# Badri Narayan Tiwari v. Director of Enforcement, Lko

- **Citation:** (2023) 8 ILRA 692
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Crl. Misc. Bail Application No. 3817 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-narayan-tiwari-v-director-of-enforcement-lko-50703
- **Pages:** 12

## Headnote

Criminal Law - The Code of Criminal
Procedure, 1973-Section-439 - Prevention
of Money Laundering Act, 2002-Sections3/4- The Court is not required to record a
positive finding that the accused had not
committed an offence under the Act. The Court
ought to maintain a delicate balance between a
subsequent judgment of acquittal and conviction
and an order granting bail much before
commencement of trial. The duty of the Court at
this stage is not to weigh the evidence
meticulously but to arrive at a finding on the
basis of broad probabilities. Further, the Court is
required to record a finding as to the possibility
of the accused committing a crime which is an
offence under the Act after grant of bail- Court
is not required to record the finding of
innocence for granting bail- It is a settled
principle of law that however strong a suspicion
may be, it cannot take place of a proof beyond
reasonable doubt.

Bail application allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,976 of 40,378. This is a partial read: ask again with offset=39976 for what follows._

692 INDIAN LAW REPORTS ALLAHABAD SERIES
anticipatory bail application of the coaccused
Nitin
Rathi
was
granted
anticipatory bail as an interim measure till
the pendency of investigation vide order
dated 4.4.2023 and the said anticipatory
bail application has been dismissed as
infructuous by the coordinate Bench of this
Court vide order dated 31.5.2023. The FIR
is prompt as the informant had rushed to
save the life of his brother Rupendra
Kumar and admitted him in a hospital and
then had lodged the FIR the same day and
also taking into consideration the injury
report of injured person Rupendra Kumar.
The
cross
FIR
further
fortifies
the
prosecution allegation that the applicant
was present at the place of occurrence.

14. I have also gone through the
judgement of Apex Court passed in
Subramani (supra) referred by the learned
counsel for the applicant and finds that the
said judgement does not apply to the
present case as it is regarding the criminal
appeal whereby the right of private defence
is said to have been exercised by the
accused therein. The case of the applicant is
not of right of private defence.

15. Considering the rival submissions
advanced by the learned counsel for the
parties and the judgement of Apex Court
passed in Subramani (supra) and the
judgement of this Court passed in Shivam
(supra), I do not find it a fit case to grant
anticipatory bail in the case.

16. In view of the above, the present
anticipatory bail application is accordingly,
rejected.
----------
(2023) 8 ILRA 692
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.08.2023
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Application No. 3817 of 2023

Badri Narayan Tiwari ...Applicant
Versus
Director of Enforcement, Lko.
 ...Respondent

Counsel for the Applicant:
Purnendu Chakravarty, Shivanshu Goswami

Counsel for the Respondent:
Rohit Tripathi

Criminal Law - The Code of Criminal
Procedure, 1973-Section-439 - Prevention
of Money Laundering Act, 2002-Sections3/4- The Court is not required to record a
positive finding that the accused had not
committed an offence under the Act. The Court
ought to maintain a delicate balance between a
subsequent judgment of acquittal and conviction
and an order granting bail much before
commencement of trial. The duty of the Court at
this stage is not to weigh the evidence
meticulously but to arrive at a finding on the
basis of broad probabilities. Further, the Court is
required to record a finding as to the possibility
of the accused committing a crime which is an
offence under the Act after grant of bail- Court
is not required to record the finding of
innocence for granting bail- It is a settled
principle of law that however strong a suspicion
may be, it cannot take place of a proof beyond
reasonable doubt.

Bail application allowed. (E-15)

List of Cases cited:

1. Rohit Tandon Vs Directorate Of Enforcement
(2018) 11 SCC 46

2. Vijay Madanlal Choudhary & ors. Vs U.O.I.&
ors., 2022 SCC OnLine SC 929

3. Gorakh Nath Prasad Vs St. of Bihar, (2018) 2
SCC 305
(Delivered by Hon'ble Subhash Vidyarthi, J.)
8 All. Badri Narayan Tiwari Vs. Director of Enforcement, Lko.
693

1. Heard Sri Purnendu Chakravarty
Advocate, the learned Counsel for the
applicant and Sri Rohit Tripathi, the learned
counsel for the respondent-Directorate of
Enforcement (hereinafter referred to as 'the
E.D.').

2. The present bail application has
been filed by the applicant with the prayer
to enlarge him on bail in Session Case No.
1485/2022 in the Court of Session Judge /
Special Court PMLA, Lucknow, arising out
of ECIR/LKZO/05/2019, under Section 3/4
Prevention of Money Laundering Act,
2002,
Police
Station
Directorate
of
Enforcement, District Lucknow.

3.

