Dismissed

Shyam Kishore Gupta v. Union of India through Directorate of Enforcement

Jharkhand HC15 Mar 2021B.A./3238/2020

Case brief

AI extract

What is this about?

In a bail application under the Prevention of Money Laundering Act, the High Court of Jharkhand rejected the petitioner's plea. The court held that since a prima facie case was established and the petitioner was deeply involved in the business and received funds personally, bail was an exception rather than the rule under Section 45 PMLA.

What did the court decide?

Prayer for regular bail under Section 438 CrPC/Section 45 PMLA was rejected and the petitioner was held to be in custody.

Shyam Kishore Gupta Vs Union of India through Directorate… — Cheque Dishonour | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A. No.3238 of 2020

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Shyam Kishore Gupta … … Petitioner Versus Union of India through Directorate of Enforcement … … Opp. Party

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CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR --- For the Petitioner : Mr. Indrajit Sinha, Adv. For the Opp. Party : Mr. Amit Kr. Das, Adv.

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The matter was taken up through Video Conferencing. Learned counsel for the parties had no objections with it and submitted that the audio and video qualities are good.

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09/15.03.2021: Heard learned counsel for the petitioner and learned counsel for the Union of India through Directorate of Enforcement.

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2. The present application has been filed for grant of regular bail to the petitioner in connection with ECIR Case No.02 of 2020, for the offence defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act, pending in the Court of the learned A.J.C.-XVI-cum-Special Judge, CBI-cum-Special Judge, P.M.L. Act, Ranchi.

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3. Learned counsel for the petitioner has submitted that the petitioner is in custody since 13.03.2020 in the present case. Earlier, the petitioner has been taken into custody for custodial interrogation from 16.03.2020 to 25.03.2020. After completing the investigation, complaint has been filed. The petitioner is ready to co-operate with trial and further no custodial interrogation is required since investigation is already complete. Further, the petitioner has remained in custody in the main scheduled offence in RC 04(S)/2014 from 16.04.2013 to 14.09.2016. Thus, he has completed almost four years of imprisonment in connection with the said offence. So far as, the merit is concerned, it has been argued that total transaction is of Rs.65 crores out of which, four crore rupees had been deposited in the bank account of this petitioner. The defense has been taken that this amount is the amount of commission/remuneration payable to the petitioner. It has been further argued that the cheque period is from 15.07.2008 to 30.04.2012, while

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the petitioner was the director of M/s. Sanjeevani Buildcon Pvt. Ltd. (in short SBPL) since 10.06.2010 and became signatory on 16.12.2011.

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4. Learned counsel for the petitioner has relied upon paragraph nos. 44 and 46 of the judgment reported in 2005 (5) SCC 294, Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr ., and paragraph no.7 of the judgment reported in 2005 (5) SCC 132, Vasanthi vs. State of A.P . Learned counsel has further relied upon paragraph nos. 23 and 27 of the judgment reported in 2019 SCC OnLine SC 1549, P. Chidambaram vs. Directorate of Enforcement .

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5. Referring to above judgment, it has been submitted by the learned counsel that still grant of bail is rule and refusal is exception. The bar under Section 45 of the P.M.L. Act has been explained and it has been held that the entire evidence is not required to be evaluated minutely, rather if the petitioner is able to show that he has prima facie defense or likelihood, he deserves privilege of Bail. Thus, if there is reasonable possibility of acquittal on the basis of material available on record then no prima facie case is made out and the petitioner is entitled for bail. It has further been argued that the petitioner has always cooperated with the investigation and he has never misused the privilege of bail granted in the main case being RC 04(S)/2014.

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6. It has further been argued by the learned counsel for the petitioner that as per the allegation and charge, the petitioner may be given punishment of three years to seven years imprisonment as per the Section 4 of the P.M.L. Act, and the punishment is not severe. Considering the prescribed punishment and custody of the petitioner, he deserves bail as he has undergone more than four years of imprisonment in connection with the present offence including custody period in the main offence. Further, he is ready to co-operate with the trial. It has further been argued that the money has not been transferred directly in the bank account of this petitioner rather the allegation is of layering. On the basis of above facts, the prayer for bail has been made.

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7. On the other hand, counsel for the Union of India through Directorate of Enforcement has opposed the prayer for bail and submission has been made as follows:-

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(a) Referring to the material collected during the investigation, it has been argued that the amount of Rs.7,87,77,763/- has been transferred to the M/s. Smart People Developers Private Limited ( in short SPDPL).This is a company especially incorporated to receive the fund of SBPL and this petitioner was the director of the said company. Four crores of rupees have been transferred to the personal bank account of this petitioner by SBPL. Further, this petitioner was director of the accused company SBPL as well as SPDPL and said proceeds of the crime has been used for personal gain by purchasing immovable properties. Further, the Modus Operandi of the company was to defraud the people in the name of providing housing, which is a serious crime as common people of the society has been defrauded by selling the dream houses.

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(b) By referring to the judgment reported in ( 2018) 15 SCC 248, Union of India Vs. Varinder Singh @ Raja & Anr. that for considering the bail under the P.M.L. Act, the restriction of Section 45 of the P.M.L. Act is mandatory in nature. The judgment cited by the petitioner is not applicable as in those cases, the bail has been granted on the consideration of exception, which itself exists under Section 45 of the P.M.L. Act. On the above facts, the prayer for bail may be rejected.

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8. From perusal of the records and hearing of the parties, it appears that a case been re-registered by the CBI being RC 04(S)/2014 against this petitioner and SBPL and SPDPL & Ors. on the direction of Hon’ble High Court passed in P.I.L. The main allegation is regarding the defrauding the people in the name of housing scheme. The company has come out with a scheme providing cheap housing to the public and this way the company has induced them to make huge investment, but the public has not been provided houses as promised.

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9. So far as the allegation against this petitioner is concerned, he was the director of the SBPL since 10.06.2010 i.e. with in check period. Further he was director of the SPDPL which is one of the companies used as tool for siphoning the money received from the public in the name of housing. Section 45 of the P.M.L. Act clearly stipulates, if prima facie case is made out against the petitioner, non-grant of bail is rule and grant of bail is exception. Further the exception has also been

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carved out under Section 45 of the P.M.L. Act itself for the person who is under the age of sixteen years or a woman or sick or infirm. The petitioner has tried to make out a case on the basis of period of custody and the merit of the case. So far as, the period of custody is concerned in the present case, the petitioner is under custody for about one year while the punishment prescribed is from three to seven years. The defense of the petitioner is that the money received by him was his remuneration in the form of commission, and he has never projected or laundered the money, and as such, no offence is made out under the P.M.L. Act is not acceptable for the simple reason that he was head of the marketing and was very much involved in the business of both the companies and also has received the money directly in his personal bank account.

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10. In view of above discussion, this Court does not find any basis for enlarging the petitioner on bail. Accordingly, the present bail application is, hereby, rejected.

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(Rajesh Kumar, J.)

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Amar/-

Shyam Kishore Gupta v. Union of India through Directorate of Enforcement

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Shyam Kishore Gupta v. Union of India through Directorate of Enforcement

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