TMI Blog2022 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm both partners are liable and it cannot be accepted that the applicant Suresh Kumar was not involved in the alleged offence. In the case in hand, though the charge-sheet was not filed in individual capacity against the applicant but all the allegations are against the M/s. Bhanu Construction, a partnership firm and the applicant is the partner of the said firm and he is jointly and severally liable for the act of the said firm. The anticipatory bail is nothing; but a bail granted in anticipation of arrest, hence it has been held in various judgments by Hon ble Apex Court that the principles governing the grant of bail in both cases are more or less on same footing. Thus ordinarily anticipatory bail is granted in the exceptional cases where the accused has been falsely implicated in an offence with a view to harass and humiliate him. Therefore it would not be logical to disregard the limitation imposed on granting bail under Section 45 of the 2002 Act, in case of anticipatory as well. Thus, the plea raised by the learned counsel for the applicant is not accepted that the applicant was not involved in commission of the alleged offence, rather in capacity of a partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTGS/NEFT, Rs.100.01 crores were debited from the saving bank account of Jharkhand Rajya Madhayan Bhojan Pradhikaran and temporarily parked in office/suspense account of the branch for processing of transfer through RTGS/NEFT to various accounts but due to failure in bulk uploading the entire amount got returned to the office/suspense account of the Branch. It was revealed that Shri Ajay Oraon, the then Deputy Manager (Business Development Department) S.B.I. Hatia Branch, Ranchi instead of crediting back the amount of Rs.100.01 crores to saving bank account of Jharkhand Rajya Madhayan Bhojan Pradhikaran from the office/suspense account of the said branch, with the gross negligence and without applying due diligence dishonestly abusing his official position as a public servant authorized the transfer of almost entire amount to the current account no.36310149578 of M/s. Bhanu Construction. Shri Sanjay Kumar Tiwary and Shri Suresh Kumar, both partners of M/s. Bhanu Construction dishonestly transferred the said amount to their various accounts and misappropriated the same by keeping it as liquid security/margin for the credit facility extended to them by Axis Bank Limited, Ashok Nag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the signatory of the alleged account of M/s Bhanu Construction maintained at S.B.I. Hatia Branch, Ranchi, rather it was Sanjay Kumar Tiwary, who was the sole signatory of the alleged account of the said firm and the applicant has no role in transferring the alleged amount from any account either of himself or any other person. So far as the alleged transferred amount of Rs.7,29,674/- from the account of M/s Bhanu Construction is concerned, the same has already been returned by the applicant to the account of M/s. Bhanu Construction, a partnership firm on 27.09.2017. A copy of the bank statement to that effect is made part of the bail application. It is further submitted that in the charge-sheet filed by the A.C.B., it is shown that the role of the applicant Suresh Kumar in the conspiracy was negligible and, therefore, he was not charge-sheeted. A copy of the charge-sheet is made part of the bail application. It is also submitted that since the applicant was not charge-sheeted in the scheduled offence, as such, no offence is made out against this applicant under the alleged Sections 2/3 of the Act, 2002. Learned counsel for the applicant in support of his contention relied upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted property shall be guilty of offence of money laundering. 4. Punishment for money-laundering. Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years , the words which may extend to ten years had been substituted. Section 45 of the Act, 2002 provides as under:- 45. Offences to be cognizable and non-bailable.-( 1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind of communication with SBI Hatia Branch, Dhurwa and they decided to divert the said amount to various account of M/s. Bhanu Construction and others for expansion of business of construction work. Out of that amount 53 numbers of the vehicles were purchased in the name of the M/s. Bhanu Construction . Further he stated that he had received an amount of Rs.7,29,674/- and on 04.09.2017 in his personal account and re-transferred the same on 27.09.2017 in the account of M/s. Bhanu Construction. As per agreement of partnership firm of Bhanu Construction dated 16.12.2014, the ratio of profit/loss of Shri Sanjay Kumar Tiwary was 85%; while of applicant Suresh Kumar was 15%. 10. From perusal of record, it is also found that approximate an amount of Rs.18.5 crores has been spent in purchasing 53 vehicles in the name of M/s. Bhanu Construction. 11. Annexure-4 is Final Report under Section 173 Cr.P.C. filed before the Special Judge, CBI, Ranchi in RC12(A) 2017-R dated 05.12.2017. From perusal of the same, it is found that in this charge-sheet it is mentioned in serial no. 12(xv) that Suresh Kumar did not sign any instruments and did not get the financial benefit out of illegal tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to engage in any business, (b) by a servant or agent as remuneration, (c) by the widow or child of a deceased partner, as annuity, or (d) by a previous owner or part-owner of the business, as consideration for the sale of the goodwill or share thereof, does not of itself make the receiver a partner with the persons carrying on the business. 25. Liability of a partner for acts of the firm.- Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner. 14. Since the applicant was partner of M/s. Bhanu Construction, a partnership firm and he was also very much aware in regard to the transfer of the alleged amount in the account of M/s. Bhanu Construction and the alleged amount was also laundered by applicant along with another partner Sanjay Tiwary, who was the authorized signatory of the firm on behalf of the applicant also. 15. In view of the statement of applicant under Section 50 of the Act, 2002, it cannot be denied that he was not involved in the alleged offence. The applicant was not the dormant partner of the firm, rather he had actively participated on behalf of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence - except the proceeds of crime derived or obtained as a result of that crime. 270. Needless to mention that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity (a scheduled offence). It would be an offence of money-laundering to indulge in or to assist or being party to the process or activity connected with the proceeds of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money-laundering under the 2002 Act - fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be recorded in writing that the person is in possession of proceeds of crime . Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process. 19. The Constitutional Bench of Hon ble Apex Court in Vijay Madanlal Choudhary s (supra) case also upheld the constitutional validity of Amendment Act No.13 of 2018 in Section 45(1) of PMLA, 2022. As such the provisions of twin conditions of Section 45(1) of the said Act are equally applicable while considering the anticipatory bail application under the PMLA, 2002. 20. The anticipatory bail is nothing; but a bail granted in anticipation of arrest, hence it has been held in various judgments by Hon ble Apex Court that the principles governing the grant of bail in both cases are more or less on same footing. Thus ordinarily anticipatory bail is granted in the exceptional cases where the accused has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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