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TMI Blog2022 (11) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance placed in Ram Kishan Rohtagi [ 1982 (12) TMI 218 - SUPREME COURT ], the fact of that case is on different footing. That case was arising out of Food Adulteration Act and the director of the company has been made accused on presumption and in that scenario the Hon ble Supreme Court has given finding that when there is no averment of the role of director and who is looking day to day affairs of the company, the prosecution is bad. Where as in the case in hand there is averment in the complaint that the petitioner is looking after day to day affairs of the company. The petitioner is facing charge in money laundering case. How the white collor criminals affect the fibre of country economic structure, has been considered by the Hon ble Supreme Court in the several judgments. This crime has been made in well planned manner and not in the hit of moment as occurred in section 302 of I.P.C. Further the petitioner has not taken care of the order of the High Court whereby he has been provided interim protection. The Magistrate is only required to pass an order issuing summons to the accused. Such an order issuing summons to the accused is based upon subject to satisfaction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from Vigilance Bureau on 11.08.2010 by registering Vigilance P.S. Case No. 9/2009 as R.C 5(A)2010/AHD-R. Upon investigation , C.B.I. filed chargesheet no. 6/2010 dated 12.11.2010 and charge-sheet no. 1 dated 21.05.2013. 4. On the basis of the allegation of commission of aforesaid offences, which fall in the schedule of the Prevention of Money Lanundering Act, an inquiry into money laundering was undertaken by the Directorate of Enforcement and Enforcement Directorate separately registered a proceeding/case vide ECIR No. 02/PAT/2009/AD dated 08.10.2009. 5. A complaint dated 15.01.2011 under section 45 of the Prevention of Money Laundering Act, 2002 was filed against one Binod Kumar Sinha and others alleging commission of offences under section 3 of the Act. Consequently, cognizance was taken against them and after framing of charges against them on 25.09.2012 and the trial was proceeded. 6. Before filing of the impugned, a complaint as Supplementary Complaint under section 45 of the Prevention of Money Laundering Act, 2002 dated 17.07.2018 in ECIR 02/PAT/2009/AD was filed against the company namely, Quantum Power Tech Private Limited, of which the petitioner is one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument advanced by the learned ASG regarding pendency of the appeal against the order of adjudicating authority is also of no help because against the order of the appellate authority also, remedies are available. Thus, looking to the facts as discussed hereinabove and the ratio of the judgments of this Court in Radheshyam Kejriwal [Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721] and Ashoo Surendranath Tewari [Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636 : (2021) 1 SCC (Cri) 209] , the chance to prove the allegations even for the purpose of provisions of PMLA in the Court are bleak. Therefore, we are of the firm opinion that the chances to prove those allegations in the Court are very bleak. It is trite to say, till the allegations are proved, the appellant would be innocent. The High Court by the impugned order [J. Sekar v. SRS Mining, 2021 SCC OnLine Mad 13804] has recorded the finding without due consideration of the letter of the IT Department and other material in right perspective. Therefore, in our view, these findings of the High Court cannot be sustained. 8. Relying on the aforesaid judgment, he submits that income tax clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company and huge proceeds of crime have been knowingly concealed and transferred in this company by them. He further submits that this petitioner is still absconding and he has not appeared before the Court. He submits that process under section 82 Cr.P.C. has been issued against the petitioner which was challenged by the petitioner in Cr.M.P. No. 206 of 2012 which was dismissed by this Court holding that the inspite of interim protection provided to the petitioner, he has not appeared before the Court. On this ground, he submits that the petition is fit to be dismissed. 12. In view of above submission of the learned counsel for the parties the court has gone through the materials on record and finds that admittedly the petitioner is director of the Quantum Power Tech Private Limited. The case of Quantum Power Tech Private Limited has been considered in another case which has been dismissed by order dated 19.09.2022. Arguments advanced by Mr. Rai with regard to the case of the company was considered in that case and the said argument was answered by the Court in following manner:- In the light of the above submissions of the learned counsels appearing on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 9 24 of the said Act which can be proved in the trial. These two sections have been held to be legal in the case of Vijay Mondal Choudhary and Ors. V. Union of India by the Hon ble Supreme Court. The