Nagwant Pandey vs The Union Of India Through The ...
2025 Latest Caselaw 3404 Jhar

Jharkhand High Court

Nagwant Pandey vs The Union Of India Through The ... on 21 March, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    B.A. No.7317 of 2024
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Nagwant Pandey, aged about 52 years, son of Rajkumar Pandey, resident of B-203, Vishwanath Apartment, Devi Mandap Road, P.O. and P.S. Sukhdeo Nagar, District-Ranchi ... ... Petitioner Versus The Union of India through the Directorate of Enforcement, Government of India, Zonal Office, Ranchi.

                                 ...    ...    Opp. Party
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Chandrajit Mukherjee, Advocate For the Opp. Party : Mr. Amit Kumar Das, Advocate : Mr. Saurav Kumar, Advocate : Mr. Vineet Sinha, Advocate

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CAV on 07.02.2025 Pronounced on 21/03/2025

Prayer

1. The instant application has been filed under Sections

483 and 484 of BNSS for grant of regular bail to the

petitioner, in connection with ECIR Case No.03 of 2023,

registered for alleged offence under Section 3 and 70 of

Prevention of Money Laundering Act, 2002 (PML Act 2002)

punishable under Section 4 of Act, 2002, pending in the

Court of Special Judge, P.M.L. Act, Ranchi.

Factual matrix

2. The prosecution case in brief is that investigation

under the Prevention of Money Laundering Act, 2002 was

initiated against the petitioner by recording ECIR No.

ECIR/05/PAT/2012 dated 13.03.2012 against the

applicant/petitioner and other co-accused on the basis of

information received from FIR No. RC-19(A)/09-R dated

22.10.2009 registered by CBI, ACB, Ranchi.

3. Subsequently, the chargesheet has been filed by the

investigating agency under the various Sections which are

covered under the definition of scheduled offence in terms of

Section 2(1) (y) of PMLA.

4. It has been alleged that co-accused Mahesh Mehra,

Nagwant Pandey (petitioner) and their corporation/firms

have entered into criminal conspiracy with others through

M/s Kaushalya Infrastructure Development Corporation

Ltd. (M/s KIDCL) and submitted 26 forged/fake bitumen

invoices worth Rs. 1,08,95,583/- through the contractor

company/authorized representative and claimed bills

against purported execution of strengthening of Parwa-

Garhwa Road during 2004-06 against the work awarded by

Road Construction Department (RCD), Daltonganj.

5. The proceeds of crime amounting to

Rs.1,08,95,583/- was received by the contractor company as

a part of the total receipt from the RCD amounting to Rs.

4,03,03,179/- in its different bank account.

6. Further in the complaint it has been stated that

during investigation as on 31.03.2022 M/s Kaushalya

Township Private Limited and M/s Kaushalya Nirman Privae

Limited are associates companies and M/s Bengal KDC

Housing Development Limited is a subsidiary company of

M/s Kaushalya Infrastructure Development Corporation

Limited (M/s KIDCL).

7. The present petitioner was proprietor of M/s Nagraj

Construction authorized by the M/s KIDCL vide letter issued

to the Executive Engineer, RCD, Daltonganj to represent the

contractor company before RCD.

8. It has been alleged that the materials on record

further show that the accused person came in possession of

proceeds of crime and were involved in activities claiming

proceeds of crime as untainted property and further alleged

that the aforesaid were covered under the definition of money

laundering and there was no explanation for the ill-gotten

money.

9. Consequent upon investigation conducted by the

CBI, ACB, Ranchi, Charge-Sheet No. 02/2011 dated

31.01.2011 for contravention of section 120-B read with

420, 468 & 471 of IPC, 1860 and section 13(2) read with

13(1)(d) of PC Act, 1988 was filed before the Special Court,

CBI, Ranchi against the present applicant along with other

co-accused.

10. In the backdrop of the aforesaid alleged offences the

present petitioner has been arrested and he is in custody

since 21.06.2024.

