Jakir Patel vs Assistant Director Directorate Of ...
2024 Latest Caselaw 6500 MP

Madhya Pradesh High Court

Jakir Patel vs Assistant Director Directorate Of ... on 4 March, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

                                     - : 1 :-
                                                             M.Cr.C. Nos. 6897/2024


           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. 6897 of 2024

BETWEEN:-
JAKIR PATEL S/O SHRI BABU PATEL, AGED ABOUT 54 YEARS,
OCCUPATION: AGRICULTURE 45, GOYA ROAD, KHAJRANA INDORE
(MADHYA PRADESH)
                                                             .....APPLICANT
(SHRI VISHAL BAHETI, LEARNED COUNSEL FOR THE APPLICANT.)

AND
ASSISTANT DIRECTOR DIRECTORATE OF ENFORCE MENT
DIVISIONAL ENGINEER 209 PALIKA PLAZA MTH COMPOUND
INDORE (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 grant of anticipatory bail. The applicant is apprehending his arrest in connection with Crime No.ECIR/INSZO/42/2022 registered by 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".)

- : 2 :-

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

A complaint was sent from the Office of Collector, Indore in respect of accusation of land-scam done through various Housing Societies in Indore by Dilip Sisodia and others. Various FIRs under the provisions of IPC have already been registered at different Police Stations against Dilip Sisodia and his associates. On the basis of 7 FIRs, the respondent - Directorate of Enforcement registered 4 different ECIRs in respect of Dilip Sisodia @ Deepak Jain; Devi Ahilya Shramik Kamgar Co-operative Society; Trishala Grih Nirman Co-operative Society; Sriram Grih Nirman Co-operative Society. The present applicant is an accused in respect of sale of the properties belonging to Kalpataru Grih Nirman Society, in which, FIR has been registered against Dilip Sisodia for defrauding the society by diverting Rs.4.89 Crores in his own personal account. The present applicant - Jakir Patel was the authorized of the aforesaid society. The funds were utilized by Dilip Sisodia. He entered into sham agreement with the society for siphoning of the funds of the society. The funds were utilized by Dilip Sisodia for purchase of two properties. The sale-deed was executed in hurried manner in or to avoid the attachment of the properties under the PMLA Act.

3. Shri Vishal Baheti, learned counsel for the applicant, submits that the applicant is not an accused in the FIR registered in respect of the society viz. Kalpataru Grih Nirman Society, therefore, he cannot made accused under the PMLA Act in view of the definition u/s. 2(q) and Section 3 of the PMLA Act. He further submits that the present applicant was not an authorized signatory of the society and was not involved in any of the transactions. In support of his contention, he has

- : 3 :-

placed reliance over the order passed by the Division Bench of this Court in the case of Dhanlaxmi Chemical Industries & another V/s. Directorate of Enforcement Department (Cr. Revision No. 2746/2023 decided on 24.1.2024) wherein the FIR has been quashed by discharging the accused on acquittal of scheduled offence or criminal case against him under the provisions of PMLA Act. He has also placed reliance on the judgment passed by the apex Court in the case of Vijay Madanlal Choudhary V/s. Union of India [SLP (Cr.) No. 4634/2014 decided on 27.7.2022, especially Para 187(v)(d) in which the apex Court has observed that if the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money- laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. It is further submitted that the offence u/s. 3 of the PMLA Act is dependent on the illegal gain of the property as a result of criminal activity related to a scheduled offence. In the present case, no such property belonging to the society found in the name of the present applicant. The applicant fully cooperated during investigation. No arrest was made during the investigation. He is an income tax payee person. There is no need to arrest the applicant and he is entitled for grant of anticipatory bail.

4. On the other hand, Shri Himanshu Joshi, learned counsel for the respondent opposes the prayer by submitting that the prosecution agency collected the documents from the Transport Cooperative Bank, where the account in the name of the society viz. Kalpataru Grih Nirman Society was opened by the present applicant as a Manager. He was confronted with the Resolution dated 20.12.2017 in which he

- : 4 :-

admitted his signatures. He has failed to give any explanation in respect of transfer of Rs.23.00 Lakhs from the account of the society. He did not disclose these facts before the prosecution agency. In support of his contention, he has placed reliance over 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 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 entire city, thousands of persons are affected by these frauds in respect of sale of land of various 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 in this matter and not releasing the lands of poor persons who invested their hard earned money to purchase the land. Therefore, if they are released on bail, the poor 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 co-ordinate Bench of this Court.

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

5. The present applicant was the Manager of the society viz. Kalpataru Grih Nirman Society at the relevant point of time. Section 3 of the PMLA Act says that whosoever directly or indirectly attempts to

- : 5 :-

indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected 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. Therefore, the allegation in the ECIR against the applicant that he was involved in the process or activity connected with the proceed for crime and its concealment. Therefore, even if, as on today, he is not an accused in the FIR will not be a ground for anticipatory bail in view of rigor of Section 45 of the PMLA Act. At this stage, this Court cannot held that the applicant is not guilty of the offence under the PMLA Act. In 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 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

- : 6 :-

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 entitled for anticipatory bail.

6. Accordingly, this M.Cr.C. is dismissed. The applicant may surrender and apply for regular bail.

( VIVEK RUSIA ) JUDGE Alok/-

Date: 2024.03.07 18:11:11 +05'30'