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TMI Blog2019 (9) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been filed against the order dated 10.05.2016 passed in O.A. No. 41/2015 whereby the application filed by the respondent u/s 17(4) of the Act was allowed. The prayer of retaining of documents and electronics equipment (which were seized from the premises of the appellants) were allowed to be retained till further investigation. 2. The second set of appeals no. FPA-PMLA-1929-1930- 1931/DLI/2017, FPA-PMLA-1952/DLI/2017, FPA-PMLA- 1957/DLI/2017 & FPA-PMLA-2428/DLI/2018 have been filed against the common order dated 4.8.2017 by State Bank of Patiala which is now merged with the State Bank of India. Both banks were having the same stand. 3. It is the admitted position that common order passed in O.A. No. 41/2015, on 10.05.2016, the prosecution complaint has only filed in July, 2018 where even the Respondent was not able to remove the objection for one year the Special Court. 4. Counsel for the appellants have argued their respective appeals as per their case set up in their appeals. 5. The brief facts are that CBI, New Delhi registered FIR dt. 24th August, 2015 which inter alia revealed that ZHC incorporated and registered with ROC Mumbai, having registered office in Mumbai is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. After investigation CBI has filed charge sheet before the Ld. Special Judge, CBI at Jaipur in the said case against M/s Ziqitza Healthcare Ltd (hereinafter referred as ZHL), Sh. Ravi Krishna, Mrs. Sweta Mangal and Shri Amit Antony before Special Judge, CBI at Jaipur. Ld. Special Judge has taken cognizance on said charge sheet. As per CBI, further investigation is under progress in the said case and supplementary charge sheet will be filed by them. Copy of the charge sheet filed by CBI is already on record as filed by the Appellant. The main allegation were summarized as under:- (i) Investigation revealed that a criminal conspiracy was hatched, in pursuance of which M/s ZHL, dishonestly, fraudulently and deliberately, prepared forged documents and used these forged documents as genuine as M/s ZHL was not eligible as per the eligibility criteria of the RFP regarding annual turnover of Rs. 20 crore in any one of the last 3 years. But with the added revenues of International Centre for Emergency Techniques (ICET) (the Consortium Partner), M/s ZHL was technically qualified for opening of financial bids. It is also pertinent to mention here that only Dr. Subrato Das was authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal/non-medical consumables were enclosed with the bill for claiming payments. These facts were highlighted by the officials processing the payment. However, after processing of this bill, "on account" payment to the tune of 50% of the bill was proposed to be made by Sh. Hanuman Prasad, the then FA, in order to ensure that the services are not disrupted. (v) It revealed that verification could not be done by the CM & HOs as the company did not submit the bills with supporting documents to the CM & HOs for verification. However, "on account" payment continued to be made for the entire centralized period of payment till December, 2011 when the payment of the bills was decentralized to respective District Health Societies. During this period, the concerned Mission Directors of NRHM continued to make "on account" payment to M/s ZHL in order to ensure that the emergency services are not disrupted. During July, 2010 to December, 2011 (centralized period), NRHM made payment of Rs. 32,60,99,926/- to M/s ZHL as against total claimed amount of Rs. 41,86,19,930/-. (vi) Investigation revealed that during processing of the bills by NRHM officials, several discrepancies were observed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount of Rs. 60,15,875/- is still remaining to be recovered as per the calculation made by department and the CAG on the basis of available record. (viii) Investigation has thus, revealed that M/s ZHL through its CEO Smt. Sweta Mangal and Director Sh. Ravi Krishna dishonestly, fraudulently and deliberately submitted inflated bills about multiple trips on the basis of wrong parameters and obtained excess payment from the Government of Rajasthan on the basis of the said bills and inducement, thereby causing a loss to the government exchequer. (ix) Later on, an audit was got conducted by NRHM in respect of the medical/nonmedical consumables used by M/s ZHL during operation of 108 ambulance services in the state of Rajasthan. For this purpose, an agency namely Institute of Public Auditors of India (IPAI) was engaged. IPAI submitted its audit report and had highlighted several discrepancies including that M/s ZHL procured articles/materials amounting to Rs. 1.37 lakhs which were not covered by the terms of agreement, non-medical consumables (stationery) amounting to Rs. 1,86,727/- which were not covered under sub-head stationery but got reimbursed by ZHL, operational unit cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be