The Delhi High Court granted anticipatory bail to a Chartered Accountant ( CA ) and observed that the allegation of forged Form 15CA/CB Certificate does not amount to a Money Laundering Offence.
The applicant filed the bail application under section 438 of The Code of Criminal Procedure, 1973 ( the Code ) for the grant of anticipatory bail registered under sections 3 and 4 of The Prevention of Money Laundering Act, 2002 ( PMLA ).
An FIR was registered under sections 420/467/468/471/120B of The Indian Penal Code, 1860 ( IPC ) at Economic Offences Wing ( EOW ) based on complaint made by Vikash Mohpal s/o Late Prakash Mohpal ( the complaint ) in respect of cheating, fraud, forgery stated to be committed by M/s Kinzal Freight Forwarding ( OPC ) Private Limited, M/s Shree Shyam International, M/s Wentorz Logistics Private Limited, M/s Balaji International, M/s Mizta Tradex Private Limited, Ravi Mehra and other unknown parties.
The complainant stated that he is a practising Chartered Accountant and engaged in the profession through a partnership firm. The complainant on 03.08.2020 received an email from ICICI Bank, Nehru Place Branch informing that CA firm M/s Mohpal & Associates has issued 15CB certificates to M/s Shree Shyam International. ICICI Bank also requested due diligence about the said 15CB certificates.
The complainant informed ICICI Bank that he never issued 15 CB certificate to M/s Shree Shyam International. The certificate on Form 15CB issued by a Chartered Accountant in terms of Rule 37BB of the Income Tax Rules is required to be submitted to the bank at the time of effecting a foreign remittance by the parties making foreign remittance.
The complainant was also summoned by ED and was informed by Sanjeet Kumar Sahu, Assistant Director that 15CA/CB certificates issued by using the credentials of the complainant have been used and submitted to banks by M/s Kinzal Freight Forwarding ( OPC ) Private Limited, M/s Balaji International, M/s Shree Shyam International, and M/s Wentorz Logistics Private Limited, etc. for effecting outward remittances of approximate Rs.300 crores towards freight payment from the respective bank accounts maintained with ICICI Bank.
The complainant, after examination of the documents shown to him by the ED officials realized that those certificates have been forged with mala fide intention to remit the funds abroad by using forged and fabricated documents and by making wrong declaration regarding the purpose of remittance. The complainant also noticed various discrepancies in the Form 15CA/CB as detailed in FIR to show that those documents were fabricated. The respondent/ED during investigation found that the complainant had issued only around 07 certificates on Form 15CB to M/s Wentorz Logistics Private Limited.
The counsel for the petitioner further argued that the petitioner appeared before the respondent/ED on 03.01.2023 and 04.01.2023 but he was physically assaulted by the officers of the respondent/ED and as a result of which he was taken to Ram Manohar Lohia Hospital for treatment. The petitioner also made a complaint at NHRC and had already undergone three separate operations related to kidney at Max Healthcare on 10.01.2023, 06.02.2023 and 04.04.2023.
The counsel for the petitioner argued that in the present case neither any „proceeds of crime‟ were generated from the scheduled offence nor does the alleged offence fall in the category of scheduled offences.
The alleged offence, pertaining to the unauthorized outward remittance by placing the forged 15CB Form, has not fulfilled the ingredients of the offence of money laundering as there are no “proceeds of crime‟ being generated from the scheduled offence i.e. fabrication of 15CB Form.
The counsel for the petitioner argued that the twin conditions as per section 45 of PMLA are not applicable as the petitioner is a sick and infirm person and has already undergone repeated kidney surgeries and requires constant medical supervision and primarily relied upon Kewal Krishan Kumar ( supra ).
The medical records/documents submitted by the petitioner reflect that the petitioner is suffering from various ailments including renal problem which requires constant medical treatment.
Dr Justice Sudhir Kumar Jain observed that including incriminating material against the petitioner which are the statements made by co-accused/witness under section 50 of PMLA and the fact that their evidentiary value can be tested at the stage of trial, no generation of “proceeds of crime‟ from criminal activity and the petitioner being a sick and infirm person.
Further held that “The petitioner, in case of arrest, shall be released on bail on furnishing personal bond in the sum of Rs.1,00,000/- with one surety of the like amount to the satisfaction of the concerned Investigating Officer or any other authorized person under certain conditions.”
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