In Shakti Bhog ruling, NCLT lays down precedent for insolvency of firms facing money laundering probe

The Print

2 days ago

The NCLT was hearing a plea for the dissolution of the Delhi-based Shakti Bhog Snacks Limited (SBSL), a subsidiary of Shakti Bhog Foods Ltd (SBFL), which has been under investigation by the Enforcement Directorate (ED) for allegedly siphoning off loan funds amounting to over Rs 3,200 crore.
Legal experts, however, have questioned the judgement because keeping a firm with no viable business or assets alive solely to face criminal liability is unreasonable, especially when its promoters or decision-makers would likely face prosecution anyway.
New Delhi: A company or its sister concern facing a money laundering investigation by the Enforcement Directorate can't be liquidated through the provisions of the Insolvency and Bankruptcy Code, the National Company Law Tribunal (NCLT) ruled Monday, adding that it would amount to judicial overreach. It said dissolution of the company would create a situation in which the company would cease to exist and hence escape criminal liability.
Additionally, the NCLT bench noted that the dissolution of the company, when it has been listed as an accused in the prosecution complaint under provisions of the Prevention of Money Laundering Act (PMLA, 2002), would frustrate the proceedings before the Special PMLA court, which has sole authority under the Act.
The NCLT was deciding the plea of one Umesh Gupta, the resolution professional of Shakti Bhog Snacks Limited (SBSL), seeking dissolution of the firm under Section 54 of the Insolvency and Bankruptcy Code, 2016. The insolvency proceedings against SBSL were initiated upon the application of Goyal Tea Agencies Private Limited, an operational creditor to the firm in 2023.
In Insolvency and Bankruptcy Code proceedings, an operational creditor is the firm or creditor to which the firm owes a debt. The firm under debt is called the corporate debtor. After admitting the application, the NCLT appoints one resolution professional to conduct the proceedings on behalf of the corporate debtor, in this case, SBSL.
However, even before the application was moved, the ED had opened a money laundering probe based on an FIR by the Central Bureau of Investigation (CBI). The probe agency had arrested the firm's chairman and managing director (CMD), Kewal Krishan Kumar, along with his son and nephew, who were directors in group firms.
'In view of the grave and substantiated allegations of money laundering, the admitted implication of the Corporate Debtor as an accused party in pending proceedings under the Prevention of Money Laundering Act, 2002 ('PMLA'), and the ongoing prosecution before the Hon'ble Special Court, this Adjudicating Authority is of the considered view that allowing dissolution of the Corporate Debtor at this juncture would be premature, impermissible, and contrary to the settled scheme of law. Dissolution under Section 54 of the IBC results in the Corporate Debtor ceasing to exist as a legal entity,' the NCLT further noted.
'Such a consequence would inevitably frustrate the ongoing criminal prosecution under the PMLA and defeat the authority and jurisdiction of the Learned Special Court, which is statutorily vested with the power to try offences under the PMLA and adjudicate upon related attachments and confiscation proceedings,' a New Delhi bench of NCLT observed in its order on Monday.
On the other hand, senior advocate Vikas Pahwa emphasised the distinction between IBC and PMLA and their application while dealing with offences conducted by a company and its directors.
'The IBC is a civil economic legislation intended for time-bound resolution or liquidation, whereas PMLA is a penal statute targeting individuals for offences involving proceeds of crime. The company, being defunct with no assets or liabilities, should not be indefinitely kept alive merely due to the pendency of criminal proceedings, especially when the alleged offence was committed by individuals in charge of the company at the relevant time. Criminal liability under PMLA is personal and can be pursued independently against such individuals, even after the company is dissolved,' Pahwa told ThePrint.
He further argued that the dissolution of the firm—in this case Shakti Bhog Snacks Limited—will not prejudice the ED's investigation.
'No prejudice will be caused to the ED's investigation or prosecution by allowing dissolution. If any property stands attached under PMLA, that attachment remains unaffected. Moreover, prosecution against the company, if necessary, can proceed under the provisions of the CrPC or PMLA in its absence,' Pahwal further said.
The tribunal further emphasised that, regardless of the value of the assets attached during the proceedings under the PMLA, the character of the proceedings will ultimately determine the outcome.
'This Adjudicating Authority cannot assume jurisdiction in a manner that would render the Corporate Debtor unavailable for criminal liability, particularly when it stands named as an accused, and assets, however meagre, are under attachment. It is not the quantum but the character of the proceedings that is determinative,' the tribunal further noted.
