Bail was granted to CA because the petitioner’s continued incarceration was unjustified. HC
Fact and issue of the case
This Criminal Petition, under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’), is filed seeking to enlarge the petitioner/A.4 on bail in case information report in F.No.ECIR/HYZO/ 03/2022 of Directorate of Enforcement, Hyderabad Zonal Office
A case in crime No.29 of 2021of C.I.D. p.s., A.P., Amarvathi, Mangalagiri has been registered for the offences punishable under Sections 166, 167, 418, 420, 465, 468, 471, 409, 201, 109 read with 120B of the Indian Penal Code, 1860 (for short, ‘IPC’) and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988. based on a report lodged by the Chairman of Andhra Pradesh State Skill Development Corporation, Andhra Pradesh (for short, ‘APSSDC’). The petitioner herein is arrayed as A.20 in the said crime. The aforesaid FIR has been registered against one Ghanta Subba Rao, the then Special Secretary of Government, Skill Development, Entrepreneurship and Innovation Department, M/s. Siemens Industry Software India Private Limited (SISW), M/s. Design Tech System Private Limited (DTSPL) and others for allegedly swindling of money invested by the Government in a dubious manner. According to the said FIR, APSSDC entered into a Memorandum of Association (MoA) with SIEMENS (combination of SISW and DTSPL), to impart Hi-end technology training to the trainers of APSSDC, pursuant to which DTSPL had to provide training software development including various sub modules designed for the high-end software for advanced manufacturing CAD/CAM, and the MoA does not contemplate any sub contract. As part of the SIEMENS project, 6 clusters at a cost of Rs.546.84 crores (per cluster) were to be formed in which 90% of the total project cost i.e. Rs.2951.00 crores was supposed to be borne by M/s. SISW and M/s. DTSPL, and the remaining 10% i.e. Rs.330.00 crores was supposed to be borne by the Government. The total project cost for establishing 6 SIEMENS clusters amount to Rs.3281.40 crores
Since Sections 120B, 418, 420, 471 IPC and Section 13 of the Prevention of Corruption Act, 1988 are scheduled offences under the Prevention of Money Laundering Act, 2002 (for short, ‘PMLA’), investigation was initiated under the aforesaid case information report dated 07.01.2022. The petitioner herein is arrayed as A.4 in the said case information report. In the course of investigation, the respondent recorded statements of various persons, collected documents/information from agencies, banks, entities, etc. and analyzed bank accounts, and it revealed many discrepancies including diversion of APSSDC funds through various shell companies; the vendors from whom purchases were shown to have been made were pre-decided in advance; major portion of funds were transferred to Skillar Enterprise India Private Limited (SEPL) which was incorporated post ‘tri party agreement’ signed among M/s. DTSPL, SISW and APSSDC for implementation of SIEMENS project; major portion of the funds received from the government in the account of Execution Partner M/s. DTSPL was diverted to this newly opened entity SEPL, which has no past experience to execute the scope of work, and SEPL was used for diversion of Government funds which was meant for SIEMENS project. It has been further revealed that major portion of funds were diverted by SEPL to suspicious entities under the guise of supply of software/hardware/materials/ services, which, in reality, was not done. The purpose of diversion of funds was to generate cash and thereby siphon off money from the system without utilizing the same for the SIEMENS project for which the Government sanctioned the funds. On examination of data and analysis of bank account statements revealed that out of the funds received by SEPL from APSSDC through DTSPL, Rs.56.00 crores (approx..) was transferred by SEPL to an entity Allied Computers International Asia Limited (ACI), and the said amount was diverted through a web of shell entities by way of layered transactions. No goods or services were supplied by ACI against the said amount received from SEPL, and the diversion of funds, as stated above, was for personal gain. The investigation also revealed that no software/hardware/ services/goods were delivered to ACI or to any other entity used in the channel of diversion, which started from ACI, and that fabricated and concocted documents like purchase order, invoices, bills, etc. were created to project these bogus transactions as genuine. Profiles of most of these companies are nowhere related to software/ hardware services. Funds transferred from PVSP/SEPL to ACI was with an intention to generate cash without genuine business, and whatever cash that had been generated in this chain was handed over either to Yogesh Gupta or Mukul Agarwal (A.3), who approached Suresh Goyal for generation of cash. SEPL diverted some funds to company of Mukul Agarwal (A.3) viz. Knowledge Podium Systems Private Limited (KPSPL) and from there, the funds were diverted to personal account of Mukul Agarwal (A.3). The companies/entities which provided cash in lieu of receiving accommodated entries were identified
Apart from ACI, other entities viz. Inweb Services Private Limited, Patric Info Services Private Limited, IT Smith Solutions Private Limited, Provestment Services Limited, Bhartiya Global Infomedia Limited, etc. were used as bogus billing entry to divert funds received directly from SEPL, and so far, diversion of funds of Rs.67.00 crores has been identified
It is further alleged that Government funds were diverted by DTSPL, belonging to Vikas Khanvelkar, through SEPL and a web of shell companies, and in lieu of transfer of funds, cash was provided by entry operators who were managing the shell companies
Observation of the court
In the aforesaid identical case in Sanjay Raghunath Agarwal’s case (3 supra), lodging of the prosecution complaint is sequel to the registration of the FIR in the predicate offence way back in the year 2021. In the present case on hand also, no charge sheet has been filed in the predicate offence for the last more than 15 months. The petitioner herein is also a Chartered Accountant by profession and has been in jail from 04.03.2023. It is the first offence insofar as the petitioner is concerned. There are no other complaints registered as against him. The said argument gives room to say that second condition in clause (2) of sub-section (1) of Section 45 of the PMLA would be satisfied. In the aforesaid circumstances, continued incarceration of the petitioner, in my opinion, is not justified
In respect of a query raised by the investigating agency, the petitioner herein gave response to each and every question that has been asked for. Prosecution complaint was also filed on 01.05.2023. The petitioner was arrested on 04.03.2023 and since then he is in judicial custody. Time and again, petitioner is continuously attending before the investigating agency and co-operating with the investigation. This Court is of the opinion that it is not necessary to detain the petitioner in jail further. In view of the aforesaid facts and circumstances, this Court feels that request of the petitioner for grant of bail can be considered, however, on certain conditions
In the result, the Criminal Petition is allowed. The petitioner shall be enlarged on bail on his executing a personal bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two sureties each for the like sum to the satisfaction of the I Additional Sessions Judge-cum-Metropolitan Sessions Judge, Visakhapatnam
On release, the petitioner shall co-operate with the investigating agency and shall attend before the investigating agency once in a week i.e. on every Friday between 10.00 AM and 5.00 PM. The petitioner shall surrender his passport beofre the Court below
Miscellaneous Petitions, if any, pending in the Criminal Petition, shall stand closed
Conclusion
In the result, appeal of the assessee is allowed and ruled in favour of the assessee
Read the full order from here
Suresh-Goyal-Vs-Directorate-of-Enforcement-Andhra-Pradesh-High-Court-2-1
