Case Law Details
Sanjay Kumar Agarwal Vs Directorate of Enforcement (Jharkhand High Court)
The argument was heard on behalf of the petitioner which was argued by Mr. S.D.Sanjay, the learned Senior counsel assisted by Mr. Sumeet Gadodia, the learned counsel and Mr. Ritesh Kumar Gupta, the learned vice counsel and on behalf of the Opposite Party-Enforcement Directorate (ED) Mr. Amit Kumar Das, the learned counsel assisted by Mrs. Swati Shalini, Mr. Shivam Utkarsh, Mr. Saurav Kumar, and Mr. Sahay Gaurav Piyush, the learned counsels and after hearing at length on that
2. This petition has been filed for quashing the order dated 09.05.2022 passed in Misc. Criminal Application No.362 of 2022 by learned Additional Judicial Commissioner-XVIII-cum-Special Judge, Prevention of Money Laundering Act, Ranchi whereby the petition filed by the petitioner under Section 205 of the Code of Criminal Procedure (Cr.P.C.) for dispensing with the personal appearance of the petitioner has been rejected in connection with ECIR 05/2021, corresponding to CNR-JHRN01-002561-2022, pending in the same learned court.
3. The complaint was filed under sections 44 and 45 of the Prevention of Money Laundering Act, 2002 [hereinafter to be referred to as PMLA Act, 2002, for short] alleging therein that (i) the complaint case under the PMLA Act, 2002 has been initiated against the petitioner on the basis of the F.I.R. registered by the C.B.I., A.C.B., Dhanbad being RC1(A)/2020-D dated 10.02.2020, (ii) that it is stated that the aforementioned F.I.R. by the C.B.I., A.C.B., Dhanbad was registered against the petitioner on the basis of one complaint filed by Amit Sarawgi alleging, inter alia, that the petitioner being ‘Insolvency Professional’ demanded a bribe of Rs.2 lacs per month from Amit Sarawgi for showing leniency in the insolvency resolution process for extending corporate insolvency resolution process from 9 months to two years and also demanded one time bribe of Rs.20 lacs from Amit Sarawgi for obtaining favourable forensic audit/valuation report from identified forensic auditor/valuer and for helping in repossession of plant/company by Amit Sarawgi and (iii) the C.B.I., A.C.B., Dhanbad after investigation of the matter filed a charge sheet on 31.12.2020 under Section 7 of the P.C.Act and therefore, the present complaint under Section 44 and 45 of the PMLA Act, 2002 was initiated against the petitioner.
4. Mr. S.D.Sanjay, the learned Senior counsel appearing on behalf of the petitioner submitted that the investigation under the PMLA Act was initiated vide ECIR No.KLZO/13/2020, which was based on the F.I.R No.RC1(A) of 2020 dated 10.02.2020 filed by the C.B.I., Dhanbad under section 7 of the P.C.Act against the petitioner allegedly for accepting bribe by misusing his position as a public servant. According to him, in the present case, the substantive offence is section 7 of P.C.Act which is a scheduled offence under section 2(1)(y) of the PMLA Act. He submitted that the petitioner is a Chartered Accountant by profession and after passing the examination, he became eligible to be appointed as an Insolvency Professional by the Committee of Creditors under Section 3(19) of IBC, 2016 for handling the companies under liquidation. According to him, during the course of investigation, the statement of the petitioner was recorded under section 50 of the PMLA Act summoning the petitioner and the petitioner fully cooperated during the investigation. He further submitted that on 03.06.2019 the petitioner consented to act as an IRP on the request of the State Bank of India. On 22.11.2019, NCLT, Kolkata, initially appointed the petitioner as an Interim Resolution Personnel (IRP) for Adi Ispat Pvt. Ltd. On 21.12.2019 the petitioner after having worked satisfactorily as per the perception of the COC, was appointed as Resolution Personnel (R.P) by the Committee of Creditors (COC). On 24.12.2019, Amit Sarawagi withdrew Rs.10 lacs cash illegally from Andhra Bank, Giridih Branch. He did not even inform the petitioner that the company had maintained a bank account in Andhra Bank. On 09.01.2020 the petitioner came to know about the illegal withdrawal of money by the complainant. The petitioner raised the issue before Amit Sarawagi and asked him to return the money for being deposited in the account of the company otherwise, legal action will be taken against him. Thereafter, on 03.02.2020, the complaint was lodged before the C.B.I by Sri Amit Sarawagi, ex-Director of Adi