(Uday Umesh Lalit and Ajay Rastogi, JJ.)
Vijay Narendra Kumar Kothari ________________________ Appellant;
v.
Directorate of Enforcement and Another ____________ Respondent(s).
Criminal Appeal No. 617 of 2021 (Arising out of SLP (Crl.) No. 3532/2021), decided on July 15, 2021
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal challenges the order dated 07.04.2021 passed by the High Court of Judicature at Bombay rejecting Bail Application No. 1437 of 2020 preferred by the appellant herein.
3. The appellant alongwith two persons, namely, Anil Chokhara and Saurabh Pandit as well as three Corporate entities, named, Yogeshwar Diamonds Pvt. Ltd., Shree Charbhuja Diamonds Pvt. Ltd., and, Kanika Gems Pvt. Ltd., are facing prosecution in Complaint Case No. 9/2017 in ECIR/05/MBZO/2016 in the Court of Sessions, City Civil and Sessions Court for Greater Bombay at Mumbai in respect of offences punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002. One more person, namely, Sanjay Jain has since then been added as an accused through supplementary charge-sheet vide Complaint Case No. 13/2017 in said ECIR Case.
4. The appellant has been in custody since 15.03.2019.
5. Mr. Saurabh Kripal, learned Senior Advocate appearing in support of the appeal submits inter alia:
a. After due investigation, the draft charges have been filed by the Department, which is indicative of the fact that the investigation into the crime is complete.
b. All the assets of the appellant stand attached as of now.
c. The co-accused Anil Chokhara, Saurabh Pandit and Sanjay Jain have been released on bail by the concerned Courts and those orders have not been called in question at any stage.
d. The offences which the appellant is alleged to have committed carry maximum sentence of seven years, as against which the appellant has already undergone actual custody of two years and four months.
6. On the other hand, Mr. S.V. Raju, learned Additional Solicitor General appearing for the Department submits:
a. Though the complaint was filed on 17.06.2017 and various processes were issued for attendance and cooperation, those processes were completely disregarded; and the appellant had to be declared a Proclaimed Offender on 12.02.2018.
b. The appellant surrendered only on 15.03.2019 i.e. more than a year after he was declared to be a Proclaimed Offender.
c. The transactions in question involve transmission of more than Rs. 518 Crores to the alleged exporters from Hong Kong. The transmission of valuable foreign exchange did not result in any importation of goods which in turn could have provided impetus for various economic activities. Thus, the appellant and his co-accused were guilty of illegal transfers of valuable foreign exchange.
d. The first bail application preferred by the appellant was rejected on 29.11.2019, which order was never put in challenge.
e. The bail orders releasing three co-accused were passed even before 29.11.2019 and as such, there is no change in the circumstances on that count.
f. The rigor of Section 45 would apply as the relevant provision was amended after the decision of this Court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1.
7. We have considered the rival submissions and gone through the record.
8. Without going into the question whether the rigor of Section 45 of the Act would still apply as a result of the amendment, in our view, the appellant is entitled to the benefit of bail principally for the reasons:
a. The length of custody undergone by the appellant as against the maximum sentence that could be visited upon the appellant under the offences in question.
b. The fact that the investigation in the matter is complete and draft charges have been circulated.
c. All other three co-accused have been released on bail.
9. In the circumstances, we direct as under:
I. Subject to the appellant furnishing cash security in the sum of Rs. 25,00,000/- (Rupees Twenty Five Lakhs only) with two like sureties to the satisfaction of the Trial Court, the appellant shall be released on bail, subject to such conditions as the Trial Court may deem appropriate to impose. Such conditions shall include:
i. The appellant shall remain present on every hearing before the concerned Court.
ii. The appellant shall not leave the City of Mumbai without express permission of the Trial Court.
iii. The appellant shall record his presence in the office of the respondent no. 1 at Mumbai-400001 once in a month.
iv. The appellant shall not in any way misuse his liberty and influence any of the witnesses.
II. In order to facilitate the exercise, the appellant shall be produced before the concerned Court within three days from today and the exercise of assessing the validity and correctness of the sureties shall be completed within seven days.
10. With the aforesaid observations, the appeal stands allowed.
Petition for Special Leave to Appeal (Crl.) No. 3532/2021
Vijay Narendra Kumar Kothari ________________________ Petitioner
v.
Directorate of Enforcement & Anr ________________ Respondent(s)
(FOR ADMISSION and I.R.; IA No. 61535/2021 – FOR EXEMPTION FROM FILING AFFIDAVIT; and, IA No. 59174/2021 – FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 15-07-2021 This matter was called on for hearing today.
(Before Uday Umesh Lalit and Ajay Rastogi, JJ.)
Counsel for the Parties: Mr. Saurabh Kirpal, Sr. Adv.
Dr. Sujay Kantawala, Adv.
Mr. Azmat Hayat Amanullah, AOR
Mr. Nishant Awana, Adv.
Mr. Sujit Sahoo, Adv.
Mr. Aditya Talpade, Adv.
Mr. S.V. Raju, ASG
Mr. Zoheb Hossain, Adv.
Mr. Kanu Agrawal, Adv.
Mr. Akshay Amritanshu, Adv.
Ms. Sarica Raju, Adv.
Mr. Annam Venkatesh, Adv.
Mr. Mukesh Kumar Maroria, AOR
Mr. Sachin Patil, AOR
Mr. Rahul Chitnis, Adv.
Mr. Aaditya A. Pande, Adv.
Mr. Geo Joseph, Adv.
Mr. Vivekanand Singh, Adv.
UPON hearing the counsel the Court made the following
ORDER
11. Leave granted.
12. The appeal is allowed, in terms of the Signed Order placed on the file.
13. Pending applications, if any, also stand disposed of.
———
