ORDER : 1. Petitioners have filed these applications seeking regular bail under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 . 2. Petitioner in B.A. No. 6063 of 2025 is the fifth accused while petitioner in BA No. 6634 of 2025 is the sixth accused in a complaint filed by the Enforcement Directorate before the Special Court constituted under section 43(1) of the Prevention of Money Laundering Act, 2002 (for short 'PMLA') as ECIR No.KZSZO/06/2020. The complaint has been registered alleging offences punishable under section 3 and 4 of the PMLA. Petitioners were arrested on 07.04.2025 and they were remanded on the next day and have been in custody since then. 3. The complaint was filed at the behest of the Enforcement Directorate alleging that the petitioner in B.A No. 6634 of 2025 was the Chairman of a Company by name M/s. Fashion Gold International Private Ltd., which was incorporated in the year 2006. Petitioner in B.A No. 6063 of 2025 was also instrumental in the incorporation of the said company. Subsequently, three other sister companies were formed, all with the objective of carrying on a jewellery business. The petitioner in B.A No. 6063 of 2025 is the Managing Director of those companies. It is alleged by the prosecution that the accused had collected large amounts of money and gold from various persons in the form of deposits under various schemes and established branches at various places and conducted jewellery business. The deposits were collected by the petitioners who were active politicians and social workers, promising huge amounts as dividends or profits and they failed to adhere to the promises. Pursuant to complaints from various depositors, several crimes were registered. Investigation into those crimes revealed that the accused had collected deposits from the public without any authority and they utilised the funds collected for acquiring immovable properties in their personal names and thereby indulged in money laundering. On the basis of the aforesaid allegations, the accused were alleged to have commuted the offence under section 4 of the PMLA. 4. Sri. Anoop V. Nair, and Sri. Rahul Sasi the learned counsel for the respective petitioners contended that the prosecution allegations are totally false and that the petitioners are respectable persons who have been in custody for the last more than 155 days as they were arrested on 07.04.2025. 4. Sri. Anoop V. Nair, and Sri. Rahul Sasi the learned counsel for the respective petitioners contended that the prosecution allegations are totally false and that the petitioners are respectable persons who have been in custody for the last more than 155 days as they were arrested on 07.04.2025. The learned counsel further pointed out that, 265 crimes have already been registered against the petitioners, which are being investigated by the Crime Branch and the petitioners have undergone custody for 110 days in those crimes while the present custody from 07-04-2025 is over and apart from the said earlier custody. Thus, according to the learned counsel, petitioners have been in custody for more than 265 days. 5. The learned counsel also submitted that the petitioner in B.A No. 6063 of 2025 is a former Member of Legislative Assembly of Kerala and that there can be no flight risk and considering their old age and the period of custody already undergone by them, they ought to be released on bail. The learned counsel further submitted that the failure to return the amounts collected were not intentional but due to Covid-19 pandemic, when several financial establishments went into difficulty as a result of the lock down, the companies under the management of the petitioners also faced difficulties and that there is nothing to indicate that any offence as alleged was committed by the petitioners. The learned counsel further submitted that 265 crimes have been registered by the Crime Branch against the accused and the allegation in the crime registered by the Enforcement Directorate is based on the very same subject matter and already petitioners have been interrogated and even immovable properties worth Rs. 19.60 Crores were attached and therefore continuance of the petitioners in jail is not conducive to the notions of right to life and liberty as contemplated under Article 21 of the Constitution of India. The learned counsel also submitted that petitioners are senior citizens suffering from various health issues and they are being targeted due to political rivalry. It was also submitted that even if the allegations are admitted, still an offence under section 420 IPC cannot be made out under any circumstances and hence the petitioners cannot be assumed to be guilty of the offence alleged and therefore the rigour under section 45 of PMLA stands diluted. 6. Sri. It was also submitted that even if the allegations are admitted, still an offence under section 420 IPC cannot be made out under any circumstances and hence the petitioners cannot be assumed to be guilty of the offence alleged and therefore the rigour under section 45 of PMLA stands diluted. 6. Sri. A.R.L. Sundaresan, the learned Additional Solicitor General of India assisted by Sri. Jaysankar V. Nair, the learned Special Public Prosecutor for the Enforcement Directorate on the other hand submitted that the companies formed by the petitioners had collected deposits and investments in the form of shares under various schemes, by offering huge dividends to the investors and later failed to fulfill those promises and stopped paying interest to investors and thereby cheated them. It was also submitted that several crimes were registered against the petitioners and other accused in various districts in Kerala and also that they had travelled to various countries to collect deposits from Indians residing abroad and collected those deposits without any authority and the investments were collected even in cash. It was also submitted that the companies were maintaining parallel records of investments and amounts were diverted for acquiring immovable assets in the name of the accused which were either disposed of or transferred into the name of family members and other persons to avoid detection by authorities. 