Madras High Court
Suresh Kumar vs The State Represented By on 27 April, 2023
Crl.O.P.No.4566 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2023
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
Crl.O.P.No.4566 of 2023
Suresh Kumar ... Petitioner/A22
Vs.
The State represented by,
The Assistant Director,
Directorate of Enforcement,
Government of India, Ministry of Finance,
Department of Revenue, 84, Greams Road,
Thousand Lights, Nungambakkam,
Chennai-600 006.
ECIR No.CEZ0-I/40/2020/Chennai. ... Respondent
PRAYER: Criminal Original Petition filed under Section 439 of Cr.P.C.,
pleased to enlarge the petitioner/accused on bail, pending trial in
Spl.C.C.No.2 of 2022 on the file of the learned IX Additional Special Judge
for CBI cases, Chennai.
For Petitioner : Mr.N.R.Elango, Senior Counsel
For Respondent : Mr.P.Sidharthan
Special Public Prosecutor
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ORDER
The petitioner who was arrested and remanded to judicial custody
on 07.03.2022 for the offence punishable under Sections 4 of Prevention of
Money Laundering Act, 2002 in connection with Spl.C.C.No.02 of 2022 on
the file of the learned IX Additional Special Judge for CBI Cases, Chennai
arising out of the registration of Enforcement Case Information Report
(ECIR) No.CEZO-I/40/2020/Chennai-I, seeks bail.
2. The case of the prosecution is that the petitioner/A22 had helped
Sudalaimuthu/A1, in creating fake Fixed Deposit receipts, which were
created on the basis of the original FD receipts, which were obtained by
A25/ Gurunathan and through one T.Esakki, the same have been handed
over to Chennai Port Trust, with active connivance of Raghu Bernard/ A30.
It is further alleged that A22/Suresh Kumar, the petitioner herein under
active connivance with, A1/Sudalaimuthu, forged and fabricated Chennai
Port Trust profile, Board resolutions, Authorization letters, bearing specimen
signatures, and Rubber Stamps of Chennai Port Trust Officials, Employee ID
cards, etc., for the purpose of opening fake Current Account in the name of
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Chennai Port Trust General Insurance Fund with Indian Bank, Koyembedu
Branch, by way of impersonation by A4/Ganesh Natarajan and thereby,
facilitated the Port Trust Fund into different accounts and misappropriated
the same. The further allegation is that the petitioner / A22 also indulged in
the act of money laundering.
3. The learned counsel for the petitioner submitted that the
petitioner/ A22 has been falsely implicated in this case and the allegation
levelled against him is nothing but imagination and not supported by any
material on record to substantiate a prima-facie case. He also relied on
Section 3 of Prevention of Money laundering Act and submitted that the
ingredients of the said Section would not apply to the case of the petitioner.
Nor he is liable for the penal provision under Section 4 of the PMLA,
besides he also submitted that he was not served with notice under Section
41-A Cr.P.C, which is mandatory and non- compliance, of the same on the
part of the investigating agency is also a ground for grant of bail. He further
submitted that the case is at the stage of framing of charges and investigation
is almost completed, and as there is such change of circumstances and as this
is the third application, he prayed for bail and he is prepared to abide by any
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stringent conditions that may be imposed by this Court. He also pointed out
that the petitioner was already granted conditional bail, for Scheduled
offences mentioned therein Crl.M.P.No.7532 of 2022 in C.C.No.16 of 2022
on 27.10.2022, by the Court below and in that case, charge sheet was also
filed by the CBI/ACB/Chennai, and so, there is no possibility of tampering
with the witness and hampering the evidence, even if any such objection is
raised by the prosecution.
