The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.5285 of 2023 An application under Section 482 of Cr.P.C., 1973. Rajat Choudhury . Petitioner Mr. B.P. Das, Advocate -versus- Union of India (Enforcement Directorate) . Opp. Party Mr. G. Agarwal, Advocate for E.D. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of Hearing : 20.02.2024 | Date of Order: 22.03.2024 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard Mr. B.P. Das, learned counsel for the Petitioner as well as Mr. G. Agarwal, learned counsel for the Enforcement Directorate. Perused the application under Section 482 Cr.P.C. and materials on record. 3. By filing the present application under Section 482 Cr.P.C., the Petitioner, who happens to the Power of Attorney Holders of a company, namely, M/s. Artha Tatwa Infra India Ltd., seeks intervention of this Court in the matter of issuance of NBW vide order dated 13.11.2023 passed by the learned Spl. Judge, // 2 // CBI-I-cum-Addl. Dist. & Sessions Judge, BBSR in Crl. Misc. (PMLA) Case No.34 of 2016. 4.
Facts
The factual background of the case, bereft of all unnecessary details, is that the Petitioner is one of the Power of Attorney Holders on behalf of the M/s. Artha Tatwa Infra India Ltd. for a land, however, he has not paid any money to the main accused for execution of such Power of Attorney. It has been alleged that the Petitioner is instrumental in transferring such property situated at Plot No.582 of Khata No.272/132 in Hatasahi Mouza, Bhubaneswar to one M/s. Orisons Properties Pvt. Ltd. without any payment of consideration amount. It is also stated that his flat in Trishna Orchid Apartment, Bhubaneswar which stands recorded in the name of his wife, who has purchased from one Chitta Ranjan Champatiray, who happens to be the Father in-
Legal Reasoning
on bail by this Court in BLAPL No.5631 of 2016 in November, 2016. However, since the Petitioner could not comply with the condition imposed by this Court, this Court modified the conditions on an application being filed by the Petitioner and finally the Petitioner was released on bail in January, 2017. 8. The allegation made by the Enforcement Directorate in the ECIR is that the property in question, which has been registered in the name of the Petitioner’s wife has been alleged to have been purchased from the Father in-law of one Srikrushna Padhi who was the accountant of the AT Group of Companies without any consideration. Subsequently, the sale deed was registered for Rs.20,00,000/-. On being noticed by the ED, the Petitioner appeared and explained the authorities that the entire // 6 // allegation is based on misconception of fact. The petitioner also filed his objection on 19.12.2022 along with certain documents which would reveal that the Petitioner’s wife has already made cash payment which has been duly acknowledged in the assessment order under Section 156 proceeding under the IT Act, 1961. 9. Furthermore, the Assessing Officer i.e. Additional CIT, Range-1, Bhubaneswar in his order 271E of the I.T. Act has held that the Petitioner’s wife has made payment to the tune of Rs.17,66.000/- against purchase of an immovable property and there is no question of repayment in the said transaction. There being no contravention of Section 269T of the IT Act, the penalty proceeding initiated against the assessee under Section 271E was dropped. On such basis, learned counsel for the Petitioner argued before this Court that the allegation that has been made against the Petitioner is without any basis and the Petitioner has been arrayed as an accused unnecessarily and only with the intention to cause harassment to the Petitioner. It was also contended that the property in question has no nexus with the ill-gotten money from the chit fund scam, rather the same was acquitted in a clean & transport transaction. 10. Similarly, another application was made by the E.D. to the effect that the petitioner was one of the Power of Attorney // 7 // Holder of a property situated at Plot No.582 of Khata No.272/132 in Hatasahi Mouza, Bhubaneswar and that he had transferred the same along with other Power of Attorney Holders to one Dillip Kumar Mohanty, Director, M/s Orisons Properties Pvt. Ltd. without any payment of consideration money. While countering the aforesaid allegation, learned counsel for the Petitioner submitted that even accepting aforesaid allegation to be correct, no transaction was made between the Petitioner and the AT Group of Companies instead the transaction was made between the AT Group and Dillip Kumar Mohanty. Moreover, the said land has already been attached in an attachment proceeding which has attained finality as the above named Dillip Kumar Mohanty did not claim any right over the scheduled property. Thus, it was argued that the investigation so far the present Petitioner is concerned, has come to an end and that the allegations made against the Petitioner stands disposed of on the basis of the official records. 