The
E.D.
registered
ECIR/LKZO/05/2019 on 29.06.2019 when
Senior Superintendent of Police, Gautam
Budh Nagar had forwarded copies of 25
F.I.Rs. registered under various Sections,
including Sections 406, 420, 467, 468, 471,
506 IPC against M/s Garvit Innovative
Promoters Ltd. (GIPL) and its promoter Sri
Sanjay Bhati and other unknown persons /
entities
between
12.02.2019
and
25.04.2019, on the allegations that the
aforesaid Company had lured the public to
invest in its schemes with the promise of
good returns, but the Company did not
fulfill its promise and did not return even
the invested amounts.

4. The applicant is not named as an
accused in any of the aforesaid FIRs or in
the ECIR.

5. The E.D. recorded the statements
of the applicant under Section 50 of the
Prevention of Money Laundering Act, 2002
(hereinafter referred to as 'the PMLA'), on
22.10.2019, 23.10.2019 and 20.10.2020.

6. The ED filed a complaint on
17.02.2021 against one Manoj Tyagi.

7. The applicant's name was included
as an accused person for the first time in
the supplementary complaint filed by the
E.D. on 13.01.2022 stating that statements
of some of the complainants in the F.I.Rs.
were recorded under Section 50 of the
PMLA and gist of their statements is that
they had invested in the Bikebot scheme of
GIPL and did not receive the returns
promised by the company.

8. The applicant was arrested on
21.07.2022. House No. B-2/138, Vijay
Khand, Gomti Nagar, Lucknow worth
Rs.6,50,00,000/- belonging to the applicant
has been seized by the E.D.

9. Statement of the main accused
Sanjay Bhati, a promoter and director of
GIPL,
was
recorded
on
04.11.2019,
22.11.2019 and 23.11.2019. He stated that
since incorporation of GIPL, there was
negligible business and almost nil income
till 2016. Only a few plots of land were
bought by the company. In Nov-Dec-2016,
they started working on an app named
BIKEBOT. In 2017, they bought bikes and
introduced them as bike taxis. He stated
that the applicant Badri Narayan Tiwari
was one of the key decision makers for
property
purchase
and
development,
alongwith Montu Bhasin, Anil Saha and
Vijender Hudda.

10. Sanjay Bhati further stated that all
transactions with accounts Section were
looked after by the team of Noble
Cooperative Bank comprising of V. K.
Sharma, his son Govind and other bank
officials. All works related to running of
vehicles, franchisees and registration /
delivery of bikes were looked after by
Vijaypal Kasana. The initial capital for
purchasing bikes was invested by him and
later other people were invited to invest in
694 INDIAN LAW REPORTS ALLAHABAD SERIES
the bikes. However, due to difficulties in
registration of bikes, they started accepting
money from people in the account of the
company and gave sale letters to them after
purchasing the bikes. The investment plans
of Bikebot were conceptualized by Sanjay
Bhati, Rajesh Bhardwaj, Karanpal Singh,
Atul Thakur and Virendra Malik between
Jan 2017 to June 2017. Money from
Bikebot investors was taken through bank
accounts only. In the event of system
failures or after Noble Bank stepped in
August, cash was also accepted. However,
payouts were made through bank accounts
only. Cash counter in the company was
handled by Noble Bank staff only. Cash
collected at GIPL was transferred to Noble
Bank and Grand Venice Mall from where it
was
invested
in
projects
of
Noble
Buildtech, Grand Venice and Saha. He
further submitted that cash was given to the
applicant on two occasions.

11. Regarding the applicant, Sanjay
Bhati stated that the applicant, Atul Mishra,
Manoj Tyagi and Vijender Hooda had
introduced him to V. K. Sharma, Managing
Director & C.E.O. of Noble Co-op Bank,
for selling the Noble Co-op Bank for Rs. 50
Crores. The decisions regarding payments
were usually taken by V. K. Sharma,
Vijender Hooda, Manoj Tyagi and the
applicant.

12. Snajay Bhati stated that there
were around 1,70,000 investors in Bikebot
who
had
paid
Rs.
2,800
Crores
approximately
and
approximately
Rs.
1800- 2000 Crores had been returned to
them and about 10,000 bikes had been
purchased. E-bikes were launched on
11.01.2019 at New Delhi and the applicant
was also present at that time. Sanjay Bhati
further stated that accountant Chauhan and
CA team reported to Balwant. Technical
aspects
viz.
GPS,
app
development,
customer care, bike operations, etc. were
looked after by Tarun Sharma. Property
development & purchase was looked after
by Anil Saha, B. N. Tiwari (the applicant),
Vijendra Hudda and Montu (Satinder)
Bhasin, etc.

13. As regards, the profit model of
Bikebot, Sanjay Bhati claimed that on each
bike, the company was saving Rs. 12,000/-
even
after
meeting
the
registration,
accessories, insurance, etc. Further, after
one year, the bike would become the asset
of the company. The rental plan for bikes
started at Rs.10/- for the 1st Km and
subsequently Rs. 4/- per km + Re.1/- per
minute for travelling time and Re.1/- per
min extra for the waiting time.

