Calcutta High Court (Appellete Side)
Suman Chattopadhyay vs Enforcement Directorate on 1 December, 2025
2025:CHC-AS:2169
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 3146 of 2023
Suman Chattopadhyay
Vs.
Enforcement Directorate
For the petitioner : Mr. Somopriya Chowdhury
Mr. Koushik Dey
Ms. Iram Hassan
Mr. S. Sarawgi
Mr. M. Majumder
For the Enforcement Directorate : Mrs. Debjani Roy
Mr. Steven S. Biswas
Heard on : 13.08.2025
Judgment on : 01.12.2025
Dr. Ajoy Kumar Mukherjee, J.
1. The petitioner herein preferred the instant application being aggrieved
by the order dated 3rd November 2022 passed by learned CBI Court, Bichar
Bhavan in ML case no. 1 of 2013, initiated under section 3 read with section
17 and section 4 of Prevention of Money Laundering Act, 2002 (hereinafter
called as PMLA). By the impugned order learned Court below rejected the
petitioners prayer for passing necessary direction upon accused no. 1 to 4
for their proper representation on the ground that it could be considered at
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later stage but not at the stage of service of copy of documents under section
207 Cr.P.C.
2. The petitioner contended that the petitioner has been arraigned as
accused no. 22 in the said complaint case filed by opposite party. Though
the petitioner has been implicated in his personal capacity in the said
complaint as above but he was also indirectly impleaded to represent two
other accused persons being accused no.23 and 24 namely M/s Disha
Production & Media Pvt Ltd. and M/S Akdin Media Pvt. Ltd. and described
the said two entities in the following manners.
"(a) M/S, Disha Production and Media Private Limited, having its registered office at 74,
Beliaghata Main Road, Kolkata-700010 represented by its director, Shri Suman
Chattopadhyay (accused No.23).
(b) M/S. Akdin Media private Limited, having its registered office at 74, Beliaghata Main
Road, Kolkata-7000010 represented by its director, Shri Suman Chattopadhyay(
accused No.24)."
3. Now the petitioner's contention is that the company namely accused
no. 23 and 24 has separate and independent juristic entity and completely
distinct from its Directors and Share Holders. A company cannot be
implicated in criminal complaint depicting representation by a specific
individual as a Director. If the complainant wants to implicate M/S Akdin
Media Private Limited or the other company namely M/S Disha Production
& Media Pvt. Ltd., they are to be implicated in their own name without
depicting representation by any individual including the petitioner.
Moreover, though the petitioner continued to be a Director of M/S Akdin
Media Pvt. Ltd. on the date when summon was issued by the court, but the
petitioner had no association with the accused no. 23, namely M/s Disha
Production & Media Pvt. Ltd.
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4. His further contention is M/S Akdin Media Pvt Ltd. is presently
represented under section 305 of the Cr.P.C. by an authorized officer which
has been accepted by the court below but so far as accused no. 23 is
concerned, the petitioner is being unnecessarily harassed at the behest of
the opposite party as the opposite party is insisting that the petitioner must
represent the said accused no. 23, inspite of the fact that he has got no
connection with the said company. Further contention is that the petitioner
has resigned from his positon of directorship of the said company prior to
14th March, 2013. On the date of issuance of summon, the petitioner was
not connected with M/S Disha production & Media Pvt. Ltd. and therefore,
he could not have been saddled with any responsibility to represent the said
Company i.e. accused no.23 in any manner during the course of proceeding
and the petitioner cannot be asked to represent the said company during
trial.
5. Mr. Choudhury learned Counsel appearing on behalf of the petitioner
further submitted that the summon issued in the name of M/S Disha
Production & Media Pvt. Ltd. was actually never sent to the registered
address to the said company but to the address of the petitioner, inspite of
the fact that he had resigned from the said company w.e.f. 14th March, 2013
and the entire share holding of the said company stood transferred in 2013
in favour of one Partha Chakraborty and soma Chakraborty.
6. In the above backdrops, the petitioner filed the abovementioned
application before the learned Special Court, where he prayed for expunging
his name as a representative of accused no. 23 from the cause title of the
petition of complaint as well as summon which were issued by the Court.
