Indo Rama Synthetics (I) Ltd. v. State of Maharashtra

O R D E R 2 1] By the present application, the applicant/company is challenging the order dated 25/6/2010 passed by the learned 4th Ad-hoc Additional Sessions Judge, Nagpur in Misc. Criminal Application No. 697/2010 filed by non-applicant nos.2 to 4 for grant of anticipatory bail in Crime No. M-1/10 registered at Police Station, Butibori, Dist. Nagpur for the offences punishable under Section 406, 409, 415, 420, 421,422,426 R/w Sec.34 and 120-B of Indian Penal Code. The complaint was filed by the applicant/company. 2] The case in brief is that the applicant/complainant Company is a limited company dealing in manufacturing different kinds of fibers and yarns whereas the non-applicants Nos.2 to 4/accused persons are the partners of the firm namely HRK Infra and Oils, Jaipur. The non-applicant Nos.2 to 4/accused persons approached the complainant company representing themselves having expertise and resources in procurement, import and supply of furnace oil (fuel oil). They offered to supply fuel oil on a very competitive price in a stipulated period and the applicant company believing the said representation and compromise made by the non-applicant/accused persons, entered into an agreement with them for supply of the material. 3] It is the case of the applicant company that as per the agreement between the applicant company and the accused persons, it was agreed to supply 19,000 MT fuel oil in two consignments, 10 MT in first consignment and 9 MT in second consignment on receipt of advance amount of Rs.4,70,25,000/-. Learned 3 Advocate for the applicant company submitted that the non-applicant nos.2 to 4/accused persons received the amount of Rs.4,70,25,000/- towards advance payment, but since beginning there was an intention of respondent nos.2 to 4/accused to cheat the applicant company. The accused persons gave assurance to supply the goods, but failed to deliver the same. No arrangement was made by the accused persons for importing the goods to India as per the terms of agreement. It is further submitted that though time and again the applicant/company requested non-applicant nos.2 to 4 to supply the goods, only assurances were given by the respondents. The applicant company found that non-applicant nos.2 to 4/accused are avoiding to deliver the goods and therefore, was constrained to file complaint on 10/12/2009 to Police Station, Butibori. 4] As no action was taken on the complaint, the applicant/company approached the Superintendent of Police, Nagpur on 25/12/2009. Even then, the Superintendent of Police, Nagpur also failed to take any cognizance of the complaint and as such the complainant left with no other option, approached to the Court of Judicial Magistrate, First Class, Court No.10, Nagpur for seeking direction under Section 156(3) of the Code of Criminal Procedure for registration of offence and for investigation. Learned J.M.F.C., Court No.10, Nagpur was pleased to issue direction under Section 156(3) of Cr. P. C. for investigation and in pursuance to those directions, F.I.R. was lodged. Non-applicant nos.2 to 4 approached the Sessions Court, Nagpur for grant of anticipatory bail by filing Misc. Cri. Application No. 697/2010 and by order dated 25/6/2010, anticipatory bail has been granted to the accused persons on certain conditions. 4 5] I have heard Mr. Shyam Dewani, learned Advocate for the applicant/ company and Mr. A.M.Rizwy, learned Advocate for non-applicant nos.2 to 4 at length. Mr. J.B.Jaiswal, learned APP appears for non-applicant no.1 – State. 6] Mr. Shyam Dewani, learned Advocate for the applicant/company has urged the following points :- a] The learned Sessions Court while allowing the application for anticipatory bail has exceeded its jurisdiction by making observations on merits of the matter. b] The court was not expected to give its finding on the nature of the offence and arrive at a conclusion that the dispute between the parties is of civil nature. c] The investigation was at initial stage and the custodial interrogation of the non-applicant nos.2 to 4/accused was necessary. d] The investigating agency had submitted its reply opposing the application and raising grounds for rejection of the application. But, the learned Sessions Court has not properly considered the said reply. e] The conditions imposed on non-applicant nos.2 to 4 while granting anticipatory bail, are not complied and soon they filed an application was seeking modification of the conditions. 7] Mr. Rizwy, learned Advocate for non-applicant Nos.2 to 4/accused has submitted as under : 5 a] While allowing the application, the learned Sessions Court has considered all the relevant facts. b] Custodial interrogation of non-applicant nos.2 to 4/accused was not necessary. c] There was no criminal intention to deceive the applicant company, but due to certain unforeseen difficulties i.e. non- availability of Letter of Credit on the ground of restricted financial limits, the non-applicant nos.2 to 4 were unable to supply the goods within stipulated period. d] The applicant company has not approached this Court with clean hands. In the complaint certain facts are not disclosed, which were within the knowledge of the applicant/company and misleading statements were made in the complaint. 8] Perused the affidavit in reply filed by non-applicant no.1/State through one Devidas Dewaji Bhoyar, A.P.I., P.S., Butibori so also the reply filed by non-applicant no.2 to 4. With the assistance of learned Advocates for applicant and non-applicant nos.2 to 4, I have gone through record. 9] The point for consideration before this Court is that whether there are sufficient reasons to set aside the impugned order dated 25/6/2010. 10] Though, Mr. Dewani and Mr. Rizwy, learned Advocates for the respective parties referred the various communications filed on record, in my opinion, it is not necessary to refer to those various communications. 11] Without deliberating much to the details of the complaint, it is suffice 6 to say that the grievance of the applicant company in the complaint is that the non- applicant nos.2 to 4/accused persons had assured to deliver the goods as per the agreement and accepted an amount of Rs.4,70,25,000/- as an advance, but failed to deliver the goods. The further grievance is that out of the advance amount of Rs.4,70,25,000/-, an amount of Rs.3,00,00,000/- was invested by the accused persons in their account and used for their own use. These acts of the accused persons constitute an offence of cheating, criminal breach of trust and forgery. 