JOGENDRA TIWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Anshuman Sinha and Mr. Indrajit Sinha, learned counsels for the petitioner and Mr. Amit Kr. Das, learned Spl. P.P. for the Enforcement Directorate.

(2.) The petitioner, in this application prays for grant of bail in connection with ECIR/RNZO/09/2022 in ECIR Case No. 08/2023, for the offence u/s 3 of the Prevention of Money Laundering Act, 2002 (for short PMLA, 2002) punishable u/s 4 of PMLA, 2002.

(3.) It has been submitted by the learned counsels for the petitioner that on a perusal of the prosecution complaint it would transpire that initially the ECIR was lodged on the basis of four First Information Reports and subsequently by an addendum further fifteen First Information Reports were added. A bare perusal of the conclusions arrived at by the Investigating Agency would reveal that the Directorate of Enforcement has wrongly mentioned that the petitioner has committed the scheduled offences and generated the proceeds of crime as out of the nineteen First Information Reports the petitioner was an accused in only three First Information Reports and in all the three cases the Police after investigation had not sent up the petitioner for trial and has filed final forms. Out of the total of nineteen First Information Reports the Directorate of Enforcement in their prosecution complaint have admitted that nine First Information Reports which all relate to the liquor business have been quashed by the Jharkhand High Court in separate quashing applications and, therefore, those have not been considered and the proceeds generated therefrom have not been accounted in the prosecution complaint as proceeds of crime. It has been submitted that out of the remaining fifteen First Information Reports the case of the Directorate of Prosecution relating to proceeds of crime hinges upon a total of six First Information Reports, of which, four relate to alleged generation of proceeds of crime from the business of sand and two relate to the alleged money generated by commission of offences relating to land. Referring to the provisions of PMLA, 2002, learned counsels have submitted that until and unless the proceeds of crime are generated by committing a schedule offence and a person deals with the proceeds of crime in any manner a person cannot be tried or held guilty for the offences under the provisions of PMLA, 2002. Even in case of acquittal, quashing or discharge of an accused in the schedule predicate offence the natural consequence would be that the prosecution under the provisions of PMLA, 2002 shall also stand terminated. In the contours of the said submissions reference has been made to the case of "Vijay Madanlal Choudhary and Ors. Versus Union of India and Ors." reported in 2022 SCC OnLine 929. The other judgments referred to in this connection are "Parvathi Kollur and Another versus State by Directorate of Enforcement" reported in 2022 SCC OnLine SC 1975, "Pavana Dibbur versus Directorate of Enforcement" reported in 2023 SCC OnLine1586, "Naresh Kumar Kejriwal versus Directorate of Enforcement (Prevention of Money Laundering Act)" in Cr. Appeal No. 1262/2023. Since Sec. 45 of the PMLA, 2002 holds centre stage as consideration of grant of bail would be guided by the principles enumerated therein, learned counsels have once again put reliance in the case of "Vijay Madanlal Choudhary and Ors. Versus Union of India and Ors" (supra). Mr. Sinha has drawn the attention of the Court to Sec. 24 of the PMLA, 2002 while submitting that the stage for raising presumption has not been reached as the Special Court has yet to frame charges. The domain of Sec. 24 of the PMLA, 2002 has been aptly dealt with in the case of "Anil Tuteja versus Director, Directorate of Enforcement and Others" reported in 2020 SCC OnLine Chh 2527. Mr. Sinha, learned counsel for the petitioner has once again reiterated that the generation of proceeds of crime is confined to the purported illegal sale of sand and land. In the context of the sand cases, submission has been advanced that out of four First Information Reports, in three First Information Reports being Jamtara Nagar P.S. Case No. 101/2020, Jamtara Nagar P.S. Case No. 103/2020 and Nala (Jamtara) P.S. Case No. 71/2020 either the cognizance order has been quashed or the petitioner acquitted from the charges levelled against him. So far as the fourth FIR is concerned relating to "Margo Munda P.S. Case No. 27/2020" the order of cognizance has itself been quashed in Cr.M.P. No. 2505/2023 on the ground that the company is not an accused in the charge-sheet. Therefore, in the light of the various pronouncements of the Hon'ble Supreme Court the prosecution of the petitioner under the provisions of PMLA, 2002 is impermissible so far as the predicate offence relating to sand is concerned. Learned counsel has thereafter drawn the attention of the Court to the land cases which have been instituted by the Director of Enforcement as predicate offences. These are based on Deoghar Town P.S. Case No. 342/2020 and Jasidih P.S. Case No. 50/2020 and in both the cases the dispute pertains to the same piece of land which has been referred to as "Roy Bungalow". Final forms have been submitted by the Police in both the cases claiming the dispute to be civil in nature. The contention of the Directorate of Enforcement that in both the cases protest petitions have been filed has been sought to be negated by submitting that only in one case protest petition has been filed as in Jasidih P.S. Case No. 50/2020 the protest petition is said to have been filed on 14/2/2020 while the final form has been submitted much later on 27/6/2023. Even assuming that the protest petitions have been filed, the same would have a significant bearing on the case of the petitioner as it cannot be said that any case is registered with the jurisdictional Police unless the protest petition is to be treated as a complaint in terms of Sec. 2 (d) of the Code of Criminal Procedure. The protest petition filed in Deoghar P.S. Case No. 342/2020 suffers from several infirmities and does not fulfil the requirement of a complaint as in Sec. 2 (d) of the Cr.P.C. Reference has been made to the case of "Mukhtar Zaidi versus the State of Uttar Pradesh and Another" reported in 2024 SCC OnLine SC 553. It has, therefore, been submitted that there is no schedule offence relating to the land in question to prosecute the petitioner under PMLA, 2002. So far as the allegation of proceeds of crime of Rs.4,13,95,000.00 generated for sale and purchase of land is concerned, it has been elaborately stated about the dispute between the siblings relating to "Roy Bungalow" culminating in a suit and the documents which have been submitted would clearly indicate that there was no criminal activity in the said case. The land dispute was amicably settled vide Registered Partition Deed No. 1352/2019 and after possession of their respective shares the same were sold by the petitioner and such sale deeds have not been challenged in any Court of Law. The aforesaid facts would signify that the amount of Rs.4,13,95,000.00 are not the proceeds of crime as alleged. Mr. Sinha after having dealt with fifteen First Information Reports has now turned his attention to the rest four First Information Reports and while doing so he has submitted that in Narayanpur P.S. Case No. 111/2020 the sole accused had died and the case was, therefore, disposed of and Dhurwa P.S. Case No. 212/2022 was quashed by this Court in Cr.M.P. No. 3641/2023. The remaining two First Information Reports according to Mr. Sinha have not resulted in generation of the proceeds of crime. It has, therefore, been concluded in the aforesaid precincts that the requirement of Sec. 45 of PMLA, 2002 having been satisfied the petitioner deserves to be released on bail.