selected in the bid. She was also the executants of the contract with Govt. of Rajasthan and was the CEO of M/s ZHL at the relevant time. She was handling the operations of the company in the State of Rajasthan on regular basis and had attended numerous meetings with NRHM officials as the representative of the company both before and after execution of the contract. Treating each patient as an individual trip was also her brain child and she was aware of the malpractices done by the company in submission of the bids as well as in subsequent monetary claims. She, as CEO, had also obtained remuneration of Rs. 1,23,32,400/- during FY 2010- 2013 (during the period of operation of M/s ZHL in the State of Rajasthan) from M/s ZHL. (xiv) M/s Ziqitza Healthcare Ltd. being a legal entity also gained out of the offences of cheating and the forgery in the document enabled the company to grab the contract for which it was not eligible. (xv) Since M/s ZHL did not submit the record for three months after starting operation of ambulances and complete record for entire centralized period was not available, the exact magnitude of loss suffered due to multiple trips could not be ascertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivance of officials of Govt. of Rajasthan, and others had acquired the illicit money by fraudulent means, which is primarily property involved in money laundering in the matter of "108 Ambulances Service" in state of Rajasthan. Hence, there are sufficient reasons to believe that in that entire modus operandi, alleged persons had knowingly possessed, used, acquired and converted lots of ill-gotten / tainted money i.e. property involved in money laundering, during operation of "108 Ambulance Service' in state of Rajasthan through banking channel as untainted and knowingly laundered the said tainted money, for the ultimate benefits of the ZHL and its directors, by projecting and claiming the same as untainted. Thus, by the above mentioned criminal activities, M/s ZHL and its directors obtained the assets of Rs. 23 Cr. (approx.) which is in fact the property involved in money laundering. 11. The above said Proceeds of crime of Rs. 11,88,62,519/- trace out so far, has been attached vide Provisional Attachment Order No. 02/2017 dated 31.03.2017 and subsequently confirmed by the Adjudicating Authority vide order dated 04.08.2017 in OC no. 769/2017. It is further submitted that in this m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty in the name of M/s. ZHL Annexure A- 3:- Immovable Properties Apartment No. 1A in the First Floor in the Second Tower of the proposed building known as High Lands" on the land described in scheduled A mentioned below with an undivided share of 273/100000 (including one half part in depth of joints between the ceiling of each apartment and the floor of the apartment above it and internal and external walls between such levels admeasuring area 1233 Sq. ft (Approx.) and one covered car park. Schedule "A" Property covered by Document no. 2584/06, 2585/06, 2588/06, 2822/07 and 2954/07 of Thrikkakara Sub Registry Office. District Ernakulam Sub-District Ernakulam Taluk Kanayannur Desom Kakkanadu Village Kakkanadu Re-Sy. No. 570/20, 21, 22, 160 and 164 Extent 252.741 Cents Local authority Thrikkakara Grama Panchayath Description All that piece and parcel of land admeasuring 252.741 cents comprised in Re-Sy. No. 570/20, 21, 22, 160 & 164 of Kakkanadu Village, Kakkanadu Desm covered by Sale deed No. 258406, 2588/06, 2822/07 & 2954/07 of Thrikkakara Sub- Registry Office and all the easement rights of the landowner therein. Amount:- Rs. 28, 94,271/- Details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable belief that properties are involved in money laundering provisional attachment order was passed on 31.3.2017 wherein movable and immovable properties of the accused was attached. The attachment was confirmed by Adjudicating Authority vide Order dated 04.08.2017. 17. It is stated on behalf of respondent since prior to 19.04.2018 when Section 8(3)(a) was amended, there was no time limit for filing prosecution complaint, hence after the amendment the prosecution case in respect of all the accused persons namely M/s. Ziqitza Healthcare, Sweta Mangal, Ravi Krishna, Naresh Jain & other persons was filed within the stipulated time of 90 days in the Special Court at Jaipur, Rajasthan on 18.07.2018 for the offence of money laundering and confiscation of the properties and the said persons are named as accused in the prosecution complaint. 