Vivo told to give Rs 950 cr bank guarantee to ED to operate frozen A/Cs

The Delhi high court on Wednesday allowed Chinese smartphone maker Vivo to operate its various bank accounts frozen by the Enforcement Directorate in connection with a money-laundering probe subject to furnishing of a bank guarantee of Rs 950 crore within a week with the agency.

Justice Yashwant Varma also directed the company to give details to ED about its remittances and issued notice to the investigating agency on Vivo's plea seeking quashing of the order freezing its various bank accounts.

ED contended that presently the proceeds of crime have been quantified to Rs 1200 crore.

The high court also asked the company to maintain a balance of Rs 251 crore in the bank accounts, which was there at the time of freezing of the accounts, and the amount shall not be used till further orders.

The court granted one week to the ED to file its response to the petition and listed the matter for further hearing on July 28.

Besides seeking quashing of the freezing order, Vivo has sought permission to deal with its frozen bank accounts for making payments towards certain liabilities.

The probe agency on July 5 raided several places across the country in the money laundering investigation against Vivo and related firms.

The searches were carried out under the Prevention of Money Laundering Act (PMLA) in several states, including Delhi, Uttar Pradesh, Meghalaya, and Maharashtra.

On July 8, the high court directed ED to attend to a representation made by Vivo seeking permission to deal with its frozen bank accounts for making payments towards certain liabilities.

On Wednesday, ED's counsel informed the court that the representation was general in nature and thereafter, they asked the company to give some more documents which were made available to the agency on Tuesday in a pen drive containing 5GB of data.

The agency's counsel said in the representation, that a claim was made that payments of Rs 2,826 crore have to be made under various heads but not even a single document was placed in support.

He said the agency needs at least one week to go through the data in the pen drive and added that the searches have been completed now and the relevant material has been sent to the adjudicating authority.

Vivo's counsel contended that ED can only seize what they have discovered in their search operations and not the company's bank accounts which were already disclosed to all the authorities.

He said the freezing order denuded the company's financial autonomy.

Countering the submissions, ED's counsel said "to say that the company had disclosed all its bank accounts to the authorities is missing the woods for the trees and the nature of proceeds of crime have been discovered only in searches".

Vivo's counsel had earlier said that freezing of the bank accounts has brought the functioning of the petitioner to a standstill and there are crores of rupees that have to be paid as statutory dues apart from the payment of salaries to its employees.

They had said that there was “no factual foundational basis” behind the search operation and the freezing of the bank account was the petitioner's “civil death”.

ED's counsel had earlier informed the court that around 2014, a company -- GPICPL -- was set up based on forged documents by “one person who is also the common ex-director of the petitioner”.

“An FIR came to be registered last year. 18 similar companies across India have been set up by Bin Lou (common ex-director of the petitioner).

"Large amounts of incriminating material have been found and are being analysed.

"All orders of Vivo were being placed through these 18 companies including GPICPL which alone has handled Rs 1200 crores,” he had said.

On July 7, the investigating agency said that Rs 62,476 crore had been "illegally" transferred by Vivo to China to avoid payment of taxes in India.

This money is almost half of Vivo's turnover of Rs 125,185 crore, it had said without stating the time period of the transaction.

Vivo, in its petition, has said, "Due to the amounts in the bank accounts being unavailable to the petitioner, the petitioner will be unable to pay its statutory dues (such as customs duties, GST, TDS, etc) to various authorities, as well as other expenses (such as salaries, rent, etc) because of which its business has now been set on a path towards a commercial and civil death."

The ED has filed the money laundering case after taking cognisance of a recent FIR of Delhi Police's Economic Offences Wing against a distributor of an agency based in Jammu and Kashmir where it was alleged that a few Chinese shareholders in that company forged their identity documents.

The ED suspects this alleged forgery was done to launder illegally generated funds using shell or paper companies and some of these "proceeds of crime" were diverted to stay under the radar of Indian tax and enforcement agencies.

Photograph: Courtesy, Vivo