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TMI Blog2022 (9) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... y the proceed of the crime has been transferred in the name of share to the petitioners and the petitioners firm. For issuance of process against the accused it has to be seen only whether there is sufficient ground for proceeding against the accused and for that the Court is not required to weigh the evidentiary value on the basis of materials on record and the only thing the Court is required is to apply its judicial mind and in the case in hand the learned court has taken cognizance by a speaking order. There is no illegality in the order taking cognizance. Admittedly, section 23 of the Prevention of Money Laundering Act, 2002 speaks of presumption in interconnected transactions and the burden of proof is on the accused in light of section 24 of the said Act which can be proved in the trial - The complaint does base on the certain statement evidence of certain persons it is not necessary to obey the factual prosecution which is said out of running proceeds of crime and the Court is not required to go into the details of that statement while will hamper or embarrass the learned trial court. Petition dismissed. - Cr.M.P. No. 2503 of 2019 With Cr.M.P. No. 779 of 2019, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered Accountant one S.K.Naredi. The cash was handed over to certain persons like Mr. Chandra Bhushan Jha, Sri Mridul Bhowmick, Mr. Vivek Kumar Goenka and Mr. Pradeep Kumar Paramsukha, who, in turn, would arrange for accommodation entries through certain companies engaged in the business of investment, trading and non banking financial transaction with certain other companies. Such latter set of companies who were dealing with investment, non banking finance, etc. provided accommodation entries by issuing cheques in the name of former set of companies connected with these four individuals named above. The companies receiving cheques would then issue cheques in the name of those companies where investments were intended to be made by Vikas Sinha, through share capital or otherwise. These companies who were ultimate recipient of these cheques would receive them as share application or unsecured loan. The companies issuing cheques at the behest of the individuals like Sri Chandra Bhushan Jha and others were doing so as against a small percentage of the money that come from Vikas Sinha by keeping some percentage as what was called as service charge. Mr. Pandey Neeraj Rai, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffairs of a company mean? It will be noticed that the word company includes a firm or other association, and the same test must apply to a director in-charge and a partner of a firm in-charge of a business. It seems to us that in the context a person in-charge must mean that the person should be in over-all control of the day to day business of the company or firm. This inference follows from the wording of Section 23-C(2). It mentions director, who may be a party to the policy being followed by a company and yet not be in-charge of the business of the company. Further it mentions manager, who usually is in charge of the business but not in over-all charge. Similarly, the other officers may be in-charge of only some part of business. Xxxxxxxxx 8. In R.K. Khandelwal v. State D.S. Mathur, J., in construing Section 27 of the Drugs Act, 1940, a provision similar to the one we are concerned with, observed: There can be directors who merely lay down the policy and are not concerned with the day to day working of the company. Consequently, the mere fact that the accused person is a partner or director of the Company, shall not make him criminally liable for the offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioners that the share has been purchased by the petitioners and are not the proceeds of crime is not sustainable in view of the fact that the witnesses who have been disclosed in the complaint petition have submitted that they were not knowing as to whether the share has been transferred or not. He further submits that the section 23 of the Prevention of Money Laundering Act, 2002 prescribes of presumption in interconnected transactions. He further submits that the presumption is required to be proved by the accused in light of section 24 of the said Act in course of the trial. He submits that this section has recently been considered by the Hon ble Supreme Court in the case of Vijay Madanlal Choudhary v. Union of India, reported in 2022 SCC OnLine 929 paragraph nos.279 to 284 and at paragraph nos.327 to 335. Mr. Das, the learned counsel appearing for the Enforcement Directorate further submits that so far other accused persons are concerned Binod Kumar Sinha, Vijay Joshi and Vikash Kumar Sinha @ Vikash Sinha ; they have moved before this Court for quashing of entire proceeding in their respective cases wherein, the case of Binod Kumar Sinha in W.P.(Cr.) No.257 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Court is required is to apply its judicial mind and in the case in hand the learned court has taken cognizance by a speaking order. There is no illegality in the order taking cognizance. In the case of Dayle De souza v. Government of India, Through Deputy Chief Labour Commissioner(supra) relied by Mr. Roy, the learned counsel for the petitioners that case was arising out under the Minimum Wages Act and considering section 22 of Minimum Wages Act, the Hon ble Supreme Court has held at its paragraph nos.15, 16 and 17 which have been referred hereinabove. In the case in hand, some of the petitioners are Directors and the companies are also the petitioners and hence that judgment is not helping to the petitioners. In Cr.M.P.No. 2193 of 2018 the facts and circumstances of that case was different in which section 276(B) of the Income Tax Act was the subject matter for consideration. Admittedly, section 23 of the Prevention of Money Laundering Act, 2002 speaks of presumption in interconnected transactions and the burden of proof is on the accused in light of section 24 of the said Act which can be proved in the trial. These two sections have been held to be legal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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