Smt. Jayshree Thakur vs The Union Of India Through The ...
2023 Latest Caselaw 4229 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No.34131 of 2022
   Arising Out of PS. Case No.-4 Year-2018 Thana- GOVERNMENT OFFICIAL COMP.
                                      District- Patna
======================================================

Smt. Jayshree Thakur, aged about 64 years, Female, Wife of Dr. Rajesh

Kumar Choudhary, Resident of 404, Sundaram Apartment, Tilka Manjhi

Chowk, P.S. - Barari, District - Bhagalpur.

... ... Petitioner/s Versus The Union of India through the Directorate of Enfocement, Govt. of India

(Prevention of Money Laundering Act, Government of India) 1st Floor,

Chandpura Place, Bank Road, West Gandhi Maidan Patna- 800001, Bihar.

... ... Opposite Party/s

====================================================== Appearance :

For the Petitioner/s : Mr.Pranav Kumar Jha, Adv For the Opposite Party/s : Dr. K.N.Singh (A.S.G.) ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 04-09-2023

Heard Mr. Pranav Kumar Jha, learned counsel for the

petitioner. Mr. K. N. Singh learned Additional Solicitor

General has made submissions on behalf of the Union of India.

2. The matter was earlier heard on 1st September,

2023 as a tied up matter and adjourned to today for further

consideration.

3. The petitioner seeks bail in connection with Special

Trial No. (PMLA) 05 of 2021, arising out of ECIR No.

PTZO/04/2018, dated 24.05.2018, registered for the offence Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

punishable under Section 4 of the Prevention of Money-

Laundering Act, 2002 (hereinafter referred to as 'the PMLA').

4. Several First Information Reports (for brevity 'FIR')

were lodged in connection with fraudulent transfers

/misappropriation of huge sums of government money under a

conspiracy between government officials and employees, Bank

officials and employees, office bearers and members of Srijan

Mahila Vikash Sahyog Samiti Limited (for brevity 'SMVSSL')

and other accused persons, popularly known as "Srijan Scam".

The petitioner is made an accused in following such cases:

(i) Special Case No. 17 of 2013 for the offences under

Sections 7, 8, 9, and 13 r/w Section 13(1)(d) of Prevention of

Corruption Act,

(ii) Special Case No. 1 of 2020, arising out of R. C. Case

No. 5(A)/2018 lodged under Section 409, 467, 471 and 120(B)

of the IPC and Section 13(2) r/w 13(1)(d) of the Prevention of

Corruption Act,

(iii) Special Case No. 2 of 2019, arising out of R.C. Case

No. 9(A)/2018 lodged u/S 409, 420, 468, 471 & 120(B) of the

IPC and Section 13(2) r/w Section 13(1)(c) and (D) of the

Prevention of Corruption Act, 1988, Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

(iv) Special Case No. 41 of 2013 arising out of E.O.U.

P.S. Case No. 29 of 2013 lodged U/S 13(2) r/w Section 13(1)(e)

of the Prevention of Corruption Act;

(v) Special Case No. 02 of 2021 arising out of R.C. No.

13(A)/2017 lodged U/S 120(B), 409, 467, 468, 471 of the IPC

and U/S 13(2) r/w Section 13(1)(D) of Prevention of Corruption

Act.

5. The offences being investigated were found to be

scheduled offences as per the provisions of PMLA and,

accordingly, investigation was taken up by the Enforcement

Directorate (ED) under the provisions of the PMLA for

ascertaining the proceeds of crime and for filing complaints.

The ECIR No. PTZO/04/2018, thus, came to be recorded

against the SMVSSL and its office bearers, government officials

and employees, bank officials and employees and others.

Investigations revealed huge sums siphoned from the

Government treasury and transferred to the Bank account of

SMVSSL. Government officials were also found involved.

6. The petitioner, as per allegation, was the District Land

Acquisition Officer, Banka (DLAO) and was found to have

conspired with officials of the Bank of Baroda and Indian Bank

and office bearers of the 'SMVSSL' along with other unknown Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

persons in misappropriation of Government funds running into

crores of Rupees (82.10 crores) into the accounts of 'SMVSSL'.

