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DELHI HIGH COURT
Ved Prakash Vaish, J.
Gautam Khaitan —Petitioner
versus
Enforcement Directorate —Respondent
Bail Application No.2354 of 2014
Decided on 3.12.2014
For the Petitioner:Mr. P.V. Kapur with Mr. Siddarth Luthra and Ms. Geeta Luthra, Sr. Advocates with Mr. K.K. Manan, Mr. P.K. Dubey, Advocates.
For the Respondent:Mr. Sanjay Jain, ASG with Mr. Ajay Digpaul, CGSC and Mr. Akash Nagar, Advocate with Mr. Vikas Singh, Dy. Director/ I.O.
IMPORTANT POINT:
The economic offences constitute a class apart and need to be vested with different approach in the matter of bail.
Headnote:Criminal Procedure Code, 1973 — Section 439 — Prevention of Money Laundering Act, 2002 — Section 3, 24 & 45 — Petitioner was charge-sheeted for offences u/s 420 IPC, Sections 7, 8, 9, 12 and 13(2) of PC Act and u/s 3 and 4 of PML Act r/w 120 IPC — Illegal kick-backs of several crores were received in a deal for supply of VVIP/VIP Helicopters acquired by Ministry of Defence, Govt. of India and Petitioner was involved in offence as conspirator — Economic offences constituted a class apart and needed to be dealt with different approach in the matter of bail as it posed serious threat to financial health of country — Petitioner was prima facie beneficiary and prima conspirator in alleged money laundering transactions — Petitioner was not entitled to be granted bail.
Held: There is no hard and fast rule regarding grant or refusal of bail. Each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. Where the offence is of serious nature, the Court has to decide the question of grant of bail in the light of considerations such as nature and seriousness of offence, nature and character of evidence in support thereof, the severity of the punishment for which conviction will entail the character of the accused, circumstances which are peculiar to the accused, a reasonable possibility of securing the presence of the accused at the trial, the reasonable apprehension of influencing the witness and tampering with the evidence and the larger interest of the public or such similar other considerations.
The economic offences constitute a class apart and need to be vested with different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
After going into all the details furnished by the respondent/ Directorate of Enforcement in the form of reply, without expressing any opinion on merits, I feel that at this stage, the release of the petitioner would hamper further investigation as it may influence the witnesses. Though, it is pointed out by learned senior counsel for the petitioner that the petitioner is in no way connected with this case, however, in my view, the apprehension raised by the respondent cannot be ignored considering the fact that the petitioner is the beneficiary and the prime conspirator in the said money laundering transactions.
Having considered in totality the facts and circumstances of the case, without expressing any opinion on the merits of the case and also with regard to the claim of the respondent, in my view, the petitioner cannot be released on bail at this stage. Accordingly, the application is dismissed. (Paras 25, 26, 28 & 30)
Result: Petition dismissed.
JUDGMENT
Ved Prakash Vaish, J.—By this application filed under Section 439 read with Section 482 of Cr.P.C., the petitioner is seeking bail in ECIR No.DLZO/15/2014/AD(VM)/CBI/ACU-V/NEW DELHI under Section 120B read with Section 420 of IPC and Sections 7/8/9/12/13(2) read with Section 13(1)(d) of PC Act, 1988 (hereinafter referred to as ‘PC Act’) read with Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (for short, ‘PMLA’) registered by the Enforcement Department, New Delhi on 03.07.2014.
2. The facts of the case as borne out from Enforcement Case Information Report (for short, ‘ECIR’) are that on 08.02.2010 Ministry of Defence, Government of India signed a Contract No. Air (HQ)/S 96062/6/ASI with M/s. Agustawestland International Ltd. (hereinafter referred to as ‘AWIL’) for the supply of 12 AW 101 VVIP/VIP Helicopters with Associated Engineering Package at an aggregated price of Euro 556.262 million (Rs.3726.96 crores @ Rs.67 per Euro). M/s. Agustawestland started paying kickbacks to Mr. Haschke and Mr. Gerosa under the guise of several consultancy contracts executed between M/s. Agustawestland S.P.A. and M/s. Gordian Services Sarl, Tunisia. M/s. Agustawestland S.P.A. in one such contract also agreed to appoint M/s. Gordian Services Sarl as consultant in the matter of 12 VVIP Helicopters, if the deal with MoD, India was sealed. Subsequently, Mr. Giuseppe Orsi, CEO, M/s. Finmeccania, Italy and Mr. Bruno Spagnolini, CEO, M/s. Agustawestland, UK apparently with the purpose to pump these amounts in India and abroad, signed engineering contracts with IDS Infotech, India and IDS Tunisia which were established with the main purpose of providing illegal gratification to the concerned public officials and the intermediaries. Agustawestland paid kickbacks worth Euro 51 million out of which Mr. Christian Michael James (a British citizen) was allegedly paid Euro 30 million and the remaining amount was paid to Mr. Guido Ralp Haschke and Mr. Carlo Gerosa.
3. For facilitating the aforesaid transfer of kickbacks Mr. Gautam Khaitan (the present petitioner), Legal Advisor of M/s. IDS Infotech, India introduced Mr. Haschke and Mr. Gerosa to Mr. Satish Bagrodia and Mr. Pratap K. Agarwal, Chairman and Managing Director respectively of IDS Infotech Ltd., India. This firm received an amount of approximately Euro 2.166 million from Agustawestland during the period November, 2007 to April, 2010. Subsequently, IDS Tunisia was incorporated as 100% subsidiary of IDS Infotech, India, however the Indian company sold the Tunisian company to Mr Haschke and Mr Gerosa, after a few months of its incorporation. Thereafter, the business of M/s IDS Infotech, India was transferred to M/s Aeromatrix which was incorporated in Delhi vide a business transfer agreement (BTA) and Mr. Haschke and Mr. Gerosa along with Mr. Gautam Khaitan were appointed as its Directors. Besides the above, Mr. Praveen Bakshi was appointed as the CEO (Chief Executive Officer) in this company who allegedly has an important role in channelizing money for illegal gratification. Mr. Haschke and Mr. Gerosa along with Mr. Gautam Khaitan were also shareholders in M/s Aeromatrix through their company IDS Mauritius, and they brought money through this company by way of fictitious/over invoices.
4. The alleged business which M/s IDS, India was getting from M/s Augusta Westland, went to IDS Tunisia after its incorporation. Initially, M/s IDS Infotech, India started receiving the alleged work through M/s. IDS Tunisia, but after incorporation of M/s Aeromatrix Info Solution Pvt. Ltd, M/s IDS Tunisia stopped entrusting any work to IDS Infotech, India and started giving it to M/s Aeromatrix. M/s Aeromatrix received purchase orders from IDS Tunisia and after execution of alleged work, invoiced product was delivered directly to M/s Agustawestland, but the payments for the same were received through M/s IDS Tunisia. It was also revealed that about 82% shares of M/s Aeromatrix are held by M/s Info
