ANOOP BARTARIA & ETC versus DY. DIRECTOR ENFORCEMENT DIRECTORATE & ANR. on 21 April 2023

1. The petitioners by way of these petitions have challenged theHcommon judgment and order dated 21.02.2019 passed by the High Court of Judicature for Rajasthan, Benchat Jaipur, in S.B. Criminal Writ PetitionNo. 704 of 2018 and S.B. Criminal Writ Petition No. 757 of 2018, wherebythe High Court has dismissed both the petitions imposing cost of Rs.50,000/-.

2. The S.B. Criminal Writ Petition No. 704 of 2018 was filed bythe petitioner – Anoop Bartaria, Director of World Trade Park Ltd.seeking a prayer to quash ECIR No.JPZO/01/2016 registered by theJaipur Zonal Office of Enforcement Directorate, with further prayeragainst the respondents not to file any criminal complaint against thepetitioner and not to take any coercive steps against the petitioner inrespect of the said ECIR. The S.B. Criminal Writ Petition No. 757 of2018 was filed by the petitioner – Anoop Bartaria, the Director, WorldTrade Park Ltd., and by M/s World Trade Park Ltd, a company registeredunder the Companies Act, 1956, seeking a prayer to quash and set asidethe prosecution complaint in ECIR No.JPZO/01/2016.

3. As per the case of the petitioners, the petitioner-Anoop Bartariais a leading and an awarded engineer/architect having an expertise inproviding structural, architectural and design consultancy services andis also the Chairman and Managing Director of the World Trade ParkLtd., (Erstwhile M/s R.F. Properties & Trading Ltd.) a companyregistered under the Companies Act, 1956. The World Trade Park isone of the most sought-after real estate commercial properties situatedat JLN Marg, Jaipur. The World Trade Park Company is engaged in thebusiness of selling and leasing commercial spaces to various interestedbuyers/purchasers.

4. One Mr. Bharat Bomb and his associates approached thepetitioners for the purchase of commercial units in the said World TradePark and booked certain units. Initially the commercial units were bookedin the name of Raj Darbar Material Trading Pvt. Ltd. by the said BharatBomb, and the amounts thereof in aggregate Rs. 74.02 crores were paidto the petitioners through demand draft and/or RTGS. Further certainamounts totaling Rs. 1.4 crores were received by the petitioner-AnoopBartaria from Bharat Bomb towards architectural designing andconsultancy services towards a real estate project being brought aboutby Mr. Bomb in Udaipur. However, subsequently Mr. Bomb and hisassociates, asked the petitioners to register the units in the name of newentities, and therefore the petitioners returned the amount back depositedby M/s. Raj Darbar Material Trading Pvt. Ltd. Thereafter in the year A

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A2015, 34 commercial spaces were sold by the petitioners in favour ofMr. Bharat and his associates by executing 34 registered sale deeds.According to the petitioners, the amounts were received through demanddrafts and/or RTGS, and all legal formalities required for registrationwere also followed in due course. The possession of the said units wasalso handed over to the respective entities/persons as instructed by Mr.BBomb.

5. The petitioners had taken loan/financial assistance from IDBIBank and DHFL, as also from UCO Bank, mortgaging the units/spacesof World Trade Park with the said banks. On 04.10.2014, the petitionershad obtained NOC from UCO Bank for the release of a particularCimmovable property admeasuring 23837 sq.ft. and on 23.12.2014 hadobtained NOC from IDBI Bank, Jaipur for transfer of a particular unitssubject to the compliance of the conditions mentioned therein. Similar,NOC for the sale of area was also issued by DHFL, Mumbai on24.03.2015 for transfer of units admeasuring 11538 sq.ft.D

6. As per the further case of the petitioners, the petitioner-AnoopBartaria had purchased three offices namely office nos. 407, 408 and409 in the World Trade Park in his personal capacity and had paid theamount through his current account which had no connection with Mr.Bharat Bomb or his associates.E

