Abhishek Agarwal @ Abhishek Agrawal and Amit Sarawgi V. Union of India through the Directorate of Enforcement

A.B.A./10337/2022

AI Insights

The case involves anticipatory bail applications filed by Abhishek Agarwal and Amit Sarawgi in connection with an Economic Crime Investigation Report (ECIR) under the Prevention of Money Laundering Act, 2002. The allegations against the petitioners include the diversion of bank loans amounting to Rs.77 Crores into real estate, leading to the loans being declared as Non-Performing Assets (NPA). The Enforcement Directorate (ED) opposed the bail, citing the seriousness of the economic offenses and the potential for the accused to evade further investigation. However, the court granted bail based on precedents that discourage further arrest post-investigation if the accused have not been previously arrested and have cooperated with the investigation.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 816392 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 24-04-2023
• Assessment Year: misc
• Other Referred Cases: Satender Kumar Antil vs. Central Bureau of Investigation, Vijay Madan Lal Choudhary Vs UOI, Siddharth vs. State of U.P., Amar Preet Singh vs. CBI
• Laws Referred To: Prevention of Money Laundering Act, 2002
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: A K DAS
• Assessee Lawyers: INDRAJIT SINHA; RISHAV KUMAR
• Keywords: Anticipatory bail; Economic offences; Money laundering; Non-performing assets
• Section: 3; 4; 70