11. Learned counsel for the Petitioner further referred to Section 45 of PMLA Act, and submitted that the twin conditions prescribed therein have been duly complied so far the present Petitioner is concerned. With regard to prima facie case it was contended before this Court that on the basis of the IT Proceeding and the orders passed therein the matter has attained finality. So // 8 // far the allegation with regard to land in question in Hatasahi is concerned, it was submitted that there never took place any transaction between the Petitioner and the AT Group of companies, so that the same would establish the fact that the Petitioner was a part of the crimes sign indicate controlled and operated by the AT Group of Companies in the chit fund scam. Furthermore, with regard to commission of the same offence in future is concerned, while the Petitioner is on bail, it was stated that the Petitioner is on bail since January, 2017 and that from the date of his release on bail there is no allegation of commission at any such crime against the present Petitioner and that he has been scrupulously following the conditions laid down by the order passed by this Court while releasing the Petitioner on anticipatory bail. In the aforesaid context, learned counsel for the Petitioner placed reliance on the judgment of this Court in Deepak Gupta vs. Enforecement Directorate of India in ABLAPL No.9695 of 2022 and in Hon’ble Supreme Court of the Vijay Madanlal Choudhury vs. UOI & others reported in 2022 SCC Online SC 929. 12. In the context of issuance of NBW of arrest against the Petitioner by the Court in seisin over the matter, learned counsel for the Petitioner placed reliance on the settled position of law as enunciated by the Hon’ble Supreme Court in Inder Mohan // 9 // Goswami’s case and in Vikas vs. State of Rajasthan reported in 2013 AIR SCW 6256. By referring to the aforesaid judgment, learned counsel for the Petitioner argued before this Court that the law with regard to issuance of NBW has been well settled by now and that the Hon’ble Apex Court has time and again reiterated the legal position that it is not proper for the courts to issue NBW at the first instance if a summon or bailable warrant is likely to produce the desired result. The extreme step of issuing NBW which tends to curb the liberty of the accused, need not be resorted at the first instance. 13. Revering back to the facts of the present case, learned counsel for the petitioner submitted that the learned Court in seisin over the matter has straightaway issued the NBW of arrest against the Petitioner although he was on bail since 2017 without event considering the issuance of bailable warrant. As such the impugned order of issuance of NBW against the petitioner is unsustainable in law. It was also contended that there exists no material to make out a prima facie case against the Petitioner and that it is a matter of record that the Petitioner has neither violated the bail conditions imposed by this Court nor he has been arrayed in any such crime post 2017. He further contended that since the Petitioner is ready and willing to abide by any condition to be imposed by this Court while passing the final order, there exists // 10 // no chance of the Petitioner absconding or fleeing away from justice. With the aforesaid submission, learned counsel for the Petitioner submitted that the order dated 13.11.2023 under Annexure-7 thereby issuing NBW of arrest against the Petitioner be quashed. 14. Mr. Agarwal, learned Special Counsel appearing on behalf of the Enforcement Directorate on the other hand objected to the contentions raised by Mr. Das, learned counsel for the petitioner. He, further, referred to the principal ground on which the accused persons have been charge-sheeted under Section 4 of the PMLA Act, 2002. Further, it was alleged that the accuse- Petitioners have acted hand in gloves with M/s. Artha Tatwa Infra India Ltd. of accused- Pradeep Kumar Sethy and as such they have amassed huge wealth of general public making false promises. In course of his argument, Mr. Agarwal expresses his apprehension that in the event, this Court intervenes in the matter and permits the freedom as sought for by the Petitioner, in such eventuality, there is a possibility that the Petitioner might abscond and he may not cooperate with the trial Court for an early conclusion of the trial by appearing before the Court on each and every date fixed. He further contended that considering the special nature of the case under the PMLA Act particularly the alleged offences involving financial fraud and swindling away of // 11 // public money, no leniency should be shown to the accused- Petitioner. 