4. By way of reply, the learned Special Public prosecutor appearing
for the respondent raised a strong objection stating that, during
investigation, the petitioner / A22, had helped A1/ Sudalai Muthu by creating
fake Fixed Deposit receipts, which was created based on the FD original
receipts and it was handed over to A1 through one Esakki, who in-turn
delivered the same to Chennai Port Trust with the help of Chennai Port Trust
official A30/RahuBernard. He further argued that colluding with
A1/Sudalaimuthu, the petitioner prepared the forged documents such as a
Chennai Port Trust Profile, Board of Resolution, Authorization letter bearing
the Specimen signatures and Rubber Seal of self-inking stamp of Chennai
Port Trust officials, Employee ID card, forging/copying/scanning the
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signature of the Chennai Port Trust officials in the Board Resolution and
authorization letter and also fabricated official letter format of Chennai Port
Trust by using the name as "Port of Chennai" and its logo, and thus the
petitioner had directed his known person Shri Shafiq Ahamed to prepare the
fake documents in the aspect of Board Resolution, Authorization letter,
Employee ID card, fixed deposit receipts. These documents were used for the
purpose of creating fake account bearing No.6867825525 in the name of
Chennai Port Trust, by impersonating of A4/ Shri Ganesh Natarajan as
official of Chennai Port Trust and the fake FD receipts were delivered to
Chennai Port Trust against the investment made by them. Furthermore, as per
the statement given by A1/Sudalaimuthu, recorded under Section 15 of the
Prevention of Money laundering Act, in the Central prison, Puzhal, in which
inter-alia, he stated that as per the petitioner's instruction only, he
downloaded the documents from the Port whatsapp and after downloading he
handed over all the documents to the petitioner. Further, he also stated that,
he downloaded the KYC document of Chennai Port Trust and handed over
the same to the petitioner near Porur, for handling over the same to
A1/Sudalai Muthu.
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5. Knowing fully well that he has indulging, in creating all the fake
documents and using the forged document, FD Accounts were created in the
name of Chennai Port Trust and subsequently, mis-appropriated the terms of
Deposits and were in enjoyment and possession of the crime by considering
Fixed original and projected and claimed as untainted and as such, there
appears to be a prima-facie case of Money Laundering, as for the offence
under Section 3 of Prevention of Money laundering Act, he is punishable
under Section 4 of Prevention of Money laundering Act . The offence of
money laundering, involves, several stages like concealing original
documents and investigation has to be analysed. So far as this petitioner is
concerned, he has not disclosed the concealment with regard to the
placement of layering of the proceeds and the crime derived by the
Commission of Schedul offence, that is fore-closed in the deposits
maintained by the Chennai Port Trust and subsequently withdrew and
transfer from the Current Account, its end use placement etc. So, with regard
to further investigation, the petitioner is very much necessary and essential
and if he is released on bail, he may tamper with the evidence and there is
every possibility of dislocating the proceeds and the crime which is in
possession of the petitioner/accused might be further layered into several
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accounts, which will defeat the object of the Prevention of Money laundering
Act itself. Further, the learned Special public prosecutor pointed out, that
totally there are 45 criminals in this case and so far, the attachment of the
property recovered was approximate Rs.7 crores and the remaining amounts
are nearly Rs.35 crores are yet to be recovered and further Enforcement
Directorate had clearly reflected that investigation has not yet been
concluded and the presence of the accused is required for further
investigation. He also pointed out that the accused is a habitual offender and
in the year 2009, he was stated to have committed similar offence.
