2022 (10) TMI 197 - HC - Money Laundering

Seeking grant of anticipatory bail - Money Laundering - proceeds of crime - siphoning off of funds of partnership firm - HELD THAT - 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 firm in commission of the alleged offence being in direct contact with another partner Sanjay Kumar Tiwary. In view of the Section 25 of the Indian Partnership Act, 1932 every partner of a firm is jointly along with other partners and also severally liable for all acts of the firm done, while he is a partner. Therefore, even if the charge-sheet was not filed against the applicant in the scheduled offence in individual capacity; but substantially and materially the allegations are against M/s. Bhanu Construction firm and the authorized signatory Sanjay Kumar Tiwary against whom the charge-sheet was filed in the scheduled offence being in individual capacity also. But for the act of 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 partner of M/s. Bhanu Construction his involvement is prima facie made out and there are reasonable grounds for believing that he has committed the aforesaid offence and is likely to commit offence, if enlarged on bail. The applicant s prayer for anticipatory bail is, hereby, rejected.

Summary

Issues Involved:
1. Whether the applicant should be granted anticipatory bail in connection with the Prevention of Money Laundering Act, 2002.
2. The applicant's involvement and liability in the alleged money laundering activities as a partner of M/s. Bhanu Construction.
3. Applicability of Section 45 of the Prevention of Money Laundering Act, 2002 in granting anticipatory bail.
4. The significance of the applicant not being charge-sheeted in the scheduled offence.

Issue-Wise Detailed Analysis:

1. Whether the applicant should be granted anticipatory bail in connection with the Prevention of Money Laundering Act, 2002:
The applicant filed for anticipatory bail in connection with Enforcement Case Information Report No.03 of 2021 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002. The court examined the provisions of the Act, particularly Sections 3 and 4, which define and penalize money laundering. Section 45 of the Act, which makes the offences cognizable and non-bailable, was also considered. The court noted that anticipatory bail is an extraordinary remedy and should be granted sparingly, especially in economic offences.

2. The applicant's involvement and liability in the alleged money laundering activities as a partner of M/s. Bhanu Construction:
The applicant argued that he was falsely implicated and had no role in the transfer of the alleged amount. However, the court found that the applicant, as a partner of M/s. Bhanu Construction, was aware of and involved in the transfer of Rs.100.01 crores to the firm's account. The applicant admitted in his statement under Section 50 of the Act that he discussed the transaction with his partner and decided to divert the amount for business expansion. The court emphasized that under the Indian Partnership Act, 1932, every partner is jointly and severally liable for the acts of the firm.

3. Applicability of Section 45 of the Prevention of Money Laundering Act, 2002 in granting anticipatory bail:
The court referred to the twin conditions under Section 45(1) of the Act, which require the Public Prosecutor to be given an opportunity to oppose the bail application and the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. The court concluded that these conditions apply to anticipatory bail as well, and economic offences should be treated with a different approach due to their impact on society.

4. The significance of the applicant not being charge-sheeted in the scheduled offence:
The applicant contended that since he was not charge-sheeted in the scheduled offence, no offence under Sections 2/3 of the Act, 2002, was made out against him. The court, however, noted that the allegations were against M/s. Bhanu Construction, a partnership firm, and the applicant, as a partner, was liable for the firm's acts. The court cited the Supreme Court's decision in Vijay Madanlal Choudhary's case, which upheld the constitutional validity of the Amendment Act No.13 of 2018 in Section 45(1) of PMLA, 2022, and emphasized that the applicant's involvement in money laundering was prima facie established.

Conclusion:
The court rejected the applicant's prayer for anticipatory bail, concluding that there were reasonable grounds to believe that the applicant was involved in the alleged offence and was likely to commit further offences if granted bail. The court emphasized the need to treat economic offences seriously and the applicability of Section 45 of the Act in considering anticipatory bail applications.