Statements of witnesses u/s 50 of PMLA are admissible in evidence which can make formidable case against accused but their exact evidentiary value is not to be tested at stage of bail, clarifies Delhi HC
Justice Sudhir Kumar Jain [11-01-2024]

Read Order: Amit Aggarwal v. Directorate Of Enforcement(In BAIL APPLN. 2073/2023-DEL HC)

Tulip Kanth

New Delhi, January 17, 2024: The Delhi High Court has granted conditional bail to a man who was allegedly instrumental in outward remittance of a huge amount of money in the account of foreign entities on the basis of forged Form 15CB Certificates. The High Court found force in the petitioner’s argument that the unauthorized outward remittance did not amount to 'proceeds of crime' being generated from the scheduled offence of fabrication of such certificates.

The factual background of the case was that an FIR was registered under sections 420/467/468/471/120B of the Indian Penal Code, 1860 (IPC) at Economic Offences Wing (EOW) on the basis of complaint made by Vikash Mohpal 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, a practicing Chartered Accountant, stated that he received an email from ICICI Bank, Nehru Place Branch informing that CA firm M/s Mohpal & Associates had issued 15CB certificates to M/s Shree Shyam International. The complainant was also summoned by ED and was informed that 15CA/CB certificates issued by using credentials of the complainant had been submitted to banks by the aforementioned companies for effecting outward remittances of approximate Rs 300 crore towards freight payment from the respective bank accounts maintained with ICICI Bank.

The complainant realized that those certificates had 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 respondent/ED on the basis of information/documents submitted by the complainant found that a prima facie case for an offence of money laundering as per section 3 of PMLA punishable under section 4 of PMLA had been made out. The ED found force in the allegation that the companies remitted crores of rupees using complainant's credentials in edited 15CB certificate and forged Form 15CA with mala fide intention to remit funds abroad which otherwise could not have been possible.

During investigation in this matter, one Chitra Pandey @ Rashmi disclosed/deposed about the role of Amit Aggarwal (petitioner) in the commission of offences and stated that the petitioner used to meet people by the nickname 'Ravi Mehra' and had incorporated bogus/shell companies for effecting fraudulent remittances. The employees were made Directors of the bogus/shell entities used for foreign outward remittances. The petitioner and Rahul Kumar incorporated and operated the companies by using forged IDs for illegal transfer of forex to Hong Kong and Singapore.

The respondent/ED issued various summons to the petitioner to join investigation but the petitioner evaded the same. The petitioner was found to be the main accused for the offence of money laundering under investigation and had failed to cooperate in the investigation.  The bail application before the Delhi High Court was filed under section 438 of the Code of Criminal Procedure, 1973 on behalf of the petitioner Amit Aggarwal for grant of anticipatory bail in the case registered under sections 3 and 4 of the PMLA.

In the present case main allegation of the respondent/ED against the petitioner was that he was instrumental in outward remittance of huge amount in the account of foreign entities on the basis of forged Form 15CB Certificates. However, the Single-Judge Bench of Justice Sudhir Kumar Jain opined that there was no property which was derived or obtained directly or indirectly as a result of criminal activity concerning the scheduled offence which could be regarded as 'proceeds of crime'.

“There is legal force in the arguments advanced by the counsel for the petitioner that the unauthorized outward remittance by forged Form 15CB Certificates does not amount to 'proceeds of crime' being generated from the scheduled offence i.e. fabrication of Form 15CB Certificates”, the Bench said.

The CGSC had argued that statements of witnesses/accused recorded under section 50 of PMLA are admissible evidence and can be relied on against the petitioner. Referring to the judgments in Vijay Agrawal through Parokar V Directorate of Enforcement & Basant Bansal V State (Govt. of NCT of Delhi) and Others, the Bench said,“…legal position which is emerging from above referred decision is that statements of witnesses/accused recorded under section 50 of PMLA are admissible in evidence and can make formidable case against the accused regarding his involvement in commission of offence of money laundering but their exact evidentiary value has to be tested at the end of trial and not at the stage of bail.”

While noting that the medical records/documents submitted by the petitioner reflected that the petitioner was suffering from various ailments including renal problem which required constant medical treatment, the Bench referred to Kewal Krishan Kumar V Enforcement Directorate, where the High Court had granted bail on ground of sickness and infirmity of the accused.

It was also opined that the petitioner joined investigation on 03.01.2023 and 04.01.2023 and gave reasons for not joining investigation. According to the High Court, the petitioner neither appeared to be a flight risk, nor he was likely to influence any witness and tamper with the evidence. In view of such discussions and after considering all facts, including incriminating material against the petitioner which were the statements made by co-accused/witness under section 50 of PMLA, the Bench opined that their evidentiary value could be tested at the stage of trial.

Moreover, noticing the fact that there was no generation of 'proceeds of crime' from criminal activity and the petitioner is a sick and infirm person, the Bench allowed the anticipatory bail application. “The petitioner, in case of arrest, shall be released on bail on furnishing personal bond in the sum of Rs 1,00,000 lakh”, the Bench held while also imposing additional conditions.