the
stage of investigation; whereas in respect of the other two
properties no FIR / Complaint alleging commission of
schedule offence has been registered till date. Prolonged
detention will not serve any purpose. No material has been
brought to the attention of this Court that the petitioner will
hamper the trial in any manner and why his custody is
important for the disposal of the trial. Reference may be
made to the judgment dated 30.10.2023 of the Hon'ble
Apex Court of India rendered in the case of Manish Sisodia
v. Central Bureau of Investigation, reported in 2023 SCC
online SC 1393, wherein at paragraphs 27 and 29 it was
held as under:
"27. However, we are also concerned about the prolonged
period of incarceration suffered by the appellant - Manish
Sisodia. In P. Chidambaram v. Directorate of Enforcement,
the appellant therein was granted bail after being kept in
custody for around 49 days, relying on the Constitution
Bench in Shri Gurbaksh Singh Sibbia v. State of Punjab, and
Sanjay Chandra v. Central Bureau of Investigation, that
even if the allegation is one of grave economic offence, it is
not a rule that bail should be denied in every case.
Ultimately, the consideration has to be made on a case to
case basis, on the facts. The primary object is to secure the
presence of the accused to stand trial. The argument that
the appellant therein was a flight risk or that there was a
possibility of tampering with the evidence or influencing the
witnesses, was rejected by the Court. Again, in Satender
Kumar Antil v. Central Bureau of Investigation, this Court
referred to Surinder Singh Alias Shingara Singh v. State of
Punjab and Kashmira Singh v. State of Punjab, to
emphasise that the right to speedy trial is a fundamental
right within the broad scope of Article 21 of the Constitution.
In Vijay Madanlal Choudhary (supra), this Court while
highlighting the evil of economic offences like money
laundering, and its adverse impact on the society and
citizens, observed that arrest infringes the fundamental
right to life. This Court referred to Section 19 of the PML Act,
for the in-built safeguards to be adhered to by the
authorised officers to ensure fairness, objectivity and
accountability.Vijay Madanlal Choudhary (supra), also held
that Section 436A of the Code can apply to offences under
the PML Act, as it effectuates the right to speedy trial, a
facet of the right to life, except for a valid ground such as
where the trial is delayed at the instance of the accused
himself. In our opinion, Section 436A should not be
construed as a mandate that an accused should not be
granted bail under the PML Act till he has suffered
incarceration for the specified period. This Court, in Arnab
Manoranjan Goswami v. State of Maharashtra, held that
while ensuring proper enforcement of criminal law on one
hand, the court must be conscious that liberty across human
eras is as tenacious as tenacious can be.
29. Detention or jail before being pronounced guilty of an
offence should not become punishment without trial. If the
trial gets protracted despite assurances of the prosecution,
and it is clear that case will not be decided within a
foreseeable time, the prayer for bail may be meritorious.
While the prosecution may pertain to an economic offence,
yet it may not be proper to equate these cases with those
punishable with death, imprisonment for life, ten years or
more like offences under the Narcotic Drugs and
Psychotropic Substances Act, 1985, murder, cases of rape,
dacoity, kidnaping for ransom, mass violence, etc. Neither is
this a case where 100/1000s of depositors have been
defrauded. The allegations have to be established and
proven. The right to bail in cases of delay, coupled with
incarceration for a long period, depending on the nature of
the allegations, should be read into Section 439 of the Code
and Section 45 of the PML Act. The reason is that the
constitutional mandate is the higher law, and it is the basic
right of the person charged of an offence and not convicted,
that he be ensured and given a speedy trial. When the trial
is not proceeding for reasons not attributable to the accused,
the court, unless there are good reasons, may well be
guided to exercise the power to grant bail. This would be
truer where the trial would take years."
Another aspect which cannot be lost sight of is
that the prosecution pertains to sale and purchase of a
piece of land measuring one acre and the accusations do
not pertain to wrong aimed to harm the public at large or
defraud the government exchequer.
23. Accordingly, in view of the discussions made
above the petitioner is directed to be released on bail on
furnishing bail bond of Rs. 100,000/- (One Lakh Only) with
two sureties of the like amount each to the satisfaction of
learned Additional Judicial Commissioner-I-Cum-Special
Judge, PMLA, Ranchi, in connection with ECIR Case No. 5
of 2023 [arising out of ECIR No. RNZO/10/2023 dated
07.03.2023].
However, the grant of bail is subject to following
conditions:-
(i) The petitioner shall surrender his passport
before the learned trial court and if he wishes for release of
the same, he shall make proper application before the
concerned court who shall decide the application for release
of passport on its on merit.
(ii) The petitioner will not tamper with any
evidence and/or will not threaten any of the witnesses.
(iii) The petitioner shall appear before the Ld.
Special Judge on each and every date unless exempted by
the learned Trail court on being satisfied with the causes
shown by the petitioner in this regard.
24. It goes without saying that the findings recorded
by this court are tentative in nature and will not have any
bearing on the merits of the case and the learned Trial
court would be free to decide the case on the basis of
evidence adduced at the trial, without in any manner being
prejudiced by the findings given hereinabove.
(Deepak Roshan, J.)
Jharkhand High Court
Dated/ 12 /01/2024
Fahim/-AFR
