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TMI Blog2022 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... h proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money. There are serious allegation of proceeds of crime and transferring the money to one company to another, the case is made out against the petitioners. There is no illegality in the orders by which the petitioners have been summoned - Petition dismissed. - Cr.M.P. No. 3913 of 2018 With Cr.M.P. No. 3918 of 2018 With Cr.M.P. No. 1440 of 2019 - - - Dated:- 22-9-2022 - Hon'ble Mr. Justice Sanjay Kumar Dwivedi For the Petitioners : Mr. Indrajit Sinha, Advocate, Mr. Ajay Kr. Sah, Advocate For the Enforcement Directorate : Mr. Amit Kr. Das, Advocate, Mrs. Swati Shalini, Advocate, Mr. Saurav Kumar, Advocate ORDER The Court heard Mr. Indrajit Sinha, learned counsel appearing on behalf of the petitioners and Mr. Amit Kr. Das, learned counsel appearing on behalf of Enforcement Directorate at length on 18.08.2022 and on that date judgment was reserved. 2. In all the petitions common facts and law are involved hence all the petitions have been heard together with the consent of the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of offence of money laundering by the persons made accused in the supplementary complaint was issued by the directorate. 5. Mr. Indrajit Sinha, learned counsel appearing on behalf of the petitioners in all the cases submitted that learned court by order dated 17.07.2018 (Cr.M.P. Nos. 3913/2018 Cr.M.P. No. 3918/2018) and order dated 03.05.2019 (Cr.M.P. No. 1440/2019) has been pleased to take cognizance of the offence punishable under section 3 punishable under section 4 of PML Act, 2002 and further directed to issue summons to the accused persons including the petitioners. He submitted that company namely, M/s Bill Body Vyapar Pvt. Ltd. was incorporated on 17th September, 1993. He submitted that at page 156 of the Provisional Attachment Order No. 4 dated 10.11.2010, it has been mentioned that Mr. Mrinal Kanti Paul is one of the Directors of M/.s Creative Fiscal Pvt. Ltd. which is factually incorrect. He submitted that from the financial year 2007-08 to financial year 2010-11, it is apparent that Shri Mrinal Kanti Paul was never appointed as a Director of M/.s Creative Fiscal Pvt. Ltd. He submitted that foundation of allegation i.e. the link between other accused per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress 23A, N.S. Road, Kolkata, as the copies of their letter dated 11.07.09 addressed to Creative Fiscal indicate. He submitted that the petitioner in Cr.M.P. No. 1440 of 2019 has been arrayed as an accused in the present complaint solely for the reason that the petitioner at the relevant point of time was Director of Smridhi Sponge Ltd. He submitted that admittedly there was other directors in the company at the relevant point of time, but they have not been made an accused. He submitted that the allegation that the proceeds of crime generated by Shri Madhu Koda and Shri Binod Sinha were knowingly concealed and transferred by him is legally and factually untenable. He submitted that shares of Smridhi were purchased by M/.s Creative Fiscal on or about December, 2007 and admittedly at that point of time, the petitioner namely, Tarun Kanti Paul was not even a director or any way concerned with Smridhi. He submitted that remaining 50% shares of Smridhi were purchased by M/s Kamayani Saler Promotion Pvt. Ltd., M/s Saket Distributors Pvt. Ltd., M/s TRS Finvest Leasing Ltd., M/s Wofin Leasing Finance Pvt. Ltd., M/s Eastern Credit Capital Pvt. Ltd., M/s Dhantaresh Tarcon Pvt. Ltd. and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its declared by the company as liable to be distributed among the shareholders. Reliance is placed on behalf of the appellant on a passage in Buckley‟s Companies Act (12th Edn.), p. 894 where the etymological meaning of dividend is given as dividendum, the total divisible sum but in its ordinary sense it means the sum paid and received as the quotient forming the share of the divisible sum payable to the recipient. This statement does not justify the contention that shareholders are owners of a divisible sum or that they are owners of the property of the company. The proper approach to the solution of the Question 1s to concentrate on the plain words of the definition of agricultural income which connects in no uncertain language revenue with the land from which it directly springs and a stray observation in a case which has no bearing upon the present question does not advance the solution of the question. There is nothing in the Indian law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders. The true position of a shareholder is that on buying shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners to prove that proceeds of crime is not involved in money laundering. He referred judgement in the case of Vijay Madanlal Choudhary Others Vs. Union of India and others reported in 2022 SCC Online 929 and submitted that the case is not maintainable. He submitted that so far as petitioner in Cr.M.P. No. 3918 of 2018 is concerned, in paragraph nos. 150 and 151 of the order of adjudicating authority it has been discussed that as per statement of Mrinal Kanti Paul, Director of M/s Creative Fiscal Services Ltd. before Income Tax Authorities on 17.02.2010, Binod Sinha is out of M/s Smridhi Sponge and his shares have been purchased by Manohar Paul for Rs. 12 crores. Thus proceeds of crime is gone to these companies. He submitted that M/s Creative Fiscal Services, the proceeds of crime i.e. ill-gotten money generated by Shri Madhu Koda and Binod Sinha was parked in M/s Smridhi Sponge Ltd. He submitted that it is mentioned in the original complaint before the Adjudicating Authority that during the financial year, 2007-08 capital base of the company was increased from Rs. 10 crores to Rs. 25 crores and the investment made in shares by Shri Binod Sinha (Aid of Madhu Koda) was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aundering under section 3, the Authority or Court shall unless the contrary is proved, presume that such proceeds of crime are involved in money laundering and section 24(b) applies in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money laundering. 9. In the case of Vijay Madanlal Choudhary Others Vs. Union of India and others reported in 2022 SCC Online 929 in paragraph nos. 349, 350 and 351 the Hon‟ble Supreme Court has held as under:- 349. Notably, the legal presumption in the context of Section 24(b) of the 2002 Act is attracted once the foundational fact of existence of proceeds of crime and the link of such person therewith in the process or activity is established by the prosecution. The stated legal presumption can be invoked in the proceeding before the Adjudicating Authority or the Court, as the case may be. The legal presumption is about the fact that the proceeds of crime are involved in money-laundering which, however, can be rebutted by the person by producing evidence within his personal knowledge. 350. Be it noted that the presumption under Section 24(b) of the 2002 Act is not a man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence of money laundering under Section 3 proves to the contrary. 11. The offence of money laundering is threefold including the stages of placement, whereby the criminals place the proceeds of crime to the general and genuine financial system, layering, whereby such proceeds of crime are spread into various transactions within the financial system and finally, integration, where the criminals avail the benefits of crime as untainted money. 12. In view of above facts, reasons and analysis the court finds that there are serious allegation of proceeds of crime and transferring the money to one company to another, the case is made out against the petitioners. There is no illegality in the orders by which the petitioners have been summoned. Moreover, it is admitted fact that against the attachment order the petitioners have already preferred appeal which is still pending and in the meantime these petitions have been filed. The petitioners were required to pursue the appeal. No case of interference is made out. Accordingly, these petitions are dismissed. Pending, I.A., if any stands disposed of. Interim order passed in respective cases are vacated. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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