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TMI Blog2019 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 120B r/w 419,420,467,468 & 471 of IPC against Sh. Siraj Mukherjee, Director of M/s. Saharsh Vyapar Pvt. Ltd.. and 07 others on 11.01.2013 on which it was alleged that the Director of the company Sh. Siraj Mukherjee with the help of accomplices defrauded State Bank of India, Chowringhee Branch to the tune of Rs. 8,00,00,000/- On perusal of FIRs and charge sheets, it reveals that Sh. Siraj Mukherjee, Director of M/s. Saharsh Vyapar Pvt. Ltd. in criminal conspiracy with his accomplices Sh. Bishwanath Dutta, Shri Arindam Ghosh Dastidar, Shri Sandip Bharti, Proprietor of M/s Sponsor Sales and M/s Sandip Enterprise, Shri Arnab Roy, Proprietor of M/s Epson India and Shri Sunil Deb, Proprietor of M/s United Traders, Shri Nabin Sarma Proprietor of M/s Nabin Enterprise and Sh. Sanat Chakraborty by impersonating himself as Ajay Sankar Roy. They dishonestly and fraudulently availed credit facilities consisting of Cash Credit limit which was sanctioned for Rs. 7.50 Crores and Stand by Line Credit Limit of Rs. 0.50 crores from State Bank of India, Chowringhee Branch, Kolkata by using fake documents and accommodative transactions on paper. The offence punishable under Sections 120B & 419, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized. In this diary handwritten entries of monthly expenses of Sh. Rakesh Banerjee showing 4-7 lakhs expenses per months has been found from June 2018- September, 2018. Source of income for spending 4-7 lakhs expenses per month by Shri Rakesh Banerjee shows huge properties, wealth, assets are accumulated in the hands of Shri Rakesh Banerjee. This wealth is acquired out of the illegitimate income of Shri Rakesh Banerjee and therefore involved in money laundering. During the search, an agreement executed on 02 November 2015 between Mrs. Lalita Shri and Mr. Amit Banerjee containing 10 pages was seized. Along with this agreement are copies of rent receipt for month of November, December, January, February, (These four receipts are of same date i.e. 24.03.2016 for 4 different months) March receipts is of date 07.04.2016. All these rent were paid in cash i.e. Rs. 40,000 for each month. One deposit slip of ICICI bank dated 13.05.2016 in the name of Mrs. Lalita Shri with account No, 127101000086 is also there. Also a copy of complaint against Mrs. Lalita Shri by Mr. Amit Banerjee addressed to Anandpur Police Station dated 28.05.2016. After this no rent has been paid by mr. Amit Banerj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.03.2016 in the name of Mrs. Malobika Mitra with DCB Bank. vii. Rs. 9 lac in the A/c no. 08725300023092 dt. 05.01.2016 with DCB Bank in the name of Mrs. Malobike Mitra viii. Rs. 3.5 lac in the A/c no. 08725300011802 dt. 22.07.2013 in the name of Mr. Jiban Kumar Mitra with DCB Bank. ix. Rs. 3 lac in the A/c no. 0872530022987 dt. 17.12.2015 with DCB Bank in the name of Mr. Jiban Kumar Mitra x. Rs. 12 in the A/c no. 0872530023126 dt. 07.01.2016 in the name of Mr. Jiban Kumar Mitra with DCB Bank. 6. The application was filed by the respondent under section 17(4) for retention of the abovesaid policies and FD and other record and documents as per details mentioned in the impugned order. 7. Reply to the application was filed by the present appellant. The main contents of the reply are given as under: (i) The complainant has failed to discharge burden cast upon him under section 17(1) of Prevention of Money Laundering Act, 2002. (a) As per Section 17(1) of the Act, the authorities had to discharge burden of "reason to believe" (the reasons for such belief to be recorded in writing) and only then proceed further. The only material available on record which contains reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and conjectures and are not based on any cogent evidence. (ii) In view of the above, it is respectfully prayed that this Hon‟ble Adjudicating Authority may kindly be pleased to reject the complaint of the complainant and to disallow the application so made for retention of the properties and records and to declare that the seizure and retention of the records so seized is illegal and to drop the present proceedings. 8. The adjudicating authority who has passed the impugned order by allowing the application u/s 17(4) for retention of the documents, mainly has given the following conclusion:- "Based on the submission made by both the Applicant and Respondents no. 1,3,& 4, it is not in dispute that CBI has filed a case against these respondents for defrauding SBI Chowringhee Branch Kolkata for an amount of Rs. 8 crore and charge sheet has been filed by the CBI before the competent court and matter is pending. ED has also carried out investigation intensively and it has been found that the loan amount received by these respondents have been misused in criminal conspiracy with other respondents and in order to gather further evidence in the matter search was conducted at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of the FDs policies which were belonging to the father and mother of the appellant which was, on his retirement, invested the earnings from his retirement benefits and LIC polices. It is also stated by the ld. counsel for the appellant that the same cannot be proceeds of crime. 10. It is apparent that while passing the impugned order, the reply of the appellant has not been dealt with or discussed at all nor any finding arrived by the adjudicating authority that the said FDs and LIC policies which were in the name of Father and mother of the appellant were the proceeds of crime or the appellant has derived the funds towards the same. Nothing has been discussed in the impugned order, even copy of the reasons to believe has not been filed nor produced during the course of the arguments. They are never charsheeted under any offence. 11. It is also pertinent to mention here that even after retention of the property, the father of the appellant had written one letter dated 01.05.2019 to the Assistant Director requesting him to release the polices as well as the FDs as he needs the urgent money for medical attention. Copy of the said letter is read as under: "To, Sri A.G. Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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