She is stated to be very close to Late Manorma Devi, who was

the prime accused at the centre of the entire scam and was

Secretary of 'SMVSSL' since its inception, till her death on

13.02.2017. The Cheating and fraudulent misappropriation of

Government funds by late Manorma Devi was in collusion with

several Government officials, bank officials and other

individuals, which includes the instant petitioner also. The

petitioner is alleged to have received pecuniary benefits to the

tune of Rupees 20,00,000/- (Twenty Lakh) for booking of a flat

in Emerald-I-402, Gardenia Glamour Phase-II at Gaziabad,

Uttar Pradesh. The said flat was alleged to have been acquired

out of the proceeds of crime and were attached by a provisional

attachment order on 29/05/2020.

7. Thereafter, Original Complaint No. 1313 of 2020 was

filed before the Adjudicating Authority on 26/06/2020 for

confirmation of the provisional attachment order in compliance

with the principles of natural justice, inherent under Section 8

(1) of the PMLA. The same was, subsequently, confirmed by the

Adjudicating Authority, PMLA. The prosecution complaint vide

Special Case No. 5 of 2021 was then filed before the Special Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

Court on 04/10/2021, in which, cognizance has been taken on

04/10/2021 itself. The petitioner was, at that point of time,

already in custody in a predicate offence.

8. In this case, petitioner is in custody since 29/10/2021.

Her prayer for bail was rejected by the Special Judge on

09/05/2022. She is, thus, before this Court.

9. It is submitted by learned counsel for the petitioner

that insofar as the allegation of petitioner, conspiring with bank

officials and officials of the SMVSSL, there is no material on

record to suggest that she was responsible for transfer of any

funds from the account of the District Land Acquisition Officer

(DLAO) , Banka. Since, it is alleged that petitioner was the

then DLAO, Banka, opening of the account in the name of the

DLAO, Banka, per se cannot be considered to be an offence.

10. The petitioner had not booked the flat at Emerald,

Ghaziabad and not paid any amount for booking of this flat. The

same is obvious from the complain also which shows amounts

to the tune of Rs. 20,00,000/- (twenty lacs) to have been

deposited by SMVSSL, one Babita Mishra and one Manorama

Devi. Petitioner has no concern with the said flat. It is thus

submitted that the petitioner has not received any pecuniary

benefits from the proceeds of crime. The said allegation is false, Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

but even if taken to be true, then the benefits of the proceeds of

the crime received by the petitioner is much below the amount

of Rupees 1,00,00,000/- (One Crore). Having regard to the first

Proviso to Section 45 of the PMLA, since the petitioner is

accused of deriving benefits of the proceeds of crime below

Rupees 1,00,00,000/- (One Crore), her bail application cannot

be subjected to the rigors of Section 45(1)(ii) of the PMLA.

11. The petitioner is also a woman accused, aged about

65 years. She is also a sick person, which is apparent from

Annexure-2 of the bail application being the discharge

summary, showing that the petitioner, after suffering a heart

attack, was admitted for treatment in between 02-12-2020 and

17-12-2020. In the instant case, the petitioner has also remained

in custody now for more than 22 months. Petitioner is not a

flight risk. The petitioner's prayer for bail in the above

circumstances is to be considered by this Court on the

parameters as obtaining under the proviso to Section 45 of the

PMLA, by virtue of being a women as also sick.

12. Learned counsel for the petitioner has relied upon

decision of the Apex Court in the case of Directorate of

Enforcement versus Preeti Chandra, having neutral citation

No. SLPR 7409/2023, also reported in 2023 SCC Online SC Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

930 whereby and whereunder, the Hon'ble Apex Court has

declined to interfere with the exercise of discretion by the Delhi

High Court, in granting bail to a women accused of offence

under the PMLA. The Delhi High Court had exercised

jurisdiction to grant bail to the women accused by applying the

triple test, as per first proviso to sub-section 1 of Section 437 of

the Cr.P.C. It had clearly held that the twin test as per Section 45

of the PMLA will not be applicable to the woman accused. In

consideration of these submissions, it is prayed that the

petitioner be released on bail.

13. Learned Additional Solicitor General appearing for

Union of India submits that the bail application is without merit.

