IMPORTANT POINT
An application seeking anticipatory bail is maintainable even if the petitioner is not named as an accused in the ECIR or the prosecution complaint.

JUDGMENT

Anup Jairam Bhambhani J.

W.P.(CRL) 2416/2023 & CRL.M.A. 22727/2023

1. By way of the present petition filed under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure 1973 (Cr.P.C.), the petitioner/Ashish Mittal, seeks a direction quashing ECIR bearing No. ECIR/DLZO-I/04/2020 registered by the respondents/Directorate of Enforcement (ED) on 04.03.2020. By way of the accompanying application bearing Crl. M.A. No. 22727/2023 filed under section 482 Cr.P.C. the petitioner seeks "Stay of the entire proceedings emanating from the ECIR bearing No. ECIR/DLZO-I/04/2020 and now being investigated... " by the ED; and a further direction that the ED be directed not to take any coercive steps against the petitioner curtailing his personal liberty.

Brief Background

2. The immediate provocation for the petitioner to approach the court is summons dated 18.08.2023 issued to him by the Assistant Director, Directorate of Enforcement, Chandigarh under section 50(2) and (3) of the Prevention of Money Laundering Act, 2002 (PMLA), requiring the petitioner to appear before the ED on 21.08.2023.

3. The petitioner states in the petition that he "...has a strong apprehension that he will be illegally detained/arrested by the Respondents and he will be made a scapegoat in order to protect the interest of the main promoters/alleged main beneficiaries of the company .".[cf. para 5 of the writ petition]

4. Notably, a copy of the impugned ECIR has not been filed alongwith the petition. The petitioner says that he has not been supplied a copy of the impugned ECIR till date.

Relevant Factual Matrix

5. Briefly, the contours of the matter that are relevant for deciding the present petition are the following :

5.1. The impugned ECIR is stated to have been registered by the respondents on the basis of an FIR bearing No. RCBD1/2020/E/0002 dated 10.02.2020 registered by the Central Bureau of Investigation (CBI) under sections 120B read with sections 420/467/468/471 of the Indian Penal Code, 1860 (IPC) and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 at CBI, BSFB, Delhi, alleging the offences inter-alia of criminal conspiracy, cheating, forgery of valuable security, forgery for the purposes of cheating, using forged documents as genuine and criminal misconduct committed from the period 2012 onwards in relation to the affairs of one M/s. Educomp Solutions Ltd (ESL). The FIR was registered based on complaint dated 06.02.2020 made by the State Bank of India. The FIR names several persons as accused; however, the petitioner is not named as an accused in the FIR;

5.2. The impugned ECIR alleges the commission of the offence of money laundering under sections 3 and 4 of the PMLA;

5.3. As recorded above, the impugned ECIR is not on record, since the petitioner says he does not have a copy thereof;

5.4. The petitioner was associated with ESL for about 31/2 years, to begin with as the Senior Vice President (Finance) with effect from 01.11.2013; and thereafter as its Chief Financial Officer (CFO) with effect from 26.05.2014. He contends that he was engaged as CFO for implementing a Corporate Debt Restructuring Scheme for ESL;

5.5. The petitioner contends that he was never a member of the Board of Directors of the company, nor was he part of any statutory committee including the Audit Committee, nor a shareholder of the company; and that he tendered his resignation from the company vide Resignation Letter dated 24.02.2018;

5.6. The petitioner also contends that all transactions during his tenure with the company happened with the consent and knowledge of the Monitoring Committee of the lender banks and/or the Resolution Professional appointed by the National Company Law Tribunal in the proceedings against ESL under the provisions of the Insolvency & Bankruptcy Code, 2016;

5.7. On another note, it is noted that the petitioner is also one of the accused in criminal complaint case bearing Ct. Case No. 990/20