6. To establish the same, prosecution relied the another similar
FIR.No.RC.14/E/2009-CBI-EOW/Chennai dated 04.09.2009 was registered
by the CBI, EOW, Chennai against Sh.T.V.Krishna & Others including this
petitioner under Sections 120-B read with Sections 419, 420, 467, & 471 of
IPC, which are Scheduled offences under the Prevention of Money
Laundering Act, 2002 in case No.ECIR/07/CZO/PMLA/2009 against
Sh.T.V.Krishna & others. It was alleged that an amount of Rs.25 Crores
belonging to M/s.Northern Coalfields Limited (M/s.NCL) was fraudulently
transferred by Sh.T.V.Krishna Rao to the Current Account No.3014563150
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of his Company M/s.Krishna Builders, Chennai and subsequently the same
has been transferred/withdrawn & deposited within 6 days i.e. between
24.07.2009 and 29.07.2009 from the Bank Account of M/s.Krishna Builders
to the accounts of several persons / companies for the purpose of projecting
the ill-gotten money as legally earned money. Further, the learned Special
Public Prosecutor submitted that during the PMLA investigation in the above
case, it was revealed that the petitioner herein was actively involved in the
offence of money laundering. It was revealed that as per instructions from
Sh.T.V.K.Krishna Rao, during the last of week of July, 2009, Sh.T.Arun
along with Sh.G.Padmanabhan, Sh.Suresh Kumar/petitioner and his friend
Sh.Rajesh Sai Ram approached ICICI bank and opened Savings Bank
Account in the name of Sh.G.Padmanabhan. In the above said case in
C.C.No.4 of 2014, this petitioner is arrayed as A14 therein and he knowingly
indulged in the act of Money Laundering and directly attempted himself and
knowingly involved in the process connected with the proceeds of the Crime
along with A1 and other accused. Hence, he prayed to dismiss the petition as
devoid of merits.
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7. Considering both sides submissions, it is seen that the foremost
contention raised on the side of the petitioner is that there are no materials on
record, but he appoint this petitioner that he was activity indulged in Money
Laundering activities, but, he was falsely implicated under Section 3 of
Prevention of Money laundering Act. The learned counsel for the petitioner
further pointed out that, as per the prosecution case, this petitioner / A22
helped A1/ Sudalai Muthu by creating fake FD receipts and so, he was
charged under Sections 120-B, 419, 420, 467, 471 of IPC and Section 13(1)
(a) read with 13(2) of Prevention of Corruption Act, for the scheduled
offence for that he was already arrested and now released on condition bail in
that case.
8. He further argues that there is no materials against this petitioner
for creating fake FD receipts for handling over the same to A1 and as such, it
is not sufficient Prima-facie conclude that he actively indulged knowingly to
help the accused persons who are laundering with the proceeds of crime
either directly or indirectly. Even as per the allegation against the petitioner
herein, he was involved in the alleged fabrication of the fake FD receipts
which were handed over to A1's Bank Account to commit forgery and he did
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not involve knowingly in the offence of money laundering, when there are no
materials on the side of the investigating agency to prove that he was
involved in creation of the fake FD receipts with an intention projecting the
proceeds of Crime as untainted money and to support his contentions the
learned Counsel for the petitioner relied on the ratio laid down by Hon'ble
Division Bench of this Court, in Crl.O.P.No.29533 of 2015 and
M.P.Nos.1 & 2 of 2015, dated 27.01.2022, N.Raveendranatha Reddy vs.
The Deputy Director, in which it is held as follows:
7. For fastening Criminal liability under Section 3
r/w 4 of the PML Act, the following ingredients are required to
be satisfied:
i. a scheduled offence should have been committed;
ii. proceeds of crime should have been generated by
committing the scheduled offence;
iii. proceeds of crime should have been projected as
untainted property.
The above view stands fortified by the following
observations of the Hon'ble Supreme Court in Nikesh
Tarachand Shah vs. Union of India and Another [(2018) 11
SCC 1]:
"11. Having heard the learned counsel for both sides,
it is important to first understand what constitutes the offence
of money laundering. Under Section 3 of the Act, the kind of
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persons responsible for money laundering is extremely wide.
Words such as "whosoever", "directly or indirectly" and
"attempts to indulge" would show that all persons who are even
remotely involved in this offence are sought to be roped in. An
important ingredient of the offence is that these persons must
be knowingly or actually involved in any process or activity
connected with proceeds of crime and "proceeds of crime" is
defined under the Act, by Section 2(1) (u) thereof, to mean any
property derived or obtained directly or indirectly, by any
person as a result of criminal activity relating to a scheduled
offence (which is referred to in our judgment as the predicate
offence). Thus, whosoever is involved as aforesaid, in a process
or activity connected with "proceeds of crime" as defined,
which would include concealing, possessing, acquiring or
using such property, would be guilty of the offence, provided
such persons also project or claim such property as untainted
property. Section 3, therefore, contains all the aforesaid
ingredients, and before somebody can be adjudged as guilty
under the said provision, the said person must not only be
involved in any process or activity connected with proceeds of
crime, but must also project or claim it as being untainted
property."