The applicability of twin conditions, set out in Section 45 (1)

has to be applied while considering bail qua the offence under

the PMLA. The issue is settled in view of the decision of the

Apex Court in the case of Vijay Madanlal Choudhary and

others versus Union of India and others reported in 2022 SCC

OnLine SC 929.

14. Investigation has revealed that the petitioner is a

Government Employee, and beneficiary of the proceeds of

crime, which involves several crores of rupees. The petitioner,

therefore, cannot derive any advantage under the first proviso to Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

Section 45 of the PMLA on basis of her self serving assertion

that she is accused of having received less than Rs. 1 crore, i.e,.

Rs. 20,00,000/- (Twenty Lakh) of the proceeds of the crime.

15. The offence of money laundering is a grave offence,

such deep rooted economic offences pose a challenge to the

economy and needs to be dealt with severity. Investigation into

the various transactions in relation to the offence are still going

on. During the petitioner's posting as District Land Acquisition

Officer, Banka (DLAO) several withdrawals and deposits of

huge amounts running into crores have taken place from the

account of D.L.A.O and the 'SMVSSL'. This Court, therefore,

should not grant the petitioner the privilege of bail; the twin

tests based on the rigours under Section 45(1) of the PMLA,

having not been satisfied.

16. Having heard the rival parties, this Court would take

into consideration the bar to grant of bail under Section 45 of

the PMLA. The same clearly provides that a person accused of

an offence under the PMLA shall not be released on bail or on

his own bond. It is only if the Court, after giving opportunity to

the Public Prosecutor to oppose the application for such release,

is satisfied that there are reasonable grounds for believing that

he is not guilty of such offfence; and not likely to commit any Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

offence while on bail, that bail can be granted to the person

accused of an offence under the PMLA.

17. Insofar as the instant case is concerned, this Court

finds that the petitioner accused is a woman. She has enclosed

documents showing her treatment, after suffering a hear attack.

She is stated to be 64 years old. These facts have to be viewed

keeping in background, the first proviso to Section 45 of the

PMLA, which reads as follows:

"Provided that a person, who is under the age of sixteen years or is a woman or is sick or infirm, [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs:"

18. The Court accordingly has to consider as to what

approach is required while considering a prayer for grant of bail

to an accused who is covered by proviso to Section 45 of the

PMLA. While according such consideration, this court is bound

by decision of the Hon'ble Apex Court in the case of

Directorate of Enforcement versus Preeti Chandra, having

neutral citation No. SLPR 7409/2023, also reported in 2023

SCC Online SC 930. The Hon'ble Apex Court by the said

decision has denied to interfere with the order passed by the

Delhi High Court granting bail to woman accused by applying Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

the triple test, as contemplated under Section 437 Cr.P.C. The

Delhi High Court had held the twin condition of Section 45 of

PMLA not to be applicable to the applicant (woman accused).

Such grant of bail came up for consideration before the Hon'ble

Apex Court in the case of Directorate of Enforcement versus

Preeti Chandra (supra). Relevant extract of the order of the

Hon'ble Apex Court reads as follows:-

"......2. The proviso to Section 45 of the Prevention of Money Laundering Act, 2002 confers a discretion on the Court to grant bail where the accused is a woman. Similar provisions of Section 437 of the Code of Criminal Procedure 1973 have been interpreted by this Court to mean that the statutory provision does not mean that person specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail. [see Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280].

3. Considerations which weigh in the grant of bail are distinct from those which are relevant to the adjudication of an application for cancellation of bail. The respondent has undergone over 620 days of custody. Since in the exercise of its discretion, the High Court has come to the conclusion that the respondent should be released on bail, we are not interfering Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

with the order under Article 136 of the Constitution....."

19. From the decision of the Hon'ble Apex Court in the

case of Directorate of Enforcement vs. Preeti Chandra (supra)

it is apparent that the proviso to Section 45 of PMLA confers

discretion on the court to grant bail where the accused is

woman, similar to the proviso to Sub-section 1 of Section 437

Cr.P.C., as per decision of the Hon'ble Apex Court in the case of

Prahlad Singh Bhati vs. NCT, Delhi reported in (2001) 4 SCC

280. The court, therefore, has to consider the petitioner's prayer

for bail in terms of the decision of the Hon'ble Apex Court in

the case of Prahlad Singh Bhati (supra).