18. It is submitted that the said prosecution is in respect of both actions of the department i.e. seizure and attachment. That the documents seized at the time of search are relied upon documents for the purpose of trial and are evidence required in original before Special Court, PMLA wherein prayer is made for confiscation of properties inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent and competitive, it was a multi-party bid, out of which three bidders were technically qualified and Appellant's Company was the lowest bidder. Hence, the Company was qualified in the technical threshold and also was with the lowest bid. It is pertinent to state that GCK-EMRI MOU which existed prior to Company taking over the operation had GPS as a technical requirement which was carried on for the expression of interest in which Company finally succeeded. All subsequent tenders issued by NRHM. Rajasthan also has the requirement for installation of GPS/GIS/GPRS. (e). At the time of the takeover, majority of the 164 ambulances were not road worthy. They required significant maintenance work. The estimated cost of repair of the vehicles came to around Rs. 90 Lakhs, out of which NRHM passed an amount of Rs. 54.29 Lakhs. NRHM authorised ZHL to get the repair work as per approved estimate. Till date this amount has not been reimbursed by Government of Rajasthan. (f). After the Company took the responsibility of administration and functioning of Ambulance service in the State, NRHM was action in an irresponsible fashion. Since inception of the project, there were invariable de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract period for three months. However, these conditions were never accepted by NRHM Rajasthan. Despite NRHM not accepting the conditions of the company, still in good faith the company continued to operate the 108 services till 5/04/2013. Despite this, the last date of operation of the ambulance as per the contracted term was extended by NRHM for a further period of 3 months on 6/04/2013. The Company expressed its inability to operate further unless payment released as per the terms and conditions of the contract. (k). On 7/05/2013 NRHM suo motu decided to take charge of office premises, control room, all data and give possession of all ambulances to CMHO's Company handed over all mentioned premises and ambulances on a "as is where is" basis along with all ambulance spares procured by ZHL at its own cost. On 20/06/2013 a demand note of Rs. 6.5 crore was raised by NRHM on the Company based on an inspection of ambulances done by GVK EMRI, who stands as a known business competitor in this field. (l). NRHM illegally on 30/08/2013 attempted to invoke the bank guarantee submitted by the Company as performance security after contract was over. That on 4/09/2013 the Company filed W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om NRHM as untainted money, and Original Application was filed before the Adjudicating Authority under the Prevention of Money Laundering Act, 2002 as O.A. No. 41/2014. (o). On 28.08.2015, CBI conducted search raids in the office of the company and three of its directors. On 29.08.2015 to 3.09.2015, notices were issued to Mr. Naresh Jain (CEO) to appear before CBI and CEO appears before them and submitted all the required documents. It is submitted that Naresh Jain was also made a party with the proceeding despite the fact that Naresh Jain was appointed as the Director in 30 June 2004, however, he resigned from the company in October 2007 and thereafter he has not obtained any payment from the company till 2014 (which is alleged to be the period between which the alleged crime has taken place) as he was not a part of the company and only on 7.4.2015 he has become the MD and CEO of the company. Despite this fact, Naresh Jain is held vicariously responsible for the criminal liability, if any, committed by the company. In criminal cases the principle of vicarious liability has no application still its seems that the Enforcement Directorate without application of mind has applied the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director (ED) have been taken as margin money for the Bank Guarantee (BG) issued by the appellant bank as performance security for the contract, on which the bank has exclusive charge and therefore does not fall within the purview of 'proceeds of crime' as defined u/s 2(1)(u) of the Act. 21.1 The appellant bank being the secured creditor has priority over the rights of any Central or State Government. In case of the release of the bank guarantee by this Tribunal, the appellant bank will continue to hold them as margin money for the BG issued by the bank till their maturity date or they will be used for recovering its dues of Rs. 37.97 crores as on 25.07.2018. The amount being released by this Tribunal will be utilised towards the dues of the bank and the amount will not be released to the company. 21.2 This Tribunal has held in FPA-PMLA-2121/DLI/2017 in the case of SBI vs Joint Director dated 06.02.2018 that the bank cannot be asked to wait till the trial/proceedings are over. 21.3 The money flow demonstrating the amount of money received into the company's account along with source of fund for the fixed deposit receipt from the account of the company which was maintained wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers dated 12.01.2018, 09.03.2018, 29.11.2018 & 09.01.2019 and has directed the IO to be present along with the documents. However, on the last date of hearing neither the Counsel for the Respondent was present nor the IO was present in compliance of the order dated 24.05.2019. This Tribunal observed that since the ED had sought various adjournments and a last opportunity was granted and the matter was being argued by the Appellant. 