Sakina Tashrifwala
Published on: 30 September 2022 at 21:28 IST
The Jharkhand High Court recently observed that, according to Section 25 of the Indian Partnership Act, 1932, even if a charge sheet is not filed against a partner of a firm in an individual capacity and all the charges are against the firm exclusively, the partner of the firm and he are equally and severally accountable for the same.
The bench of Justice Subhash Chand made this observation when it refused anticipatory relief to a partner of a business named M/S Bhanu Constructions on the grounds that he was prima facie implicated in committing an offence under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002. The Court remarked:
“In view of 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 an individual capacity; and substantially and materially, the allegations are against M/s. Bhanu Construction firm and the authorised 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,”
Facts of the Case
An SBI bank employee/public servant fraudulently authorised the transfer of over Rs. 100.01 crores to M/bank s’s account. Bhanu Construction caused a wrongful loss to the State Bank of India, resulting in a commensurate unjust gain to M/s. Construction by Bhanu.
It should be mentioned that M/s. Sanjay Kumar Tiwary and Suresh Kumar are the two partners in Bhanu Construction (present applicant).
The CBI submitted a charge sheet before the Spl. Judge, C.B.I., A.C.B., Ranchi vs. Sanjay Kumar Tiwary (firm’s first partner), M/s. Bhanu Construction and others were charged under Sections 120-B read with 406, 409, and 420 of the Indian Penal Code and 13(2) read with 13(1)(d) of the Prevention of Corruption Act.
It was claimed that Sanjay Kumar Tiwary (the firm’s first partner) utilised the money for his personal benefit and moved it to several accounts for various purposes. CBI’s charge sheet did not mention the second partner/present petitioner.
However, in 2021, the Enforcement Directorate registered First Information Report No.03 of 2021 against the applicant under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002, alleging that as a partner of the firm, he was getting profit from the firm and the proceeds of the crime which the firm had gained in unlawful ways were also gained by the applicant, not in an individual capacity but as a partner of the said firm.
Now, seeking bail in this matter, the applicant filed the instant anticipatory bail plea, claiming that he was not the signatory of the alleged account of M/s Bhanu Construction, but rather Sanjay Kumar Tiwary was the sole signatory of the said firm’s alleged account, and that the applicant had no role in transferring the alleged amount from any account, either his own or that of any other person.
Observations of the Court
The Court noted at the start that, while no charge sheet was brought against the present petitioner (Suresh Kumar) in the scheduled crime, accusations were made against M/s. Bhanu Construction is a partnership business, and because the petitioner was and is a partner in the firm, he would be liable.
The Court further observed that the applicant was a partner of the Firm and was well aware of the claimed sum being transferred into M/s Bhanu’s Construction’s account and the claimed sum were also laundered by another partner, Sanjay Tiwary, who was also the firm’s authorised signatory on behalf of the applicant.
“In the case in hand, though the charge sheet was not filed in individual capacity against the applicant, all the allegations are against 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 Court added, citing Section 25 of the Indian Partnership Act, 1932, which states that every partner of a firm is jointly and severally liable for the act of the said firm.
As a result, the Court dismissed the applicant’s counsel’s claim that he was not involved in the conduct of the accused act, noting that he was a partner in M/s. Bhanu Construction’s involvement is prima facie established, and there are reasonable reasons to believe that he committed the aforementioned act and is likely to conduct it again if released on bail.
As a result, the court refused him anticipatory bail.