Prosecution Can't Commence With Statement Of Co-Accused U/S 50 PMLA: Calcutta HC Grants Bail To Recruitment Scam Accused Sujay Krishna Bhadra

The Calcutta High Court has granted bail to recruitment scam accused Sujay Krishna Bhadra. Bhadra's firm was linked with transfer of proceeds of crime to M/S Leaps & Bounds Pvt Ltd, a company linked with AITC MP Abhishek Banerjee.Justice Suvra Ghosh granted bail and held: The case essentially hinges on the statement of the petitioner and the co-accused and recovery made pursuant to the same. The prosecution has in fact commenced with the statement of Tapas Kumar Mondal and Kuntal Ghosh under section 50 of the PMLA. It is trite law that prosecution cannot commence with the statement of a co-accused under section 50 of the PMLA.Initially the petitioner sought bail on the limited ground of his medical condition. In course of hearing of the application, he chose to file a supplementary affidavit seeking his release on bail on merits.High Court directed Central Bureau of Investigation to register FIR and investigate the alleged illegalities in the selection process for assistant teachers in primary schools. The petitioner was not named either in the FIR, or in the charge sheet and supplementary charge sheet submitted by the CBI in the said matter, despite investigation being continued for more than two years.Therefore it was stated that the petitioner had no role in respect of the predicate offence. On the basis of the predicate offence, the Enforcement Directorate (hereinafter referred to as the E.D.) registered ECIR no. KLZO/19/2022 dated 24th June, 2022 under The Prevention of Money Laundering Act, 2002 (henceforth referred to as the PMLA). The petitioner was not named in the prosecution complaint filed by the E.D. on 19th September, 2022 or the three supplementary complaints filed on 7th December 2022, 21st March 2023 and 8th May 2023 respectively. He was arraigned as an accused in the fourth supplementary prosecution complaint filed on 28th July, 2023.It was stated that the petitioner is in custody for about one year and six months. The E.D. has relied upon 180 witnesses and 438 documents in the complaints and charge is yet to be framed. There is no possibility of commencement of trial in near future.Counsel argued that the petitioner is not a Government employee and has been implicated on the basis of statement of Tapas Kumar Mondal and Kuntal Ghosh recorded under section 50 of the PMLA, both of whom are co-accused. Their statements cannot be deemed to be substantive evidence for implicating the petitioner. It was stated that the petitioner's firm M/s. S.D. Consultancy obtained consultancy services from M/s. Leaps and bounds since his firm did not have adequate man power for installation of aluminium products for Bengal Merlin Projects in terms of a commercial contract entered into between the petitioner's company and M/s. Bengal Merlin Housing Limited.Payment of Rs. 2, 32, 47, 552/- was made to the petitioner's company by Bengal Merlin out of which the petitioners' company paid Rs. 53,10,000/- to Leaps and Bounds in terms of work order dated 3rd January, 2020. The said money cannot qualify as proceeds of crime or tainted money.E.D. pointed out that the petitioner was admitted in the hospital for a substantial period of his custody, such hospitalisation on account of his serious ailments is also deemed to be judicial custody.It was stated that involvement of the petitioner in the offence surfaced from the disclosure made by Tapas Kumar Mondal and Kuntal Ghosh in their statement recorded under section 50 of the PMLA. Immovable property valued at Rs. 8.1 crores has been seized from the petitioner. The petitioner was closely associated with Partha Chatterjee, Kuntal Ghosh, Manik Bhattacharyya and Santanu Banerjee. It was argued that the seized mobile phone of Manik Bhattacharyya indicates several communications made between Manik Bhattacharyya and the petitioner with regard to appointment of ineligible candidates in TET2014 and receipt of huge amount of money in lieu thereof. The petitioner raised funds to the tune of more than rupees ten crores by issuing shares from his company M/s. Wealth Wizards Private Limited at a huge premium and siphoned them by purchasing shares of other companies. It was stated that the petitioner had direct access to the office of Manik Bhattacharyya and shared details of the candidates of TET-2014 with him for the purpose of their selection and appointment.However, in considering the case of Manish Sisodia and many others, the court noted that the Supreme Court has held in a catena of judgments with the statement of the coaccused cannot be considered against the petitioner and is not substantive piece of evidence. Its evidentiary value has to be tested at the time of trial and not at the stage of granting bail. It stated that in Kashmira Singh v/s. State of Maharashtra reported in (1952) SCR 526, the Hon'ble Supreme Court has observed that “… The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether...

Prosecution Can't Commence With Statement Of Co-Accused U/S 50 PMLA: Calcutta HC Grants Bail To Recruitment Scam Accused Sujay Krishna Bhadra

Srinjoy Das

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