12] Perusal of the impugned order shows that the parties have placed relevant documents to support their submissions as well as the case papers of the investigating agency. Mr. Dewani, learned Advocate for the applicant made attack on the impugned order on the ground that while considering the application for grant of anticipatory bail, the learned Sessions Judge has exceeded its jurisdiction and formed his opinion that the transaction is of civil nature. To support his contention, learned Advocate has invited my attention to the relevant portion of paragraph no.5 of the order, which reads thus - “Thus, the documents on record clearly shows that the transaction is of civil nature.......... The entire case is based on documentary evidence and admittedly the applicants company is registered firm and the alleged transaction is of civil nature.” (page 84 of paper book) 13] I am of the opinion that merely picking some portion of the order and then to submit that the learned Judge has exceeded its jurisdiction, will not be proper to appreciate the impugned order. While considering the impugned order, I 7 find that the learned Judge has considered the point whether the custodial interrogation of the applicant is necessary and on considering the material, the learned Judge found that the custody of the applicants was sought only on the ground of collecting certain information about registration of the applicant’s firm and as per the contract, the details of the order to other company and to recover other documents. The learned Sessions Court also observed that the case is based on the documentary evidence. Perusal of the report/say filed before the Court below opposing the application, which is placed on record at Annexure-F, shows that custodial interrogation of the accused was sought on the ground of collecting the material in the form of documents. It is not the case of the investigating agency that apart from the documents, it wants to recover any other material from the non-applicant nos.2 to 4/accused. 14] Mr. Rizwy, learned Advocate submitted that the transaction between the parties is a business transaction. There was no criminal intention. He further submitted that non-applicant nos.2 to 4 have already repaid an amount of Rs. 2,40,00,000/- out of the alleged amount of Rs.4,70,25,000/- and this fact is also clear from the say of the investigating agency filed before the Sessions Court. Learned Advocate has invited my attention to the say (Annexure-F) and relevant portion at page 62, which reads thus : “advance ghetlelya rakmetun 2 koti 25 lakh rupaye parat karnyas talatal karat asun ..............” Learned Advocate further submits that though the applicant company was aware that an amount of Rs.2,40,00,000/- is repaid, this fact was not mentioned in the 8 complaint and misleading statement is made in the complaint that non-applicant nos.2 to 4 are avoiding to pay Rs.4,70,25,000/-. Learned Advocate invited my attention to the communication placed on record at page Nos. 205 and 208. The said communications were forwarded to the Vice President of the applicant company expressing the difficulties faced by the non-applicant Nos.2 to 4/accused for non-delivery of the goods. Learned Advocate submitted that the representative of the applicant company was aware of the difficulties and he had acknowledged the same and as such no criminal intention can be alleged against non-applicant nos.2 to 4. Learned Advocate further invited my attention to the communication sent by Asstt. Vice President of the applicant company to representative of non- applicant nos.2 to 4, wherein he acknowledged the difficulties expressed by non- applicant nos.2 to 4 and also states that there is need to support HRK Infra and Oils with confirmed cash flow. Mr. Rizwy, learned Advocate further submitted that in view of the communication, it is more than clear that there was no criminal intention to deceive the applicant company, but due to financial difficulties delay was caused in delivering the goods and in arranging the funds for the repayment. 15] The reply filed by non-applicant no.1 – State only states that the detailed interrogation of non-applicant nos.2 to 4 is necessary, but no details / grounds are mentioned for their custodial interrogation. The say filed by the State before the Sessions Court shows that the investigating agency opposed the anticipatory bail only on the ground of non-availability of the documents. 9 16] Though, Mr. Dewani, learned Advocate for the applicant company raised grievance that inspite of the directions to attend the concerned police station on every Monday, Wednesday and Friday, non-applicant nos.2 to 4 failed to attend the police station, in the reply filed by the investigating agency, placed on record at page no.259, there is no such grievance made by the investigating agency for non- compliance of the conditions. Mr. Rizwy, learned Advocate was fair enough to say that on three occasions one of the accused namely Yogendrasingh failed to attend the concerned police station as he was suffering from ailment. He has placed on record the acknowledgment of the attendance to the police station. Mr. Rizwy, learned Advocate further submitted that the non-applicant nos.2 to 4 have moved for seeking modification of said condition of attending the police station trice in a week, for the reason that respondent nos.2 to 4 are resident of Jaipur and New Delhi and looking to the distance between Nagpur and Jaipur/New Delhi, it is difficult for them to attend the concerned police station thrice in a week. The said application is pending before the Court. Thus, Mr. Rizwy finally submitted that the application for grant of anticipatory bail was considered in a proper perspective by the Sessions Court. 17] I am of the opinion that order dated 25.06.2010 passed by the learned 4th Ad-hoc Additional Sessions Judge, Nagpur in Miscellaneous Criminal Application No. 697/2010 by appreciating the facts of the case as well by considering submissions of investigating agency needs no interference at the hands of this Court. 10 In the result, the criminal application is rejected and disposed of as JUDGE 18] such. Diwale