Madhya Pradesh High Court

Deepesh Jain vs Assistant Director Directorate Of ... on 4 March, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

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                                                          M.Cr.C. Nos. 7044/2024


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                  ON THE 4th OF MARCH, 2024

            MISC. CRIMINAL CASE No. 7044 of 2024

BETWEEN:-
DEEPESH JAIN S/O SHRI MAHENDRA JAIN OCCUPATION: BUSINESS
B, FLAT NO. 201-202 ROHAN RESIDENCY, 107 SARVASUVIDHA
NAGAR INDORE (MADHYA PRADESH)
                                                          .....APPLICANT
(SHRI AJAY BAGADIYA, LEARNED SENIOR ADVOCATE YOGESH
HEMNANI, ADVOCATE FOR THE APPLICANT.)

AND
ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT 209,
PALIKA OF ENFORCEMENT (MADHYA PRADESH)
                                                     .....RESPONDENTS
(SHRI HIMANSHU          JOSHI,     LEARNED       COUNSEL        FOR       THE
RESPONDENT.)


      This application coming on for hearing this day, the court
passed the following:
                                  ORDER

1. This is the first application filed by the applicant under Section 438 of the Cr.P.C. for the grant of anticipatory bail. The applicant is apprehending his arrest in connection with Crime No.ECIR/INSZO/42/2022 registered by the Assistant Director, Directorate of Enforcement, Indore for the offences punishable under Sections 3/4 of the Prevention of Money Laundering Act, 2002 (for short "PMLA Act".)

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2. The facts of the case, in short, are as under :

A complaint was sent by the Collector, Indore to the Directorate of Enforcement with respect to land scams done through various Housing Societies in Indore, especially by Dilip Sisodia and others. Different FIRs under the provisions of the IPC were registered at different Police Stations against Dilip Sisodia and his associates related to the illegal sale of the land of various housing societies. Considering 7 FIRs, the respondent - Directorate of Enforcement registered 4 different ECIRs against Dilip Jian @ Dilip Sisodia @ Madda;(i) Devi Ahilya Shramik Kamgar Co-operative Society; (ii) Trishala Grih Nirman Co-operative Society; (iii) Sriram Grih Nirman Co-operative Society etc . The present applicant is an accused in the matter of sale of the properties belonging to Majdoor Panchayat Grih Nirman Co-operative Society for which two FIRs No. 159 and 161 have already been registered on 17.2.2021 and 18.2.2021 respectively u/s. 420, 467, 468, 471, 120-B of the IPC against Dilip Sisodia and others. Deepak Jain in conspiracy with the present applicant - Deepesh Jain, the then President of the society and Manager - Naseem Haider fraudulently sold the plots of the society to coaccused Keshav Nachani, Omprakash and Omprakash Dhanwani. All the sale deeds were signed by Naseem Haider, the Manager of the society who was not authorized to execute any sale deed. These accused unauthorizedly opened a bank account in the name of the society in Nandanagar Sakh Sahkarita Maryadit Bank wherein the sale amount was credited. Omprakash Dhanwani gave four cheques worth Rs.50.00 Lakhs each and Keshav Nachani also gave four cheques worth Rs.50.00 Lakhs each as a sale consideration. Out of these four cheques, only one issued by Keshav

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Nachani was encashed and for the rest of the three cheques, instructions for "stop payment" were given to the Bank. Dilip Sisodia@Deepak Jain was said to have received Rs.1.50 Crores in cash and an amount of Rs.54.00 Lakhs has been transferred to the City Bank account maintained in the name of Dilip Sisodia. Since the present applicant was the President of the society at the relevant point of time when these sale deeds were fraudulently executed, therefore, he has been arrayed as an accused in the aforesaid two FIRs and now he is one of the accused in the present ECIR.

3. Shri Ajay Bagadiya, learned senior counsel for the applicant submits that the role of the present applicant has been described in Para 10.9.2 of the ECIR that on his authorization, the sale-deeds were illegally executed by Naseem Haider. No amount came into the account of the present applicant . He happens to be the brother-in-law of Dilip Sisodia who had absolute control over the society. The applicant was only President of the society for the name sake and that too by virtue of his relationship with Dilip Sisodia. In similar facts and circumstances, this Court has already granted bail to Keshav Nachani, Omprakash Dhanwani and Ashok Pipada who purchased the land from Naseem Haider. It is further submitted that during the investigation, the applicant extended full cooperation and he was never arrested by the respondent. Now the investigation is complete and ECIR has been filed. He remained in jail in connection with two FIR .There is no need to arrest the applicant and he is entitled to a grant of anticipatory bail.