20. In view of the legal position based on order of the

Hon'ble Apex Court, this Court would take into consideration

the petitioner's submissions that the alleged amounts of

proceeds of crime received for booking of the flat is to the tune

of Rs. 20 lakhs. She has not directly received any pecuniary

benefits being proceeds of crime. She has no knowledge about

the transaction alleged to the tune of Rs. 20,00,000/ (Twenty

Lakh) which even as per prosecution case has been remitted by

SMVSSL, Babita Mishra and Manorama Devi and not by the

petitioner and the amount remitted is also not based on any Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

disclosure to the petitioner of details of the alleged flat, for

which, the amount was remitted. The builders has never

informed the petitioner and has never approached the petitioner

for handing over possession of the alleged flat. The allegation of

conspiring with the bank officials or officials of SMVSSL are

vague and general.

21. The petitioner is already on bail in the predicate

offence. Learned counsel for the petitioner also places reliance

on order dated 24-04-2023 passed by a co-ordinate Bench of

this Court granting bail to another female co-accused, namely,

Indu Gupta in Cr. Misc. No. 69939 of 2022. The petitioner's

custody by now is more than 22 months.

22. The Court thus finds that for the purposes of bail, the

petitioner has provided prima facie explanation in respect of the

allegations. Whether the same is sufficient to ensure the

petitioner's acquittal or not is yet to be considered at the trial.

Mens rea is also another issue which has to be established on the

basis of material to be considered at the trial.

23. It is also obvious from the complain filed under the

Act that the petitioner had made her statement under Section 50

of the PMLA and there is no allegation of her non-cooperation

with the Authorities in the course of investigation. She also Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

undertakes to cooperate in the investigation, as and when

required.

24. Considering the submissions advanced by the learned

counsels, the facts and circumstances noted above, the

petitioner's statement under Section 50 PMLA, allegations with

respect to the petitioner in the complaint filed under PMLA and

the legal position regarding parameters of consideration based

on decision of the Hon'ble Apex Court in the case of

Directorate of Enforcement versus Preeti Chandra (supra) as

also custody of the petitioner, which by now is more than 22

months, this Court is inclined to allow the petitioner's prayer for

bail. The Court would also record that consideration, recorded

above is for the limited purposes of grant of bail and the same

may not be deemed as an expression of any opinion by this

Court on the merits of the allegations, which are yet to be

determined at the trial or for any other purposes.

25. Let the petitioner, above named, be released on bail

on furnishing bail bond of Rs. 50,000/- (Fifty thousand) with

two sureties of the like amount each to the satisfaction of the

learned Sessions Judge/Special Judge (PMLA), Patna, in

connection with Special Trial No. (PMLA) 05 of 2021 arising

out of ECIR No. PTZO/04/2018, dated 24.05.2018, subject to Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

the following conditions:-

(i) That one of the bailors will be a close relative of the petitioner who will give an affidavit giving genealogy regarding relationship with the petitioner.

(ii) That the petitioner will appear/ be well represented before the Court on each date and if she fails to do so on two consecutive dates, her bail bond will be liable to be cancelled.

(iii) The petitioner shall not leave the country without permission of the Trial Court.

(iv) The petitioner shall join the investigation as and when called by the I.O. concerned;

(v) The petitioner shall provide her mobile number to the Investigating Officer (IO) concerned at the time of release, which shall be kept in working condition at all times. The petitioner shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail;

(vi) In case, she changes her address, she will inform the IO concerned;

(vii) The petitioner shall not indulge in any criminal activity during the bail period;

(viii) The petitioner shall not communicate with or intimidate or influence any of Patna High Court CR. MISC. No.34131 of 2022 dt.04-09-2023

the prosecution witness or tamper with the evidence of the case.

26. This Court would expect that the petitioner's counsel

would honour his undertaking in the instant proceedings

regarding supply of the requisite court fee etc., within two

weeks from the date he is called upon to do so by the office.

(Madhuresh Prasad, J)

Raj kishore/ Shyam Bihari/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          05-09-2023
Transmission Date       05-09-2023