11. The present petitioner accordingly, had preferred

Miscellaneous Criminal Application (MCA No. 1999 of 2024)

but the same was rejected on 03.07.2024, hence, the instant

bail application.

Argument advanced by the learned counsel for the petitioner:

12. The learned counsel appearing for the petitioner has

taken the following grounds :-

(i) That the petitioner was neither an office bearer in the

RCD, Daltonganj nor the officer bearer in M/s

Kaushalya Infrastructure Development Corporation

Ltd. and at best the role of the petitioner was of

caretaker of M/s Kaushalya Infrastructure

Development Corporation Ltd.

(ii) The petitioner has never signed on any invoice as

alleged during the check period and the petitioner was

only responsible for supply of labourers in the different

road construction projects undertaken by M/s

Kaushalya Infrastructure Development Corporation Ltd

and was remunerated by the construction company for

the same.

(iii) The payments made by the RCD, Daltonganj were

always made through cheques and demand drafts

drawn in favour of M/s KIDCL and its subsidiary

company. In so far as supply of bitumen is concerned,

the same was made from M/s HPCL and M/s Indian Oil

Corporation. The payment for the bitumen was directly

made to the petroleum companies by M/s KIDCL

through its authorized signatories namely, S.N. Mehra,

Mahesh Mehra and Prashant Mehra and the petitioner

has neither received any bitumen nor he ever made

payment for the same.

(iv) Further, the payment made by RCD to M/s KIDCL in

their respective bank account was under control of

authorized signatory/director/share holder of the said

company. The petitioner was neither a signatory nor

authorized representative of the company so as to

withdraw any funds whatsoever.

(v) The payment made by RCD to M/s KIDCL in their

respective bank account was under control of

authorized signatory/director/share holder of the said

company. The petitioner was neither a signatory nor

authorized representative of the company so as to

withdraw any funds whatsoever.

(vi) The Present Petitioner had cooperated in the

investigation as well therefore in in the light of the

judgement passed by the Hon'ble Supreme Court in the

case of Tarsem Lal v. Directorate of Enforcement

Jalandhar Zonal Office, reported in (2024) 7 SCC 61

the present petitioner deserves to be enlarge on bail.

(vii) Further the ground of parity has also been taken, since,

the anticipatory bail application of other co-accused

person namely Mahesh Mehra has been disposed of by

this Court vide order dated 16.08.2024 passed in

A.B.A. No. 7187 of 2023 by which the said co-accused

has been directed to comply the direction of the Hon'ble

Supreme Court rendered in the case of Tarsem Lal

(supra) as disclosed in paragraph 20 of the said

judgment, within two weeks and the learned Court will

pass order on the basis of the judgment passed by the

Hon'ble Supreme Court in the case of Tarsem Lal

(supra).

(viii) According to the petitioner, the case of the present

petitioner is on better footing than the co-accused

Mahesh Mehra and hence, applying the principle of

parity, the petitioner of the present case is also fit to be

released on bail.

(ix) It has been submitted that the petitioner is in custody

since 21.06.2024 and as such, taking into

consideration the involvement of the petitioner even it

will be considered from the ECIR, there is no ingredient

of commission of any predicate offence of the schedule

offence and as such, the petitioner may be granted the

privilege of bail.

Argument advanced by the learned counsel for the respondent/Directorate of Enforcement:

13. Per contra, Mr. Amit Kumar Das, learned counsel for

the Enforcement Directorate, has vehemently opposed the

prayer for bail and has submitted that the present petitioner

is involved in the offence of money laundering and he has

committed the said offence either directly or indirectly by

involving himself in the process or activities connected with

the proceeds of crime and laundered the ill-gotten money.

14. It has further been submitted that Shri Baleshwar

Baitha & Heeraman Mahto, both Executive Engineers, Road

Construction Department (RCD), Daltonganj, during the

period 2004-06, entered into a criminal conspiracy with M/s

Kaushalya Infrastructure Development Corporation Ltd. and

unknown others and in pursuance thereof M/s Kaushalya

infrastructure Development Corporation Ltd. submitted

false/bogus invoices showing procurement of bitumen for

the execution of contractual works awarded in its favour,

which caused wrongful gain to the contractor and official

concerned and corresponding to huge wrongful loss to the

Government of Jharkhand to the tune of crores of rupees.

