TaxTMI 
TaxTMI 
2022 (10) TMI 10
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....3/2018 & Cr.M.P. No. 3918/2018) and order taking cognizance dated 03.05.2019 (Cr.M.P. No. 1440/2019) passed in connection with ECIR/02/Pat/09/AD whereby learned A.J.C. XVI-cum-Special Judge, P.M.L. Act has been pleased to find a prima facie case and had issued summons to the petitioners for the offence under section 3 punishable under Section 4 of Prevention of Money Laundering Act, 2002, pending in the Court of learned A.J.C. XVI-cum-Special Judge, P.M.L. Act, Ranchi. 4. Prosecution has been lodged alleging therein as under. "(a). Complainant is the Assistant Director, Directorate of Enforcement and this complaint is being filed under section 45 of PMLA for commission of offence defined under Section 3 of PMLA and punishable under Section 4 of PMLA, 2002 against the aforesaid accused person. The complainant is authorized person for filing this Supplementary Complaint in view of Notification No. S.O. 1274 (E), dated 13th September, 2005 issued by the Central Government and Government of India Notification No. F.N. 6/14/2008-ES dated 10.06.2008 read with addendum dated 04th August, 2012. (b). The Directorate of Enforcement had earlier filed a Complaint on 15.01.2011 under Secti....
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....tted that the petitioner in Cr.M.P. No. 3913 of 2018 was not an accused in the trial which has commenced pursuant to submission of Charge Sheet No. 01 of 2013 dated 21.05.2013 in R.C. Case No. 5(A)/2010/AHD/AC.1. He submitted that on the basis of supplementary complaint cognizance has been taken. He submitted that so far as finding with regard to petitioner in Cr.M.P. No. 3913 of 2018 is concerned, the Adjudicating Authority in its order dated 06.04.2011 has recorded at paragraph 169 where he found that fixed assets of this company at least to the extent of Rs. 15 crores represented proceeds of crime. He submitted that said order dated 06.04.2011 passed by the Adjudicating Authority has been challenged by the petitioner by filing an appeal being Appeal No. FPAPMLA/188/LKW/188/LKW/2011, which is still pending. He submitted that order dated 06.04.2011 has not yet attained finality. He submitted that Adjudicating Authority in its order dated 06.04.2011 has erred in law as well as on facts to come to a conclusion that the petitioner has received proceeds of crime and the same is retained even as of now. He submitted that in paragraph no. 172 of the order dated 06.04.2011, findings that....
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....shareholder has got no interest in the property of the company though he has a right to participate in the profits. He relied on judgment in the case of " Bacha F. Guzdar Vs. Commissioner of Income Tax, Bombay" reported in AIR 1955 S.C. 74 wherein para 7 the Hon‟ble Supreme Court has held as under:- "7. It was argued by Mr Kolah on the strength of an observation made by Lord Anderson in Commissioners of Inland Revenue v. Forrest that an investor buys in the first place a share of the assets of the industrial concern proportionate to the number of shares he has purchased and also buys the right to participate in any profits which the company may make in the future. That a shareholder acquires a right to participate in the profits of the company may be readily conceded but it is not possible to accept the contention that the shareholder acquires any interest in the assets of the company. The use of the word "assets‟ in the passage quoted above cannot be exploited to warrant the inference that a shareholder, on investing money in the purchase of shares, becomes entitled to the assets of the company and has any share in the property of the company. A shareholder has got n....
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....or any portion thereof should be distributed by way of dividends among the shareholders. He has undoubtedly a further right to participate in the assets of the company which would be left over after winding up but not in the assets as a whole as Lord Anderson puts it." Learned counsel for the petitioners submitted that in the light of aforesaid judgment, shareholders are not responsible and these petitions are fit to be allowed. 6. Per contra, Mr. Amit Kr. Das, learned counsel appearing on behalf of the Enforcement Directorate in all these cases by referring paragraph no. 165 of the order of adjudicating authority, submitted that it has been held by the authority that Def. No. 16 (M/s Creative Fiscal Services Ltd.), Def. No. 18 (M/s Anjaniputra Ispats Ltd.) and Def. No. 19 (M/s Shivam Devcon Pvt. Ltd.) it has been held that the share capitals of the companies, being their liability, are not property in their hands and therefore, it is not permissible in law to attach the same. He submitted that in paragraph no. 169 of the order of adjudicating authority it has been held that Defendant No. 14 (M/s Bill Body Vyapar Pvt. Ltd.), the Deputy Director has mentioned that the documents se....
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....or the Enforcement Directorate submitted that the money was acquired through corrupt and illegal means and was transferred to a number of companies in India as well in foreign countries through illegal channels. The proceeds of crime has changed hands and has been laundered not only through a group of persons but also through various legal entities i.e. companies/firms both in and outside India laundered between 12.12.2007 to 14.07.2009. He submitted that there are direct allegations against these petitioners hence, all these petitions are fit to be dismissed. 7. In view of above submissions of the learned counsel for the petitioner and well as opposite party, the Court has gone through the materials on record and finds that there are serious allegation of transferring the amount and investing money of illegal and corrupt practices which amounts proceeds of crime in terms of PML Act. In all the cases in the order of adjudicating authority it has been elaborately discussed how the proceeds of crime of illegal money have been invested in these company. In para 169 of the order of adjudicating authority it has been found that huge amount of Rs. 106,40,56,700/- was laundered through d....
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....24(b) can be invoked by the Adjudicating Authority or the Court, as the case may be. More or less, same logic as already noted while dealing with the efficacy of Section 24(a) of the 2002 Act, would apply even to the category of person covered by Section 24(b), in equal measure. 351. We, therefore, hold that the provision under consideration namely Section 24 has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act and cannot be regarded as manifestly arbitrary or unconstitutional." 10. Section 2 (1) (u) of the Act speaks of proceeds of crime in property derived or obtained, directly or indirectly by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country. Seeing the nature of allegation, it transpires that huge amount has been transferred to one company to another. Section 5(1) (b) of the Act speaks that such proceeds of crime are likely to be concealed, transferred or dealt with in any manner, then only the order of attachment of the property can be passed. Section 8 of the Act prescribes the procedure of adjudication, which says tha....