2024 TaxPub(CL) 58 (All-HC)

PREVENTION OF MONEY-LAUNDERING ACT, 2002

Sections 3 & 4

Offence of money laundering - Application for grant of anticipatory bail - Anticipatory bail in relation to Scheduled offence already granted to applicant - Whether applicant is entitled for grant of bail

A complaint was filed against some person including applicant for violation of section 120B read with sections 409,420,468,471 IPC and section 13(2) read with 13(1)(d) of P.C. Act, 1988 regarding alleged large scale financial bungling, gross irregularities and misappropriation of funds in MNREGA. On basis of such complaint, Enforcement Directorate registered an ECIR against them for violations of sections 3 and 4. Therefore, the applicant filed an application for grant of anticipatory bail under the PMLA case on the ground that he had already been granted anticipatory bail in the Scheduled offence. Held: The applicant is working as a Junior Engineer and he is aged about 63 years and besides the alleged Scheduled offence, he is not involved in any other case. He has already been granted anticipatory bail in the Scheduled offence and three co-accused persons have been granted anticipatory bail in the present case. Therefore, the applicant is also entitled for anticipatory bail in the present case. Thus, the application for grant of anticipatory bail under the PMLA case was allowed.

REFERRED :

FAVOUR : In favour of petitioner

A.Y. :

IN THE ALLAHABAD HIGH COURT

SUBHASH VIDYARTHI, J.

Ashok Kumar Singh v. Direcorate of Enforcement

Criminal Misc Anticipatory Bail Application u/s. 438 Cr.P.C. No. 2920 of 2023

18 December, 2023

Applicant by: Purnendu Chakravarty, Anuuj Taandon, Shivanshu Goswami

Opposite Party by: Rohit Tripathi

Subhash Vidyarthi, J.

1. Heard Sri Purnendu Chakravarty along with Anuuj Taandon, the learned counsels for the applicant as well as Sri Rohit Tripathi, the learned counsel appearing on behalf of the Directorate of Enforcement.

2. The instant application has been filed by the applicant seeking anticipatory bail in Complaint Case No. 678 of 2023, ECIR No. ECIR/ALSZO/09/2014, under sections 3/4 P.M.L.A., 2002, registered at Police Station Directorate of Enforcement, Prayagraj (Allahabad), District Prayagraj (Allahabad).

3. The aforesaid case was initiated by a complaint filed by the Directorate of Enforcement on 12-12-2022 against 14 persons, including the applicant, stating that an FIR No. RC 4(S)/2014/CBI/SCB/Lucknow was registered on 25-2-2014, under sections 120B read with 409,420,468,471 IPC and section 13(2) read with 13(1)(d) of P.C. Act, 1988 regarding alleged large scale financial bungling, gross irregularities and misappropriation of funds in MNREGA in District-Mirzapur during the period 2007-2010.

4. The investigations under the provision of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA, 2002') revealed that the proceeds of the crime to the tune of Rs. 7,30,620 were generated through commission of criminal activities. The co-accused Nand Lal Sonkar was working as an Additional Development Officer during the relevant period and he was involved in committing the offence. The complaint states that prior to 15-8-2008, the cheques were issued in the name of work in-charge for cash payments to labourers and suppliers, but after 15-8-2008, the payments were made directly through cheques. The co-accused Nand Lal Sonkar was working as an Additional Development Officer during the relevant period and he was involved in committing the offence. The complaint states that prior to 15-8-2008, the cheques were issued in the name of work in-charge for cash payments to labourers and suppliers, but after 15-8-2008, the payments were made directly through cheques.

5. The complaint states that the applicant was working as a Junior Engineer and in his statement recorded under section 50 of the PMLA, 2002, he had admitted that the funds allotted for construction of a particular connecting road were utilized on another work in public interest for which no approval had been accorded and that due to excessive work load he had made entries in the MB without doing physical verification on the basis of information provided by the then technical assistant. He has further stated that the construction material supplied by M/s. Kaimore Enterprises had actually been supplied by the co-accused Sanjay Kumar Singh.

6. In the affidavit filed in support of the anticipatory bail application, it has been stated that the applicant is 63 years old and innocent person having no criminal history except for the scheduled offence in which has already been granted bail by means of an order dated 11-4-2022 passed by a Coordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application No. 93 of 2022.

7. The learned counsel for the applicant has submitted that the total proceeds of the crime alleged in the present case is Rs. 7,30,620, out of which Rs. 1,89,500 only is said to have been credited to the bank account of the co-accused Nand Lal Sonkar. Section 2(y)(ii) of PMLA, 2002 prior to its amendment, provided that the Scheduled offence means the offences specified in Part B of the Schedule, if the total value involved in such offences is 30 lakh rupees or more and after being amended in the year, 2015, it provides that the Scheduled offence means the offences specified in Part B of the schedule, if the total value involved in such offences is one crore rupees or more. Even as per the allegations levelled in the complaint, the total amount involved in the present case is Rs. 7,30,620.

8. Replying to the aforesaid submissions, the learned counsel appearing for Directorate of Enforcement has submitted that the Explanation appended to section 3(ii) provides that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.

9. The Explanation merely explains the provision of section 3, which defines the offence of money laundering, but for an offence of money laundering being committed, the proceeds of the crime should be derived or obtained, directly or indirectly, by any person as a result of a criminal activity relating to a scheduled offence. The Scheduled offence, at the relevant point of time, meant an offence specified in Part B of the Schedule, if the total value exceeded Rs. 30 lakhs. In the present case, the total value involved in commission of the offence is Rs. 7,30,620 only, which is far below the threshold of Rs. 30 lakhs provided under section 2(y)(ii) of PMLA, 2002. In absence of any Scheduled offence as defined in the section aforesaid having been committed, there can be no occasion or generation or any other proceeds of the crime or any other related activity and no offence under section 3 of PMLA, 2002 can be said to have been committed.

10. The learned counsel for the respondent-Directorate of Enforcement has sought a liberty to file a counter affidavit for further elaborating this point. But as this point is purely legal in nature, there is absolutely no necessity of any counter affidavit as affidavits are required to be filed on questions of fact only. The fact that the total amount generated by the alleged offence was Rs. 7,30,620 only, is asserted by the Directorate of Enforcement itself and, therefore, there is no requirement of any counter affidavit for rebutting the aforesaid claim of the Directorate of Enforcement itself.

11. The co-accused persons Shesh Nath Chauha, Ashok Kumar Singh and Pramod Kumar Singh have been granted anticipatory bail in the present case.

12. The complaint states that the applicant was working as a Junior Engineer; the applicant is aged about 63 years and besides the alleged Scheduled offence, he is not involved in any other case. He has already been granted anticipatory bail in the Scheduled offence and three co-accused persons have been granted anticipatory bail in the present case. Therefore, I am of the view that the applicant is also entitled for anticipatory bail in the present case.

13. In view of the above, the anticipatory bail application of the applicant is allowed. In the event of arrest/appearance of applicant-Ashok Kumar Singh before the learned Trial Court in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court :--

(i) That the applicant shall appear before the trial court on each date fixed, unless personal presence is exempted;

(ii) 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;

(iii) That the applicant shall not pressurize/intimidate the prosecution witness;

14. In default of any of the conditions mentioned above or it is found that applicant has obtained this order concealing any material facts, the Investigating Officer shall be at liberty to file appropriate application for vacation of this order.