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7. Mr. Choudhury further argued that the purport of section 305 of the
Code is that only a representative appointed by a company can represent a
company during the course of trial or inquiry but since the petitioner does
not have any association with the said company, there is no question of the
said company authorising the petitioner to represent in terms of section
305(2) of the Code.
8. He further contended that the observation of the trial Court that the
prayer made by the petitioner would be considered at the time of framing
charge is not tenable in the eye of law as the trial cannot be proceeded
without appearance of the authorised representative of the accused no. 23.
The court below failed to apply his judicial mind to the settled position of
law regarding representation of a body corporate and he completely ignored
the gross suppression of material fact on the part of the opposite
party/Enforcement Directorate (ED) in as much as the opposite party was
fully aware of the date of filing of the supplementary complaint in 2021 that
the petitioner has no connection with the aforesaid accused no.
23/company as the Form no. 32 in this connection is available in the public
domain.
9. In this context Mr. Chowdhury also referred section 70 of the PMLA
which deals with question of responsibility in respect of offence committed
by a company and he contended that said section does not relate to the
question of service of summon of a company and the power of a persons to
represent that company. Therefore, the reference to section 70 of the said
Act is absolutely unwarranted and illegal. The court below has failed to
exercise the jurisdiction vested upon him. The impugned order is liable to be
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set aside and the trial court may be directed to issue fresh summon at the
registered address of the accused no. 23 and to permit the said Company to
be represented by a person of its choice authorized by Board resolution.
10. Learned counsel appearing on behalf of ED submits that investigation
conducted by the opposite party under the said PMLA revealed the nature
and purpose of the business activity of the Sarada Group of Companies
represented though Sudipto Sen and his other associates. The proceeds of
crime were acquired by Mr. Sen and his associates out of commission of
scheduled offence and were subsequently laundered through his companies
in association with other companies and individual in guise of seemingly
legitimate business transaction, thereby attempting to erode the basic fabric
of the national economy.
11. She further contended that petitioner herein is one of such person
who through his companies had part and layered the proceeds of crime of
Sarada Group of companies and the petitioner was the main person for
handling the affairs of the aforesaid two companies. The other director is the
wife of the petitioner has stated that she had no role to play in the business
of the companies. As per agreement dated 3rd August, 2010 the petitioner
and his wife had the complete ownership of M/S Disha Production & Media
Pvt. Ltd.
12. Further contention of ED is that the petitioner during 2010-2011
entered into agreement with SPPPL for sale of 75% shares of Disha for Rs.
4.54 crore but even after receipt of the said amount the petitioner did not
transfer the shares rather projected the money as unsecured interest free
loans in the said two companies. He further contended that the petitioner
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also received Rs. 49 lakhs as his remuneration which was not in return of
any genuine service by the petitioner. Actual service provided by the
petitioner was through his aforesaid two companies for layering proceeds of
crime from Sarada Group of companies and the said amount of Rs. 40 lakhs
was his illegal gratification for providing such money laundering services.
Infact, the rotating funds between Disha and Akdin revealed his acts in the
overall scheme to layer the proceeds of crime in order to make it difficult for
investigating agencies to track/identify the origin of funds. The petitioner
has also revealed unsecured loan in Disha from another Chit fund company
M/S I Core and the petitioners sold the company namely Disha to another
chit fund company, Chakra Group which clearly shows his intention that he
had floated the above companies only for money laundering activities in
relation to various chit fund companies. Therefore, the petitioner was
directly involved in concealment of proceeds of crime through multiple
layering of transaction and using the unreturned proceeds of crime and
projecting them an untainted property. Infact petitioner was in complete
control of the aforesaid two companies.
13. She further contended that the complaint being ML Case no. 1 of
2013 was filed subsequently detailing the involvement of the petitioner.
Supplementary prosecution of complaint was filed on 27.08.2021 in ML case
no. 1 of 2013 arraigning the petitioner as accused no. 22 and M/S Disha
Production & Media Pvt. Ltd. as accused no. 23, represented by the Director
namely the petitioner herein.