4. On the other hand, Shri Himanshu Joshi, learned Dy. SG for the respondent opposes the prayer by submitting that the applicant does not have any parity with Keshav Nachani, Omprakash Dhanwani and

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Ashok Pipada who have been granted bail by this Court becaused they purchased the land of the society, but the present applicant was the President of the Society on whose authorization Naseem Haider illegally sold the land by opening a forged bank account fraudulently in the name of the society. Therefore, the present applicant played an active role in the said transaction. The main accused Dilip Sisodia is still in jail. It is further submitted that u/s. 45 of the PMLA Act, the offence against the applicant is cognizable and non-bailable and no person accused of an offence under this Act shall be released on bail unless where 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. Therefore, prima facie, there is enough material to establish that the present applicant has committed u/s. 3/4 of the PMLA Act. In support of his contention, he has placed reliance on the judgment of the apex Court in the case of Y.S. Jagan Mohan Reddy V/s. CBI : (2013) 7 SCC 439; State of U.P. V/s. Amar Mani Tripathi : (2005) 8 SCC 221; Gurucharan Singh V/s. State (Delhi Administration: 1978 SCC (Cr.) 41; Vijay Madanlal Choudhary V/s. Union of India [SLP (Cr.) No. 4634/2014 decided on 27.7.2022; X V/s. Arun Kumar: 2022 SCC OnLine SC 1529, in which it has been held that the offence of money laundering is an independent as well as a continuing offence, which can be inferred from its very definition u/s. 2(p) read with Section 3 of the PMLA Act. It is further submitted that in the Indore city, thousands of persons are affected by these land scams in the housing societies by Dilip Sisodia and his associates. Despite various directions issued by the apex Court as well as by this Court, they are not ready to compromise and return the lands

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to the societies. The poor persons who invested their hard-earned money to purchase the land/plots from society are not able to construct their houses. Therefore, if they are released on bail, those plot owners will not get possession of their land. The present applicant and other accused are not making serious efforts for settlement in this matter despite several efforts made by the co-ordinate Bench of this Court.

I have heard the learned counsel for the parties and gone through the material available on record.

5. Admittedly, the present applicant was the President of the society viz. Majdoor Panchayat Grih Nirman Co-operative Society at the relevant point of time when on his authorization Naseem Haider, the Manager of the society, executed the sale deeds in favour of Keshav Nachani and Omprakash Dhanwani of the land/plots which had already been sold to the members of the society. Therefore, the role of the present applicant is different from the role of the purchasers of the plots. He is a brother of the wife of the main accused Dilip Sisodia (brother-in-law), therefore, he cannot plead that he was ignorant about all these transactions or that he was not associated with the conspiracy.

At this stage, this Court cannot hold that the applicant is not guilty of the offence under the PMLA Act. In the case of Vijay Madanlal Choudhary (supra has held in Para 140 and 141 in the matter of grant of bail u/s. 438 of the Cr.P.C. as under :

"140. Suffice it to observe that it would be preposterous and illogical to hold that if a person applies for bail after arrest, he/she can be granted that relief only if the twin conditions are fulfilled in addition to other stipulations predicated in the 1973 Code; but another person, who is yet to be arrested in connection with the same offence of money laundering, will not be required to fulfil such twin conditions whilst considering application for grant of bail under Section 438 of the 1973

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Code. The relief of bail, be it in the nature of regular bail or anticipatory bail, is circumscribed by the stipulations predicated in Section 45 of the 2002 Act. The underlying principles of Section 45 of the 2002 Act would get triggered in either case before the relief of bail in connection with the offence of money-laundering is taken forward. Any other view would be counterproductive and defeat the purposes and objects behind the stringent provision enacted by the Parliament for prevention of money-laundering and to combat the menace on account of such activity which directly impacts the financial systems, including the sovereignty and integrity of the country.

141. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering."

In the case of Y.S. Jagan Mohan Reddy (supra) the apex Court has held in Para 34 and 35 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.

35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."

Even otherwise, the warrant has been issued by the Court but the present applicant is not appearing before the Court, therefore, he is not

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