The Allahabad High Court has granted anticipatory bail to a retired Chief Engineer in a case registered under Sections 3/4 of the Prevention of Money Laundering Act, 2002.
The Single-Judge Bench of Justice Rajesh Singh Chauhan passed this order, while hearing a Criminal Misc Anticipatory Bail Application filed by Siddh Narain Sharma.
As per the counsel for the applicant, he was apprehending arrest in a complaint case under Sections 3/4 of the Prevention of Money-Laundering Act, 2002, Police Station – Directorate of Enforcement, Lucknow.
Purnendu Chakravarty, counsel for the applicant has submitted that the applicant is a retired Chief Engineer. One FIR was lodged by the Central Bureau of Investigation on 30.11.2017 at RC-26A/2017 against so many persons including the applicant. The CBI has filed a charge sheet against so many persons but no charge sheet has been filed against the applicant as nothing incriminating has been found against him by the CBI.
As per Chakravarty, the Enforcement Directorate lodged one ECIR on 18.02.2018 pursuant to the FIR and investigation carried out by the CBI in the year 2017. In such a complaint, E.D investigated the aspect relating to money laundering against all persons either have been charge sheeted by the CBI or have not been charge sheeted by the CBI.
However, nothing incriminating has been received from the possession of the applicant and nothing incriminating was found by the CBI against the applicant, even then the E.D summoned the applicant a couple of times for recording his statement and producing material.
Counsel for the applicant further submitted that the E.D has recorded statements of various persons including one Amit Yadav, the Contractor, on various dates i.e 29.01.2019 and 05.02.2019.
As per E.D, the said Contractor Amit Yadav has stated in his statement dated 29.01.2019 and 05.02.2019 that he (Amit Yadav) had withdrawn a sum of Rs 15 lakh in cash through his “self cheque” and he paid this amount to the applicant.
Counsel for the applicant also submitted that except the aforesaid statement of Amit Yadav, the Contractor, E.D is having no material to suggest that there was any involvement of the applicant in the instant matter.
Counsel for the applicant said that there was no eye witness to say that the aforesaid amount of Rs 15 lakh has been given to the applicant by Amit Yadav.
As per Chakravarty, the Bank Accounts etc of the applicant have been investigated by the E.D and the aforesaid allegation of Yadav has not been corroborated. The applicant has not been named as an accused in the charge sheet arising out of the FIR and no independent investigation has been conducted by the E.D as the investigation conducted by the CBI is reiterated in the complaint filed by the E.D.
Therefore, as per Chakravarty, if the applicant has not been named as an accused in the charge sheet arising out of the FIR of CBI predicate offence and no independent investigation has been conducted by the E.D as the investigation conducted by the CBI is reiterated in the complaint filed by the E.D, the applicant may not be implicated, only on the basis of statement of one co-accused Amit Yadav against whom the CBI has filed charge sheet, in absence of any corroborative evidence.
The applicant is an old aged retired Government Officer, who has no criminal history of any kind whatsoever and there is no possibility of the applicant to flee from justice, therefore, there may not be any requirement for his custodial interrogation. Hence, as per Chakravarty, liberty of the applicant may be protected till conclusion of the trial proceedings pending before the trial court as the applicant undertakes that he shall cooperate with the proceedings pending before the trial court and shall not misuse the liberty of bail, if so granted.
Per contra, Kuldeep Srivastava, counsel for the opposite party has opposed the aforesaid prayer of Purnendu Chakravarty, counsel for the applicant.
Srivastava has submitted that bail application of one co-accused, namely, Roop Singh Yadav, who has filed his regular bail application before the Court bearing Criminal Misc Bail Application, has been rejected on 29.04.2022, therefore, the anticipatory bail application of the applicant may be rejected and he may be directed to file his regular bail application.
He has also submitted that the applicant while serving on the post of Chief Engineer did not follow the financial rules to deposit the centage charges whereas the due amount was Rs 71 crore.
Srivastava has also pressed the statement of Amit Yadav, the Contractor, dated 29.01.2019 and 05.02.2019 wherein such Contractor has stated that he had withdrawn a sum of Rs15 lakh cash from the Bank through his “self cheque” and paid the amount to the applicant.
The Court observed that,
This is a case wherein FIR has been lodged by the CBI wherein so many persons including the applicant were accused but after thorough investigation by the CBI, no charge sheet has been filed against the applicant, meaning thereby nothing incriminating has been recovered from the possession of the applicant nor found during investigation. Notably, the applicant has properly cooperated with the investigation being conducted by the CBI and has never flouted the process of law.
