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Issue for consideration: Appellant was arrested on the fourth supplementary complaint filed u/ss.44, 45, Prevention of Money Laundering Act, 2002, in continuation of three complaints in the Complaint Case, for the commission of the offence of money laundering. High Court whether justified in dismissing the bail application of the appellant seeking bail in connection with the said Complaint Case bearing ECIR No. arising out of the FIR registered for offence u/s.13(2) r/w 13(1)(d), Prevention of Corruption Act, 1988 and u/s.120B r/w ss.420, 465, 467, 468, 471, IPC. Prevention of Money Laundering Act, 2002 – ss.50, 45 – Plea of the appellant that he was not named in the FIR nor in first three prosecution/supplementary complaints and was implicated only on the basis of the statements of witnesses recorded pursuant to the summons issued u/s.50, without there being any material in support thereof: Held: There is no merit in the said submission – The statements of witnesses/accused are admissible in evidence in view of s.50 and such statements may make out a formidable case about the involvement of the accused in the commission of a serious offence of money laundering – As transpiring from the supplementary complaint filed against the appellant, apart from the statements of witnesses recorded u/s.50, PMLA, there was sufficient material collected in the form of documents prima facie showing as to how the appellant was knowingly a party and actually involved in the process and in the activities connected with the proceeds of crime, how he was projecting/claiming such proceeds of crime as untainted and how he was the beneficiary of the proceeds of crime acquired through the criminal activities relating to the scheduled offences – Appellant has not been able to overcome the threshold stipulations contemplated in s.45 as he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail – Burden of proof lies on the accused for the purpose of the condition set out in the s.45 that he is not guilty of such offence – Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering u/s.3, PMLA, thus, bail cannot be granted to the appellant – The submission to grant bail to the appellant on the ground that the other co-accused similarly situated as the appellant were granted bail, not accepted – Bail – Prevention of Corruption Act, 1988 – Penal Code, 1860 – ss.420, 465, 467, 468, 471. [Paras 15, 16, 20] Prevention of Money Laundering Act, 2002 – s.3: Held: The offence of money laundering u/s.3 is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence – It is not dependent or linked to the date on which the scheduled offence or predicate offence has been committed – The relevant date is the date on which the person indulges in the process or activity connected with the proceeds of crime – Thus, the involvement of the person in any of the criminal activities like concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so, would constitute the offence of money laundering u/s. 3. [Para 15] Bail – Principle of Parity: Held: Parity is not the law – While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration – In the instant case, the main accused, Managing Director of SBFL, and KMP of group companies and the other accused, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds – The co-accused who was the internal auditor of SBFL was granted bail by the High Court, however the said order of High Court was challenged by the respondent before this Court by filing being SLP and the same is pending under consideration – High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the said co-accused and observed that unlike him who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company and his role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director – In any case, the order granting bail to the said co-accused being under consideration before this Court, it would not be appropriate to make any observation with regard to the said order passed by the High Court – Furthermore, the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 – However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order – Article 14 is not meant to perpetuate the illegality or irregularity – Constitution of India – Article 14. [Para 18] Bail – Economic offences – Duty of Court: Held: Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail – Such offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country – Court while considering an application seeking bail, is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless, it should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witness being tampered with, the larger interests of the public/State etc. – Though, the findings recorded by the Court while granting or refusing bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion for granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the economic offences. [Paras 13, 22] Prevention of Corruption Act, 1988 – s.45 – Conditions specified under: Held: Are mandatory – They need to be complied with – The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail – As per the statutory presumption permitted u/s. 24, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering u/s.3, such proceeds of crime are involved in money laundering – Such conditions enumerated in s.45 will have to be complied with even in respect of an application for bail made u/s.439, CrPC in view of the overriding effect given to the PML Act over the other law for the time being in force, u/s.71 of the PML Act – Code of Criminal Procedure, 1973 – s.439. [Para 17] Criminal Law – Economic offences – Continued detention of accused, courts to conclude trials within reasonable time ensuring the right of speedy trial guaranteed by Article 21: Held: With the advancement of technology and Artificial Intelligence, the economic offences like money laundering have become a real threat to the functioning of the financial system of the country and have become a great challenge for the investigating agencies to detect and comprehend the intricate nature of transactions, as also the role of the persons involved therein – Lot of minute exercise is expected to be undertaken by the Investigating Agency to see that no innocent person is wrongly booked and that no culprit escapes from the clutches of the law – When the detention of the accused is continued by the Court, the courts are also expected to conclude the trials within a reasonable time ensuring the right of speedy trial guaranteed by Article 21 – Constitution of India – Article 21. [Para 23] |