'The IBC cannot be used as a mechanism to frustrate or sidestep the legitimate process of law under the PMLA. Accordingly, this Adjudicating Authority finds no merit in the request for dissolution and declines to grant the relief sought under Section 54 of the Code,' it further remarked. Section 54 of the IBC deals with dissolution of corporate debtor.
However, a seasoned insolvency lawyer, Sumant Batra, stated that the pendency of a PMLA proceeding against a firm has no consequences for the company, and it's the individuals running its affairs who face consequences and criminal liability. Questioning the logic behind such a decision, Batra said that the best possible scenario would have been to set aside the assets attached under the provisions of PMLA from distribution.
'IBC does not prohibit the dissolution of a company facing criminal proceedings. There is no logic to hold back a corporate debtor's liquidation if its insolvency resolution is not feasible or the committee of creditors so decides. The pendency of PMLA proceedings has no consequences for a company. A company can't be sent to jail even if convicted, as it is the persons responsible for the affairs of the company that face consequences on behalf of the company,' Batra told ThePrint.
'At best, the company's assets that are proceeds of crime may be taken over by the State, or if a fine is imposed on it, that may have to be paid by the company. A dissolution can be safely ordered and the interest of investigating agencies adequately protected by keeping aside assets already attached with PML from distribution. Even its record can be ordered to be handed over to investigating agencies. But why stay liquidation? It would be interesting to watch how NCLAT deals with this issue if an appeal is preferred,' he further said.
Also read: Backing ED probe, Delhi HC junks plea to monitor PMLA probe against IREO group, fines petitioner
Shakti Bhog foods' long road to ruin
Shakti Bhog foods' legal troubles began around five years ago, in 2020, when a consortium of banks led by the State Bank of India approached the CBI, alleging a criminal conspiracy and cheating by the firm and its directors, including Khurana, to the tune of Rs 3,269.42 crore.
Based on the complaint, the CBI had on 31 December 2020, booked the SBFL, its CMD Khurana, his son and wife in their capacity as directors and guarantors of the company as well as some unknown public servants under section 120B (criminal conspiracy), 420 (cheating), 467 (forgery of valuable securities and wills), 468 (forgery for the purpose of cheating) and 471 (using as genuine a forged document or electronic record) of the IPC as well as relevant sections of the Prevention of Corruption Act.
The ED opened an ECIR against the same set of accused on 31 January, 2021, and arrested Khurana in July of the same year. The agency followed up with more arrests, including Siddharth Kumar, Khurana's son, and his nephew, Tarun Kumar, who was the vice-president of purchase at the firm. The agency had also arrested a chartered accountant and entry operators as part of a probe.
Over the course of the investigation, the agency has filed a total of six prosecution complaints, making all of them, including the firm, accused under section 70 of the PMLA.
The agency has alleged that the firm and its directors diverted funds taken from loans to sister concerns of SBFL without any actual business, based on fake bills. In this process, the agency has alleged that the directors used approximately 108 dummy entities through which money was transferred with the assistance of entry operators.
The insolvency professional filed the latest application for the dissolution of SBSL after discovering that the ED had sealed the firm's office. Notably, the ED has attached assets worth Rs 131.93 crore as part of the probe against the firm.
In the application, the professional has stated that only SBI appeared during the meeting of the Committee of Creditors to stake a claim to the firm's assets. However, after evaluating the firm's assets and the viability of its business, the committee decided to dissolve the firm.
Citing previous such judgements, the applicant pleaded that the tribunal should proceed with dissolution without undergoing the liquidation process under Section 54 of the IBC.
In response to the plea, the agency submitted to the tribunal that Shakti Bhog Snacks Limited is a group company of Shakti Bhog Foods Limited and that its bank accounts were used for the rotation of funds by the director of the parent firm.
'The ED submitted that SBSL acquired and possessed proceeds of crime to the tune of Rs 97.87 crore from six group entities of SBFL, namely M/s Bhawna Portfolio Pvt. Ltd., M/s Divyarth Leasing & Finance Pvt. Ltd., M/s Divyashakti Hospitality Pvt. Ltd., M/s Fruto Fresh Industries Pvt. Ltd., M/s Pearl Agro Food, and M/s Sunanda Polymer, and transferred funds to the tune of Rs 127.81 crore to these group entities from FY 2007–08 to 2014–15 in the guise of investment and sale-purchase. It was submitted that these transactions were reflected in the books of accounts as sale, purchase, and investments and were projected as untainted revenue of SBFL and its group companies,' the tribunal noted the allegations of the agency against the concerned firm.
(Edited by Viny Mishra)
Also read: How ED uses publicly available info to identify money laundering, tactic behind 50% PMLA cases in 5 years