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2022 (10) TMI 197
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....y, Suresh Kumar (both partners of M/s. Bhanu Construction), M/s. Bhanu Construction, a partnership firm and Ajay Oraon, the Deputy Manager of State Bank of India, Hatia Branch, Ranchi and others on the basis of charge-sheet bearing no.04 of 2019 dated 26.06.2019 filed by CBI, ACB, Ranchi before the court of learned Spl. Judge, C.B.I., Ranchi under Section 120-B read with 406, 409 and 420 of the Indian Penal Code and 13(2) read with 13(1)(d) of Prevention of Corruption Act. 4. It is alleged that a saving bank account no.33954815459 of "Jharkhand Rajya Madhayan Bhojan Pradhikaran" was maintained at State Bank of India, Hatia Branch, Ranchi. On 04.08.2017, the said branch received total six numbers of debit advices from the Department of Jharkhand Rajya Madhayan Bhojan Pradhikaran, Government of Jharkhand for transfer of Rs.120.31 crores from their saving bank accounts to multiple accounts maintained with different banks including SBI. As per advice, Rs.20.29 crores were to be transferred to bank account with SBI and Rs.100.01 crores were to be transferred to other bank accounts. For bulk transfer through RTGS/NEFT, Rs.100.01 crores were debited from the saving bank account of Jhar....
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.... partnership firm. As per charge-sheet, the proceeds of the crime was Rs.19,60,17,457/-. It is also further alleged that in the individual account of partner Suresh Kumar on 04.09.2017 an amount of Rs.7,29,674/- was deposited in his HDFC bank A/c No.50100167868301 maintained at HDFC Bank, Ranchi and that bank account was solely operated by Suresh Kumar. The amount of Rs.316448290/- was deposited in the account of M/s. Bhanu Construction, a partnership firm from 11.08.2017 to 11.09.2017 in different bank accounts of the said firm. The rest of the amount was deposited in the account of UTS Infratel Private Limited, Naushad Ashdque and Naba Durga Private Construction Ltd. Orissa. It is also further alleged that approximately Rs.15 crores has been spent in purchasing all the 53 vehicles. 6. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case with object to humiliate him on being arrested by the E.D. officials. It is further submitted that from the F.I.R. as well as the charge-sheet which was filed by CBI/ACB, Ranchi it is shown that the applicant is not the signatory of the alleged account of M/s Bhanu Construction maintained a....
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....ay Madanlal Choudhary's (Supra) case. 8. I have heard the learned counsel for the parties and perused the materials available on record. For disposal of this bail application, the following provisions of the Act, 2002 are being reproduced as under:- Section 2(p) of the Act, 2002 provides:- "(p) "money-laundering" has the meaning assigned to it in Section 3." Sections 2(y) of the Act, 2002 provides:- "(y) "scheduled offence" means - (i) the offences specified under Part A of the Schedule; or [(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or (iii) the offences specified under Part C of the Schedule;]" Sections 3 and 4 of the Act, 2002 provides as under:- "3. Offence of money-laundering - Whosoever directly or indirectly attempts to indulged or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money laund....
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....cified in 5 [***] subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 9. The E.D. had recorded the statement of applicant-Suresh Kumar under Section 50 of the Act, 2002 on 13.07.2021 and 14.07.2021. In his statement he had stated that a partnership firm, namely, Bhanu Construction was opened in the year 2016 and he was one of the partners of the M/s Bhanu Construction. He further stated that the accounts of said firm was being operated by Sanjay Kumar Tiwary and he was authorized signatory for all account of M/s. Bhanu Construction. The account no.36310149578, S.B.I. Hatia Branch, Dhurwa was opened in the name of M/s Bhanu Construction in the year 2016 and Sanjay Kumar Tiwari was the authorized signatory of the said account. He further stated that he received a phone call from Ajay Oraon and Panna Lal, SBI Hatia Branch regarding the transaction of Rs.1000141016/- crores in the account of M/s. Bhanu Construction by mistake and this matter was discussed between Sanjay Kumar Tiwari and him and it was decided that they would not attend any kind of communication with....
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....who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively a "firm", and the name under which their business is carried on is called the "firm name". 6. Mode of determining existence of partnership.-In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. Explanation 1.-The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners. Explanation 2.-The receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not itself make him a partner with the persons carrying on the business; and, in particular, the receipt of such share or payment- (a) by a lender of money to persons engaged or about to en....
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....stitutional Bench of Hon'ble Apex Court in Vijay Madanlal Choudhary's (supra) case. 17. The applicant cannot be given benefit of the aforesaid case law of Hon'ble Apex Court. 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. 18. The Hon'ble Apex Court in Vijay Madanlal Choudhary's (supra) case in paragraphs 269, 270, 282 and 284 has held as under : "269. From the bare language of Section 3 of the 2002 Act, it is amply clear that the offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. The process or activity can be in any form - be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in any one of such process or activi....
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.... and irrespective of its volume, the definition of "proceeds of crime" under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence. It is possible that in a given case after the discovery of huge volume of undisclosed property, the authorised officer may be advised to send information to the jurisdictional police (under Section 66(2) of the 2002 Act) for registration of a scheduled offence contemporaneously, including for further investigation in a pending case, if any. On receipt of such information, the jurisdictional police would be obliged to register the case by way of FIR if it is a cognizable offence or as a non-cognizable offence (NC case), as the case may be. If the offence so reported is a scheduled offence, only in that eventuality, the property recovered by the authorised officer would partake the colour of proceeds of crime under Section 2(1)(u) of the 2002 Act, enabling him to take further action under the Act in that regard. 284. In other words, the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to beli....