Bombay High Court

Ddnfsa, Through Its Managing ... vs Sudhakaran Bekal Velappil And Anr on 18 January, 2021

Bench: V. V. Kankanwadi

                                (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

        ANTICIPATORY BAIL APPLICATION NO.270 OF 2020
                             with
             CRIMINAL APPLICATION NO.913 OF 2020
                              &
             CRIMINAL APPLICATION NO.795 of 2020

 Sudhakar Bekal Valappil                        =     APPLICANT

          VERSUS

 The State of Maharashtra                       =     RESPONDENT

                        ----
 Mr.RR     Karpe,     Adv.      h/for                    Mr.            SS
 Gangakhedkar,Advocate for Applicant;

 Mr.SY Mahajan,APP for Respondent-State;

 Mr.RS Deshmukh, Sr.Counsel i/b Mr.RD Raut, Adv.
 And Mr. MD Shinde, Adv. to assist APP;

                               with

        ANTICIPATORY BAIL APPLICATION NO.266 OF 2020
                             with
             CRIMINAL APPLICATION NO.914 OF 2020

 Pandu Morimisetty s/o
 Venkatramanappa                                =     APPLICANT

          VERSUS

 The State of Maharashtra                       = RESPONDENT

                               -----
 Mr.SD Tawshikar,Advocate for Applicant;
 Mr.SY Mahajan,APP for Respondent-State;

 Mr.RS Deshmukh, Sr.Counsel i/b            Mr.RD        Raut       &    DR
 Deshmukh, Adv. to assist APP.
                        -----




::: Uploaded on - 18/01/2021           ::: Downloaded on - 08/02/2021 05:00:59 :::
                                             (2)

                                     CORAM :      SMT.VIBHA KANKANWADI,J.

 RESERVED ON :                  18/12/2020
 PRONOUNCED ON:                 18/01/2021

 PER COURT :-

 1.               Criminal              Application                  Nos.913/2020;

 914/2020           and        795/2020     moved         to     assist          APP      in

 respective              Anticipatory             Bail      Applications                are

 allowed and disposed of.



 2.               Both         the   Anticipatory           Bail       Applications

have been filed by original accused persons for

getting pre-arrest bail, as they are apprehending

their arrest in connection with CR No.4/2020 dated

10.01.2020 registered with Murud Police Station,

District Latur for the offences punishable under

Sections 406, 420 read with 34 of Indian Penal

Code.

3. Heard learned Advocates and learned APPs

assisted by learned Senior Counsel appearing for

respective parties.

4. It has been vehemently submitted on

behalf of the applicants that perusal of the FIR

and the facts around the contents of the FIR would

show that only civil remedy is available to the

informant.

A. The learned Advocate representing the

applicant in ABA No.266/2020 submitted that since

it was a commercial transaction, the informant

ought to have knocked the doors of the concerned

Commercial Court, but instead of that, a private

complaint was filed bearing RCC No.361/2019 before

learned JMFC, Latur. In fact, the learned

Magistrate was pleased to take cognizance of the

complaint and recorded the verification of the

complainant on 5.8.2019. However, surprisingly, a

separate application was filed on 6.11.2019 in the

said case by the complainant praying for passing an

order under Section 156(3) of Cr.P.C.. That

application came to be allowed erroneously by the

learned Magistrate on 4.1.2020. In fact, since the

learned Magistrate has exercised his power under

Section 156(3) of Cr.P.C. erroneously, the

registration of the offence, on the basis of the

same, itself is illegal. Yet, as the FIR is now

registered; perusal of the same would show that it

is purely civil in nature. Custodial interrogation

of the applicants is not at all required. The

applicant never denied the transaction with the

informant and his liability to pay the amount

against the purchased goods. He had already issued

a cheque in favour of the informant. The informant

had also tried to encash the same, however, due to

financial problems of the applicant, the said

cheque came to be dishonoured. The informant could

have lodged a complaint under Section 138 of The

Negotiable Instruments Act, but he did not resort

to for that remedy and filed the present case.

Taking into consideration the FIR as it is, on its

face value, it does not constitute the offence

under Section 406 or 420 of IPC. The applicant is

ready to abide by the terms of the bail and to

cooperate with the investigation. The learned

Advocate, therefore, prayed for release of the

applicant on pre-arrest bail.