14. Statements of Manoj Kumar Tyagi
were recorded under Section 50 of PMLA
on 29.08.2019, 30.08.2019, 12.03.2020 and
04.09.2020 wherein he stated that he was
an Additional Director in Independent TV
Ltd. from 05.01.2016 to 15.12.2018. He
was
also
working
with
M/s
Pantel
Technologies Pvt. Ltd. and Prema Services
Pvt. Ltd. on consolidated salary basis. In
addition, he was a director in Pimex Plastic
(P) Ltd., Independent TV Ltd., A-one
News, News Chanel Pimex Broadcast Pvt.
Ltd., Time Broadcast Pvt. Ltd., Pantel
Technologies Pvt. Ltd., Prema Services Pvt.
Ltd., Pimex Broadcast (P) Ltd., IProf
Learning Solution India Pvt. Ltd., Ethics
Media Trust (P) Ltd., Macro Commerce (P)
Ltd. In the year 2017, Vijender Singh took
over Independent TV Ltd. (which was
previously known as Reliance Big TV Ltd.)
through Pantel Technologies Pvt. Ltd., from
Reliance Group. He became an Additional
Director in Independent TV Ltd. on
05.01.2018. He become a director in M/s
Pantel Technologies Pvt. Ltd on 20.01.2015
8 All. Badri Narayan Tiwari Vs. Director of Enforcement, Lko.
695
and resigned in Dec-2018. Vijender Singh
had introduced Sanjay Bhati to him as
Sanjay Bhati was acquiring the companies
of Vijender Singh. Vijender Singh and
Sanjay Bhati told him about GIPL. He had
met the applicant B. N. Tiwari in March2018 at ITVL office in Noida when
Vijender Singh required funds for ITVL
operations and offered the applicant to
invest in ITVL but the applicant did not
invest any money then. Later when the
companies of Vijender Singh were acquired
by Sanjay Bhati, the applicant started
looking
after
those
companies
and
exercised great control over them after
Sanjay Bhati resigned.

15. Manoj Tyagi also submitted
copies of Share Purchase Agreement dated
31.05.2018 entered into between himself,
Vijender Singh, Sanjay Bhati, Sachin Bhati
and the companies viz. Pantel Technologies
Pvt. Ltd., Independent TV Ltd., Prema
Services Pvt. Ltd., Pimex Broadcast Pvt.
Ltd. and Pimex Plastics Pvt. Ltd., etc. and a
settlement agreement was entered into
between the aforesaid parties, from which
the E.D. came to know that all shareholding
in the abovementioned companies stood
transferred to Sanjay Bhati and his brother
Sachin Bhati for a total consideration of Rs.
135.00 Crores. Vijender Singh and Manoj
Tyagi remained on the Board of Directors
of these companies till 15.12.2018. There
were differences and disputes regarding
payment
of
the
consideration
for
shareholding and the parties had gone for
Mediation in Delhi High Court in Dec2018 and had arrived at a settlement
agreement on 29.01.2019.

16. The applicant's statement was
recorded under Section 50 of PMLA on
22.10.2019, 23.10.2019 and 20.03.2020
wherein he inter-alia stated that Mars
Envirotech
Limited
was
engaged
in
construction and operation of solid waste
management / waste to energy plants.
Vijender
Singh
had
introduced
the
applicant to Sanjay Bhati in Sep-2018 and
had told that he was doing business with
Sanjay Bhati and SanjayBhati needed
electric bikes immediately. Sanjay Bhati
had also said that there was too much
pollution in Delhi and Ghaziabad due to
burning of "puwal" and waste materials
and he wanted to install a mini power plant
in his fields in Dadri. The applicant had
talked to Sanjay Bhati a couple of times
regarding the supply of Garvit branded ebikes to be manufactured by the applicant's
company Accord Hydraulics Pvt. Ltd. An
agreement was entered into between
Accord Hydraulics and GIPL for supply of
e-bikes. Another agreement was entered
into between GIPL and Mars Envirotech
Pvt. Ltd. for supply of biomass/ multi fuel
Power Plant for which G15IPL had paid
Rs. 3 Crores to Mars Envirotech. Supply of
equipment was made in excess of the
payment
received
but
since
balance
payment was not received, further supply
was not done. Pimex Plastics Pvt. Ltd. had
purchased shares of Mars Envirotech Ltd.
for Rs. 5 Crores. Vijender Singh had
assured the applicant that after taking
shares of the applicant's companies, he will
expand the business and give support to
develop it as a brand. Vijender Singh had
also induced the applicant to become a
director and operate Independent T.V. Ltd.
However, when he became director of
Pantel Technology Pvt. Ltd. on 03.04.2020
and read the Internal Audit Report of
Independent T.V. Ltd. and discussed with
the staff, he came to know that there were
no documents in respect of payments made
to third parties and nobody was refunding
the money and all such companies were
shell companies. Therefore, he resigned
696 INDIAN LAW REPORTS ALLAHABAD SERIES
from directorship. When someone informed
Vijender Singh that the applicant had
resigned from the companies and was
going to lodge an F.I.R., Vijender Singh
had called the applicant through whatsapp
and had abused him. After this episode, the
applicant's relations with Vijender Singh
got sour. As per the applicant's knowledge,
Vijender Singh had taken citizenship of
Malta and was residing there. The applicant
further stated that Vijender Singh wanted to
take shares of his companies and, therefore,
Independent TV Ltd. had deposited Rs.
7.50 Crores in the account of his company
under an agreement. After adding interest
thereon, shares for a total of Rs. 7.70
Crores shares were issued to Independent
TV Ltd. and the requisite information was
given to the Registrar of Companies. Other
than this, there was no other transaction
between him, his family and ITVL. The
applicant stated that his sons became
directors in the ITVL, but when the correct
particulars were not provided to them, they
had resigned on same day after remaining
directors for merely 6 hours.

