The Lucknow Bench of the Allahabad High Court, while dismissing the anticipatory bail application of a money laundering accused, said that for money-launderers “jail is the rule and bail is an exception”.
A Single Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc anticipatory bail application U/S 438 CrPC filed by Anirudh Kamal Shukla.
The anticipatory bail application has been filed on behalf of the applicant in Complaint Case under Section 3/4 of Prevention of Money Laundering Act, 2002 at Police Station- Directorate Enforcement, District Lucknow with a prayer to enlarge him on anticipatory bail.
The applicant is stated to have moved an anticipatory bail application before the Special Judge, PMLA Lucknow, which was rejected by its vide order dated 07.01.2022.
The Enforcement Directorate lodged an ECIR on 26.08.2010 in pursuance of the schedule offence bearing F.I.R dated 31.03.2007.
After issuance of provisional attachment order dated 28.03.2016, a complaint under Sections 44 and 45 of P.M.L.A, 2002 has been filed against the applicant and other co-accused persons for an offence under Sections 3/4 of P.M.L.A, 2002.
In pursuance of F.I.R under Sections 120B, 420, 467, 468 and 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, several charge-sheets have been filed against different co-accused persons including the one against the applicant and his brother Ashwani Kumar Shukla along with one other co-accused person.
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As per the F.I.R lodged by the C.B.I/A.C.B, Lucknow in 2007 during the period of 14.11.2005 to 7.11.2016, V.K Srivastava, Senior Manager, R.K Mishra, Senior Manager, Naresh Chandra Bhardwaj, Senior Manager, Dinesh Kumar, Clerk of Bank of India and Vikram Dixit entered into a criminal conspiracy with some unknown persons and got sanctioned 08 housing loans on the basis of false and fictitious documents such as I.T.R, PAN, Sale Deeds, Voter I.D. etc.
The said loan accounts turned NPA in the name of non-existent borrowers causing a loss to the tune of Rs 1.17 crores approximately to the Bank of India in lieu of wrongful gain. During investigation, proceeds of crime to the tune of Rs 19,49,000/- in the form of movable/immovable property was attached and was confirmed by Adjudicating Authority vide order dated 16.09.2016.
The applicant- Anirudh Kamal Shukla is stated to have entered into a criminal conspiracy with R.K Mishra, Senior Branch Manager Credit and Vinny Sodhi @ Vikram Dixit and applied for sanction of an overdraft limit of Rs 24.60 lakhs for the business purpose against the mortgage of property of Ram Nath Sharma and applied jointly along with the name of his brother Ashwani Kamal Shukla by submitting fake ITRs, PAN Card, NEC, Valuation Report in respect of property mortgaged, mutation certificate, will and sale deed. The investigation revealed that Rs 25,000/- was transferred to the current account of the applicant on 06.11.2006, which was utilized in business and the same is stated to have been admitted by the applicant.
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Counsel for the applicant has stated that he has no previous criminal history except the complaint cases and the predicate offence filed against him. There is no possibility of the applicant fleeing from justice or directly or indirectly inducing, threat or promise to any person. The ECIR has been registered purely on the basis of a predicate offence bearing F.I.R dated 31.03.2007. The charge-sheet has been filed against the applicant and the other co-accused persons in the case filed by C.B.I and the applicant is already on bail in its vide order dated 28.10.2010 passed by the Court.
Counsel for the applicant has further stated that the predicate offence relates to an OD mortgaged loan account opened in the name of his brother Ashwani Kumar Shukla with the Bank of India, Harsh Nagar, Kanpur. The property mortgage is found to be fake. The loan is alleged to have been applied by Ashwani Kumar Shukla along with the applicant. The only allegation against the applicant is that a sum of Rs 25,000/- was transferred from OD mortgaged loan account to the current account of co-borrower Ashwani Kumar Shukla which was utilized in the business.
It has further been stated that the entire proceeds of crime originating from the scheduled offence was transcribed in the provisional attachment order and the applicant was not named as defendant in the original complaint. The brother of the applicant is only named in that complaint as defendant no 7 for the limited role that a sum of Rs 25,000/- was transferred from OD mortgaged loan account to the current account and subsequently the said amount was deposited with ED in the form of FDR.
Counsel for the applicant has further submitted that no proceeds of crime have been deciphered and derived in respect of the applicant. There is no provisional attachment issued in respect of the applicant. There is no evidence with regard to possession, acquisition or use and projecting or claiming any proceeds of crime as tainted property qua applicant. The applicant himself is stated to have got an FIR lodged against Vikram Dixit on 20.10.2007 at Case under Sections 406, 420, 504 and 506 IPC, Police Station Kakadev Kanpur, wherein charge-sheet has been filed. The applicant is unaware of the entire transactions as he is a resident of Thane, Maharashtra.
Per contra, Shiv P. Shukla, counsel for the Enforcement Directorate has vehemently opposed the anticipatory bail application stating that the OD mortgaged loan account was opened in the name of Ashwani Kumar Shukla along with applicant with Bank of India, Harsh Nagar Branch on the basis of forged property documents made available by co-accused person Vikram Dixit through Ram Nath Sharma (Guarantor). This property situated at 122/212, Lajpat Nagar, Kanpur was not clear in title and the same was not in physical possession of Ram Nath Sharma as a Legal Suit is already pending in the court between Ram Nath Sharma and his sister in respect of ownership.
The brother of the applicant is stated to have admitted that Rs 25,000/- was tainted money. The said amount of Rs 25,000/- was paid cheque dated 06.11.2006 to M/S D.K Agricultural and Engineering. The Enforcement Directorate has examined and recorded the statement of the applicant and all co accused persons under Section 50 of P.M.L.A, 2002 wherein the applicant is stated to have confessed his crime.
Counsel for the Enforcement Directorate has further stated that the provisional attachment order dated 28.03.2016 finds the reference of the transaction of Rs 25,000/- .
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He has further submitted that the applicant along with his brother had entered into a criminal conspiracy with R.K. Mishra, Senior Branch Manager Credit and Vinny Sodhi @ Vikram Dixit for sanction of an overdraft limit of Rs.2.50 lakhs for business purpose against the mortgaged property of Ram Nath Sharma by submitting fake documents.
Counsel for the E.D has stated that the chargesheet in the case had already been filed on 27.11.2018 and the cognizance was taken on 11.04.2019. Summons and non bailable warrants have already been issued against the co-accused persons. There is no reason for entertaining an anticipatory bail of the applicant at this stage. The accused himself should surrender before the Special Court and apply for regular bail.
The Court said that the PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has an overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. From aforesaid view it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision given in PML Act, 2002.
The Court further said that the Money Laundering being an offence is an economic threat to national interest and it is committed by the white collar offenders who are deeply rooted in society and cannot be traced out easily. These kinds of offences are committed with proper conspiracy, deliberate design with the motive of personal gain regardless of the consequences to the society and economy of Country. Hence, for money-launderers “jail is the rule and bail is an exception”.
The arguments tendered by the counsel for the applicant can be agitated at the stage of regular bail but not under Section 438 Cr.P.C.
“On prima facie reading of the material placed on record and considering the parameters of Section 45(1) PMLA as well as the gravity of the alleged offences, it cannot be held that the applicant was not guilty of the alleged offences or that he was not likely to commit any such offence while on bail”
-the Court observed while dismissing the anticipatory bail application.
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“However, it is made clear that the observations made herein above are exclusively for deciding the instant anticipatory bail application and shall not affect the trial or deciding the regular bail application”, the order reads.