KAMAL KUMAR BAKSHI Vs. DIRECTORATE OF ENFORCEMENT, CHANDIGARH

JUDGEMENT

(1.) This petition has been filed under Sec. 439 of the Code of Criminal Procedure, 1973 (for short - 'Cr.P.C.') read with Sec. 65 of the Prevention of Money Laundering Act, 2002 (for short - 'PMLA, 2002') for grant of regular bail to the petitioner in case bearing No.ECIR/01/CHD/ 2002 dtd. 7/3/2012 under Ss. 3 and 4 of the PMLA, 2002 registered by the Directorate of Enforcement, Chandigarh Zonal Office, Chandigarh.

(2.) Learned Senior counsel for the petitioner submits that learned Sessions Judge, Chandigarh has not taken into consideration this fact that no role has been attributed to the petitioner in the commission of offence as alleged in the complaint. Neither the petitioner is beneficiary nor having any share in the business of the company. The petitioner is a victim of wrong investigation conducted by the officers of respondent-department and mandatory provisions of PMLA, 2002 have not been followed. Learned Senior counsel also submits that no incriminating material was recovered from the petitioner or from his family members. The petitioner was having a good business of security system and he has nothing to do with the day to day affairs of the company. At the most, the petitioner can be termed as commission agent, who has worked for the company. Learned Senior counsel further submits that the order of dismissing the bail application has been passed by learned Sessions Judge, Chandigarh without any application of mind as the bail application has been dismissed on the ground that mandatory provisions of Sec. 45 of PMLA, 2002 have not been followed. However, nothing has been said on merits. The provisions of Sec. 45 of PMLA, 2002 are not mandatory as has been held by Hon'ble Apex Court in case Nikesh Tarachand Shah Vs. Union of India and another 2017 SCC Online SC 1355.

(3.) Ms. Ranjana Shahi, learned Senior Panel counsel for E.D. has opposed the submissions made by learned Senior counsel for the petitioner and submits that it was found in the investigation that several FIRs were registered at different places against several agents relating to similar offences who were small investors. Thousands of investors were cheated on account of large scale cyber fraud committed by the company in the name and style of M/s Unipay 2U Marketing Pvt. Ltd. and M/s Unigateway 2U Trading Pvt. Ltd. The present petitioner was one of such agents and same has been admitted in the bail application itself. However, learned Senior Panel counsel submits that accused persons have absconded and are not available. The investigation in the case is still continuing and is at the initial stage. The petitioner is not entitled to be released on bail. The accused has to comply with the mandatory provisions of Sec. 45 of the PMLA, 2002. At the end, learned Senior Panel counsel submits that a complaint under Sec. 45 (1) of PMLA, 2002 has been filed against the accused-petitioner and others and same is still pending. The present application is liable to be dismissed on this ground.