The applicant has been implicated on the basis of statement of one Amit Yadav, the Contractor, which was recorded by the E.D on 29.01.2019 and 05.02.2019 wherein he has stated that he had withdrawn a sum of Rs 15 lakh cash from the Bank through his “self cheque” and paid this amount to the applicant but there is no eye witness/ witness/ document of any kind whatsoever to suggest that the aforesaid sum of Rs 15 lakh has been given to the applicant.
Even after recording the aforesaid statement of Amit Yadav on 29.01.2019 and 05.02.2019, the applicant was summoned on 19.06.2019 to record his statement under Section 50 of the PMLA, 2002, but he has not been confronted on the aforesaid statement of Yadav nor anything has been asked from the applicant regarding the aforesaid statement of Amit Yadav. Therefore, even if one Contractor in the name of Amit Yadav has leveled any allegation against the applicant, the same allegation has not been verified from the applicant during investigation. As a matter of fact, no exercise has been carried out by the E.D. to collect any corroborative evidence.
Since no material has been filed with the counter affidavit of the opposite party to suggest that the allegation so levelled against the applicant by Amit Yadav, the Contractor, has been verified or corroborated and during the course of the arguments, Kuldeep Srivastava, counsel for the opposite party has been asked to demonstrate the Court that the E.D is having any corroborative material or any piece of material suggesting the involvement of the applicant in accepting a sum of Rs 15 lakh, except the bald allegation of Amit Yadav through his statement, Kuldeep Srivastava could not demonstrate anything suggesting, prima facie, involvement of the applicant.
However, trial proceedings are going on and the allegations may be proved or disproved before the trial court by adducing the evidences from both the sides, therefore, I am not giving any finding on this point inasmuch as this is the domain of the trial court to conduct and conclude the trial independently strictly in accordance with law and without being influenced from any observation of this order.
The Court said that so far as argument of Srivastava that regular bail of one co-accused Roop Singh Yadav has been rejected by the Court order dated 29.04.2022 (supra) is concerned, notably, the CBI had filed charge sheet against Roop Singh Yadav whereas no charge sheet was filed against the applicant by the CBI. Further, Roop Singh Yadav had not filed any anticipatory bail application whereas the applicant has filed the anticipatory bail application. Law is trite that there may not be parity in rejection of bail.
Therefore, on the basis of the facts and circumstances, the Court further observed that the twin requirements of Section 45 of PMLA, 2002 are satisfied inasmuch as the Public Prosecutor has been given ample opportunity to establish his case as the counter affidavit so filed and his arguments so advanced have been considered. Further, since thorough investigation has been conducted by the CBI pursuant to one FIR wherein the applicant was accused and when nothing incriminating has been found against the applicant, he has not been charge-sheeted. The E.D has not conducted its independent investigation and has reiterated the investigation of the CBI, therefore, prima facie, it appears that the applicant is not guilty of such offence and being an old aged retired employee, his liberty may be protected.
Since no charge sheet was filed against Rajeev Wadhwa, he was granted bail. The ratio of this judgement is applicable, as admittedly, for applicants also, CBI has not filed a charge sheet for scheduled offence.
“There is one more aspect in the case that the applicant has cooperated with the investigation being conducted by the CBI and after completion of the investigation, no charge sheet has been filed against the applicant. He has further cooperated with the Enforcement Directorate as he always appeared before the E.D to record his statement under Section 50 of the PMLA, 2002, therefore, there is no need to take him into judicial custody inasmuch as liberty of a person may not be infringed mechanically.
In view of the aforesaid facts and circumstances as well as the settled legal proposition, I find it appropriate that liberty of the applicant may be protected till conclusion of the trial proceedings in view of the dictum of the Apex Court in re; Sushila Aggarwal vs State (NCT of Delhi), 2020 SCC online SC 98″, the Court also observed while allowing the anticipatory bail application.
Therefore, the Court directed that in the event of arrest, applicant- Siddh Narain Sharma shall be released on anticipatory bail in the aforesaid complaint case number till conclusion of trial on his furnishing a personal bond of Rs 2,00,000/- with two sureties of Rs 1,00,000/- each before the court concerned with the following conditions:-
I. that the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence;
II. that the applicant shall not leave India during pendency of the trial without prior permission from the concerned court and shall also surrender his passport, if any, before the concerned court forthwith;
III. that the applicant shall not pressurize/ intimidate the prosecution witness;
IV. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
V. that in case of breach of any of the above conditions, the court below shall have the liberty to cancel the bail.