7. I have considered the rival contentions. 8. Petitioner in B.A. No.6063 of 2025 is accused No.5 while petitioner in B.A. No.6634 of 2025 is the 6 th accused in the complaint filed by the Enforcement Directorate before the Special Court constituted under section 43(1) of the PMLA. The complaint alleges that investigation conducted by the Crime Branch into 168 F.I.R's registered against four companies and its Directors, who are named as three in number, revealed that the accused deceitfully collected deposits from the public with intent to defraud the investors, after promising huge returns. The offences alleged in the predicate crime include sections 406, 409 and 420 read with section 34 of the Indian Penal Code, 1860 apart from section 5 of the Kerala Protection of Interest of Depositors in Financial Establishments Act, 2013 and section 5 read with section 23 of the Banning of Unregulated Deposit Schemes Act, 2019 . The offences alleged in the predicate crime include sections 406, 409 and 420 read with section 34 of the Indian Penal Code, 1860 apart from section 5 of the Kerala Protection of Interest of Depositors in Financial Establishments Act, 2013 and section 5 read with section 23 of the Banning of Unregulated Deposit Schemes Act, 2019 . The investigation is alleged to have further revealed that around Rs.26 Crores were collected by the accused from the various defacto complainants in the numerous predicate crimes registered, and the proceeding under the PMLA has been initiated since the offence under section 420 IPC , is alleged. 9. The investigation conducted under the PMLA Act is alleged to have revealed that four companies i.e., M/s. Fashion Gold International Pvt. Ltd., M/s. Fashion Ornaments Pvt. Ltd., M/s. Nujoom Gold Pvt. Ltd. and M/s. Qamar Fashion Gold Pvt. Ltd. who are arrayed as accused 1 to 4 had, along with the petitioners, collected deposits with the dishonest intention of defrauding the investors by promising attractive returns. It has also been revealed that the companies were not authorised to accept deposits from the public and around Rs.20 Crores were siphoned off by the accused, which allegedly constitutes the proceeds of crime. 10. At this juncture, it needs to be mentioned that, two main allegations are raised against the accused, (i) that they collected deposits from the public without any authority and (ii) that they failed to disburse the dividend or profits, as promised. 11. Concededly, there are four companies in which petitioners are Directors. There are other Directors of the company as well. However, most of them have not been named as accused in the complaint under the PMLA. Four companies are alleged to have committed the offences under the Indian Penal Code. The predicate offence alleging commission of offence under section 420 IPC have been registered, alleging that the complainants have invested money in the company under the inducement of the petitioners who are the Chairman and Managing Director. Therefore primarily, allegation is in relation to investment made in companies. There is prima facie nothing to indicate any dishonest intention. Considering the nature of allegations in the various F.I.R's registered and the final reports filed, it is doubtful as to whether the petitioners, being the Chairman and Managing Director, can be found guilty for the offence under section 420 IPC . 12. There is prima facie nothing to indicate any dishonest intention. Considering the nature of allegations in the various F.I.R's registered and the final reports filed, it is doubtful as to whether the petitioners, being the Chairman and Managing Director, can be found guilty for the offence under section 420 IPC . 12. As far as the allegation regarding the collection of deposits from the public with the dishonest intention of defrauding investors by promising attractive returns, again, the allegation is with respect to the four companies who were entitled to have 200 shareholders per company, at least after the year 2013. The total number of depositors in all the four companies put together, are stated to be about 464, which is less than the total number of investors that the four companies put together could have had from 2013. Since the allegations revolve around the investments or deposits collected from persons beyond the limits permissible under law, it may amount to violation of section 2(68) and section 73 of the Companies Act 2013 or other provisions under the said Act. Merely because, there is a violation of the provisions of the Companies Act 2013, that need not necessarily mean that such a violation would fall within the purview of section 420 of IPC , unless there was any dishonest intention from the very inception. In this context, this Court has to bear in mind that in almost all the F.I.R's, copies of which were handed over across the Bar, the defacto complainant themselves have alleged that a portion of the amount collected, had already been disbursed to them either as profits or as dividends. When there are returns of portions of the amount invested, either in the form of profits or in the form of dividends or otherwise, it is difficult to assume, that too at this juncture, that there was a dishonest intention from the inception to cheat the defacto complainants. The FIR’s are all seen to have been registered after September, 2020 when the country had into a state of lockdown due to Covid-19 pandemic. A business failure cannot lead to an assumption of commission of the offence of cheating, as the primary ingredient for such an offence is a dishonest or fraudulent intention from the very beginning. The FIR’s are all seen to have been registered after September, 2020 when the country had into a state of lockdown due to Covid-19 pandemic. A business failure cannot lead to an assumption of commission of the offence of cheating, as the primary ingredient for such an offence is a dishonest or fraudulent intention from the very beginning. Reference to the decisions in Inder Mohan Goswami and Another v. State of Uttaranchal and Others, (2007) 12 SCC 1 , Dalip Kaur and Others v. Jagnar Singh and Another, (2009) 14 SCC 696 and Ashok Kumar Jain v. State of Gujarat, 2025 INSC 614 are relevant in this context. 