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IN THE HIGH COURT OF DELHI AT NEW DELHI
Anup Jairam Bhambhani, J.
Ramesh Manglani – Appellant
Versus
Directorate of Enforcement – Respondent
Bail Appln. 3611 of 2022
Decided On : 30-05-2023
BAIL - PMLA - SECTION 3 - MONEY LAUNDERING - TWIN CONDITIONS - REASONABLE GROUNDS TO BELIEVE THAT ACCUSED IS NOT GUILTY - LIKELIHOOD OF ACCUSED COMMITTING OFFENCE WHILE ON BAIL - SATISFACTION OF COURT TO BE BASED ON BROAD PROBABILITIES - ROLE OF ACCUSED IN OFFENDING TRANSACTIONS - NON-ARREST OF SIMILARLY PLACED CO-ACCUSED - GRANT OF BAIL.
Fact of the Case:
Petitioner, a resident of Dubai, was granted bail in a case involving money laundering under section 3 of the Prevention of Money Laundering Act, 2002 (PMLA). The petitioner was not named as an accused in the FIR but was subsequently added as Accused No. 5 in the prosecution complaint. The petitioner was alleged to have exercised ultimate control over Phoenix FZC, a company incorporated in the UAE, which was involved in siphoning-off funds from the bank accounts of Ligare Aviation. The petitioner was appointed as the General Manager of Phoenix FZC and was also given the mandate to manage the bank account of the company. The petitioner was not involved in the day-to-day operations of the company and had no knowledge of the nature of the transactions that were being carried out. The petitioner was only acting on instructions received from Sahil Mehta, who was an alien to the company. The petitioner had no financial interest in the company and was not involved in the issuance of invoices or the receipt of payments. The petitioner was only involved in the outward remittances of money from Phoenix FZC, which were made on instructions from Sahil Mehta. The petitioner had no knowledge that the transactions were bogus or that the money was being remitted out of the company without any genuine services having been provided.
Finding of the Court:
The court held that there were reasonable grounds to believe that the petitioner was not guilty of the offence under section 3 of the PMLA. The court also held that the petitioner was not likely to commit any offence under PMLA while on bail. The court considered the following factors in reaching its decision: (i) the petitioner was not involved in the day-to-day operations of Phoenix FZC; (ii) the petitioner had no knowledge of the nature of the transactions that were being carried out; (iii) the petitioner was only acting on instructions received from Sahil Mehta, who was an alien to the company; (iv) the petitioner had no financial interest in the company; (v) the petitioner was not involved in the issuance of invoices or the receipt of payments; (vi) the petitioner was only involved in the outward remittances of money from Phoenix FZC, which were made on instructions from Sahil Mehta; (vii) the petitioner had no knowledge that the transactions were bogus or that the money was being remitted out of the company without any genuine services having been provided; (viii) the non-arrest of similarly placed co-accused persons; and (ix) the grant of bail to co-accused Sanjay Godhwani by the learned trial court.
Issues: Whether the petitioner was guilty of the offence under section 3 of the PMLA; Whether the petitioner was likely to commit any offence under PMLA while on bail.
Ratio Decidendi: The court held that the twin conditions under section 45(1) of the PMLA are to be applied in addition to the usual and ordinary principles required to be considered for grant or denial of bail. The court also held that the satisfaction of the court, on a prima-facie view of the matter, based on broad probabilities, discernible from the material collected during investigation, whether or not there are reasonable grounds for believing that the accused is not guilty of the offence alleged, is sufficient to grant bail. The court further held that the court is also similarly to satisfy itself, whether or not the accused is likely to commit any offence under the PMLA while on bail.
Final Decision: The petition was allowed, and the petitioner was granted bail subject to certain conditions.
JUDGMENT
Anup Jairam Bhambhani, J.
Introduction
1. By way of the present petition under section 439 of the Code of Criminal Procedure, 1973 (`Cr.P.C.. for short) read with section 45 of the Prevention of Money Laundering Act, 2002 (`PMLA' for short), the petitioner seeks regular bail in proceedings arising from ECIR No. DLZO-II/35/2020/721 dated 24.09.2020 registered by the Enforcement Directorate (`ED. for short) under Sections 3 and 4 of the PMLA.
2. The matter arises from FIR No. 1/2020 dated 01.01.2020 registered at P.S. Economic Offences Wing (`EOW' for short), in respect of the predicate offences alleged under sections 409, 467, 468, 471, 477A and 120B of the Indian Penal Code, 1860 (`IPC' for short). The FIR was registered on the complaint of one Mr. Vinod Rajagopalan in his capacity as the Authorised Signatory of M/s. Malav Holdings Private Limited (`MHL' for short), alleging that the accused persons had siphoned-off an amount of Rs.18.88 crores from one M/s. Ligare Aviation Limited (`Ligare Aviation' for short) in 2014-15 on the basis of fake/fictitious invoices.
3. The complainant company is stated to be aggrieved since it is an indirect shareholder in Ligare Aviation, in that the complainant company statedly holds 50% shares in RHC Holding Pvt. Ltd., which in turn holds a 30% stake in Ligare Aviation. Further, RHC Holding Pvt. Ltd. also holds 67.27% in RHC Finance Pvt. Ltd., which in turn holds the rest 70% in Ligare Aviation.
4. The petitioner, who is admittedly a resident of Dubai, arrived in India on 02.04.2022, when he was intimated by the immigration authorities about a look-out-circular issued against him. The petitioner was summonsed by the ED on 05.04.2022 to join investigation. He joined investigation on 07.04.2022. The petitioner was subsequently arrested by the investigating agency on 03.08.2022 from his residence in Mumbai.
5. The petitioner had previously filed a petition seeking bail before the learned trial court, which came to be dismissed on 31.08.2022. Thereafter, the petitioner filed a petition bearing Bail Application No. 2658/2022 before this court, which was withdrawn by the petitioner vide order dated 13.10.2022 with liberty to file for the same relief before the learned ASJ, Patiala House Courts, New Delhi since the respondent had filed the prosecution complaint before that court on 01.10.2022. A second bail application filed before the learned ASJ was also dismissed on 26.11.2022.
Brief Facts
6. A brief conspectus of the facts and allegations leading-up to the filing of the present bail petition is as follows:
6.1. As per the FIR, the accused persons hatched a conspiracy "to cheat the complainant company" by siphoning-off funds from the bank accounts of Ligare Aviation, causing a loss to the tune of Rs.18.88 crores to the complainant company.
6.2. The FIR was registered against 16 individuals and companies, inter-alia against one Sanjay Godhwani (former Managing Director of Ligare Aviation) and his close associate Sunil Godhwani, and a company by name M/s. Phoenix International FZC (`Phoenix FZC. for short), with which company, the petitioner is alleged to be connected.
6.3. The petitioner however, was not named as an accused in the FIR.
6.4. Sections 467, 471 and 120B IPC mentioned in the FIR are offences under Part-A of the Schedule to the PMLA; and accordingly, ECIR bearing No. ECIR/DLZO-II/35/2020/721 was registered on 24.09.2020, which culminated in the filing of prosecution complaint dated 01.10.2022.
6.5. The petitioner was also not named as an accused in the ECIR; but stands accused in the prosecution complaint as Accused No. 5.
6.6. The allegation against the petitioner in the present case is in relation to his role in Phoenix FZC, which company was incorporated on 08.04.2013 with three Directors and Shareholders, viz. Rajesh Bhatia, Kunal Desai and Sandeepkumar Vipinchandra Maniar having 25%, 50% and 25% equity shareholding respectively. The substratum of the allegation is that
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