14. Relying upon section 70 and 71 read with section 65 of PMLA Mrs.
Roy on behalf of ED further submits that the PMLA is a special law designed
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to combat money laundering and provide for the confiscation of related
properties and it has an overriding effect over general laws. The PMLA allows
for independent prosecution and property attachment proceeding. She
further contended that section 65 and 71 of the PMLA are curved out from
section 4 and 5 of the Cr.P.C. in spirit, when section 65 provides that the
provisions of Cr.P.C. will apply to PMLA proceedings as long as they are not
inconsistent with the provisions of PMLA.
15. She further contended that section 70(1) of the PMLA clearly indicates
that when a company committed an offence, every person who at the time of
commission of offence was in charge of and was responsible to the company
for the conduct of the business of the company, as well as the company
shall be deemed to be guilty of the offence and liable to be proceeded.
Accordingly petitioner was solely responsible and was in charge for layering
and parking of the proceeds of the crime through his company Disha and
thus, the company Disha was made to be represented by the petitioner. The
petitioners resignation from the company Disha was w.e.f. 14.03.2013 and
the offence was committed prior to 14.03.2013 by execution of sham
agreement and receipt of funds from Sarada group of companies in 2010-
2011. The petitioner has been individually made accused in the case in
terms of section 17(2) of PMLA which starts with non-obstente clause and
thus have independent operation and the petitioner being a director at the
time of the commission of the offence has been made accused individually.
In this context the petitioner relied upon the judgment of ED Vs. A
Muthuswammy others reported in 2004 SCC Online, Mad 1093.
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16. Therefore, it is clear that section 305 has no applicability for the
special statute wherein specific provision for 'offence by companies' are
stipulated separately and for the offence by the company the persons in
charge of at the time of commission of the offence ought to represent the
company. Moreover the relevant period of time for consideration of the
involvement of the person in charge of the company is at the time of
commission of the offence and therefore subsequent resignation of the
person from such company is irrelevant. The persons who made to defend
the company can be separately made as an accused in the prosecution of
complaint. In this context she also relied upon Suresh Chandra Rai Vs.
State of Jharkhand, 2010 SCC Online Jhar 1028, I Jai Raj Vs. C.
Arabinda, 1998 SCC Online Mad 680. Therefore she prayed for dismissal
of the instant Application.
17. Before going to further details let me first reproduce the relevant
sections namely 65 and 70 of the PMLA which reads as under:-
65. Code of Criminal Procedure, 1973 to apply.
- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so
far as they are not inconsistent with the provisions of this Act, to arrest, search and
seizure, attachment, confiscation, investigation, prosecution and all other proceedings
under this Act.
70. Offences by companies.
(1)Where a person committing a contravention of any of the provisions of this Act or of
any rule, direction or order made thereunder is a company, every person who, at the
time the contravention was committed, was in charge of, and was responsible to the
company, for the conduct of the business of the company as well as the company,
shall be deemed to be guilty of the contravention and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable
to punishment if he proves that the contravention took place without his knowledge or
that he exercised all due diligence to prevent such contravention.
(2)Notwithstanding anything contained in sub-section (1), where a contravention of
any of the provisions of this Act or of any rule, direction or order made thereunder has
been committed by a company and it is proved that the contravention has taken place
with the consent or connivance of, or is attributable to any neglect on the part of any
director, manager, secretary or other officer of any company, such director, manager,
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secretary or other officer shall also be deemed to be guilty of the contravention and
shall be liable to be proceeded against and punished accordingly.
Explanation 1. For the purposes of this section,
(i) "company" means any body corporate and includes a firm or other association of
individuals; and
(ii) "director", in relation to a firm, means a partner in the firm.
[Explanation 2. - For the removal of doubts, it is hereby clarified that a company may
be prosecuted, notwithstanding whether the prosecution or conviction of any legal
juridical person shall be contingent on the prosecution or conviction of any
individual.] [Inserted by Act No. 2 OF 2013]
18. From the aforesaid provision of section 70 of PMLA it is clear that
three categories of persons can be discerned from the said provisions who
are brought within the purview of penal liability through the legal fiction
envisaged in the section.
(i) The company, the principle offender, which committed the
offence
(ii) Everyone who was in charge of and was responsible for the
business of the company
(iii) Any other person who is a director or a manager or secretary or
officer of the company with whose connivance or due to whose
neglect the company has committed the offence.