13. Moreover, it has even been held that if the intention to cheat was developed later on, still it cannot amount to cheating unless there was a fraudulent or dishonest intention at the time of making the promise or representation. Even in a case where allegations are made in regard to failure on the part of an accused to keep his promise, if there was an absence of culpable intention at the time of making the initial promise, no offence under section 420 of IPC will be made out. Reference to the decision in VESA Holdings (P) Ltd. and Another vs. State of Kerala and Others, (2015) 8 SCC 293 is apposite in this context. 14. Viewed in the above perspective, this Court is of the view that prima facie, there are no reasons to assume that the petitioners are guilty of the offence under section 420 of IPC and consequently for the offence alleged under the PMLA Act. 15. In this context, it needs to be mentioned that fraudulent or dishonest intention at the time of making the promise is the crux of the offence under section 420 IPC . The courts have repeatedly observed that mere breach of the term of a contract would not amount to cheating, unless there was a fraudulent intention from the very beginning. Failure to return the money collected or the deposit taken, cannot amount to the offence of cheating. However, the said failure may amount to an offence under the BUDS Act, after 2019. Even if an offence under the BUDS Act is made out, since it is not a scheduled offence, the PMLA Act will not apply. Failure to return the money collected or the deposit taken, cannot amount to the offence of cheating. However, the said failure may amount to an offence under the BUDS Act, after 2019. Even if an offence under the BUDS Act is made out, since it is not a scheduled offence, the PMLA Act will not apply. In this context, this Court reminds itself that the term ‘proceeds of crime’ relate to property derived or obtained as a result of a criminal activity relating to a scheduled offence. Therefore, I am satisfied that, prima facie, there are no materials to assume that the petitioners have committed the offence under the PMLA. 16. Apart from the above, it needs to be noted that the petitioners were arrested on 07.04.2025, and have been in custody since then. Already, more than 155 days have passed since they were taken into custody under the PMLA. As mentioned earlier, they have been in custody for another 110 days during the investigation stage in the predicate offence. Petitioners have thus undergone a total custody of around 265 days pursuant to the F.I.R and the arrest under the PMLA. Taking into consideration the said period of custody already undergone, no purpose would be served by continuing the custody further. 17. Moreover, in P. Chidambaram Vs. Directorate of Enforcement, (2020) 13 SCC 791 , the Supreme Court had after analysing the relevant decisions held as follows; ”Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case – to - case basis on the facts involved therein and securing the presence of the accused to stand trial.” 18. In this context, it is worthwhile to refer to the decision in V. Senthil Balaji v. Deputy Director, Directorate of Enforcement, 2024 SCC OnLine SC 2626. Paragraph 27 of the said decision reads thus: "27. ….......When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb (2021) 3 SCC 713 can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.” 19. The above observations were quoted with approval in the decision in Udhaw Singh v. Enforcement Directorate , 2025 SCC Online SC 357. In Manish Sisodia v. Directorate of Enforcement , 2024 SCC Online SC 1920 also, the Supreme Court had observed that while considering the question of bail in PMLA proceedings, the Court has to take note of the dimension regarding long periods of incarceration and delay in trial since the constitutional mandate is the higher law. In the decision in Prem Prakash v. Union of India , (2024) 9 SCC 787 also, the aforesaid principle has been laid down. 20. In the instant cases, there is no possibility of the trial against the petitioners being commenced or completed in the next few years. Other than the large numbers of predicate crimes registered, no antecedents have been shown to be existing against the petitioners. Detaining the accused for a long time, especially when the period of punishment prescribed is limited, is an intrusion into the liberty of an individual. In the above circumstances, continuing the incarceration will amount to be an instrument in the hands of ED to confine the petitioners in jail for a long time without any possibility of a trial. Having regard to the above circumstances, this Court is of the view that the continued custody of the petitioners is not warranted. Accordingly these two bail applications are allowed and petitioners shall be enlarged on bail on the following conditions: (a) Petitioners shall execute a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. (b) Petitioners shall appear before the Investigating Officer as and when required. (c) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or his/her family members. (b) Petitioners shall appear before the Investigating Officer as and when required. (c) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or his/her family members. (d) Petitioners shall not commit any similar offences while he is on bail. (e) Petitioners shall not leave India without the permission of the Court having jurisdiction. In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications if any, and pass appropriate orders in accordance with law, notwithstanding the bail having been granted by this Court.