17. The applicant stated that he
became a director of Pantel Technologies
Pvt. Ltd., but when he came to know about
the company, he resigned immediately,
only after 03 hours. He had joined as a
director in Pantel Mobility Health Pvt. Ltd.
on assurance of Vijender Singh, but when
in the provisional balance sheet of
31.03.2019 was prepared, he got to know
that the company was in losses of approx.
14-15 Crores which was very high and,
therefore, he resigned.

18. The E.D. has alleged in the
Supplementary
Complaint
that
the
applicant was close to Sanjay Bhati and
became his consultant and remained
connected to GIPL. After Sanjay Bhati
resigned,
the
applicant's
influence
increased with continued interaction with
Karanpal and other associates of Sanjay
Bhati. As per Sanjay Bhati himself, the
applicant was one of the key decision
makers
for
property
purchase
and
development of GIPL. Also, cash collected
at GIPL office was given twice to the
applicant. After accounts were opened at
Noble Cooperative Bank, the decisions
regarding payments were usually taken by
V. K. Sharma, Vijender Hooda, Manoj
Tyagi and the applicant, who used to
present the cheques to Sanjay Bhati for his
signatures.

19. The E.D. has further alleged that
the Special Audit was conducted at the
instance of the applicant, but he merely
provided
the
Tally
data
and
bank
transaction details and he did not provide
all the relevant documents for the audit.

20. The complaint further alleges that
after
December
2018,
the
entire
management of ITVL was being carried out
by the applicant as a close confidante of
Mr. Sanjay Bhati. The applicant was
introduced by the Management of GIPL in
the launch event of e-bikes of Bikebot, as
an investment advisor and trustee of the
Independent TV Ltd. and nominee of
Sanjay Bhati. All employees of ITVL were
supposed to report to the applicant, who
was
actively
participating
in
the
responsibility of arranging fresh funds for
Independent TV Ltd.

21. The E.D. contends that most of
the contentions of the applicant in his
statements are in stark contrast to the
revelations from bank and the data given by
the registrar of Companies and the
assertions of other persons examined
during the course of investigation in the
8 All. Badri Narayan Tiwari Vs. Director of Enforcement, Lko.
697
instant matter. The applicant had initially
concealed that he was15 a director in Pantel
Mobility Health Pvt. Ltd. and Iprof
Learning Solutions Pvt. Ltd. The E.D. has
further contended that the applicant's claim
that he had joined Independent TV Ltd just
for a day, appears to be far from true.

22. Rs. 25 Crores in total have been
transferred to M/s Mars Envirotech Ltd.
from M/s Pantel Technologies Pvt. Ltd.,
M/s Independent TV Ltd. and M/s Pimex
Broadcast Pvt. Ltd. and the same have been
portrayed as payment towards allotment of
compulsorily convertible preference shares
(CCPS) although the allotment process is
flawed and manipulated and all relevant
documents have not been submitted by the
applicant during his examination. Even the
appointment of the Chartered Accountant
for valuation of the shares of Mars
Envirotech Ltd. was in June-2019 i.e. much
after the allotment process was over. The
MCA filings were also done much later.

23. The E.D. claims that the funds so
received were used for purchase of a house
in Lucknow and a power plant in Nashik,
Maharashtra. In addition, funds were
transferred
to
a
newly
incorporated
company named Axle Energy Pvt. Ltd. and
ultimately used for purchase of a plot in
Lucknow which are nothing but proceeds
of crime generated by Sanjay Bhati and
GIPL and laundered with the active
connivance
of
the
applicant
using
companies under his control. As per the
E.D., upon a scrutiny of the data obtained
from the Ministry of Corporate Affairs it
was observed that the applicant had
deliberately alienated himself from such
companies so as to avoid investigation.