7. An FIR being No. RCBD1/2016/E/0002 came to be registeredby CBI,BS&FC, New Delhi, on 07.03.2016 against the said Bharat Bomb,his associates and the officials of three branches of the Syndicate Banknamely:- (1) Bapu Bazar, Udaipur (2) Malviya Nagar, Jaipur and (3) MIRoad, Jaipur and certain other persons for the offences under the 120B,F420, 467, 468, 471, 472 and 474 of IPC and Section 13(2) read with13(1)(d) of the Prevention of Corruption Act, 1988. It was alleged interalia in the said FIR that during 2011-2015, to defraud the bank, theaccused Bharat Bomb and his associates, in collusion with the officialsof Syndicate Bank had misused the KYC documents of his clients/Gemployees/family members as well as the existing customers of theSyndicate Bank to launder the money to the tune of about more than18,000 crores which resulted in siphoning off Rs. 1055.79 crores. On14.06.2016, the CBI, BS&FC filed charge-sheet before the DesignatedCBI Court, Jaipur against Mr. Bharat Bomb and some of the officers ofthe Syndicate Bank for the said offences.H

8. Since some of the offences registered by the CBI in the saidFIR were scheduled offences under the Prevention of Money LaunderingAct, 2002 (PMLA), the Directorate of Enforcement (ED) Jaipur, initiatedinvestigation for the offence of money laundering by registering anEnforcement Case Information Report (ECIR) on 11.07.2016.

9. During the course of investigation, it was revealed that thepetitioner Anoop Bartaria, his companies M/s World Trade Park Ltd.and M/s Sincere Infrastructure Private Ltd. had received more than Rs.160 crores defrauded funds from the accounts of fictitious firms/companies created and operated by Bharat Bomb namely M/s B.K.Builders, M/s Raj Darbar Material Trading Pvt. Ltd., M/s Raj DarbarMaterial Trading LLP, Jai Hanuman Construction & M/s OmniaEntertainment and Hospitality etc.

10. The petitioner-Anoop Bartaria therefore filed the writ petitionbeing S.B. Criminal Writ Petition No. 704 of 2018 before the High Court,seeking prayer to quash the said ECIR dated 11.07.2016. However,pending the said petition, the Prosecution complaint based on the saidECIR came to be filed against several persons including the presentpetitioners on 17.07.2018. The petitioners therefore filed S.B. CriminalWrit Petition No. 757 of 2018 seeking prayer to quash the saidProsecution complaint. Both the writ petitions came to be dismissedwith cost of Rs. 50,000/- by the High Court vide the impugned order.

11. The bone of contention raised by the learned counsel Mr.Swadeep Hora for the petitioners is that the petitioners were neithernamed in the FIR registered by the CBI against the officers of theSyndicate Bank and Mr. Bharat Bomb nor they were named in thesubsequent ECIR registered by the ED, however, the ED after theinvestigation of the said ECIR has filed the Prosecution complaint falselyinvolving the petitioners in the same. According to him, the sine qua nonand the essential ingredient for the offence of money laundering as definedin Section 3 read with Section 4 of the PMLA is that the person must beknowingly or actually involved in any process or activity connected withthe proceeds of crime as defined under Section 2(1)(u) of the said Actand, therefore, unless the said essential ingredient of knowledge is metout, no complaint or proceedings under the said Act could be initiated. Inthe instant case, the said pre-requisite for filing the complaint against thepetitioners being missing, the complaint was not tenable in the eye oflaw, and that the continuation of any proceedings against the petitionersunder the PMLA would be an abuse of process of law.

