Delhi HC grants Anticipatory Bail to CA on Allegation of Forged Form 15CA/CB Certificate

The Delhi High Court in the matter of Amit Aggarwal Vs. Directorate of Enforcement has granted bail to a Chartered Accountants on allegation of forged Form 15CA/CB Certificate.

The present bail application is filed under section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) on behalf of the petitioner Amit Aggarwal for grant of anticipatory bail in ECIR/DLZO-II/24/2022 registered under sections 3 and 4 of The Prevention of Money Laundering Act, 2002 (hereinafter referred to as “PMLA”).

The factual background of the case is that FIR bearing no. 0045/2022 was got registered under sections 420/467/468/471/120B of The Indian Penal Code, 1860 (hereinafter referred to as “IPC”) at Economic Offences Wing (EOW) on the basis of complaint dated 03.12.2021 made by Vikash Mohpal s/o Late Prakash Mohpal (hereinafter referred to as “the complaint”) 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 stated that he is a practising Chartered Accountant and engaged in the profession through a partnership firm under the name and style of M/s Mohpal & Associates and his CA membership number is 505939. The complainant on 03.08.2020 received an email from ICICI Bank, Nehru Place Branch informing that CA firm M/s Mohpal & Associates has issued 15CB certificates to M/s Shree Shyam International. ICICI Bank also requested for due diligence with regard to the said 15CB certificates. The complainant informed ICICI Bank that he never issued 15 CB certificate to M/s Shree Shyam International. The certificate on Form 15CB issued by a Chartered Accountant in terms of Rule 37BB of the Income Tax Rules is required to be submitted to the bank at the time of effecting a foreign remittance by the parties making foreign remittance.

The complainant was also summoned by ED, Zonal Office-II, Delhi on 16.09.2021 and was informed by Sanjeet Kumar Sahu, Assistant Director that 15CA/CB certificates issued by using credentials of the complainant have been used and submitted to banks by M/s Kinzal Freight Forwarding (OPC) Private Limited, M/s Balaji International, M/s Shree Shyam International, and M/s Wentorz Logistics Private Limited, etc. for effecting outward remittances of approximate Rs.300 crores towards freight payment from the respective bank accounts maintained with ICICI Bank. The complainant, after examination of the documents shown to him by the ED officials realized that those certificates have 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 complainant also noticed various discrepancies in Form 15CA/CB as detailed in FIR to show that those documents were fabricated.

In the present case main allegation of the respondent/ED against the petitioner is that he was instrumental in the outward remittance of a huge amount in the account of foreign entities on the basis of forged Form 15CB Certificates. However, in the present case, there is no property which is derived or obtained directly or indirectly as a result of criminal activity concerning the scheduled offence which can 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 counsel for the petitioner also argued that the twin conditions as per section 45 of PMLA are not applicable as the petitioner is a sick and infirm person and has already undergone repeated kidney surgeries and requires constant medical supervision and primarily relied upon Kewal Krishan Kumar (supra). The medical records/documents submitted by the petitioner reflect that the petitioner is suffering from various ailments including renal problem which requires constant medical treatment. This court in Kewal Krishan Kumar (supra) has granted bail on grounds of sickness and infirmity of the accused.

The CGSC also argued that the petitioner is avoiding investigation and his custodial investigation is required as the offence of money laundering involves multiple layers of placement, layering and integration. It is further argued that summons were issued to the petitioner to join investigation but the petitioner only joined the investigation on 03.01.2023 and 04.01.2023 and subsequently avoided investigation. The CGSC also referred details of summons issued to the petitioner. The petitioner joined investigation on 03.01.2023 and 04.01.2023 and gave reasons for not joining investigation. The petitioner neither appears to be a flight risk, nor is he likely to influence any witness and tamper with the evidence.

In view of the above discussion and after considering all facts, including incriminating material against the petitioner which are the statements made by co-accused/witness under section 50 of PMLA and the fact that their evidentiary value can be tested at the stage of trial, no generation of „proceeds of crime‟ from criminal activity and the petitioner being a sick and infirm person, the present anticipatory bail application is allowed. The petitioner, in case of arrest, shall be released on bail on furnishing personal bond in the sum of Rs.1,00,000 with one surety of the like amount to the satisfaction of the concerned Investigating Officer or any other authorized person subject to the following conditions:-

i. The petitioner shall join investigation as and when directed by the Investigating Officer and shall provide necessary information and documents as required for the purpose of investigation to the satisfaction of the Investigating Officer.

ii. The petitioner shall surrender his passport before the concerned trial court within fifteen (15) days and shall not leave country in any circumstance without prior permission of the concerned trial court.

iii. The petitioner shall mark his presence before the Investigating Officer on the fourth Friday of each English Calendar Month till the completion of investigation qua him.

iv. The petitioner shall not, in any manner, make any inducement to the witnesses directly and indirectly.

v. The petitioner shall provide his operational mobile number within seven (7) days so that he can be contacted by the Investigating Officer as and when required. The petitioner shall also intimate any change in his residential address immediately to the Investigating Officer.

The present bail application stands disposed of. However, it is made clear that no observation made in this judgment shall be taken as an opinion on the merit of the case.

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