24. The E.D. asserts that on
06.07.2018, Independent TV Ltd. had
transferred Rs.5.00 Crores to M/s Pantel
Mobility Health Pvt. Ltd. On the very same
date, Rs. 2.75 Crores and Rs. 2.00 Crores
were transferred towards payment for
acquisition of immovable property situated
at H-67, Sector- 63, Noida. This property
was sold off to one M/s Cimco Projects
Ltd., ostensibly on the directions of the
applicant through Pushpendra Singh, who
remained a Director in the company and
resigned immediately after the sale was
effected.

25. Sri. Purnendu Chakravarty, the
learned Counsel for the applicant has
submitted that the E.D. had registered the
ECIR on 29.06.2019 and statement of
applicant was recorded under Section 50
PMLA on 22.10.2019, 23.10.2019 and
20.03.2020, but he was not taken into
custody. The applicant was taken in
custody in connection with the scheduled
offences on 26.02.2021, and although the
applicant was named as accused in
supplementary
compliant
filed
on
30.01.2022, the E.D. did not seek his
custody when the applicant was already in
custody. The E.D. took the applicant into
custody only on 21.07.2022, after he was
granted bail by the Hon'ble Supreme Court
on 13.07.2022.

26. Sri. Chakravarty submitted that
one of the co-accused persons Manoj
Tyagi, has been granted bail by means of an
order dated 26.04.2023 passed by this
Court in Criminal Miscellaneous Bail
Application No. 6190 of 2022. Anther coaccused Vijendra Singh, who has also been
made an accused in the supplementary
compliant, has been granted anticipatory
bail by means of an order dated 20.05.2023
passed by the trial court on the main
ground that the aforesaid co-accused was
not arrested under Section 19 of the PMLA.
698 INDIAN LAW REPORTS ALLAHABAD SERIES
The learned Counsel for the applicant has
submitted that the applicant is also entitled
for the bail on the ground of parity, as one
person has been granted Anticipatory bail
and other person has been granted bail,
whereas the applicant is languishing in jail
since 21.07.2022 and the trial has not
commenced till date. Trial will take many
years to be complete because many of the
named accused persons have not appeared
yet or they have not been arrested yet.
Investigation is still continuing. Documents
running into 5,000 pages have been filed
with the supplementary Complaint, which
are required to be proved before the Trial
Court and 11 witnesses have been named in
the supplementary compliant.

27. The learned Counsel for the
applicant has further submitted that the
applicant is not a signatory in any of the
bank accounts and he has been implicated
because
of
allotment
of
Cumulative
Compulsory Convertible Preference Share
(CCCPS) to M/S Mars Envirotech Limited.
The equity shares CCCPS have been
provided in accordance with the provisions
of Sections 23, 42, 55, 62(1)(c) of the
Companies Act 2013, read with Companies
Prospectus and Allotment of Scrutiny Rules
2014 and the Companies Share Capital and
Debenture Rules 2014. The CCCPS are
being issued in accordance with the Rule 9
of the Companies Share Capital and
Debenture Rules 2014 as per share holder
agreement of the companies.

28. The learned Counsel for the
applicant has submitted that if any
irregularity
has
been
committed
in
allotment of shares under CCCPS, the same
would lie within the jurisdiction of
Ministry of Corporate Affairs and NCLT
and any discrepancy in the allotment of
shares or any tax evasion would not give
rise to proceedings of PMLA against
applicant.

29. Opposing the bail application, Sri
Rohit Tripathi, the learned counsel for the
respondent - Directorate of Enforcement
has submitted that the allegations in the
FIR and the resultant charge-sheets was
that the companies involved in the wrong
doing had solicited and accepted deposits
from public under several money multiplier
schemes, of which the Bikebot scheme was
the most publicized and popular. Under the
scheme unrealistic and exorbitant returns
were promised without there being any
corresponding resource generating and
meaningful business. Essentially, it was a
ponzi scheme which was bound to fail.
When the investors demanded the returns,
they were handed over cheques, which
were dishonored. As per the statements of
the witnesses, the applicant was one of the
key decision makers for property purchase
and GIPL and appropriated the cash at the
GIPL office. The applicant was involved in
decision regarding payments made from the
GIPL's account in the Nobel Cooperative
Bank. A special audit of one of the
companies was conducted at the behest of
the applicant, who deliberately withheld the
relevant documents from the charted
Accountant, who is a witness in the matter.
After December, 2018, the applicant
managed the affairs of the Independent TV
Ltd. on behalf of Sanjay Bhati as the
latter's close confidante.