Therefore, the prayer of the present applicant for bail is not

fit to be allowed.

15. Further, it has also come in the investigation that the

fabricated document has been created on the behest of this

petitioner, therefore, on fact the petitioner is not entitled to

get the advantage of parity on the basis of the order granting

bail in favour of the co-accused Mahesh Mehra.

16. On the aforesaid ground the learned counsel for the

ED has submitted that it is not a fit case wherein the

petitioner may enlarge on the bail.

Analysis

17. Heard the learned counsel for the parties and

perused the documents available on record.

18. This Court before appreciating the argument

advanced on behalf of the parties, deems it fit and proper to

discuss herein some of the provision of law as contained

under the PML Act, 2002 (Act 2002) with its object and intent

as also the legal proposition as settled by the Hon'ble Apex

Court in various judgments.

19. The Act 2002 was enacted in order to answer the

urgent requirement to have a comprehensive legislation inter

alia for preventing money-laundering, attachment of

proceeds of crime, adjudication and confiscation thereof for

combating money-laundering and also to prosecute the

persons indulging in the process or activity connected with

the proceeds of crime.

20. It needs to refer herein the definition of "proceeds of

crime" as provided under Section 2(1)(u) of the Act, 2002,

wherefrom the "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 or

the value of any such property or where such property is

taken or held outside the country, then the property

equivalent in value held within the country or abroad.

21. The "property" has been defined under Section

2(1)(v) which means any property or assets of every

description, whether corporeal or incorporeal, movable

or immovable, tangible or intangible and includes deeds

and instruments evidencing title to, or interest in, such

property or assets, wherever located.

22. The schedule has been defined under Section

2(1)(x) which means schedule to the Prevention of

Money Laundering Act, 2002. The "scheduled offence"

has been defined under Section 2(1)(y) and "scheduled

offence" means the offences specified under Part A of

the Schedule; or the offences specified under Part B of

the Schedule if the total value involved in such offences

is [one crore rupees] or more; or the offences specified

under Part C of the Schedule.

23. The offence of money laundering has been defined

under Section 3 of the Act, 2002 and it is evident from the

aforesaid provision that "offence of money-laundering"

means whosoever directly or indirectly attempts to indulge

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.

24. It is further evident that the process or activity

connected with proceeds of crime is a continuing activity and

continues till such time a person is directly or indirectly

enjoying the proceeds of crime by its concealment or

possession or acquisition or use or projecting it as untainted

property or claiming it as untainted property in any manner

whatsoever.

25. The various provisions of the Act, 2002 along with

interpretation of the definition of "proceeds of crime" has

been dealt with by the Hon'ble Apex Court in the case of

Vijay Madanlal Choudhary and Ors. Vs. Union of India

and Ors., reported in (2022) SCC OnLine SC 929 wherein

the Bench comprising of three Hon'ble Judges of the Hon'ble

Supreme Court have decided the issue by taking into

consideration the object and intent of the Act, 2002.

26. The predicate offence has been considered in the

aforesaid judgment wherein by taking into consideration the

explanation as inserted by way of Act 23 of 2019 under the

definition of the "proceeds of crime" as contained under

Section 2(1)(u), whereby and whereunder, it has been

clarified for the purpose of removal of doubts that, the

"proceeds of crime" include property not only derived or

obtained from the scheduled offence but also any property

which may directly or indirectly be derived or obtained as a

result of any criminal activity relatable to the scheduled

offence, meaning thereby, the words "any property which

may directly or indirectly be derived or obtained as a result of

any criminal activity relatable to the scheduled offence" will

come under the fold of the proceeds of crime.