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A12. Elaborating his submissions on the allegations made againstthe petitioners, Mr. Hora submitted that the petitioners had only “buyer-seller” relationship with Mr. Bharat Bomb and his associates, and thatthe petitioners had no knowledge that the money received by them wasthe proceeds of crime. In this regard Mr. Hora has placed reliance on1Nikesh Tarachand Shah Vs. Union of India and Another. He furtherBsubmitted that though initially Mr. Bharat Bomb had requested thepetitioners to book certain units in the name of M/s Raj Darbar MaterialTrading Pvt. Ltd., subsequently he had requested to execute sale deedsin the name of various associated entities, and therefore 34 separateregistered sale deeds were executed by the petitioners, and respectiveCamounts were received separately from each of the entity throughdemand drafts or RTGS, after refunding the amount received from M/s.Raj Darbar Material Trading Pvt. Ltd. In the said transactions, thepetitioners had received the sale consideration of INR 76.72 crores andnot INR 150 crores as alleged.D

13. Mr. Hora further submitted that the petitioners had sold theunits after obtaining valid NOCs from UCO Bank, IDBI AND DHFLand none of the banks has raised any grievance against the petitioners,as all the dues were cleared in respect of the units mentioned therein bythe petitioners before obtaining NOCs from the said banks. He furtherEsubmitted that the petitioner-Anoop Bartaria being a renowned architecthad provided architectural services to Mr. Bharat Bomb for his RoyalRaj Villas project at Udaipur and the amount of fees received from Mr.Bomb was also reflected in the income tax and service tax returns ofthe petitioners.F14. According to Mr. Hora, the alleged offences under the PMLAare not cognizable offences and the entire investigation carried out bythe ED was without any authority of law. Lastly, he submitted that thepetitioners who are absolutely unconnected to Mr. Bharat Bomb aresuffering the business loss and the credibility and therefore the complaintGdeserves to be quashed in view of the judgment of this Court in case ofPepsi Foods Ltd. and Another vs Special Judicial Magistrate and2Others.

1 (2018) 11 SCC 1H2 (1998) 5 SCC 749

15. Per contra, the learned Additional Solicitor General appearingfor the respondents vehemently submitted that the petitioners havingfiled frivolous petitions before the High Court, the same were dismissedby the High Court with cost, which order being just and proper shouldnot be interfered with by this Court. Relying upon theState of Haryanaand Others. vs. Bhajan Lal and Others3he submitted that the powerof quashing a complaint can only be exercised in rarest of rare casewhere allegations taken on face value do not prima facie constitute anyoffence. In the instant case, there are specific allegations of moneylaundering against the petitioners which had surfaced during the courseof investigation carried out by the authorized officer under the PMLA,which prima facie constitute offence against the petitioners under thesaid Act.

16. Placing reliance on the Prosecution complaint filed by theDirectorate of Enforcement, the learned ASG pointed out that thepetitioner-Anoop Bartaria had availed fraudulent loan of Rs. 4.80 croresfrom the Syndicate Bank under the guise of purchasing three offices inhis name in the World Trade Park, for which the Syndicate Bank hadlodged FIR with CBI on 23.03.2017. It was also revealed that theinstalment of the said term loan to the extent of 1.50 crores were beingpaid by getting money from the fictitious firms controlled by Mr. BharatBomb and his associates. He also pointed out that the said current bankaccount opened by the petitioner-Anoop Bartaria with Syndicate bankon 30.09.2014 was exclusively operated for receiving tainted moneyfrom Mr. Bharat Bomb and no other transactions had taken place in thesaid account. The said account was also not declared in ITR of AnoopBartaria filed for the assessment year 2015-16.

17. He submitted that the petitioner-Anoop Bartaria and hiscompany had availed the loans for the project of World Trade Park fromIDBI Bank/DHFL and UCO Bank, by mortgaging the units of the saidproject to the said banks. In line with terms of sanction, the World TradePark Ltd. had opened an escrow account with IDBI Bank, in which allsale proceeds were to be deposited in that account only. However, Mr.Bartaria did not deposit any amount in the said escrow account andfacilitated Mr. Bharat Bomb and his associates in parking the taintedmoney by opening the account in the Syndicate bank. In the requestletters to IDBI for issuing NOC in respect of office nos. 407, 408 and AB

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A409, the name of the customer shown was M/s Raj Darbar MaterialLtd. showing the status of the properties as unsold.