However, this statue also provide that if a person proves that
the offence was committed without his knowledge or that he had
exercised all due diligence to prevent the commission of such
offence he shall not be liable to punishment under the said
section.
19. Sub section (2) further provides that where any offence under this act
has been committed on the company and it is proved that the offence has
been committed on consent or connivance of or is attributable to any neglect
on the part of any Director, Manager, Secretary or other officer of the
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company, such persons shall also be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.
20. The term 'as well as the company' as appearing in section 70 signifies
that since a company is an artificial persons it is incapable of committing
any crime personally. However, if certain crimes are committed by its
officials then in such circumstances a company is the being who has
committed this crimes. Now from the cause title of the complaint as well as
submission made on behalf of the ED, it is clear that complainant has
insisted that the petitioner shall represent the accused no. 23 company and
the court below also has shown reluctancy to adjudicate the question as to
whether, complainant can insist petitioner accused to represent accused
no.2/company and on the contrary court below insisted the petitioner for
compliance of section 207 of the Code of criminal procedure (Cr.P.C) upon
the said company through the petitioner herein, keeping the said dispute
open for future adjudication.
21. The trial Court's observation that at the stage of section 207 Cr.P.C.
the issue about representation of the company is not required to be
considered, is not lawful as the case cannot be proceeded at any stage
without due representation of the accused no.23 and if the petitioner herein
is reluctant to represent accused no. 23 then even at the stage of section
207 Cr.P.C. the company/accused no. 23 has cause to prejudice.
22. Petitioners specific case is that he is not associated with accused no.
23/company since 2013 and his further contention is that he does not want
to represent company nor the Board of Company has taken any resolution
selecting him to represent company. It is the complainant/ED who has
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decided that accused no. 23 company would be represented by the
petitioner herein. Therefore, it has become incumbent upon this court to
consider the legality and validity of such insistence by complainant,
specially when the petitioner is unwilling to represent the company.
23. The Apex Court in RC Cooper Vs. Union of India reported in 1970
(1) SCC 248 held that a company is distinct and different from its share
holders and directors and it's permitted to sue or be sued in its own name.
paragraph 11 of the said judgment may be reproduced below:-
"11. A company registered under the Companies Act is a legal person,
separate, and distinct from its individual members. Property of the Company is
not the property of the shareholders. A shareholder has merely an interest in
the Company arising under its Articles of Association, measured by a sum of
money for the purpose of liability, and by a share in the distributed profit.
Again a director of a Company is merely its agent for the purpose of
management. The holder of a deposit account in a Company is its creditor: he is
not the owner of any specific fund lying with the Company. A shareholder, a
depositor or a director may not therefore be entitled to move a petition for
infringement of the rights of the Company, unless by the action impugned by
him, his rights are also infringed."
24. Thereafter in Standard Chartered Bank Vs. Directorate of
Enforcement reported in (2005) 4 SCC 540 it has been clarified by the
Apex Court that there is no immunity to the companies from prosecution
merely because the prosecution is in respect of offences for which the
punishment prescribed is mandatorily imprisonment and fine and thereby
the views expressed by the majority in Velliappa Textiles Ltd. Case,
reported in (2003) 11 SCC 405 was overruled on that point. Hon'ble
Division Bench of Madras High Court in the judgment dated 23rd November,
2022 passed in Crl. RC No. 1513 of 2022 (V. Lakshmi Vs. Directorate of
Enforcement) has held applicability of the same principle even in a
proceeding under the PMLA:-
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"4. The short point that falls for consideration is, when a juristic person has been
arrayed as an accused in a prosecution, who should have to represent it. This
question has been answered by this Court in V. Umamaheswari Vs. State
represented by the Inspector of Police, Economic Offence Wing - II,
Virudhunagar District and Another, wherein the law governing Section 305
Cr.P.C. has been discussed and stated as under:-
11. It is not the duty of the prosecution nor the Court to nominate the
person to represent Gayathri Chits (A-1) and Selvam Finance (A-2).
