GAUTAM THAPAR Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) The present application has been filed under Sec. 439 Cr.P.C. on behalf of the applicant seeking regular bail in Complaint Case No. 24/2021 filed under Ss. 44/45 of the Prevention of Money Laundering Act, 2002 (hereinafter, referred to as the 'PMLA') and arising out of ECIR No. 11/HIU/2021 registered under Ss. 3/4 PMLA by the respondent/ED.

(2.) Pithily put, the case of the prosecution is that subsequent to the removal of Sh. Rana Kapoor, the then MD and CEO of Yes Bank Ltd. (hereinafter, referred to as the 'Bank'), certain complaints came to be filed assailing his role in grant of various credit facilities to borrowers, in violation of banking norms and against receipt of illegal gratification, which resulted in huge loss to the Bank. One of these complaints was in relation to M/s. Oyster Buildwell Pvt. Ltd. (hereinafter, referred to as 'OBPL'), a real estate company, which was extended credit facilities to the tune of Rs.514.27 crores, resulting in loss of Rs.466.51 crores to the Bank. As a result, FIR/RC No. 2232021A0005 was registered under Ss. 120B/406/420/468/471 by the CBI against OBPL, the applicant and others, including unknown public servants and private persons, for having committed criminal breach of trust, cheating, criminal conspiracy and forgery for diversion/misappropriation of the public money during the period from 2017 to 2019. The investigation in the case is stated to be still pending.

(3.) The present ECIR was recorded by the respondent under Ss. 3/4 of the PMLA, followed by filing of the prosecution complaint on 1/10/2021. As per the complaint, Avantha Group is led by the present applicant, being its Founder and Chairman. The companies primarily involved in the transaction in question were OBPL, M/s. Jhabua Power and Investments Limited (hereinafter, referred to as 'JPIL') and M/s. Jhabua Power Ltd. (hereinafter, referred to as 'JPL'), which are a part of Avantha Group and under the control and beneficial ownership (direct or indirect) of the applicant. In December, 2017, JPL had signed an operations and management (O&M) agreement for its thermal power project with JPIL, which work was sub-contracted by JPIL to OBPL at higher monthly consideration. In the contract between JPIL and OBPL, a special clause was added, as per which, interest free security deposit to the tune of Rs.514.27 crores was to be provided by OBPL to JPIL. For extending of this security deposit to JPIL, OBPL sought a loan from the Bank, wherefore the Term loan in question came to be disbursed in its favor.