Ispat Pvt. Ltd. On 10.02.2020, the F.I.R was lodged by the C.B.I. giving rise to RC1(A)/2020. On 11.02.2020 the petitioner visited the office of N.Khetadas Machine Tools Works Pvt. Ltd., Giridih, where the petitioner was arrested by C.B.I for allegedly accepting bribe from Amit Sarawagi. The petitioner did not receive or possess any money even as per the allegation as the money was seized by the CBI and FIR was registered. He submitted that merely on the allegation in R.C case that a sum of Rs.3 lakhs allegedly bribe money was seized an ECIR was registered by ED and the investigation started. He submitted that neither any proceeds of crime was found or possessed by the petitioner nor any proceeds of crime was projected to be untainted money by the petitioner. The C.B.I submitted the charge-sheet under section 7 of the P.C.Act on 31.12.2020. The statement of the petitioner was recorded under section 50 of the PMLA Act on 10.08.2021 and the cognizance was taken by order dated 22.12.2021 under sections 3 and 4 of the PMLA Act and thereafter, the petitioner filed a petition under section 205 of the Cr.P.C. before the Special Judge, PMLA Act but the same was rejected vide order dated 09.05.2022. On these grounds, he submitted that the matter was taken up by this Court on 18.7.2022 and in the light of the submission of the learned counsel for the Enforcement Directorate (ED) that in view of rigors of section 45 of the PMLA Act, 2002, the same is required to be decided by this Court and the Court directed the Enforcement Directorate (ED) to file a counter affidavit. He submitted that rigors of section 45 of PMLA Act for grant of bail is not applicable in the manner of the case as it is covered by exception as the alleged amount is only Rs.3 lakhs or Rs.5 lakhs and does not exceed Rupees One Crore for the applicability of the twin test. He submitted that the petitioner is a resident of Kolkata where he is residing for work for gain as a Chartered Accountant and will have to leave his work in his office to come from Kolkata to Ranchi. He submitted that the petitioner is not keeping well. He suffered from Covid-19 twice and is still has multiple post Covid-19 problems. He submitted that the petitioner has filed a petition in which he has given undertaking before the learned court that he will be represented through his Advocate on all the dates of hearing and in that manner there will be no difficulty or delay in the trial. He submitted that the undertaking to the effect that the petitioner will not dispute his identity during trial was also disclosed in the petition. He submitted that there is undertaking to the effect that the petitioner will not challenge the proceeding on the ground that his trial has been held in his absence or witnesses were deposed in his absence. He further elaborated his argument by way of submitting that the offence under section 4 of the PMLA Act is punishable for imprisonment for 7 years which is less than the punishment prescribed under sections 409, 420, 467 and 468 IPC. He further submitted that in such cases, the courts have extended the benefits to the accused under section 205 Cr.P.C to be represented by Advocate in appropriate cases. He submitted that whether the petitioner has asked for bribe from the Managing Director of the defaulter company is required to be decided in the trial. The petitioner has fully cooperated the E.D during investigation and has made statement under section 50 of the PMLA Act. He submitted that the petitioner remained in custody for more than two months in the case of scheduled offence of being arrested by the CBI, thus for the same case the denial of the relief will amount to sending the petitioner again to jail even though he has been granted bail for the scheduled offence. The E.D has already filed its complaint after completing the investigation and hence there is no requirement of any interrogation much less custodial interrogation. He submitted that the petitioner undertakes to submit any personal bond for securing his physical presence as and when required by the learned trial court. In these backgrounds, he submitted that the learned trial court has not taken into consideration the spirit of section 205 Cr.P.C in its right direction. He relied in the case of Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695, particularly paragraph nos.2, 2.1, 2.2. 4.3 and 5 of the said judgment which are quoted as under:
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