Section 305 Cr.P.C., clearly states that the accused Corporation may
appoint a representative for the purpose of the inquiry or trial. Dictates
of common sense demands that some human being must represent A-1
and A-2 to answer the charges, engage an advocate to defend them and
answer the questions under Section 313 Cr.P.C. etc. of Course, the
human agent appointed for the Corporation cannot be personally
convicted and sentenced for the offence committed by the Corporation.
Obviously, a sentence of imprisonment cannot be awarded to a juristic
person and only fine can be imposed. Therefore, it is open to Gayathri
Chits (A-1) and Selvam Finance (A-2) to appoint anyone including one of
the accused, namely A-3 to A-10 to represent them in the prosecution. If
no arrangement is made by Gayathri Chits (A-1) and Selvam Finance (A-
2), then they will have to suffer the consequences and cannot plead
prejudice at a later point of time. Hence, liberty is given to Gayathri
Chits (A-1) and Selvam finance (A-2) to appoint anyone to represent
them before the Trial court and that can be one of the accused or an
outsider also, but, with due authorization under the seal of Gayathri
Chit (A-1) and Selvam Finance (A-2). However, this cannot be a ground
for discharging the present petitioner/A-9from the prosecution
5.As stated above, it is for the juristic entity to nominate a person to represent it in
the prosecution and on failure to do so, the said entity cannot claim prejudice at a
later point of time, especially, when it is shown that summons on the said entity
has been served. In this case, the petitioner appears to have filed a memo stating
that Dr. V. Sudhakar, Principal of the College, would represent the sixth accused
in the prosecution.
25. The Bombay High Court also in the case of Sanjeev S. Malhotra Vs.
the State of Maharashtra in Criminal writ petition no. 4942 of 2019
held on 14th January, 2020 in a proceeding under Negotiable Instrument
Act, whose provision under section 141 is pari materia with section 70 of
PMLA that neither the prosecution nor the court can insist that a particular
person has to represent the company. It is the prerogative of the company
which has to be summoned in its own name at its registered address and
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upon such receipt of such summon, the company has to nominate a person
of its own choice to represent the company. In paragraph 10 and 11, the
courts observation is as follows:-
"10. Similarly, in para 17 of its Judgment in the matter of Ram Narayan
Sharma, the Gauhati High Court has held thus,
17. A conjoint reading of Section 63 and Section 305 of Cr.P.C. would
show that after the process is served in the manner provided in Section
63 Cr.P.C. the Corporation may appoint a representative for the purpose
of the inquiry or trial as provided in Section 305(2) Cr.P.C. It is, thus,
evident that when the accused is a corporate body it is not for the Court
to decide who shall represent the Corporate body. The Court can issue
the process in the manner as provided under Section 63 Cr.P.C. and the
representative will be appointed by the Corporate body for the purpose
of representing the Corporate body during trial.
11. It is thus, clear that for prosecuting a Company as accused, the
Court is required to issue process against the company and then
becomes choice of the accused Company to nominate its representative
to answer the Charge. The corporation by itself is a distinct legal entity
than its director. Therefore, the impugned order directing the
petitioner/accused no.2 to answer the charge levelled against the
accused Company by signing the plea on behalf of the company cannot
be sustained. Hence, the order.
ORDER
1. The petition is allowed in terms of prayer clause (b) qua the petitioner.
2. The impugned order below Exhibit 264 qua the present petitioner is quashed and set aside."
26. In the instant case petitioners specific case is that no summon has been issued or served at the registered office of the Company. Section 65 of PMLA clearly stipulates that provision of Cr.P.C. shall apply so far the provision of the PMLA is consistent with the provision of Cr.P.C. I have already stated that Section 70 is pari materia with section 141 of the Negotiable Instrument Act (in short N.I. Act) and this High Court in O.N. Geoenka Vs. State of West Bengal reported in (2003) 3 CHN 304 held that where the company is being prosecuted the court cannot insist on particular persons to represent the company under section 305 of the 13 2025:CHC-AS:2169 Cr.P.C. the relevant paragraphs i.e. para 19-22 of the said judgment runs as follows:-
19. From the aforesaid two facts, it is sufficiently clear that this petitioner does not want to represent the company for cogent reason and in such a situation hardly there is any provision in the Code itself compelling him to represent the company despite his clear objection in the matter.