30. Sri Tripathi has submitted that
there is evidence to demonstrate that the
applicant was introduced as an investment
advisor and the Trustee of the ITV and
nominee of the Mr.Sanjay Bhati at the
companies event on 19/20.01.2019. All the
employees were mandated to report to the
applicant. As per the banking records, Mars
8 All. Badri Narayan Tiwari Vs. Director of Enforcement, Lko.
699
Envirotech Ltd., of which the applicant was
a Director, had received money directly as
well, though the receipts were shown to be
part
of
intermediate
transactions
by
portraying the same as payments towards
allotment
of
Cumulative
Compulsory
Convertible Preference Shares. Thus the
applicant was a direct beneficiary of the
proceeds of crime.

31. Relying upon the law laid down by
the Hon'ble Supreme Court in the judgment
reported in (2018) 11 SCC 46, Rohit Tandon
Versus Directorate Of Enforcement, Sri.
Tripathi has submitted that the applicant /
accused in a money laundering case must
succeed in overcoming the threshold of the
rigors of Section 45 of the PMLA.

32. Sri. Tripathi has further submitted
that the main accused Sanjay Bhati is
absconding and there is a reasonable and well
founded apprehension of the applicant fleeing
the course of justice if he is released on bail.

33. I have considered the aforesaid
facts and circumstances of the case and the
submissions made by the learned counsel
for the parties. In Rohit Tondan (supra),
the Hon'ble Supreme Court has held that
"The Court is not required to record a
positive finding that the accused had not
committed an offence under the Act. The
Court ought to maintain a delicate
balance between a subsequent judgment of
acquittal and conviction and an order
granting bail much before commencement
of trial. The duty of the Court at this stage
is not to weigh the evidence meticulously
but to arrive at a finding on the basis of
broad probabilities. Further, the Court is
required to record a finding as to the
possibility of the accused committing a
crime which is an offence under the Act
after grant of bail".

34. Section 2 (u) of the PMLA defines
'proceeds of crime' as follows:-

(u) "proceeds of crime" means any
property derived or obtained, directly or
indirectly, by any person as a result of
criminal activity relating to a scheduled
offence or the value of any such propertyor
where such property is taken or held
outside the country, then the property
equivalent in value held within the country
or abroad;

Explanation.-For the removal of
doubts, it is hereby clarified that "proceeds
of crime" include property not only derived
or obtained from the scheduled offence but
also any property which may directly or
indirectly be derived or obtained as a result
of any criminal activity relatable to the
scheduled offence;

35. In Vijay Madanlal Choudhary
and others versus Union of India and
others, 2022 SCC OnLine SC 929, the
Hon'ble Supreme Court held that: -

251.The "proceeds of crime" being
the core of the ingredients constituting the
offence
of
money-laundering,
that
expression needs to be construed strictly. In
that, all properties recovered or attached
by the investigating agency in connection
with the criminal activity relating to a
scheduled offence under the general law
cannot be regarded as proceeds of crime.
There may be cases where the property
involved in the commission of scheduled
offence attached by the investigating
agency dealing with that offence, cannot be
wholly or partly regarded as proceeds of
crime within the meaning of Section 2(1)(u)
of the 2002 Act - so long as the whole or
some portion of the property has been
derived or obtained by any person "as a
result of" criminal activity relating to the
700 INDIAN LAW REPORTS ALLAHABAD SERIES
stated scheduled offence. To be proceeds of
crime, therefore, the property must be
derived or obtained, directly or indirectly,
"as a result of" criminal activity relating to
a scheduled offence. To put it differently,
the
vehicle
used
in
commission
of
scheduled offence may be attached as
property in the concerned case (crime), it
may still not be proceeds of crime within
the meaning of Section 2(1)(u) of the 2002
Act. Similarly, possession of unaccounted
property acquired by legal means may be
actionable for tax violation and yet, will
not be regarded as proceeds of crime
unless the concerned tax legislation
prescribes such violation as an offence
and such offence is included in the
Schedule of the 2002 Act. For being
regarded as proceeds of crime, the property
associated with the scheduled offence must
have been derived or obtained by a person
"as a result of" criminal activity relating to
the concerned scheduled offence. This
distinction must be borne in mind while
reckoning any property referred to in the
scheduled offence as proceeds of crime for
the purpose of the 2002 Act. Dealing with
proceeds of crime by way of any process or
activity constitutes offence of moneylaundering under Section 3 of the Act."

* * *

284.In other words, the Authority
under the 2002 Act, is to prosecute a
person for offence of money-laundering
only if it has reason to believe, which is
required to be recorded in writing that the
person is in possession of "proceeds of
crime". Only if that belief is further
supported
by
tangible
and
credible
evidence indicative of involvement of the
person concerned in any process or
activity connected with the proceeds of
crime, action under the Act can be taken
forward for attachment and confiscation of
proceeds of crime and until vesting thereof
in the Central Government, such process
initiated would be a standalone process.

36. The initial action of the main
accused Sanjay Bhati was of launching a
Bikebot Scheme, in which around 1,70,000
persons had invested Rs. 2,800 Crores
approximately. About 10,000 bikes had
been purchased by the Company. E-bikes
were launched on 11.01.2019 at New Delhi
and thereafter bikes had started operating in
several other cities also.

