Point of Law: As per section 45 PMLA would be applicable, had applicant filed an application either under section 439 of Code after arrest during investigation.

JUDGMENT :

1. The present bail application is filed under section 439 of the Code of Criminal Procedure, 1973 (herein after referred to as “the Code”) seeking bail in C.C.no. ECIR/11/HIU/2021 dated 15.06.2021 titled Directorate of Enforcement V Gautam Thapar & others pending in the court of Special Judge (PC Act, CBI-02), Rouse Avenue District Court, New Delhi.

2. CBI registered FIR bearing RC No.2232021A0005 under sections 120B and 406, 420, 468, 471 IPC at P.S AC-V, Delhi on basis of complaint received from Ashish Vinod Joshi, Chief Vigilance Officer, Yes Bank Limited against M/s Oyster Build well Private Limited and its holding company M/s Avantha Reality Limited, its Directors/Promoters namely Raghubir Kumar Sharma, Shri Rajendra Kumar Mangal, Shri Tapsi Mahajan and Gautam Thapar and unknown officials of M/s Jhabua Power Investment Limited, unknown known officials of Power Power Limited, unknown officials of M/s Avantha Holdings Ltd., unknown officials of M/s Avantha Power & Infrastructure Ltd. and unknown bank officials.

2.1 Thereafter respondent filed CC No. ECIR/11/HIU 2021 dated 15.06.2021 under sections 44 and 45 of Prevention of Money Laundering Act, 2002 (hereinafter referred to as “PMLA”) for commission of offence of money laundering as defined under sections 3 and 4 of PMLA which is pending in the Court of Special Judge, PMLA, Rouse Avenue Courts. It is alleged in complaint that subsequent to the removal of Rana Kapoor i.e. the applicant from management of YES Bank on allegations of granting various credit facilities to several companies by not following the banking norms thereby causing huge amount of losses to the YES Bank in lieu of illegal gratification, various complaints have been filed against applicant and one such complaint relates to the credit facilities to the extent of Rs. 514.27 Cr extended to Oyster Buildwell Private Limited (OBPL) causing a wrongful loss of Rs. 466.51 Cr to the YES Bank. The said complaint led to the registration of FIR bearing no. RC2232021A0005 dated by CBI, Delhi under sections 120(B), 406, 420, 468 and 471 of IPC, 1860 against persons as mentioned hereinabove. It is alleged that above persons 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 and causing loss to the tune of Rs.466.51 crore to YES Bank.

2.2 It was observed that huge amounts of proceeds had been generated from the criminal activity related to the Scheduled Offences, therefore, investigation under PMLA was initiated to investigate possible money laundering and to trace the proceeds of crime. Accordingly Enforcement Case Information Record (ECIR) no. ECIR/11/HIU/2021 dated 15.06.2021 was recorded. During investigation it was revealed that Avantha Group and its three companies i.e. M/s Oyster Buildwell Pvt. Ltd. (OBPL), M/s Jhabua Power and Investments Limited (JPIL) and Jhabua Power Limited (JPL) were involved in the sham agreement for getting the credit facility from the Bank in pursuance of criminal conspiracy between the bank and Avantha Group. The applicant was not named as accused in FIR registered by CBI. The applicant stated to be interrogated by the respondent/ED and three statements of the applicant were recorded under section 50 of the PMLA. The applicant was not arrested during investigation. The concerned trial court vide order dated 09.10.2021 acting on the Complaint took cognizance of the offence under sections 3 and 4 PMLA and summoned 21 persons/entities including the applicant besides seven other ex-senior employees of Yes Bank to stand trial. The applicant was stated be in custody at that time in Taloja Central Jail, Mumbai in any other case. The co-accused Gautam Thapar was stated to be taken into custody during investigation on 03.08.2021. The co-accused filed a bail application under section 439 of the Code read with sections45/46(1)/65 PMLA before Special Court which was dismiss