Allowed

Gajraj Kunwar Jain v. Govt. of India Thru. Assistant Director , Directorate of Enforcement Allahabad

Allahabad HC21 Feb 2024ABAIL/294/2024

Case brief

AI extract

What is this about?

Anticipatory bail application under Section 45 PMLA by applicant facing complaint for alleged coal procurement causing loss to State exchequer. Court noted non-arrest during investigation, absence of prior summons before NBWs, bail to co-accused and in predicate offences, held Section 45 conditions satisfied, and allowed anticipatory bail with conditions.

What did the court decide?

Anticipatory bail granted; release on arrest or surrender within 20 days on personal bond and two sureties, subject to stated conditions.

Gajraj Kunwar Jain vs Govt. of India Thru. Assistant… — Money Laundering | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:17274

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Court No. - 15

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 294 of 2024

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Applicant :- Gajraj Kunwar Jain Opposite Party :- Govt. Of India Thru. Assistant Director , Directorate Of Enforcement Allahabad Counsel for Applicant :- Himanshu Hemant Gupta Counsel for Opposite Party :- Rohit Tripathi

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Hon'ble Mohd. Faiz Alam Khan,J.

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Rejoinder affidavit filed by applicant today is taken on record.

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Learned AGA informs that he has procured complete instructions.

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Heard Shri Himanshu Hemant Gupta, learned counsel for the applicant as well as Shri Rohit Tripathi, learned counsel appearing for the Directorate of Enforcement and perused the record.

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The instant anticipatory bail application has been moved by the applicant- Gajraj Kunwar Jain, in Case Crime No. ECIR/ 05/ VSI/ LZO/ 2012, Complaint Case No. 02 of 2016, under Sections 3/4 of Prevention of Money Laundering, 2002, Police Station- Directorate of Enforcement, Varanasi Sub Zonal Office, District- Allahabad, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the abovementioned case.

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Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that it is a case of false implication. The allegations against the applicant are to the tune that he in connivance with M/s Shree Ram Fuels Pvt. Ltd. has

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purchased the coal, which was required to be sold in the open market after being treated as 'smokeless coal', but the same has been purchased by the applicant from M/s Shree Ram Fuels Pvt. Ltd., causing huge pecuniary loss to the State exchequer to the tune of Rs.1,05, 66, 580/-.

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It is vehemently submitted that with regard to the procurement, treatment and sale of the coal, an agreement was executed between Northern Colliery Ltd. and M/s Shree Ram Fuels Pvt. Ltd. and the applicant was not a signatory to that contract and even if any violation of the said contract has been made, the signatory of the agreement i.e. M/s Shree Ram Fuels Pvt. Ltd. would be liable that too only to the extent of paying damages. Thus, it is only case of a civil dispute which is existing between the signatories of the agreement, however, no criminal consequences may emerge from the breach of the said agreement/ contract.

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It is also submitted that noticing this aspect of the matter, a Coordinate Bench of this Court vide order dated 01.08.2023 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.- 1696 of 2023 granted anticipatory bail to the applicant in predicate offence.

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It is further submitted that during the course of investigation, the applicant has cooperated throughout and there was no occasion for the Enforcement Directorate to arrest him, as he has cooperated in the investigation and the complaint was filed in the year 2016 and the cognizance was consequently taken by the Special Court. However, the order of taking cognizance was challenged by the applicant by filing an application under Section 482 Cr.P.C. bearing No. 300 of 2019 and vide order dated 07.01.2019 passed therein, the said application was allowed and the cognizance order and summoning order of the

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Special Court dated 05.04.2016 were quashed and the Trial Court was directed to take cognizance again and it is in this pursuance, the cognizance was again taken by the Special Court on 08.04.2019.

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It is vehemently submitted that since the taking of the cognizance again by the Trial Court, no process has ever been served on the applicant and the Special Court, without service of any of its earlier process, has issued non-bailable warrants against the applicant on 05.04.2022.

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Elaborating further, it is submitted that in another order of the same date i.e. of date 05.04.2022, it has been categorically observed by the Trial Court/ Special court that earlier processes issued against the applicant and other co-accused persons i.e. prior to the quashment of the cognizance order, would not be deemed to be in existence. However, in second order of the same date, the Special Court has issued non-bailable warrants directly after taking into cognizance the earlier processes issued against the applicant, which has been issued against law and procedure.