27. At this juncture it needs to refer herein the purport

of Section 45(1)(i)(ii) wherein the aforesaid provision starts

from the non-obstante clause that notwithstanding anything

contained in the Code of Criminal Procedure, 1973, no

person accused of an offence under this Act shall be released

on bail or on his own bond unless-(i) the Public Prosecutor

has been given an opportunity to oppose the application for

such release; and (ii) where the Public Prosecutor opposes

the application, the court is satisfied that there are

reasonable grounds for believing that he is not guilty of such

offence and that he is not likely to commit any offence while

on bail.

28. Sub-section (2) thereof puts limitation on granting

bail specific in sub-section (1) in addition to the limitations

under the Code of Criminal Procedure, 1973 or any other law

for the time being in force on granting of bail.

The explanation is also there as under sub-section (2)

thereof which is for the purpose of removal of doubts, a

clarification has been inserted that the expression "Offences

to be cognizable and non-bailable" shall mean and shall be

deemed to have always meant that all offences under this Act

shall be cognizable offences and non-bailable offences

notwithstanding anything to the contrary contained in the

Code of Criminal Procedure, 1973, and accordingly the

officers authorised under this Act are empowered to arrest

an accused without warrant, subject to the fulfilment of

conditions under section 19 and subject to the conditions

enshrined under this section.

29. The fact about the implication of Section 45 has been

interpreted by the Hon'ble Apex Court in Vijay Madanlal

Choudhary and Ors. Vs. Union of India and Ors.(supra)

at paragraphs-371 to 374. For ready reference, the said

paragraphs are being referred as under:-

"371. The relevant provisions regarding bail in the 2002 Act can be traced to Sections 44(2), 45 and 46 in Chapter VII concerning the offence under this Act. The principal grievance is about the twin conditions specified in Section 45 of the 2002 Act. Before we elaborate further, it would be apposite to reproduce Section 45, as amended. --

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372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Subsection (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are:

(i) that there are reasonable grounds for believing that he is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail.

373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur.

374. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 2018, the declaration by this Court will be of no consequence. This argument need not detain us

for long. We say so because the observation in State of Manipur in paragraph 29 of the judgment that owing to the declaration by a Court that the statute is unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of legislative power. In the process of reasoning, it did advert to the exposition in Behram Khurshid Pesikaka and Deep Chand7 including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County."

30. Subsequently, the Hon'ble Apex Court in the case of

Tarun Kumar vs. Assistant Director Directorate of

Enforcement, (2023) SCC OnLine SC 1486 by taking into

consideration the law laid down by the Larger Bench of the

Hon'ble Apex Court in Vijay Madanlal Choudhary and

Ors. Vs. Union of India and Ors. (supra), it has been laid

down that since the conditions specified under Section 45

are mandatory, they need to be complied with. The Court is

required to be satisfied that there are reasonable grounds for

believing that the accused is not guilty of such offence and

he is not likely to commit any offence while on bail.

31. It has further been observed that as per the statutory

presumption permitted under Section 24 of the Act, the

Court or the Authority is entitled to presume unless the

contrary is proved, that in any proceedings relating to

proceeds of crime under the Act, in the case of a person

charged with the offence of money laundering under Section

3, such proceeds of crime are involved in money laundering.

Such conditions enumerated in Section 45 of PML Act will

have to be complied with even in respect of an application for

bail made under Section 439 Cr. P.C. in view of the

overriding effect given to the PML Act over the other law for

the time being in force, under Section 71 of the PML Act. For

ready reference, paragraph-17 of the said judgment reads as

under:-

"17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act."

32. The Hon'ble Apex Court in the said judgment has

further laid down that the twin conditions as to fulfil the

requirement of Section 45 of the Act, 2002 before granting

the benefit of bail is to be adhered to which has been dealt

with by the Hon'ble Apex Court in Vijay Madanlal

Choudhary and Ors. Vs. Union of India and Ors.(supra)

wherein it has been observed that the accused is not guilty

of the offence and is not likely to commit any offence while

on bail.