37. The E.D. claims that the
BIKEBOT scheme promised unrealistic
and exorbitant returns, without there being
any corresponding resource generating and
meaningful business. E.D. claims that it
was a ponzi scheme which was bound to
fail. However, Sanjay Bhati has stated that
on each bike, the company would have
saved Rs. 12,000/- even after meeting the
expenses
of
registration,
accessories,
insurance, etc. and after one year, the bike
would become the asset of the company.
The rental plan for bikes started at Rs.10/-
for the 1st Km and subsequently Rs.4/- per
km + Re.1/- per minute for travelling time
and Re.1/- per minute extra for the waiting
time.

38. As per the statement of the main
accused Sanjay Bhati, even after failure of
the scheme, approximately Rs. 1800- 2000
Crores had been returned to the investors.
The role of the applicant is alleged to be
property development & purchase. There is
nothing on record to prima facie establish
that the applicant was instrumental behind
planning the scheme.

39. It is said that cash collected at
GIPL office was given twice to the
applicant but nothing has been said about
8 All. Badri Narayan Tiwari Vs. Director of Enforcement, Lko.
701
the amount of cash paid to the applicant or
the nature of the payment.

40. The E.D. claims that Rs. 25
Crores have been transferred to M/s Mars
Envirotech Ltd. towards allotment of
Cumulative
Compulsorily
Convertible
Preference
Shares
(CCCPS)
but
the
allotment
process
is
flawed
and
manipulated. The applicant claims that
CCCPS have been provided in accordance
with the provisions of Sections 23, 42, 55,
62(1)(c) of the Companies Act 2013, read
with Companies Prospectus and Allotment
of Scrutiny Rules 2014 and the Companies
Share Capital and Debenture Rules 2014.
The CCCPS are being issued as per Rule 9
of Companies Share Capital and Debenture
Rules 2014 as per share holder agreement
of companies.

41. The learned Counsel for the E.D.
has filed his written submissions, but he has
not given any reply to the submission made
on behalf of the applicant that even if any
irregularity has been committed in allotment
of shares under CCCPS, the same would lie
within the jurisdiction of Ministry of
Corporate Affairs and NCLT and any
discrepancy in the allotment of shares or any
tax evasion would not give rise to
proceedings of PMLA against applicant.

42. It has been held in Vijay
Madanlal
Choudhary
(Supra),
that
possession
of
unaccounted
property
acquired by legal means may be actionable
for tax violation and yet, will not be
regarded as proceeds of crime. Applying
the same principle, unless the irregularities
in transfer of shares are an offence under
any law and such offence is included in the
Schedule of the 2002 Act, the money
involved in such a transfer cannot be
termed as 'proceeds of crime'.

43. As has been held in Rohit
Tandon (supra), this Court is not required
to record the finding of innocence for
granting bail. The facts discussed above
clearly make out a prima facie satisfaction
required for grant of bail to the applicant.

44.

PMLA
contains
stringent
provisions like Section 24 providing for a
reverse burden of proof and Section 45
laying down additional conditions for grant
of bail only after recording a prima facie
satisfaction of innocence of the accused.
While dealing with similar statutory
provisions contained in the Narcotic Drugs
and Psychotropic Substances Act, in
Gorakh Nath Prasad v. State of Bihar,
(2018) 2 SCC 305, the Hon'ble Supreme
Court held that: -

"5.The NDPS Act provides for a
reverse burden of proof upon the accused,
contrary to the normal rule of criminal
jurisprudence
for
presumption
of
innocence unless proved guilty. This
shall not dispense with the requirement
of the prosecution to having first
establish a prima facie case, only
whereafter the burden will shift to the
accused. The mere registration of a
case under the Act will not ipso facto
shift the burden on to the accused from
the very inception. Compliance with
statutory requirements and procedures
shall have to be strict and the scrutiny
stringent. If there is any iota of doubt
the benefit shall have to be given to the
accused."

45. Prima facie it appears that the
applicant has been implicated in the present
case merely on the basis of suspicion. It is a
settled principle of law that however strong
a suspicion may be, it cannot take place of
a proofbeyond reasonable doubt.
702 INDIAN LAW REPORTS ALLAHABAD SERIES

46. This fact is also relevant that the
E.D.
had
registered
the
ECIR
on
29.06.2019 and statement of applicant was
recorded under Section 50 PMLA on
22.10.2019, 23.10.2019 and 20.03.2020,
but he was not taken into custody. The
applicant
remained
in
custody
in
connection with the scheduled offences
since
26.02.2021,
and
although
the
applicant was named as accused in
supplementary
compliant
filed
on
30.01.2022, the E.D. did not seek his
custody even during that period. Criminal
Miscellaneous Bail Application Nos. 18772
of 2021, 18775 of 2021, 19022 of 2021,
19214 of 2021 and 19379 of 2021 filed by
the applicant for grant of bail in scheduled
offences had been rejected by this Court,
but he was granted bail in all the scheduled
offences by means of an order dated
13.07.2022 passed by the Hon'ble Supreme
Court, applying the principle of parity,
though
the
Hon'ble
Supreme
Court
recorded that the applicant's role may be
overlapping or somewhat different. The
E.D. took the applicant into custody on
21.07.2022, only after he was granted bail
by
the
Hon'ble
Supreme
Court
on
13.07.2022, after having spent about one
and a half years in custody and the
investigation of the case already stood
completed long ago and there was no need
for his custodial interrogation.

