TaxTMI 
TaxTMI 
2022 (9) TMI 1124
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....tely. In all these petitions, challenge has been made for setting aside the supplementary complaint under sections 44 and 45 of the Prevention of Money Laundering Act, 2002 dated 3.5.2019 in E.C.I.R 02/PAT/2009/AD, order taking cognizance dated 3.5.2019, and the cognizance order with regard to supplementary complaint dated 17.7.2018 whereby cognizance has been taken against the companies in connection with E.C.I.R 02/PAT/2009/AD, pending in the court of learned Additional Judicial Commissioner XVI cum Special Judge, PMLA, Ranchi. The complaint has been filed alleging therein that the story projected by the Enforcement Directorate in the said supplementary complaints is that after the investigation of the Vigilance Bureau and then by the CBI into commission of offences, the Enforcement Directorate made further investigation and found that illegally earned properties were channelized into various assets and it became proceeds of crime. It is alleged that the proceeds of crime generated by Sri Madhu Koda were concealed, transferred and invested by his accomplices in various companies. One of his accomplices was Binod Sinha, who was also charged with commission of scheduled offences.....
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....d offence is made out and there is no allegation to that effect. He submits that what is the role of the Directors in the said crime has not been disclosed. According to him, once the company is made accused what are the role of the Directors are required to be disclosed which is lacking in the respective cases. To buttress his such argument, he relied in the case of Dayle De'souza v. Government of India, Through Deputy Chief Labour Commissioner, reported in 2021 SCC OnLine 1012. Paragraph nos.15, 16 and 17 of the said judgment are quoted below: "15. Unlike sub-section (2) to Section 22C, sub-section (1) conspicuously does not use the term 'director, manager, secretary or other officer of the company' to bring them within the ambit of the vicarious liability provision, albeit every person in-charge of and responsible to the company for the conduct of its business at the time of the commission of the offence in question is deemed to be additionally liable. The words 'in-charge of the company' and 'responsible to the company' are pivotal to sub-section (1). This requirement has to be satisfied for the deeming effect of subsection (1) to apply and for rendering the person liable to ....
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.... association of individuals. A director in relation to a firm means a partner in that firm. Therefore, even in the case of partners, when a firm commits an offence, the requirement of either sub-section (1) or sub-section (2) to Section 22C must be satisfied. This means that in terms of sub-section (1), the partner should be "in-charge of" and "responsible to" the firm for the conduct of its business as per the dictum in Girdhari Lal Gupta (supra). Further, as per sub-section (2), a partner may also be liable, just as a director is liable for the conduct of the business of a company, if the offence is committed with the consent or connivance of, or is attributable to any neglect on the part of the partner concerned." He further relied in the case of M/s Maithon Power Limited v. The State of Jharkhand and Another decided by this Court vide order dated 14.02.2022 in Cr.M.P.No.2193 of 2018. Relying on these cases, he submits that the Directors are not the overall in charge. Mr. Rai, the learned counsel for the petitioners further submits that the case of the co accused was dismissed by the court at pre investigation stage. Per contra, Mr. Amit Kumar Das, the learned counsel appearin....
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....ted to provide accommodation entries in lieu of cash only that on receipt of cash, cheques were issued to the companies either as share application or loan. One of the witness Shri Mridul Bhowmick at paragraph no.18 of the complaint has stated that he is not knowing that whether any share certificate is in possession and he was not aware whether any share certificate has been issued at all. Vivek Kumar Goenka has said so in paragraph no.19 of the complaint. Thus, prima facie it appears that intentionally the proceed of the crime has been transferred in the name of share to the petitioners and the petitioners' firm. So far as the contention of Mr. Roy, the learned counsel for the petitioners with regard to mens rea is concerned that can only be decided at the time of trial ... It is well settled that when the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take and all that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding before summoning the accused and the facts stated will have to be accepted a....