B. The learned Advocate representing the

applicant in ABA No.270/2020, submitted that the

present applicant has no concern with the

transaction. The said transaction was between the

company of the informant and accused No.1. The

applicant is not beneficiary of any amount. It is

alleged in the complaint that the present applicant

had contacted the informant in December 2018 and

represented that his company intends to purchase

jaggery powder from the complainant. It is also

alleged that the present applicant had entered into

the negotiations and fixed the price of the

product. The delivery of the goods is given to Sri

Venkateswara Global Trading Pvt. Ltd and invoices

have been raised as against that company, which is

owned by original accused No.1. The present

applicant was acting as coordinator between them

and he has nothing to do with the further terms of

the contract those might have been entered into

between them. In fact, when the informant had made

the communication to the present applicant

regarding outstanding amount, he had sent e-mails

to accused No.1 and insisted that the said price be

paid. There was no intention on the part of the

applicant to cheat the informant. Custodial

interrogation of the applicant is absolutely not

required and the dispute is surrounding the

recovery of amount of Rs.1,99,04,375/-, for which

it appears that accused No.1 had issued the cheque,

which later on was dishonoured. At the most, the

case is of pure and simple breach of contract of

sale and does not constitute offence of criminal

breach of trust or cheating. Consequently, the

learned Advocate for the applicants canvassed for

pre-arrest bail.

5. The learned Advocates for the respective

applicants have relied on the following citations,

-. In ABA 270/2020

a) Binod Kumar and Ors. Vs. State of Bihar & Anr.

- AIR 2015 SC (Supp) 1446;

b) Dalip Kaur and Ors. Vs. Jagnar Singh and Anr.

- 2009 AIR SCW 5117;

c) V.Y.Jose and Anr. Vs. State of Gujrat and Anr

- AIR 2009 SC (Supp) 59

d) S.N. Palnitkar & Ors. Vs. State of Bihar & Anr.

          - AIR 2001 SC 2960

 .                In ABA 226/2020

 .        Blue Dart Express Ltd. Vs. The State                                          of

Maharashtra & Ors. -2011 (2) Crimes 46

6. Per contra, learned APP, well assisted by

learned Sr. Counsel Shri RS Deshmukh, instructed by

advocate RD Raut and learned Advocate Shri MD

Shinde, strongly objected both the applications.

It has been submitted that the details of the

transactions are given in the FIR and the

complaint. The applicant in ABA No.266/2020, i.e.

accused No.1, had paid only an amount of

Rs.80,75,550/-, out of the total consideration of

Rs.2,75,00,000/- and amount of Rs.1,99,04,375/- was

avoided. Further, he had also tried to have

settlement and two Demand Drafts of Rs.50,00,000/-

and Rs.1,00,00,000/- respectively drawn on State

Bank of India, Shrinagar colony, Chennai, were

handed over in view of the compromise. However it

is then alleged on behalf of applicants that, when

the parties went to State Bank of India, Latur

branch, for verification of the Demand Draft, the

Manager of the Bank viz. Vijay Nade and one unknown

person, snatched those demand drafts. Such type of

false reporting has been done by V.Ranjeet

Charankumar and then the complaint has been given

to Superintendent of Police, Latur on 14.2.2020.

The amount is still with accused No.1 and those

demand drafts have not been encashed. All has been

done with the sole intention to cheat the

informant.

7. The applicant in ABA No.270/2020 was, in

fact, representing himself as representative of the

company of accused No.1 and his e-mails would

disclose that he had taken active part. Now, when

it comes to making the payment, it has been avoided

on one or the other pretext. Though the transaction

may disclose remedy in civil nature; yet it has a

remedy under criminal law also. In order to get

confidence, if some payment is made, it does not

wash away the initial intention to cheat and,

therefore, from the contents of the complaint when

it was found by the learned JMFC that cognizable

offence has been made out, he has passed the order

of investigation under Section 156(3) of Cr.P.C. A

thorough investigation is definitely required. So

also as regards the said applicant- accused No.1,

he is involved in three offences bearing CR

No.29/2018 for the offences under Sections 420,

314, 120-B, 506 read with 34 of IPC; CR No.62/2019

under Sections 409, 420 and 506 of IPC and CR No.

100/2019, under Sections 409, 420, 506 read with 34

of IPC registered with Kothacheruvu police station

District Ananthapur in Telangana State. The said

criminal antecedents are also required to be

considered. Custodial interrogation of both the

applicant is required and, therefore, the learned

APP prayed for rejection of both the applications.

8. At the outset, though in an anticipatory

bail, we need not consider legality of the order

dated 4.1.2020, under Section 156(3) of Cr.P.C.,

passed by learned JMFC below Exh.6 in RCC

No.361/2019; yet it can be seen that the learned

Magistrate has referred the judgment of the Hon'ble

Supreme Court in Criminal Appeal Nos.478-479 of

2017 dated 16.10.2019, in the case of Vinubhai

Haribhai Malaviya and Ors. Vs. State of Gujrat

and Anr. - (2019) 17 SCC 1), which is a three-judge

Bench decision and the relevant paras of the said

decision have been quoted. Therefore, it cannot be

said that the said order is without application of

mind, thereby giving any advantage to the present

applicants to seek anticipatory bail.

9. Now, turning towards the contents of the

FIR, it can be seen that the allegations are,

accused No.1 had approached to the informant

through accused No.2 for supply of jaggery powder

to informant's factory in December 2018.