20. That being the position, upon consideration of the entire materials and the chequered nature of the case, I am very much inclined to interfere with the impugned order itself passed by the learned Magistrate directing this accused petitioner to appear before the said Court personally to express his consent whether or not he wants to represent the company and in that view of the fact the aforesaid portion of the order stands set aside.
21. But from the materials available, it has become clear that there has been delay in concluding the trial itself for various reasons and for which I could really appreciate the anxiety of the opposite party No. 2 for carriage of the present proceeding upto its end.
22. For such reasons and to obviate further difficulties with regard to the progress of the trial, I like to put it on record that while setting aside the portion of the aforesaid order as indicated above, I direct the learned Magistrate to invoke the provision of section 63 of the Code of Criminal Procedure for inviting the attention of the accused No. 1 to select its representative for the purpose of conclusion of the present trial and if within one month from the date of receipt of such notice, no steps is taken by the company for appointing his representative in this case, in such event, the learned Magistrate shall proceed in accordance with the provision of section 305(4) of the Cr.
P.C. without insisting upon the company for selecting his representative further in connection with this case.
27. The judgment relied on behalf of OP/ED in I Jayraj Vs. Sri Arabida, 1998 SCC Online Mad 680 is a judgment passed by Single Bench and the Division Bench of the same High Court in E.D. Vs. Muthuswammy and others reported in 2004 SCC Online Mad 1093 did not concurr with the view expressed by the Single Bench in I Jay Raj Case. The judgment relied by the ED in Suresh Chandra Rai Vs. State of Jharkahnd reported in 2010 SCC Online Jharkhand 1028 is factually distinguishable since in the said proceeding the Director/ erstwhile Director of the company was being separately prosecuted. The argument advanced on behalf of ED that PMLA is special statue and it provides for independent prosecution and property attachment therefore, such act has precedence over other laws and therefore under the PMLA, court can compel an unwilling Director, even if 14 2025:CHC-AS:2169 he has resigned from the company long back to represent company irrespective of the fact that he has been separately prosecuted in his individual capacity, does not hold water. Section 70 of the PMLA is no way in conflict with section 305 of Cr.P.C. or section 141 of N.I. Act. It is the corporation within the meaning of section 305 Cr.P.C. and as such the said company alone can appoint a representative for facing the prosecution.
28. Needless to say that representation of a company during inquiry or trial must not be confused with liability of a company in case the offence is committed by the company. For example when a company went into liquidation during the pendency of proceeding or prior to that , it is the official liquidator and not the Director, who is legally entitled to represent the company but liability of the Director, in committing the offence shall remain in accordance with PMLA and his exemption will be restricted only from the liability to represent the company who has been arrayed as an accused. The complainant is not empowered to make the petitioner to represent the accused company. Since the company/accused no. 23 is a juristic person and on the date of launching the prosecution the petitioner herein had severed all ties with the accused company the petitioner cannot be compelled to plead on behalf of the accused company under section 246 (2) of Cr.P.C. and the petitioner also cannot be compelled to answer the questions under section 311 Cr.P.C. unless he is being appointed by the company/accused to represent in an inquiry or trial.
29. In such view of the matter CRR 3146 of 2023 is allowed.
30. The portion of the order dated 3rd November 2022 passed by learned CBI Court Bichar Bhavan in MA case no. 1 of 2013, by which the court 15 2025:CHC-AS:2169 below rejected petitioners prayer for due representation of accused no. 23 and expunging the name of petitioner as representative of accused no. 23, is hereby set aside. Learned Magistrate is hereby directed to invoke the provision of section 63 of the Code of Criminal Procedure for inviting the attention of accused no. 23 by serving a summon to the registered office of the company for inviting the attention of the accused no. 23 to select its representative for the purpose of trial of the instant proceeding and if no step is taken by the company in appointing his representative in the case, the learned magistrate shall proceed in accordance with the provision of law under section 305(4) of the Cr.P.C. without insisting upon the company for selecting his representative further in connection with this case. Be it also mentioned that the entire process must have to be completed within a period of 60 days from the date of communication of the order to the court below by either of the parties.
31. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.) 16