21.10 As per the order dated 18.01.2019, since the ED has failed to produce the records particularly the "reason to believe" in order to invoke the second proviso of section 5(1) which was necessary to dispose the matters, the I.O. was directed to be present and to file an affidavit in this regard. The Assistant Director by its affidavit dated 20.02.2019 has filed the affidavit which is not in compliance of the order passed by this Hon'ble Tribunal. Since the ED has failed to proceed "reason to believe", hence it amounts that there is no "reason to believe" before taking the decision/passing the impugned order. 21.11 The Hon'ble Supreme Court has decided in multiple judgements that in cases under PMLA, prosecution has to substantiate its foundational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint Director, the Hon'ble High Court of Madras held that if money has been advanced, for the purchase of certain property and cannot be taken to be proceeds of crime then, after recording a finding to that effect the Adjudicating Authority is obliged to set aside the provisional attachment order. 22.6. It is submitted that in the present case the Directorate of Enforcement has failed to make out a case, that the property sought to be attached is arising out of proceeds of crime, if at all any crime has been committed by the respondents. 22.7. The Adjudicating Authority in the impugned order dated 4.8.2017 has failed to apply its mid to the fact that value thereof can be attached only and only after coming with final finding about the value of money laundering for which a prima facie figure can only be arrived after charge sheet is filed. In the present impugned order dated 4.8.2017, there has been no finding arrived with respect to any sum or amount of money by the Adjudicating Authority in the finding of the Adjudicating Authority. 22.8. The Adjudicating Authority in the impugned order dated 4.8.2017 has failed to consider that the legislature has chosen to specifically avo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same on 12.01.2018. It was further directed to the Respondent ED, by this Hon'ble Tribunal to supple a copy of the "reason to believe" in a sealed cover. The said reason to believe was never provided to the Appellant. (c). The reply by the Respondent ED was not filed and it was stated at bar, on 09.03.2018 that the same would be filed during the course of the day. Substantial arguments were advanced on behalf of the Appellant as no copy of reason to believe was ever produced nor copy given. It was also stated by the counsel for the Respondent ED that copy of the "reason to believe" was not available with her and therefore this Tribunal may summon the file from the Adjudicating Authority on the next date of hearing i.e. 27.07.2018. (d). Reply was filed by the Respondent ED on 27.07.2018 and time was granted to the Appellant to file rejoinder. Interim orders were directed to continue. (e). The Appellant filed its rejoinder on 19.09.2018 as well as written submissions with an advance copy of the same to the counsel for the Respondents. (f). The matter came to be listed before the Tribunal on 29.11.2018 and final arguments started and inter alia the issue of the exercise of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and seizure under Section 17 of the Act, the separate reason to believe were to be recorded which is mandatory. The same were neither produced nor filed. 26. Therefore, the Adjudicating Authority by the Impugned Judgment has erred in failing to recognise the legitimate claim of the Appellant at the stage of confirmation of the PAO itself as the Appellant Bank is a victim. Ingredients of S. 8(1) of the Act are not satisfied. 27. Under Section 8(1), upon receipt of a Complaint U/s 5(5) of the Act, if this Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached U/s 5(1) of the Act. The fact that the Appellant along with the other Consortium Lenders have a mortgage on the attached properties and have provided facilities against the security of such attached Properties cannot and does not fall within the purview of Section 8(1) of the Act. Consequently, the notice U/s 8(1) of the Act as was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rify whether they are relevant and germane or not. He cannot proceed further on the basis of opinion already formed by someone else. The officer who is supposed to write down his reasons to believe independently applying his mind in every case. It should not be merely a mechanical reproduction of the words mentioned in the statute in order to complete the formality as PMLA cases (being independent proceeding) as submitted on behalf of the respondent. If the person concerned are more than one, the officer authorized is to record the independent/separate, reasons to believe for each 'person concerned'. 