18. Learned ASG has also placed reliance on the counter affidavitto buttress his submissions that the petitioner- Anoop Bartaria, thiscompany M/s. World Trade Park Ltd., earlier named as M/s. R.F TradingBand Properties, and M/s. Sincere Infrastructure Pvt. Ltd. had receivedmore than 160 crores of defrauded fund since October 2013 till unearthingof the fraud, from the accounts of fictitious firms/companies createdand operated by Bharat Bomb and his associates.

19. The learned ASG has placed heavy reliance on the prosecutionCcomplaint filed by the ED, more particularly on para nos. 10.5 and 10.8to show as to how the petitioner-Anoop Bartaria was complicit in thecrime and sharing the fruit of the crime with Bharat Bomb; and as tohow he was directly involved in the activity connected with proceeds ofcrime including generation, acquisition and use of proceeds of crime bycommission of scheduled offence.D

20. Pressing into service the provisions contained in Section 45read with the explanation to the said provision inserted by the Finance(No.2) Act, 2019, he submitted that the offences under the PMLA are“cognizable and non-bailable”. Learned ASG lastly submitted that becauseof the order passed by this Court on 25.03.2019 directing the respondentsEnot to take coercive action against the petitioners, the proceedings beforethe competent Court are stayed and the investigations have also cometo stand still, which has caused great prejudice to the case filed by theED under the PMLA.

21. Now, adverting to the first and foremost contention raised asFto whether the offences of money laundering under PMLA are cognizableor not, it may be noted that sub-section (1) of Section 45 pertaining tothe offences was amended by Act 20 of 2005. Sub-section 1 of Section45 prior to amendment read as under:

“Section 45- Offences to be cognizable and non-bailable- G(1) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974), (a) Every offence punishable under this Act shall be cognizable;(b) No person accused of an offence punishable for a term ofimprisonment of more than three years under Part A of theHSchedule shall be released on bail or on his own bond unless.”

22. Subsequently, sub-section (1) was substituted by the Act 20of 2005 w.e.f. 1.7.2005.

“(1) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974), no person accused of an offence[under this Act] shall be released on bail or on his own bondunless…”

23. It may be noted that for removal of doubts, the Explanation toSection 45 was inserted by the Finance (No.2) Act, 2019w.e.f. 1.8.2019which reads as under:

“Explanation- For the removal of doubts, it is clarified that theexpression “Offences to be cognizable and non-bailable” shallmean and shall be deemed to have always meant that all theoffences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrarycontained in the Code of Criminal Procedure, 1973 (2 of 1974),and accordingly the officers authorized under this Act areempowered to arrest an accused without warrant, subject to thefulfilment of conditions under Section 19 and subject to theconditions enshrined under this Section”.

24. From the afore-stated substitution of sub-section (1) andinsertion of the Explanation to Section 45, and non-amendment in theshort title of Section 45 – “offences to be cognizable and non-bailable”,there remains no shadow of doubt that all the offences under the PMLAwere, are and shall be “cognizable and non-bailable offences”notwithstanding anything to the contrary contained in the Code of CriminalProcedure Code, 1973. Accordingly, the officers authorized under thePMLA Act are empowered to arrest an accused without warrant, subjectto the fulfilment of conditions under Section 19 which deals with powerto arrest and subject to the conditions enshrined under Section 45. TheProsecution complaint no.12/2018 in ECIR No.JPZO/01/2016 havingbeen lodged by the authorized officer competent to file the complaintunder Section 45 of the Act read with order dated 11.11.2014 issued bythe Government of India, Ministry of Finance, Department of Revenue,New Delhi, as stated in the complaint itself, the Court does not find anysubstance in the submissions made by Mr. Hora that the Prosecutioncomplaint was not lodged by the authorized officer.

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A25. The submissions by Mr. Hora, learned counsel for thepetitioners that the knowledge of the petitioners that they were dealingwith the proceeds of crime was sine qua non and essential ingredientfor the offence of money laundering as defined under Section 3 of thePMLA, and that in the instant case, in absence of any material to showthat the petitioners had the knowledge that they were dealing with theBproceeds of crime committed by Bharat Bomb and his associates,continuation of the proceedings under the PMLA against the petitionerswould be an abuse of process of law, have also no legs to stand. It maybe noted that offence of money laundering has been defined in Section 3of the PMLA, which reads as under:C

“3. Offence of money-laundering. —Whosoever directly orindirectly attempts to indulge or knowingly assists or knowingly isa party or is actually involved in any process or activity connected[proceeds of crime including its concealment, possession,acquisition or use and projecting or claiming] it as untaintedDproperty shall be guilty of offence of money-laundering.