8. In this case, Raveendranatha Reddy, who was the
Branch Manager of Andhra Bank, appears to have sanctioned
the loans to T.D.Naidu in rank violation of the Rules and
therefore, he is facing the prosecution along with T.D.Naidu in
C.C.No.48 of 2013 before the XI Additional Special Court for
CBI Cases, Chennai, for the offences under Sections 120-B r/w
420, 468 and 471 IPC and Section 13(2) r/w 13(1) (d) of the
PC Act.
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9. Per contra, the learned Special Public Prosecutor submits that
during the investigation they collected sufficient materials as well as the
statement given by accused prima facie reveals that he was actively
participate in creating fake FD receipt with intention to withdraw amount
lying in the account of Chennai Port Trust.
10.The statement recorded by the investigating agency in respect
of A28/ Easakki, dated 22.09.2021 under Section 50 of PMLA in the office
of Directorate of Enforecement, Chennai-I, Zonal Office, Chennai, speaks
about the involvement of the petitioner herein, which reads as follows:
Question 3. How are you connected to Sudalaimuthu
and Raghu Bernard who are allegedly involved in the Chennai
Port trust fixed Deposit fraud?
Answer 3. I am a distant relative of Sudalaimuthu.
Sudalaimuthu is a financer, We come from Marwar community
from Kongarayankurichi. One Suresh Kumar (identification
-approx, 6 ft. height, thick lower lip, dark skin colour, weighing
around 90 kgs, strong built), who is a builder and constructs
house is a very good friend of Sudalaimuthu. Through
Sudalaimuthu, I came in touch with Suresh Kumar for the first
time in the year 2015 at Sudalaimuthu's rented premises at
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Vadapalani house (opposite Indian bank) and thereafter we
became friends. Suresh Kumar used to supply labours for
building repair related work at CPT. There Suresh Kumar
became friends with one Mr.Raghu Bernard who used to work
in Finance Department of Chennai Port Trust. I met Mr. Raghu
Bernand through Suresh Kumar for the first time in 2017-18 at
Tuticorin.
Answer 5:......
Mr.Sudalaimuthu with the help of one Suresh Kumar
(not the one mentioned above in question no.3) used to prepare
fake deposit receipts with the same receipt number.
......
Answer 6: Mr.Suresh Kumar (tall, thin,black, blad), who is in
the business of chilli, cashews, water cans etc.,made those fake
seals, bonds, Fixed Deposits etc., and gave it to
Mr.Sudalaimuthu.
11. The statement of S.Kumaran, dated 05.01.2022 recorded by the
investigatin1 agency under Section 50 of PMLA in the office of Directorate
of Enforecement, Chennai-I, Zonal Office, Chennai, also speaks about the
involvement of the petitioner herein, which reads as follows:
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Answer 3: .....
During 2019-2020, Shri. Vaidhyanathan requested
me to arrange some loan to his friend
Shri. Sureshkumar by pledging the document, subsequently,
Shri. Deivasittharasan @ Chitrarasu introduced Shri.
Sureshkumar at Adyar Ananda Bhavan Hotel, Chromepet.
I tried to arrange loan for Shri.Sureshkumar but the
financier refused for the problem in the property papers. Then,
Shri Vaidhyanathan asked us to pledge the Audi Car which is
in the name of Shri.Sureshkumar towards the loan but the
financier refused to give loan as the Audi car was already
under finance. Due to several meetings Shri.Sureshkumar
becomes closer to us.
One day when we having taking tea at Adayar Anand
Bhavan at Chrompet, Shri.Sureshkumar @ Suresh asked me
whether I know any trust account to deposit the fund and who
allows us for withdrawing the same in cash later, for which he
offered commission.