32. If no valid reasons to believe are recorded, the issuance of notice to the 'person concerned' or without going into the material and nonapplication of mind, the same would be considered as invalid notice. It is settled law that if the Show-Cause notice fails to fulfil the basic ingredients as laid down by a Constitutional Bench of the Hon'ble Supreme Court in Khem Chand v. Union of India [AIR 1958 SC 300], the Show-Cause Notice itself is bad in law. Thus, it is vitiating the proceedings. Also see another judgement in the case of Aslam Mohammad Merchant v. Competent Authority [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in time, who does not wish to remove the objection for more than a year, who does not wish to comply any order passed by this Tribunal. The details of his conduct are given in the following paras:- (a) When appeal came to be listed before this Tribunal on 07.05.2019, passed inter alia the following order:- "...the IO shall remain present on the next date of hearing along with record. Copies of prosecution complaint have not been filed in view of the order passed dated 02.04.2019. let the same be filed by the next date of hearing. The learned counsel for the appellants requested that no further date shall be given. List the for remaining arguments on 15th May, 2019..." (b). The Respondent did not comply the orders of this Court who failed to produce the prosecution complaint as alleged to have been filed by the Respondents ED. (c). When the matter was listed before this Tribunal on 15.05.2019, the Respondent ED again did not comply the order of this Tribunal and did not file the alleged prosecution complaint. Even the Investigating Offices was not present with the records, as directed vide order dated 07.05.2019. The counsel for the Respondent stated that the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant time period from 1st July 2010 when Ziqitza Health Care Ltd. took over the operations under the contract to 2013 is born out from the following sequence of events. Hence Mr. Naresh Jain cannot be said from any stretch of imagination to have any connection with the present case. June 30, 2004 Naresh Jain was appointed as an Director on Board of Director. Oct. 15, 2007 Worked as an Executive Director. Oct. 16, 2007 Joined Reliance Capital Limited as part of Treasury Operations. 31.08.2012 D2 quit Reliance Capital Ltd. Then joined Transwarranty Finance Limited and worked as a consultant in Corporate Finance. 7.04.2015 Appointed as MD &CEO of Ziqitza. There is no specific denied in this regard on behalf of respondent. 37. The rule of attachment of property under section 5 is that the provisional attachment order is to be passed only after a report has been forwarded to a magistrate under section 173 of Cr.P.C. The exception to the rule being, that if certain emergency conditions are met which are contained in 2nd proviso to sub-section 1 of Section 5 the property may be attached immediately bypassing a magistrate. The 2nd proviso of subsection 1 of section 5 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m merely suggesting that there exists proceeds of crime the onus is on the prosecution / Director of Enforcement to make a prima facie case of money laundering, prima facie case of placement and layering which in the respectful submission of the Appellant does not exist in the present matter before the burden of proof shifts to the accused/ citizens. 40. That the second proviso to sub section (1) of Section 5 has certain ingredients and casts certain obligatory duties on the Deputy Director before invocation of the draconian provision which carves out an exception to the rule of attachment of property only after a report under section 173 of CrPC is filed. In the judgment of Shri K. Anwar Hussain Vs. Deputy Director, MP-PMLA1920/CHN/ 2015(MISC)FPA-PLMA-724/CHN/2014 decided on 27.04. 2017. The Appellate Tribunal in the judgment in paragraph 32 on page 10 recorded in the following terms; The Second proviso entails the following mandatory considerations for any order under it to be valid. 32 "the proviso to section 5 (1) is an urgent provision to enable the deputy director to attach the properties immediately. In the present case, neither the respondent nor the adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to States to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member States from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case." (emphasis added) 42. It is submitted that the Respondent ED has to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof have to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. 44. The case of C. Chellamuthu vs. Deputy Director, Prevention of Money Laundering Act, C.M.A (MD) No. 104 to 110 of 2015 passed by the Madurai Bench of Madras High Court, again puts the onus on complainant to verify bank statements, and record as to how the private party did not have sufficient financial capacity to buy the property Relevant pages 11(quoting Lakotia judgment 2010 (5) Bom CR 625 last 8 lines of par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ED. The bonus cannot be harassed without their fault. 