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Synopsis

While delivering the verdict in the bail plea of Tamil Nadu former minister V Senthil Balaji in a money laundering case registered by the Enforcement Directorate (ED), Justice N Anand Venkatesh observed that Section 45 of the PMLA turns the principle "bail is the rule and jail is the exception" on its head.

"Under the PMLA regime jail is the rule and bail is the exception. The power of the Court to grant bail is further conditioned upon the satisfaction of the twin conditions prescribed under Section 45(1) (i) and (ii) PMLA," the judge emphasised.

Justice Venkatesh stated that the high court, while dealing with a bail petition for a case under PMLA, cannot conduct a roving enquiry or a mini-trial to test the probative value of the electronic record relied upon by the ED. 

"What is required is to see as to whether there is prima facie genuineness in the materials that are sought to be relied upon by the respondent. If on going through the materials, this Court is convinced that there is no doubt on the genuineness of the materials relied upon by the respondent, there is no question of doubting the probative value of those documents at the stage of dealing with the bail petition," he held. 

Adjudicating upon the matter in view of the same, the judge took into consideration the submissions made by both the parties and the evidence referred by ED.

On the argument raised by Senthil Balaji's counsel that the digital evidence presented by the ED to assert charges of money laundering was questionable and fabricated, he noted that "the seized digital evidence was in the custody of the Special Court dealing with MP/MLA cases and what the ED had done was that they had obtained a copy of the digital evidence in printout form which had been certified by the court".

He further held that on carefully going through the reports presented before it, he was not able to see any tampering/antedating/overwriting, etc.

"As rightly observed by the Court below, it is a matter involving appreciation of evidence at the time of trial. Hence, this Court holds that CF-29/20 report is prima facie genuine and it is a reliable material that can be taken into consideration at this stage," Justice Venkatesh noted. 

Further, he highlighted that the relevant document which had been certified by the Special Court for Cases against MP/MLAs, prima facie established that the entire recruitment process in the Transport Corporation was manipulated by fixing specific rates for various posts and based on the payment of money, the marks were manipulated and the recruitment had taken place.

"If there is a prima facie material to show that the amount has been received by misusing the position of the petitioner who was the then Transport Minister, that by itself will be construed as proceeds of crime and it is not necessary for the respondent to further establish that such proceeds of crime was projected as untainted money subsequently. This is in view of the amendment that was made to Section 3 of PMLA through Act 23 of 2019," Justice Venkatesh underscored. 

Furthermore, the judge opined that though Balaji had resigned from his position as a Minister, the fact that he continued to hold the position as a Minister for nearly eight months and that to without a portfolio when he was inside the jail, showed his tremendous influence and the importance that is given to him by the State Government.

"Even if the petitioner had resigned from his position as a Minister, he continues as a MLA belonging to the same party which is running the Government in the State of Tamil Nadu and therefore, without any hesitation, this Court holds that the petitioner continues to wield a lot of influence on the Government, Justice Venkatesh stated. 

He held that when such is the position, the witnesses who are mostly the officials belonging to the MTC and the prospective job seekers who had paid the money, will be influenced/tampered with if Balaji is released on bail. 

In view of the above discussion, he dismissed the bail plea finding no merit in it. 

Case Title: V.Senthil Balaji v. The Deputy Director, Directorate of Enforcement and Other