Thereafter, accused No.2 had visited the factory

site and inspected the jaggery powder and it was

represented that his company wants to buy 1,000 mt

of jaggery powder, which the complainant agreed to

sell. After the amount was settled, it was agreed

that the complainant would deliver the jaggery

powder at the godown of Sri Venkateshwara Global

Trading Pvt.Ltd. at Kothacheruvu. In view of the

terms of the agreement, post-dated cheque for

Rs.2,75,00,000/- was issued on 18.1.2019, drawn on

Karnataka Bank Ltd., Rajendra Nagar branch,

Hyderabad, in favour of the informant by accused

No.1. Thereafter, the informant says that the

delivery of the goods was made as agreed and the

total price of the jaggery powder supplied was

Rs.2,79,74,925/-. The complainant says that amount

of Rs.80,75,550/- has been paid by the accused,

however, the outstanding amount is of

Rs.1,99,04,375/-. In spite of several attempts and

communications, the accused has failed to repay

and, therefore, the cheque was deposited, which was

later on dishonoured. It is the say of the

informant that the accused persons, in collusion

with each other, induced the complainant to deliver

the said amount of jaggery powder and thereafter

fraudulently and dishonestly with common intention,

cheated the complainant and thereby misappropriated

the goods.

10. No doubt, there is definitely an element

of commercial transaction in the facts of the case;

yet when there is element of cheating and in spite

of repeated attempts, followed by dishonor of the

cheque, definitely it may give rise to a criminal

remedy and, therefore, thorough investigation is

required. Further development is also required to

be looked into. As regards those Demand Drafts,

which are stated to be given by the accused, as per

the settlement, photo copies of which have been

given, would show that the allegations have been

leveled against the informant, who is the Director

of the complainant, that he has snatched those

demand drafts. If those demand drafts were meant

for the informant, then why there should be a

complaint on behalf of accused No.1 that the

informant has snatched away those demand drafts.

Therefore, this additional factor also prompts this

Court not to exercise the discretion in favour of

the applicants.

. As regards, accused No.2, i.e. applicant

in ABA No.270/2020, various e-mails, those were

exchanged and the contents of the complaint, would

show that the said applicant had represented to the

complainant that he is the office-bearer or

authorized person of the company held by accused

No.1. Therefore, his role is also then required to

be checked, for which physical custody is required.

11. The ratio, laid down in decisions, relied

on behalf of the applicants, referred to above,

cannot be made applicable in this case, as the

facts involved in the cited cases are different

than the cases in hand. Further, when the Hon'ble

Apex court has clarified the legal position, the

decision of this Court in the case of Blue Dart

(cited supra) will not be of any help.

12. Further, when this is a case discovering

an economic offence, then the applicants do not

deserve to be released on anticipatory bail in view

of the observations made by the Hon'ble Apex court

in the case of Y.S.Jagan Mohan Reddy Vs.CBI -

(2013) 7 SCC 439, wherein, the Hon'ble Apex court

has observed thus, -

"......Economic offences constitute a class apart and need to be visited with a

different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."

13. A reference can be made to the

observations made by the Hon'ble Apex court in the

case of In P.Chadambaram Vs. Directorate of

Enforcement - (2019) 9 SCC 24, wherein the Hon'ble

Apex Court has observed, - "Ordinarily, arrest is a

part of procedure of the investigation to secure

not only the presence of the accused but several

other purposes. Power under Section 438 Cr.P.C. is

an extraordinary power and the same has to be

exercised sparingly. The privilege of the pre-

arrest bail should be granted only in exceptional

cases. The judicial discretion conferred upon the

court has to be properly exercised after

application of mind as to the nature and gravity of

the accusation; possibility of applicant fleeing

justice and other factors to decide whether it is a

fit case for grant of anticipatory bail. Grant of

anticipatory bail to some extent interferes in the

sphere of investigation of an offence and hence,

the court must be circumspect while exercising such

power for grant of anticipatory bail. Anticipatory

bail is not to be granted as a matter of rule and

it has to be granted only when the court is

convinced that exceptional circumstances exist to

resort to that extraordinary remedy."

14. In the said decision, the Hon'ble Apex

court further observed thus, -

".......grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful informa- tion and also materials which might have been concealed. Success in such interro- gation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, par- ticularly in economic offence would defi- nitely hamper effective investigation"

15. Taking into consideration the facts and

circumstances of the present case; the material

brought on record and the law laid down by the

Hon'ble Apex court, as aforesaid, no case is made

out for grant of anticipatory bail to the

applicants. Both the Anticipatory Bail

Applications, therefore, rejected.

(SMT. VIBHA KANKANWADI) JUDGE BDV

Later on :

16. After pronouncement of the order, learned

Advocate Mr. Gangakhedkar, appearing in

Anticipatory Bail Application No.270 of 2020 prays