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TMI Blog2023 (3) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... nce dead) under Sections 3 and 4 of PML Act and also for confiscation of the provisionally attached property. 3. The order of confiscation was passed on account of death of main accused Dharmveer Bhadoria in ECIR No. 06/Pat/2009. 4. The case of the prosecution in brief is that FIR No. RC-20(A)/2009 was registered by the CBI, Ranchi on 22.10.2009 under Section 120B read with Sections 420, 467, 468, 471 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act against Basudeo Tiwary, the then Executive Engineer, RCD, Chaibasa and M/s Nav Nirman Builders & Developers Pvt. Ltd. for criminal conspiracy, cheating, forgery of valuable security, forgery for the purpose of cheating, using as genuine, forged document and criminal misconduct. 5. After investigation, charge sheet was submitted on 03.12.2010 in the court of Special Judge, CBI, Ranchi against M/s Nav Nirman Builders, Mr. Dharmveer Bhadoria and others. 6. As offences under Section 120 B of IPC & Section 13(2) r/w Section 13 (1) (d) of the P.C. Act were scheduled offences under PMLA so ECIR No. 06/Pat/2009 was recorded on 13.03.2012 under the provision of the PML Act. 7. Enforcement of Directorate su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough bitumen was not purchased from Govt Oil Companies, but Rs 49,21,738/- was cost of bitumen with carriage from HPCL Godown to the Hot Mix Plant. 12. From the scrutiny of the accounts of M/s Nav Nirman Builders maintained with the State Bank of India, it is apparent that the proceeds of crime to the tune of Rs 79,11,559.00/- was credited thereafter the same was layered and laundered by way of making of numerous payments to various parties thereby projecting the same as untainted. 13. After submission of prosecution complaint, charges were framed on 17.11.2018 and during pendency of trial before the Special Judge, Dharmveer Bhadoria died on 02.05.2021. 14. In the case for scheduled offences accused Dharmveer Bhadoria died and, therefore, the charge against him was dropped on 03.12.2021. 15. After the CBI Court dropped the charges against deceased Dharmveer Bhadoria, Special Court, PMLA also dropped the charges against him. 16. The provisional attachment order under Section 5 of PML Act was passed by the competent authority i.e. Deputy Director on 31.03.2017 which was confirmed under Section 8 by adjudicating the authority under Section 8(3) on 08.09.2017. 17. After the death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g after having regard to the material before it. Section 8(8) provides that "where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as a result of the offence of money laundering: Provided that the Special Court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering:] Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed.] Section 24 -Burden of proof.--In any proceeding relating to proceeds of crime under this Act,-- (a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of crime are involved in money-laundering which, however, can be rebutted by the person by producing evidence within his personal knowledge. 25. In the above stated position of law, order of confiscation cannot be set aside merely on the ground that the accused had died before the trial could be held and the accused convicted of the charges. Whether there was merit in the plea for release of attached property is a question of fact which needs to be adjudicated by the Court concerned while hearing the petition under Sections 8(7) or 8(8). 26. There is definite finding of the investigation in paras 1.10, 1.11, 1.12 and 1.14 that embezzlement of Rs. 79,11,559/- was committed and was paid to the accused firm in utter violation of stipulated condition on the basis of 37 invoices. Investigation was found with respect to the bitumen purchased for procurement for the work of National High Way Division, Jamshedpur. During investigation, it was also found that accused Mr. Dharmveer Bhadoria had submitted bills and withdrawn Rs. 49,21,738/- for the cost of bitumen of HPCL. Proceeds of crime to the tune of Rs.79,11,559/- was firstly credited in the account of M/s Nav Nirman Builders in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties are not 'proceeds of crime' but are in lieu of the value of crime proceeds. Main contention of the petitioner is that the property in question was not acquired by the proceeds of crime, but was acquired by independent sources of the company. 31. It is significant note that prosecution complaint was filed against M/s Nav Nirman Builders (Represented through its partners), Dharamveer Bahdoria, Managing Partner and Power of Attorney Holder of M/s Nav Nirman Builders and Developers as well as Director of M/s Nav Nirman Builders and Developers Pvt Ltd. The main accused was not only the managing partner of the partnership firm but also its attorney holder and director after its incorporation. Both the entities although have been projected to be distinct, but in effect were the same. The later avtar in the form of company was also a creation of the Dharamveer Bhadoria and the shell of the corporate entity was artificial. The learned trial Court has rightly removed it to appreciate the nature of corporate personality. 32. Section 70 of PMLA provides that where a person committing a contravention of any provision of this Act, or of any rule, or order made thereunder is a company, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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