Then I said that I knew one Shri.Baskar, who is
having an office at Anna Nagar and also told him that he is
also knew to Shri. Deivasittharasan @ Chitrarasu. Then,
myself and Shri. Deivasittharasan @ Chitrarasu went to
Shri.Bhaskar's office situated at Anna Nagar and
Shri.Sureshkumar, Annachi @ Shri. Sudalaimuthu,
Shri.Sudalaimuthu's son Shri.Gurunathan and one more person
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Shri.Easakki, who is relative of Shri.Sudalaimuthu Annachi
came to office of Shri.Baskar. After reaching Baskar's Office,
Suresh Kumar told me that I know Bhaskar and his is my child
hood friend.
After interaction each other Shri.Baskar and
Shri.Sureshkumar went outside and spoke about the
commission. Then, Shri.Baskar gave one account number in the
name of M/s.Vasthu Bhavan Shopping Mall maintained at
ICICI Bank, Kanchipuram to Shri.Sureshkumar and the same
was given to Shri.Sudalaimuthu @ Annachi by
Shri.Sureshkumar in our presence.
....... Then I collected cashRs.10,00,000/- from
Shri.Vijendrakumar and handed over the same to
Shri.Sureshkumar at Shri.Basker's office at Anna Nagar. Then
Shri.Sureshkumar handed over the same case of Rs.10,00,000/-
to Shri Sudalaimuthu, who was already waiting at Basker's
Office.
.... On 13.03.2020 Shri.Sureshkumar told me that an
amount of Rs.99.50 lakhs was deposited in to the account of
M/s.Azzan Gruppe Impex Pvt. Ltd.....
I asked the source of the fund to Suresh Kumar.
Suresh Kumar told me that Sudalaimuthu @ Annachi told me
that the fund belongs to one trust. But, I did not know it was
coming from Chennai Port Trust. I came to know only later."
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12. About non-compliance of 41(A) notice, as per submission of
the respondent, statement recorded under Section 50(a) under Act, Judicial
Statement, need not be issued 41(A) notice. Therefore on perusal of the
materials relied on by the respondent / Police, prima facie established that he
was actually involved in the process connected with the crime, and he not
only created fake FD receipts, but also intentionally assisted A1 and other
accused persons to open the fake Current Account by preparing fake
documents,forging the specimen signatures of the officials and Rubber
Stamp of Port Trust and "Port of Chennai's logo and also possession and
enjoyment of the proceeds of the Crime by concealing its original documents
and transferring the amounts to other accounts projecting and claiming the
same as untainted.
13. Furthermore, as per the submission made by the learned
Special Public Prosecutor, petitioner had not disclosed the two facts
pertaining to the end-use of mis-appropriated amount, which is the proceeds
of the crime, and as of now Rs.7 crores were recovered and nearly about
Rs.35 crores is yet to be recovered by the investigating agency and crores of
rupees of Port trust which is a public money, were mis-appropriated by the
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petitioner /A22 along with other accused persons. Therefore, the authority
relied on by the petitioner's counsel to show that the role of the petitioner is
restricted only in respect of creation of the alleged fabricated fake FD
receipts, as such is unsustainable one. As per the investigation, he was
actively involved, not only creating the fake FD receipts, but also with
intention to transferred the amounts to other Accounts along with prime
accused /A1. Considering antecedence of the petitioner that he had already
involved in Bank fraud case during the year 2009 in FIR.No.RC.14/E/2009-
CBI-EOW/Chennai dated 04.09.2009, which was registered by the CBI,
EOW, Chennai. In that case, Rs.25 Crores belonging to M/s.Northern Coal
fields Limited (M/s.NCL), were fraudulently transfered by one Krishnan Rao
to the Current Account No.3014563150 of his Company and subsequently,
they transfered the amounts to several Accounts. In that case, the petitioner
also opened an Account in ICICI Bank, for nearly about Rs.2 crores, which
were credited to his Account, and subsequently, the amount were withdrawn.
Thus, petitioner has not complied with the second conditions to avail the
benefit of bail i.e. he was already charged for the offences of like nature.