15. He was also contended by him that the provision contained under 205 Cr.P.C. is not applicable to the trials under the PMLA Act. As such, the application of the Petitioner under 205 Cr.P.C. is not maintainable in law. More so, when the matter was being taken up on 13.11.2023, an application was moved on behalf of the present Petitioner who is the accused No.11, however, there was nobody present to move the application. Accordingly, the learned Trial Court has not committed any illegality in rejecting such application of the Petitioner and consequential issuance of NBW of arrest against the accused- Petitioner. In the aforesaid factual background, learned counsel appearing for the Enforcement Directorate submitted that the present application under Section 482 Cr.P.C. is devoid of merit and accordingly the same should be rejected. 16. Having heard the learned counsels appearing for the respective parties, on a careful analysis of their submission and on a close scrutiny of the materials on record as well as impugned order dated 13.11.2023 under Annexure-7 to the writ application, this Court observed that the Petitioner has been shown as accused No.11 in PMLA Case No.34 of 2016. The aforesaid PMLA case was posted on 13.11.2023 for production of the accused persons. // 12 // An application was filed on behalf of the Petitioner seeking time, however, the order sheet dated 13.11.2023 reveals that when the matter was taken up by trial court none appeared on repeated calls to move the time petition filed on behalf of the accused- Petitioner. Further, on the prayer of learned Special Public Prosecutor, such time petition was rejected and as a consequence there of an NBW of arrest was issued against the present Petitioner fixing 20.10.2023 as the date of appearance. 17. Being aggrieved by order dated 13.11.2023 the Petitioner approached this Court by filing the present application dated 05.12.2023. While considering the application of the Petitioner for quashing order dated 13.11.2023, this Court is of the considered view that the learned trial Court has adopted the right procedure in rejecting the time petition which was not moved by anybody when the matter was called. Either the Petitioner or his counsel should have been present before the Court when the matter was being taken up by the learned Trial Court. As such, this Court expresses its displeasure on the conduct of the Petitioner and his counsel for remaining absent when the matter was called out by the learned Trial Court. 18. While coming to the aforesaid conclusion with regard to the conduct of the Petitioner before the trial court, this Court is also conscious of the fact that the matter is dragging since 2016. It // 13 // may so happen, that sometimes mistakes are committed by the parties and their counsels unintentionally. However, if such mistakes are repeated time and again, then the same would be definitely construed as a deliberate mistake on the part of the accused in not appearing before the Court when the matter was being taken up by the learned Trial Court. 19. On perusal of the record it appears that the petitioner had engaged a counsel to represent him in the trial and that both the Petitioner as well as his counsel are expected to be more diligent, cautious and circumspect in a matter involving financial fraud and which will ultimately have direct impact on the society. Having said that this Court is of the view that issuing NBW of arrest at the first instance would be one of the harshest remedy that can be adopted by the trial Court to ensure presence of the accused before Trial Court. Considering the fact that the Petitioner was sincere in attending the Trial Court and has immediately approached this Court by filing the present application, this Court is of the considered view that the petitioner deserves another opportunity to appear before the Court and cooperate with the early conclusion of the trial by remaining present on each and every date of the trial. The procedures or laws more or the less remains the same for all criminal trials even if the offences under the special statutes are tried by the Criminal Courts. // 14 // 20. The procedure as laid down in the Code of Criminal Procedure is required to be followed by the Trial Court. In the aforesaid background, this Court would liked to refer to the judgment of the Hon’ble Supreme Court in Inder Mohan Goswami’s case and in Vikas vs. State of Rajasthan reported in 2013 AIR SCW 6256 wherein the Supreme Court has observed that the procedure of issuing NBW of arrest at the first instance where a summon or a bailable warrant is likely to produce the desired result, then issuance of NBW of arrest at the first instance may not be proper. While saying so, this Court is also conscious of the fact that it is the discretion of the trial court to follow the procedure as prescribed under the Cr.P.C. which in its opinion would be best suited to the facts and circumstances of the case before such Court. 