48. The Adjudicating Authority failed to appreciate that the Appellant Bank is not holding any funds of the Accused/Respondents, whereas on the other hand, the Appellant Bank itself has to recover more than Rs. 4.79 crores in Cash Credit Account and Rs. 31.18 Crores in Bank Guarantee as on 25.07.2018 from the company i.e. Respondent no. 2. Hence, the bank being the secured creditor has priority over the rights of Central or State Government or any other Local Authority. 49. In the case of Standard Chartered Bank Vs. The Deputy Director, Directorate of Enforcement, Mumbai in FPA-PMLA-1604/MUM/2017) the Appellate Tribunal has observed that when there is no direct nexus between the crime committed and the consortium of banks, the banks shall have the priority right over the property mortgaged with them. Also, the intention of the PMLA Act is not to block the loan against mortgaged property. Where such loan is given out by innocent parties, being banks in this case, then it would be absurd that the securities of the banks are not available to them to recover their losses. Any order which goes against the banks would create ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Magistrate (SPE) where CBI has held the total 'loss to government' is Rs. 62,75,020/- which is nowhere close to the figure as alleged by ED in its reply to the present Appeal (i.e. in para 9.11 recovery of Rs. 23.92 crores), hence the total amount of Rs. 8,05,91,575/- kept in the form of FDs with the appellant Dhan Laxmi bank has been erroneously attached by the ED in its impugned order. 54. Presumption of innocence in presumptive reverse burden of proof cases, proportionality and view of the Hon'ble Supreme Court of India in decided cases. The law operates on the ground that even in such cases the prosecution has to substantiate its foundational fact that part of the prosecution case wherein the prosecution fails to give foundational facts the burden of rebutting any allegation does not come on the accused. In the present case, the Respondent Directorate of Enforcement has failed to establish any foundational fact. Charge sheet filed by CBI before Ld. Additional chief Judicial Magistrate (SPE ) Cases Jaipur, wherein CBI has stated that the total "loss to Government" is only Rs. 62,74 858 ( Rs Sixty Two Lakhs Seventy Four Thousand Eight Hundred and Fifty Eight Only/-) which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h details are given as under:- "(i) It revealed that verification could not be done by the CM & HOs as the company did not submit the bills with supporting documents to the CM & HOs for verification. However, "on account" payment continued to be made for the entire centralized period of payment till December, 2011 when the payment of the bills was decentralized to respective District Health Societies. During this period, the concerned Mission Directors of NRHM continued to make "on account" payment to M/s ZHL in order to ensure that the emergency services are not disrupted. During July, 2010 to December, 2011 (centralized period), NRHM made payment of Rs. 32,60,99,926/- to M/s ZHL as against total claimed amount of Rs. 41,86,19,930/-. (ii) Investigation revealed that during processing of the bills by NRHM officials, several discrepancies were observed in the bills submitted by M/s ZHL viz. nonverification of the claims, non-submission of supporting records, submission of photocopy of the bills in respect of medical/non-medical consumables, non-submission of records to respective CM & HOs for verification and instances of multiple trips in the bills/supporting records submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flated bills about multiple trips on the basis of wrong parameters and obtained excess payment from the Government of Rajasthan on the basis of the said bills and inducement, thereby causing a loss to the government exchequer. (v) Later on, an audit was got conducted by NRHM in respect of the medical/nonmedical consumables used by M/s ZHL during operation of 108 ambulance services in the state of Rajasthan. For this purpose, an agency namely Institute of Public Auditors of India (IPAI) was engaged. IPAI submitted its audit report and had highlighted several discrepancies including that M/s ZHL procured articles/materials amounting to Rs. 1.37 lakhs which were not covered by the terms of agreement, nonmedical consumables (stationery) amounting to Rs. 1,86,727/- which were not covered under sub-head stationery but got reimbursed by ZHL, operational unit cost of Rs. 94,899/- per ambulance per month, inter alia included the cost of postages and courier services, thus, unauthorized reimbursement of Rs. 1,21,983/- on account of courier services was made to M/s ZHL etc." 59. The other issues raised by the respondent is a matter of trial. Thus, the appellants without prejudice are lia ..... 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