33. In the judgment rendered by the Hon'ble Apex Court

in Vijay Madanlal Choudhary and Ors. Vs. Union of India

and Ors. (supra) as under paragraph-284, it has been held

that the Authority under the 2002 Act, is to prosecute a

person for offence of money-laundering only if it has reason

to believe, which is required to be recorded in writing that

the person is in possession of "proceeds of crime". Only if

that belief is further supported by tangible and credible

evidence indicative of involvement of the person concerned

in any process or activity connected with the proceeds of

crime, action under the Act can be taken forward for

attachment and confiscation of proceeds of crime and until

vesting thereof in the Central Government, such process

initiated would be a standalone process.

34. The Hon'ble Apex Court in the case of Gautam

Kundu vs. Directorate of Enforcement (Prevention of

Money-Laundering Act), Government of India through

Manoj Kumar, Assistant Director, Eastern Region,

reported in (2015) 16 SCC 1 has been pleased to hold at

paragraph -30 that the conditions specified under Section 45

of PMLA are mandatory and need to be complied with, which

is further strengthened by the provisions of Section 65 and

also Section 71 of PMLA. Section 65 requires that the

provisions of CrPC shall apply insofar as they are not

inconsistent with the provisions of this Act and Section 71

provides that the provisions of PMLA shall have overriding

effect notwithstanding anything inconsistent therewith

contained in any other law for the time being in force. PMLA

has an overriding effect and the provisions of CrPC would

apply only if they are not inconsistent with the provisions of

this Act. Therefore, the conditions enumerated in Section 45

of PMLA will have to be complied with even in respect of an

application for bail made under Section 439 CrPC. That

coupled with the provisions of Section 24 provides that

unless the contrary is proved, the authority or the Court

shall presume that proceeds of crime are involved in money-

laundering and the burden to prove that the proceeds of

crime are not involved, lies on the petitioner.

35. The Hon'ble Apex Court in the case of Tarun Kumar

vs. Assistant Director Directorate of Enforcement (supra)

has again reiterated the implication of Sections 45 and the

principle of parity at paragraphs-17 and 18. The issue of

parity has been considered by the Hon'ble Apex Court at

paragraph-18 by making observation therein that parity is

not the law. While applying the principle of parity, the Court

is required to focus upon the role attached to the accused

whose application is under consideration.

36. In the backdrop of the aforesaid proposition of law

this Court is now coming to the grounds as has been raised

on behalf of the learned counsel for the petitioner that even

if the entire ECIR will be taken into consideration, no offence

will be said to be committed so as to attract the ingredients

of Sections 3 & 4 of the P.M.L. Act, 2002.

37. In the context of aforesaid argument, it is pertinent

to mention here that at this juncture this court thinks fit to

discuss the twin condition as available under Section 45 of

the Act is concerned, in order to come to the conclusion as

to whether the condition stipulated in these sections have

been followed or not, is required to consider the paragraphs

of the prosecution complaint which has been appended to

the instant application. For ready reference, the relevant

paragraph of the same is being reproduced as under:-

"11.3.3 Shri Nagwant Pandey (Accused No. 3)

a) Shri Nagwant Pandey was proprietor of M/s Nagraj Construction which was later dissolved to form a company viz. M/s Nagraj Construction Pvt. Limited in 2011.

b) As deposed by Shri Nagwant Pandey during his statements recorded u/s 50 of PMLA, 2002, it was only upon the advice of the Accused No. 1 that Shri Nagwant Pandey floated the abovementioned proprietorship concern and a bank account in the name of this entity was also opened with Federal Bank for which the Accused No. 1 became guarantor and the said bank account was opened to get the money transferred/ deposited for execution of the said road work awarded to the Accused No. 1.

c) Shri Nagwant Pandey was authorized by the Accused No. 1 vide a letter issued in this regard to Executive Engineer, RCD, Daltonganj to represent the contractor company before the RCD.

d) Upon request of the Accused No. 1, the then Executive Engineer of the RCD, Daltonganj authorized him to receive bitumen from IOCL, Ranchi.