Therefore, the authority relied on by the learned Special Public Prosecutor
appearing for the respondent in 2022, LiveLaw (SC) 896 in the Supreme
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Court of India, Criminal Appeal No.1864 of 2022 (arising out of SLP
(Crl.) No.2668 of 2022), [Directorate of Enforcement vs. Padmanabhan
Kishore], is squarly applicable to the facts of the case on hand. The relevant
paragraph Nos.15 & 16 of the said judgment of the Apex Court are extracted
hereunder:
15. Said Section 3 stated, intera alia, that whoever
knowingly assists or knowingly is a party or is actually
involved in any process or activity connected with proceeds of
crime including its concealment, possession, acquisition or use
shall be guilty of offence of money-laundering (emphasis added
by us).
16.It is true that so long as the amount is in the hands
of a bribe giver, and till it does not get impressed with the
requisite intent and is actually handed over as a bribe, it would
definitely be untainted money. If the money is handed over
without such intent, it would be a mere entrustment. If it is
therefore appropriated by the public bribe and normally such
intent must necessarily be antecedent or prior to the moment
the amount is handed over. Thus, the requisite intent would
always be at the core before the amount is handed over. Such
intent having been entertained well before the amount is
actually handed over, the person concerned would certainly be
involved in the process or activity connected with "proceeds of
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Crime" including inter alia, the aspects of possession or
acquisition thereof. By handing over money with the intent of
giving bribe, such person will be assisting or will knowingly be
a party to an activity connected with the proceeds of crime.
Without such active participation on part of the person
concerned, the money would not assume the character of being
proceeds of crime. The relevant expressions from Section 3 of
the PML Act are thus wide enough to cover the role played by
such person."
14. The complaint filed under Sections 44 & 45 of Prevention of
Money Laundering Act, 2002 for Commission of Offence of Money
Laundering as defined under Section 3 read with Section 70 and punishable
under Section 4 of the Prevention of Money Laundering Act, 2002. The
Special Public Prosecutor said that, in the instant case, as discussed above,
the proceedings of the Directorate of Enforcement had clearly reflected that
the respondent / Police have collected sufficient materials against the
petitioner to proceed under Section 3 of the Prevention of Money laundering
Act .
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15. Statement recorded by Assistant Director under Section 50
PMLA for this petitioner also enclosed in counter statement by the
respondent. The active participation on the part of this accused also prima-
facie reveals that he, knowing well the purpose of creation of the fake
documents he has involved in the present offence, as stated by the learned
Special Public Prosecutor. The petitioner/A22 is one of the main person and
he played active role with the prime accused person, so the authorities relied
on Hon'ble Division Bench of this Court, in Crl.O.P.No.29533 of 2015
and M.P.Nos.1 & 2 of 2015, dated 27.01.2022, N.Raveendranatha Reddy
vs. The Deputy Director, by the petitioner, is not applicable to the facts of
the present case.
16. Therefore, considering the antecedence of the petitioner / A22
as well as huge amount of public exchequer is involved, this Court is not
inclined to grant bail to the petitioner at this stage, that too when further
investigation is yet to be done by the respondent / Police. Furthermore on
considering the nature of the offences committed by the petitioner and also
the previous antecedents, possibility of indulge in similar offence, and that
there is a possibility of tampering with witnesses and hampering the evidence
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and investigation, and as there is no change of circumstances, this Court is
not inclined to grant bail to the petitioner.
17. For the reasons stated above, this Criminal Original Petition is
dismissed.
27.04.2023
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation: Yes/No
rri
To
1. The IX Additional Special Judge for CBI cases, Chennai.
2. The Assistant Director,
Directorate of Enforcement,
Government of India, Ministry of Finance,
Department of Revenue, 84, Greams Road,
Thousand Lights, Nungambakkam,
Chennai-600 006.
3. The Public Prosecutor,
High Court of Madras.
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T.V.THAMILSELVI, J.
rri
Crl.O.P.No.4566 of 2023
27.04.2023
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