Court is not required to examine such factual submissions which may be led by Mr. Rai, the learned counsel appearing on behalf of the petitioners, at this premature stage that the prosecution evidence is yet to be led 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 em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential address of Shri Rohitas Krishnan at Hawai Nagar, Road No. 7, Ranchi. Both Shri B.K. Singh and Shri Rohitas Krishnan were holding 50% of the shares each in the company and only these two persons were responsible for day to day affair of the company and it is also evident from periodical returns submitted by the said company to the Registrar of Companies (RoC), the documents submitted by the company to the bank alongwith the Account Opening Form and the ITR filed by the company to IT Department that Brajesh Kumar Singh and Rohitash Krishnan were the Authorized Signatories of the company and were also its incharge and responsible for day to day business and conduct of the company. Proceeds of crime have been knowingly concealed and transferred in this company with the connivance of Brajesh Kumar Singh and Rohitash Krishnan. Modus operandi of investment of proceeds of crime in this company was collection of cash and arranging accommodation entries through various companies like Jalsagar Commdeal Pvt. Ltd., Sun Kissed Agencies Pvt. Ltd, Kejriwal Finvest Pvt. Ltd. and Acme Pvt. Ltd. These companies were engaged in business of investment, trading and nonbanking financial transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which is rejected by the adjudicating authority while exercising the power under Section 5(5) of PMLA. The adjudicating authority observed as thus: It is pertinent to note that about two years have lapsed since passing of the said bail order dated 17-3-2017, and over two years have passed after filing of FIR, however till date no final report is filed by the investigating officer concerned investigating the scheduled offences. Most material is the fact that so far no bank or bank officers are identified, either by the officer investigating the Schedule Offences or even the Enforcement Directorate, Chennai. In view of the absence of any bank or bank officers having been identified, it was necessary for the Deputy Director to consider the absence and/or non-identification of any bank or bank officers. Nothing is adduced or available on record as to which banks and which bank officers are involved, who have unauthorisedly converted demonetised old currency into new currency. The reasonable belief as is formed by the Deputy Director reveals that the vital aspect concerning the fact that no such bank or bank officers are existing or found is not considered by the Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy received in lieu of exchange of old currency notes (demonetised currency) inclusive of commission for such exchange received by S/Shri J. Sekar Reddy, M. Premkumar, S. Srinivaslu, S. Ramachandran and K. Rethinam, is neither based on any specified material nor is justified. It is therefore, concluded that the reasonable belief formed by the Deputy Director in this regard cannot be sustained, the same having been not based on any specifically material and the same is merely surmises, conjectures and speculation. Considering the material in OC, the written replies/additional written reply/submissions of the defendants and the arguments above referred, I find that the property provisionally attached by PAO No. 14 of 2017 dated 12-6-2017 i.e. 49,480 kg of gold valued at Rs 13,96,88,246 mentioned in para 22 of PAO (para 1 of this order) is not involved in money laundering. 21. In view of the aforesaid legal position and on analysing the report of the IT Department and the reasoning given by CBI while submitting the final closure report in RC MA1 2016 A0040 and the order passed by the adjudicating authority, it is clear that for proceeds of crime, as defined under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day to day affairs of the company. The petitioner is facing charge in money laundering case. How the white collor criminals affect the fibre of country economic structure, has been considered by the Hon ble Supreme Court in the several judgments. This crime has been made in well planned manner and not in the hit of moment as occurred in section 302 of I.P.C. Further the petitioner has not taken care of the order of the High Court whereby he has been provided interim protection. He has violated the order pursuant to that process of 82 Cr.P.C has been issued against the petitioner which has been challenged by him in Cr.M.P. No. 206 of 2012 and by detailed order this Court has come to the conclusion that the petitioner is absconding. The relevant part of the finding of the Court is quoted here-in-below:- Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that earlier when the warrant of arrest was issued against the petitioner, it was challenged before this Court on the ground that in the investigation proceeding, the petitioner had been interrogated as witness but suddenly warrant of arrest was issued and as such, he could not pl ..... 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