Judgement Text

"IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No. 10336 of 2022 Abhishek Agarwal @ Abhishek Agrawal .... .. ... Petitioner(s) Versus Union of India through the Directorate of Enforcement. .. ... ...Opp. Party(s) With A.B.A. No. 10337 of 2022 Amit Sarawgi .... .. ... Petitioner(s) Versus Union of India through the Directorate of Enforcement. .. ... ...Opp. Party(s) ........... CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner(s) : Mr. Indrajit Sinha, Advocate Mr. Rishav Kumar, Advocate For the E.D. : Mr. A. K. Das, Advocate …... C.A.V. ON 19.04.2023 PRONOUNCED ON 24.04.2023. 1. Both the aforesaid anticipatory bail applications arise out of ECIR case No. 01 of 2022, as such, both are being heard together and disposed of, by this common order. 2. Apprehending their arrest, petitioners above-named have moved this Court for grant of anticipatory bail in connection with ECIR Case No.01 of 2022 registered under Section 3 read with Section 70 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the PMLA. 3. The prosecution case in brief is that the petitioner(s) floated company(s) in order to take loan from the Bank and after drawing the loan amount to the tune of Rs.77 Crores and odd for the Company business, they diverted it into the real estate business. Bank loan as a result turned NPA leading to the institution of the case. A.B.A. No. 10336 of 2022. 4. Petitioner (Abhishek Agarwal @ Abhishek Agrawal) and his wife Pinki Agrawal were Directors of M/s Shri Ram Comtrade Pvt. Ltd. which claimed to be in business of trading of building materials, Merchant Trading, High Sea Sales of Steel, Cement, Rice Agro Products in Overseas and took loan amounting of Rs.13.5 Crores on 08.03.2016 which was declared to be NPA having outstanding balance of Rs.6.13 Crores as on 31.03.2018. 5. Petitioner (Abhishek Agarwal @ Abhishek Agrawal) was working in the Company since 2010-11 and was getting a sum of Rs.30,000/- to Rs.50,000/- and was looking after work related to banking transactions etc. It is alleged that bank funds were laundered and that turned into NPA and he was involved in the laundering of Bank fund actively assisted by other accused persons, namely, Gyan Prakash Sarawgi and Amit Sarawgi. 6. The modus operandi of taking loan from the Bank was that without having any actual trading, the Company was incorporated for the purpose of taking bank loan which was later on diverted and part of the loan amount was declared to be NPA. A.B.A. No. 10337 of 2022. 7. Petitioner (Amit Sarawgi) being Director of M/s Sunbeam Dealers Pvt. Ltd. obtained loan amount of Rs.10 Crores dated 26.09.2014 for the purpose of trading of textiles and diverted the said amount resulting in NPA of 10.41 Crores as on 31.03.2018. 8. Also acting as Director of M/s Badri Kedar Udyog Pvt. Ltd. took loan of Rs.15 Crores dated 09.07.2015 for the purpose of wholesale trading of clothes and textiles, diverted into the real estate properties resulting into NPA of the loan amount of Rs.15.25 crores as on 30.04.2018. 9. There were altogether six such companies which were being controlled by Gyan Prakash Sarawgi (accused no.1) and this petitioner in which loan was raised from the Bank and diverted into the real estate causing a total loss of Rs.77.36 Crores to the Bank and the same became non-performing assets. 10. In Para-7 of the charge-sheet the details of real estate purchased in order to launder the embezzled amount has been given. To sum up the proceeds of crime committed through predicate offence of taking loan for the purpose of misappropriating the amount came to Rs.77.36 Crores and the launder amount as per the charge-sheet in real estate investment was of Rs.4.12 Crores. 11. M/s Global Traders Pvt. Ltd. was floated in the name of Vikash Khetawat who was working as a Clerk and drawing salary of Rs.15,000/-Rs.20,000/- and his wife. In name of this Firm of Rs.8.90 crores were drawn and later on it was diverted. Wife of Vikash Khetawat has stated that she was not associated with the business in any capacity. One Flat was purchased in her name as S.G. Exotica which was later on sold. CASE OF THE PETITIONERS 12. It is submitted that there was no intention since inception to commit default and the same will be apparent from the very fact that loan amount was partly repaid and only when the business went down and the petitioner(s) was not able to repay the amount, the amount was declared to be NPA. There were other collateral securities of the loan taken against which, the proceedings under the DRT Act has been initiated. 13. It is submitted that the petitioners were not arrested during investigation and the charge sheet has now been submitted and no purpose will be served by custody of the petitioners. Learned counsel for the petitioner in support of his submission has placed reliance in case of Satender Kumar Antil vs. Central Bureau of Investigation, reported in (2022)10 SCC 51 in P.No.81 at Para-89 wherein it has been held that where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. The sum and substance of ratio laid down in this case is that where after investigation the accused has not been apprehended then there can be no occasion for the Court after cognizance to arrest the accused and be taken into custody in cases of PMLA. 14. This principle will apply in anticipatory bail matters and the same has been clarified in the subsequent order passed in Satender Kumar Antil vs. CBI, in SLP (Crl.) No.5191 of 2021 in its order dated 21.03.2023. The proposition of law that arrest is not a prerequisite for filing of the chargesheet as stated in Siddharth vs. State of U.P., reported in 2022 (1) SCC 676 has been followed in Amar Preet Singh vs. CBI, 2021 SCC OnLine SC 941. Reliance is also placed on 2022 SCC OnLine Del 4065 and 2022 SCC OnLine Cal 4095 as well as 2023 SCC OnLine All 58 wherein the principle applied is that if the accused is not arrested during investigation, there is no occasion for sending him to the custody after cognizance. 15. It is submitted that in Para 7.8 of the counter-affidavit filed in ABA No.10337 of 2022 (Amit Sarangi- Petitioner), the proceeds of the crime is projected to Rs.4,25,16,089/-, as such, attachment can only be confined to this much. 16. Learned counsel appearing for the Opp. Party (ED) has vehemently opposed the prayer. It is submitted that principles of law applied in the case of anticipatory bail of PMLA cases has been laid down in the case of Vijay Madan Lal Choudhary Vs UOI reported in 2022 SCC OnLine 929 it has been held that the power of anticipatory bail should be sparingly exercised in economic offences since the accused could elude interrogation if such bail is granted during investigation. 17. It is further submitted that although prosecution complaint has been filed, but the investigation has not been completed and the Enforcement Directorate reserves its right to draw further supplementary prosecution on finding of new facts. Bail of the co-accused, Gyan Prakash Sarawgi vide B.A. No.8470 of 2022 has already been rejected vide order dated 21.11.2022 by the Co-ordinate Bench of this Court. Argument on behalf of the petitioner(s) appears to be persuasive. In the present case charge sheet has been submitted, accused persons were not arrested during investigation and had cooperated in it. Under the circumstance the Anticipatory Bail application is allowed. Accordingly, the petitioners above-named are directed to be released on anticipatory bail on furnishing bail bond of Rs.1,00,000/- (Rupees One lakh) each with two sureties of the like amount each to the satisfaction of learned court below. The sureties shall be income tax payees and Passport, if any, of the accused persons/ petitioners shall be surrendered to the court below for the period during pendency of the trial. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 24..04.2022 AFR/ Sandeep "