[Explanation. —For the removal of doubts, it is hereby clarifiedthat, —

(i) a person shall be guilty of offence of money-laundering if suchperson is found to have directly or indirectly attempted to indulgeEor knowingly assisted or knowingly is a party or is actually involvedin one or more of the following processes or activities connectedwith proceeds of crime, namely: —

(a) concealment; or

(b) possession; or

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(c) acquisition; or

(d) use; or

(e) projecting as untainted property; or G(f) claiming as untainted property, in any manner whatsoever;

(ii) the process or activity connected with proceeds of crime is acontinuing activity and continues till such time a person is directlyor indirectly enjoying the proceeds of crime by its concealment or H

possession or acquisition or use or projecting it as untaintedproperty or claiming it as untainted property in any mannerwhatsoever.]”

26. Section 2(u) defines what is “proceeds of crime” and Section2(y) defines what is “Scheduled offence”. As discernable from the record,the Prosecution complaint in ECIR was lodged against the petitionersand others under the PMLA by the ED, pursuant to the investigationcarried out by the CBI in the FIR No. RCBD1/2016/E/0002 dated07.03.2016 and the charge-sheet dated 14.06.2016 filed by the CBIagainst Bharat Bomb and others for the offences under Sections 120B,420, 467, 468, 471, 472 and 474 of IPC and Section 13(2) read withSection 13(1)(d) of the Prevention of Corruption Act, 1988 at theDesignated CBI Court at Jaipur. All the said offences are scheduledoffences within the meaning of Section 2(y) of the said Act. Theallegations against the petitioner no.1-Anoop Bartaria (Accused No.5)as the Chairman and Managing Director of M/s. World Trade Park Ltd.and the petitioner no.2- World Trade Park Ltd. (accused No.8) are statedin detail in para 10.5 and 10.8 respectively in the Prosecution complaint.The Court at this juncture is not required to go into the merits of the saidallegations. Suffice it to say that serious allegations of money launderingare alleged against both the petitioners in the Prosecution complaint andsufficient material particulars have been narrated in the said complaintto substantiate the said allegations, which prima facie show the directinvolvement of the petitioners in the alleged offences of money launderingas defined in Section 3 of the said PMLA.

27. Having regard to the definition contained in Section 3, it wouldbe a folly to hold that the knowledge of the accused that he was dealingwith the proceeds of crime, would be a condition precedent or sine quanon required to be shown by the prosecution for lodging the complaintunder the said Act. As the definition itself suggests whosoever directlyor indirectly attempts to indulge or knowingly assists or knowingly is aparty or is actually involved in any process or activity connected withthe proceeds of crime including its concealment, possession, acquisitionor use and projecting or claiming it as untainted property shall be guiltyof offence of money-laundering. Hence, apart from having knowledge,if a person who directly or indirectly attempts to indulge or is actuallyinvolved in the process or activity connected with the proceeds of crime,is also guilty of the offence of money laundering. In the instant case, the ABC

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Adirect involvement of the petitioners in the activities connected with theproceeds of crime has been alleged, along with the material narrated inthe complaint which would require a trial to be conducted by the competentcourt.

28. It is axiomatic that the power to quash complaint under SectionB482 of Cr.P.C. should be exercised very sparingly and with circumspection,and that too in the rarest of rare cases. In State of Haryana and Othersvs. Bhajan Lal and Others (supra), this Court has laid down certainguidelines as to when the powers under Section 482 could be exercisedeither to prevent abuse the process of any court or otherwise to secureends of justice.C

“102. In the backdrop of the interpretation of the various relevantprovisions of the Code under Chapter XIV and of the principlesof law enunciated by this Court in a series of decisions relating tothe exercise of the extraordinary power under Article 226 or theinherent powers under Section 482 of the Code which we haveDextracted and reproduced above, we give the following categoriesof cases by way of illustration wherein such power could beexercised either to prevent abuse of the process of any court orotherwise to secure the ends of justice, though it may not be possibleto lay down any precise, clearly defined and sufficientlyEchannelised and inflexible guidelines or rigid formulae and to givean exhaustive list of myriad kinds of cases wherein such powershould be exercised.