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It is vehemently submitted that till now, no process of any kind issued by the Trial Court/ Special Court has ever been served on the applicant. However, as soon as the applicant got knowledge of the coercive process issued against him, he approached the Special Court for the grant of anticipatory bail, which has been unfortunately rejected.

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It is vehemently submitted that when the investigation agency itself did not arrest the applicant and the applicant has cooperated in the investigation, the detention of the applicant during the course of trial would be a futile exercise and would not only jeopardise his personal liberty, but would also bring a

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bad name to his otherwise good reputation, more so, when he has been granted anticipatory bail in the predicated offences. The applicant undertakes that he will cooperate in the trial and will remain present before the Trial Court as and when his presence would be required and would not seek any adjournment especially when the prosecution witnesses would be in attendance.

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Shri Rohit Tripathi, learned counsel appearing for Enforcement Directorate, on the other hand, submits that applicant in connivance with the other co-accused persons has misappropriated a huge amount and it was in the knowledge of the applicant that earlier cognizance order has been quashed by a Coordinate Bench of this Court and the same is required to be taken again and therefore, it was his duty to remain present before the Special Court/ Trial Court throughout. It is also submitted that having regard to the twin stringent conditions enumerated under Section 45 of the PMLA, the applicant is not entitled for any discretion.

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Having heard learned counsel for the parties and having perused the record, it appears to be an admitted scenario that during the course of investigation, the applicant was not arrested by the investigating agency and the complaint has been filed without arresting him, thus, it may be inferred that applicant had cooperated in the investigation. The only objection appears to have been raised on behalf of Enforcement Directorate is pertaining to the absence of the applicant before the Trial Court. It also appears to be an admitted situation that the second cognizance order has been taken by the Special Court in the month of April 2019, in compliance of the order of a Coordinate Bench of this Court dated 07.01.2019, whereby the earlier cognizance taking order of the Special Court of date

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05.01.2016 was quashed. It also appears that the Trial Court after taking into cognizance, the said order passed by a Coordinate Bench of this Court was of the view, as is shown in the order dated 05.04.2022, that earlier processes issued by it would not have any effect and that is why, a fresh process was issued. However, so far as the applicant is concerned, the Trial Court/ Special court issued non-bailable warrants without first issuing any process of the nature of summons or bailable warrants. The other co-accused persons, having identical role in the matter, namely, Ramji Singh, Ravindra Aggarwal, Jai Narayan Agarwal and Subhash Chandra Tulsian have been granted bail by a Coordinate Bench of this Court vide order dated 12.09.2023 passed in a bunch of criminal misc. anticipatory bail applications, the leading anticipatory bail application being Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.- 1518 of 2023. It is also admitted to the parties that applicant has been granted bail in the predicated offences.

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Thus, keeping in view the reasons mentioned herein-before and also keeping an eye on the fact that identically placed coaccused persons have been granted anticipatory bail, in the considered opinion of this Court, the two stringent conditions enumerated under Section 45 of the PMLA stands satisfied and the benefit of anticipatory bail may safely be extended to the applicant.

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In result, the instant anticipatory bail application moved by the applicant- Gajraj Kunwar Jain is, hereby, allowed and it is provided that in the event of arrest of the applicant- Gajraj Kunwar Jain, in the above-mentioned case under any process of the trial court or on his appearance/surrender before the trial court within 20 days, whichever is earlier, he shall be released

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forthwith on anticipatory bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresting Officer/ Trial Court subject to the following conditions:-

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(i) The applicant shall make himself available for interrogation or even for discovery of any fact by a police officer as and when required, in case further investigation is directed;

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(ii) 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 them from disclosing such facts to the Court or to any police officer;

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(iii) The applicant shall not leave the country without the previous permission of the Court.

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Applicant shall remain present before the trial court as and when his presence would be required and he would not take adjournment especially when the prosecution witnesses would be in attendance.

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If in the opinion of the trial court default of any of the condition placed above is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and shall proceed against him in accordance with law.

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It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any manner.

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The trial Court may in its discretion impose any other suitable condition in addition to the conditions imposed by this Court.

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Order Date :- 26.2.2024 Gurpreet Singh

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Digitally signed by :- GURPREET SINGH High Court of Judicature at Allahabad, Lucknow Bench

Gajraj Kunwar Jain v. Govt. of India Thru. Assistant Director , Directorate of Enforcement Allahabad

Case brief

What is this about?

What did the court decide?

Gajraj Kunwar Jain v. Govt. of India Thru. Assistant Director , Directorate of Enforcement Allahabad

Case brief

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What did the court decide?

What the court decided

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