e) Accused No. 3 has deposed during his statement recorded under section 50 of the PMLA, 2002 that a Memorandum of Understanding (MoU) dated 12.08.2004 was signed between M/s Nagraj Construction (Proprietorship concern of the Accused No.3) and Accused No. 1, this MoU, though appearing to be dated before initiation of the said road work, was signed during the execution of work for maintaining accounts and payments and not before the initiation of the said road work.

f) Accused No. 1 had also authorized him to sign MB and receive cheques from RCD, Daltonganj.

g) Accused No. 3 conspired with other accused peraons and dishonestly & fraudulently submitted three numbers of fake and forged bitumen invoices to the Road Division, RCD, Daltonganj for processing of the bills and also received the cheques of payment from the department. He deposited the amount of the said cheques in different bank accounts of the accused contractor company M/s Kaushalya Infrastructure Development Corporation Limited.

h) Hence, Shri Nagwant Pandey (Accused No. 3) has knowingly assisted and was a party to the activities (ie acquisition & possession) connected with the offence of the money laundering as defined under section 3 of the PMLA, 2002, committed by the Accused No. 1, accordingly, Shri Nagwant Pandey is guilty of the offence of money laundering u/s 3 and punishable u/s 4 of the PMLA, 2002."

38. It transpires from record that the prosecution

complaint has already been submitted and based upon that

cognizance has been taken by the special court on

06.04.2023 for the offence u/s 3 and 70 punishable u/s 4 of

PML Act, 2002 against the present accused and his other

associates.

39. As per the prosecution complaint there are specific

allegations against the petitioner that the entity i.e. M/s

Nagraj Construction managed and controlled by him has

committed the offence of money laundering with respect to

the proceeds of crime obtained through the predicate offence.

40. It has been alleged that the accused contractor

company, dishonestly and fraudulently, concealed the fact

that a lesser quantity of bitumen was utilized. It has further,

been alleged that Government officials by abusing their

respective official positions, in connivance with the accused

Mahesh Mehra, Director, Sidh Nath Mehra (since expired),

Nagwant Pandey, present petitioner who has alleged to be

Authorized Representative of the contractor company i.e.

M/s Kaushalya Infrastructure Development Corporation

Ltd., dishonestly and fraudulently, certified/countersigned

the Measurement Books and On Account bills/Final Bill, in

order to extend undue benefit to the accused contractor

company by facilitating payment of bills of the contractor

company which resulted into wrongful gain of Rs.

1,08,95,583/- to the contractor company and corresponding

wrongful loss to the Government of Jharkhand.

41. In the context of aforesaid allegation It needs to refer

herein that as per the provision of law rendered by the

Hon'ble Apex Court in the case of Vijay Madanlal

Choudhary and Ors. Vs. Union of India and Ors., bail

can be granted to a money-laundering accused only if the

twin conditions u/s 45 (1) of PMLA are satisfied. These

conditions for granting bail are - (i) where the Public

Prosecutor opposes such application, the Court should be

satisfied that there are reasonable grounds for believing that

the accused is not guilty of the offence and (ii) he is not likely

to commit any offence while on bail.

42. Now this Court is applying the aforesaid principle in

the instant case. It is apparent from record that M/s KIDCL

entered into a Memorandum of Understanding (MoU) dated

12.08.2004 with M/s Nagraj Construction for the

construction of Parwa-Garhwa Road 0 to 30 KM. All the

materials, bitumen and labour were provided by Shri

Nagwant Pandey as per the MoU dated 12.08.2004.

43. Further it has come on record that the contractor

company (M/s KIDCL) was ultimately responsible to RCD for

the execution of the work as they were the contracting

company, the company with which the RCD entered into

agreements while awarding the contract for road

construction.

44. It was also specifically mentioned in the Notice

Inviting Tender (NIT) dated 08.05.2004 (part and parcel of

the Agreement dated 19.07.2004) that "the contractor would

himself purchase the packed bitumen of Grade-60/70 from

the Government Oil Companies and will submit the Proof of

the quality of bitumen/Proof of purchase/Receipt to the

Road Construction Department.