(1) Where the allegations made in the first information reportor the complaint, even if they are taken at their face value andFaccepted in their entirety do not prima facie constitute anyoffence or make out a case against the accused.

(2) Where the allegations in the first information report and othermaterials, if any, accompanying the FIR do not disclose acognizable offence, justifying an investigation by police officersGunder Section 156(1) of the Code except under an order of aMagistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the samedo not disclose the commission of any offence and make out acase against the accused.H

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only a non-cognizable offence,no investigation is permitted by a police officer without an orderof a Magistrate as contemplated under Section 155(2) of theCode.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which noprudent person can ever reach a just conclusion that there issufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under which acriminal proceeding is instituted) to the institution andcontinuance of the proceedings and/or where there is a specificprovision in the Code or the concerned Act, providing efficaciousredress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciously institutedwith an ulterior motive for wreaking vengeance on the accusedand with a view to spite him due to private and personal grudge.”

29. The case of the petitioners does not fall under any of theabove categories. The petitioners have also failed to make out any caseof abuse of process of the court at the instance of the respondentauthorities. There being enough material to show prima facie involvementof the petitioners in the alleged offence of money laundering, ascontemplated under the PMLA the High Court had rightly dismissed thepetitions filed by the petitioners. As stated in the statement of objectsand reasons of the Act, money laundering poses a serious threat not onlyto the financial systems of the countries but also to their integrity andsovereignty. Hence any lenient view in dealing with such offences wouldbe a travesty of justice.

30. Before parting, it may be noted that the petitioners in the SLPswhile praying for the main relief of quashing the impugned judgment andorder dated 21.02.2019 passed by the High Court, had sought interimrelief seeking stay of the entire proceedings and the prosecution complaintno. 12/2018 in ECIR No.JPZO/01/2016 pending before the Special Judge(PMLA cases) Jaipur, without producing the said complaint along withthe SLP paper books. The SLPs appear to have been filed on 8[th] March, A

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A2019 declaring that all the defects have been cured, and thereafter on25.03.2019, by way of an application seeking permission to file additionaldocuments, the petitioners had produced the said Prosecution complaintno.12/2018 on record. Apart from the fact that after filing of the SLPs,no documents could have been filed without the permission of the Court,which in the instant case does not appear to have been sought for by theBpetitioners nor granted by the Court, the very practice of not filing theessential and relevant documents, more particularly, the documents inrespect of which a relief is sought in the SLPs, is strongly deprecated. Itmay be noted that non-production of the relevant documents especiallythe documents in respect of which the relief is sought, along with theCSLPs could be the sole ground for rejection of the SLPs at the outset.

31. The Registry is also directed to verify at the time of registrationof SLPs as to whether all the relevant documents, more particularly, thedocuments in respect of which the relief is sought, have been producedat the first instance by the petitioners along with the SLPs or not.

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32. In that view of the matter, the petitions are dismissed. Theinterim relief granted earlier stands vacated forthwith. It is needless tosay that the observations made against the petitioners in this order areonly prima facie and the trial court shall decide the case on merits withoutbeing influenced by the said observations.

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33. Learned counsel for the respondents, on instructions, informsthis Court that since the investigation is over and charge-sheet has beenfiled, no custodial interrogation of the petitioner is required.

34. The E.D shall be at liberty to proceed further with theProsecution complaint in accordance with law.F

35. Copy of this judgment be sent to the Secretary General andthe Registrar (J-I) for doing the needful.

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Divya Pandey(Assisted by : Bhavyata Kapoor, LCRA)

Petitions dismissed.

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