21. Having regard to the facts of the present case, this Court in the larger interest of justice deems it proper to grants an opportunity to the Petitioner to surrender before the learned Trial Court and move an application for bail within two weeks from today. In such eventuality, the learned Trial Court shall do well to release the Petitioner on bail subject to Petitioner furnishing a bail bond of Rs.1,00,000/- (Rupees One Lakh) with one surety of like amount and also subject to Petitioner furnishing an undertaking that he shall appear before the Court on each and every date fixed // 15 // without default. Release of Petitioner shall be subject to Petitioner furnishing cash security of Rs.2,00,000/- (Rupees Two Lakhs). Such appearance, of course, would be subject to the Court’s power under Section 205 Cr.P.C. to grant exemption to the Petitioner in accordance with law and subject to satisfaction of the learned Trial Court. In the event the Petitioner violates the undertaking, it would be open to the Trial Court to take coercive action against the Petitioner to ensure his presence in Court during trial. 22. With the aforesaid observations/ directions, the CRLMC
Arguments
law of Srikrushna Padhi, was the accountant of AT Group of Companies as well as a close aid of Pradeep Kumar Sethy a kingpin of chit fund scam in the State of Odisha. On such allegations the complaint case was registered bearing (PMLA) No.34 of 2016 at the instance of the Assistant Director, ED against the present Petitioner along with eleven others. 5. On completion of the investigation, a charge-sheet has been filed and cognizance has been taken under Section 3 read with Section 70 (1) & (2) of the PMLA Act punishable under // 3 // Section 4 of the PMLA Act, 2002. The prime accused persons namely, Pradeep Kumar Sethy, Manoj Kumar Pattanaik and above named Srikrushna Padhy were in custody. While the matter stood thus, learned Trial Court directed the personal appearance of the present Petitioner. Accordingly, the Petitioner filed a petition under Section 205 of the Cr.P.C. with a prayer to dispense with his personal attendance. Such application under Section 205, it is stated, was rejected mechanically by the learned Trial Court. Such rejection order was challenged before this Court by filing CRLMC No.3008 of 2019 which is still sub-judice before this Court. Basing upon the aforesaid facts, the E.D. is repeatedly pressurizing the local police to arrest the Petitioner in connection with the present case for which the Petitioner had approached this Court by filing ABLAPL No.13514 of 2023. Prior to the filing of the aforesaid anticipatory bail application, the Petitioner had earlier approached this Court for grant of anticipatory bail by filing an application which was registered as ABLAPL No.14928 of 2021. Such ABLAPL was disposed of vide order dated 01.03.2023 by holding that such application for anticipatory bail is not maintainable. 6. List of dates filed on behalf of the Petitioner reveals the following chronology of events. On 22.02.2018, learned Sessions Judge-cum-Special Court under PMLA Act, 2002, Khurda took // 4 // cognizance in the Complaint Case (PMLA) No.34 of 2016. On 30.10.2019, learned Sessions Judge, Khurda under PMLA Act rejected the petition filed by the Petitioner under Section 205 Cr.P.C. On 27.10.2021, this Court disposed of the ABLAPL No.15091 of 2019 thereby granting bail to the main accused therein. On 19.12.2022, the order under Section 271E of the IT Act passed by the Addl. CIT, Range-1, Bhubaneswar and assessment order in 156 proceeding under IT Act, 1961. ABLAPL No.14928 of 2021, which was filed by the Petitioner, was disposed of by this Court by holding that the same is not maintainable vide order dated 01.03.2023. On 26.04.2023, the Hon’ble Supreme Court of India dismissed the Special Leave Appeal (Crl.) No.2286 of 2022 which was filed by the E.D. On 13.11.2023, learned Sessions Judge-cum-Special Court under PMLA Act, 2002, Khurda issued non-bailable warrant of arrest against the Petitioner. 7. Mr. Das, learned counsel appearing for the Petitioner at the outset submitted that this Court while dealing with the anticipatory bail application of the main accused in ABLAPL No.15091 of 2019 in the matter of Jyoti Prakash Jay Prakash vs. Union of India (E.D) vide order dated 27.10.2021 released the Petitioner on anticipatory bail in the event of arrest of the Petitioner or upon his surrender before the Court in seisin of the // 5 // case in connection with CMC (PMLA) Case No.34 of 2016, subject to certain condition mentioned therein. The aforesaid order dated 27.10.2021 was assailed before the Hon’ble Supreme Court by the Enforcement Directorate by filing Special Leave to Appeal (Crl.) No.2286 of 2022. The Hon’ble Supreme Court vide order dated 26.04.2023 was pleased to dismiss the Special Leave to Appeal thereby upholding the order passed by this Court in ABLAPL No.15091 of 2019. Learned counsel for the Petitioner further contended that initially the Petitioner was arrested by CBI in June 2016 and subsequently he was released
Decision
application is disposed of. Orissa High Court, Cuttack The 22nd of March, 2024/ Anil/ Jr. Steno. (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 22-Mar-2024 16:55:53