45. Thus it is evident that the contractor company (M/s

KIDCL) had signed Memorandum of Understanding (MoU)

dated 12.08.2004 with M/s Nagraj Construction(managed as

proprietor by the present applicant) by which All the

materials, bitumen and labour were provided by Shri

Nagwant Pandey as per the MoU dated 12.08.2004.

46. Thus, the contractor company (M/s KIDCL) was

ultimately responsible to RCD for the execution of the work

as M/s KIDCL was the contracting company for the

sanctioned work.

47. Further the bill raised by M/s KIDCL before the RCD,

Daltonganj were paid to the construction company directly

in their respective bank account and not in the individual

account.

48. Further it is the case of the petitioner that he was

only responsible for supply of labour in the different road

construction projects undertaken by M/s Kaushalya

Infrastructure Development Corporation Ltd (Accused no.1)

and was remunerated by the construction company for the

same.

49. The applicant in his statement recorded under

section 50 of PML Act 2002 has categorically stated that the

requirement of bitumen at site was conveyed to M/s KIDCL

which was subsequently provided by M/s KIDCL and

payment for bitumen was not made by him or his entity

namely M/s Nagraj Construction.

50. Thus, it appears that M/s KIDCL was directly

involved in the road work and records of bitumen purchase

which were required for invoices to be submitted before RCD

for processing and payments were maintained by M/s KIDCL

only.

51. It has come in the investigation that so far as the

supply of bitumen is concerned, the same was made from

M/s HPCL and M/s Indian Oil Corporation and the payment

for the bitumen was directly made to the petroleum

companies by M/s KIDCL through its authorized signatories

namely S.N. Mehra, Mahesh Mehra and Prashant Mehra.

52. Thus, the payment made by RCD to M/s KIDCL in

their respective account was under control of authorized

signatory/director/share holder of the said company. It has

not cogently established that the petitioner was signatory or

authorized representative of the said accused company so as

to withdrawn any funds whatsoever.

53. Thus, on the basis of the discussion made herein

above this Court has considered view that twin condition as

stipulated in Section 45 of the Act 2002 is fully available

herein.

54. At this juncture it needs to refer herein that the

jurisdiction to grant bail has to be exercised on the basis of

the well settled principles having regard to the facts and

circumstances of each case and while allowing refusing bail

the nature of accusation and the nature of the materials

relied upon by the prosecution must be taken care of,

reference in this regard may be made to the judgment as

rendered by the Hon'ble Apex Court in the case of P.

Chidambaram v. Central of Investigation reported in

(2020) 13 SCC 337. Relevant extract from the decision is

reproduced hereunder:-

"21. The jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;

(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations.

22. There is no hard-and-fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits.--

55. In view of the aforesaid settled legal position as

referred in the preceding paragraphs, on the basis of

discussion made hereinabove and further taking in to

consideration the observation as made by this Court in view

of the judgment rendered by the Hon'ble Apex Court in the

case of Tarsem Lal (supra), in the anticipatory bail

application of the co-accused Mahesh Mehra who is the

director of the main accused company (M/s KIDCL), this

Court inclined to grant bail to the petitioner, named above.

56. Accordingly, the petitioner, named above, is directed

to be released on regular bail, on furnishing bail bond of

Rs.50,000/-(Rupees Fifty Thousand) with two sureties of the

like amount each to the satisfaction of learned Special

Judge, PMLA, Ranchi, in connection with ECIR Case No. 03

of 2023.

57. However, the bail granted by this Court 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

learned Special Judge on each and every date

unless exempted by the learned Trial court on

being satisfied with the causes shown by the

petitioner in this regard."

58. With the above observation, this bail application

stands allowed and disposed of.

59. The observations made in the course of this order,

are only for considering the case of the applicant on the

application for the grant of bail. The concerned trial Court

shall not be influenced or bound by any observations made

hereinabove.

(Sujit Narayan Prasad, J.)

Birendra / A.F.R.