47. The trial is likely to take many
years to conclude because many of the
named accused persons have not appeared
yet or they have not been arrested yet and
11 witnesses are to be examined by the
Prosecution and documents running into
5,000 pages have to be proved.

48. Although the E.D. has expressed
an apprehension that the applicant would
again indulge in commission of similar
offence in case he is released on bail, the
applicant has no previous criminal history,
apart from the predicate offences, and no
material has been placed in the counter
affidavit which may give rise to a
reasonable
basis
for
the
aforesaid
apprehension.

49. The applicant is said to be one of
the key decision makers for purchase of
property by GIPL, alongwith Vijender
Singh and Vijender Singh has already been
granted bail and, therefore, the applicant is
also entitled to be released on bail on the
ground of parity.

50. Keeping in view the aforesaid
facts and circumstances of the case, I am of
the view that the applicant is also entitled
to be released on bail. Accordingly, he the
bail application stands allowed.

51. Let the applicant Badri Narayan
Tiwari be released on bail in Session Case
No. 1485/2022 in the Court of Session
Judge / Special Court PMLA, Lucknow,
arising out of ECIR/LKZO/05/2019, under
Section
3/4
Prevention
of
Money
Laundering Act, 2002, Police Station
Directorate
of
Enforcement,
District
Lucknow, on furnishing a bail bond and
two sureties each in the like amount to the
satisfaction of Court concerned, subject to
following conditions:-

(i) the applicant shall not tamper with
the prosecution evidence;

(ii) the applicant shall not pressurize
the prosecution witnesses;

(iii) the applicant shall appear on each
and every date fixed by the trial court,
unless
his
personal
appearance
is
exempted.

(iv) that the applicant will surrender
his passport before the trial Court to ensure
8 All. Brijesh Vs. State of U.P. & Anr.
703
that he cannot go outside India without
prior permission of the Court.

52. In case of breach of any of the
above conditions, the prosecution shall be
at liberty to move an application for
cancellation of the bail.
----------
(2023) 8 ILRA 703
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application No. 7420
of 2023
(U/s 438 Cr.P.C)

Brijesh ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Ms. Mamta Singh

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 82, 83, 161, 164, 173(2)
& 438 - Indian Penal Code, 1860 -
Sections 174(A), 323, 328, 376, 504 & 506
- Scheduled Castes And Scheduled Tribes
Prevention Of Atrocities Act, 1989 -
Sections 3(2)(v), 18, 18-A & 18-A(2) -
Application for Anticipatory Bail - offence of
rape and threat - FIR - the applicant sought
protection from arrest - allegations include
serious
offenses
such
as
rape,
criminal
intimidation, and administering intoxicants -
prosecution
argued
that
anticipatory
bail
application was not maintainable due to the bar
created by Sections 18 and 18A of the Act, 1989
which prohibits the application of Section 438 in
cases involving offenses under this Act - The
applicant contended that the alleged offense
was not committed on account of the victim's
caste and that he was unaware of her belonging
to the SC/ST community - applicability of the
provisions - charge sheet - cognizance has
been taken by trial court - court finds that,
prima facie from perusal of contents of the FIR
and St.ment of prosecutrix u/s 161 & 164 there
is no allegations to constitute any offence under
the Act, 1989 - charge sheet submitted by the
IO also does not reveals as to on what basis the
said Police report u/s 173(2) Cr.P.C. was
submitted under the provisions of Act, 1989 -
held - there is no bar to move such an
application before this court in view of the law
laid down by the Apex Court - However,
anticipatory bail granted can, depending on the
conduct and behaviour of the accused, continue
after filing of the Charge sheet till end of trial -
Moreso, courts ought to be generally, guided by
considerations such as the nature and gravity of
the offences - Hence, considering the role
attributed to the applicant and the facts of the
case, and taking into account the enormity of
the crime, it is not a fit case to grant
anticipatory bail - accordingly, application is
rejected. (Para - 9, 19, 20, 21)

Application Rejected. (E-11)

List of Cases cited:

1. Prathvi Raj Chauhan Vs U.O.I., 2020 Law Suit
(SC) 143

2. Subhash Kashinath Mahajan Vs St. of Mah.,
(2018) 6 SCC 454

3.