Bombay High Court
Badre Alam Mohammad Sajjad Shaikh vs State Of Maharashtra on 29 June, 2022
Bench: N. J. Jamadar
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
PHADKE
Date: 2022.06.29
20:33:13 +0530 3 aba 2882 of 2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.2882 OF 2021
Badre Alam Mohammad Sajjad Shaikh ... Applicant
versus
The State of Maharashtra ... Respondent
WITH
ANTICIPATORY BAIL APPLICATION NO.150 OF 2022
Pradeep Ramakant Chaube ... Applicant
versus
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.637 OF 2022
IN
ANTICIPATORY BAIL APPLICATION NO.150 OF 2022
Dayaram Zagdu Yadav ... Applicant/Intervener
and
Pradeep Ramakant Chaube ... Applicant
versus
The State of Maharashtra ... Respondent
Mr. Rajendra Rathod with Mr. Sohonil Ahmed, Mr. Zeeshan Sardar , for Applicant in
ABA 2882 of 2021.
Dr. Abhinav Chandrachud i/by Mr. Kamran Shaikh, for Applicant in ABA 150 of
2022.
Mr. Vinod S. Chate with Ms. Kalpana V. Chate, Mr. Pavan Vadgaonkar i/by Chate and
Associates, for Intervener.
Mr. Y.Y.Dabake, APP, for State.
CORAM: N.J.JAMADAR, J.
DATE : 29th JUNE, 2022
P.C.
1. These Applications are preferred for pre-arrest bail in connection with
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C.R.No.277 of 2021 registered with Kalamboli Police Station for the offences
punishable under Sections 420 and 406 read with Section 34 of the Indian Penal Code,
1860.
2. Dayaram Zagdu Yadav, the first informant, deals in the business of crane.
In the year 2016, the first informant got acquainted with Badre Alam - Applicant in
ABA 2882 of 2021, as the latter was also dealing in the business of renting out the
cranes. Badre Alam represented to the first informant that he and Pradeep -
Applicant in ABA 150 of 2022, were the partners of Trimurti Enterprises, which was
engaged in the business of construction. Simplex Infrastructure Limited, another
entity had a work order to construct road at Srinagar, J&K. Trimurty Enterprise was
engaged as a sub-contractor. Trimurti Enterprises required a crane for executing the
said work. On the representation of Badre Alam, the first informant agreed to give his
crane MC 9115 of Lawren make, bearing No.NL-2-Q-3653, for six months at a
monthly rent of Rs.3,50,000/- with an option to continue the said arrangement till the
said work lasted. Pradeep Chaube accordingly moved the said crane from Maliyabad,
Uttar Pradesh to Shrinagar.
3. The first informant alleges that the Applicant paid a sum of
Rs.32,64,500/- only against the liability to pay for the use of the services of the crane
for 24 months. When the first informant demanded the Applicant - Pradeep Chaube,
to pay the balance amount, Pradeep Chaube initially bought time on one or the other
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pretext. The Applicant - Pradeep Chaube neither paid the outstanding amount, nor
returned the crane. The first informant, thus, met the Applicant - Badre Alam. The
latter claimed that he had no concern with the said transaction.
4. Hence, the first informant lodged a complaint for the offences
punishable under Section 420 and 406 of the Indian Penal Code, 1860 with the
allegation that he had entrusted the crane to the Applicants and the latter committed
default in payment of the hire charges as agreed, and thereby cheated him. By not
returning the crane, the Applicants also committed criminal breach of trust. The
learned Magistrate was persuaded to order investigation under Section 156(3) of the
Code of Criminal Procedure, 1973. On the strength of the said order, an offence was
registered at Kalamboli Police Station vide C.R.No.277 of 2021.
5. Apprehending arrest, the Applicants preferred these Applications. By
an order dated 7th December, 2021 in ABA No.2882 of 2021, this Court was persuaded
to grant interim pre-arrest bail to the Applicant - Badre Alam. In ABA No.150 of
2022, by an order dated 27 th January, 2022, interim protection was granted to the
Applicant - Pradeep Chaube, since Badre Alam - Applicant in ABA 2882 of 2021 was
protected.
6. I have heard Mr. Rathod, learned Counsel for the Applicant in ABA
No.2882 of 2021 and Dr. Chandrachud, learned Counsel for the Applicant in ABA
No.150 of 2022, the learned APP for the State in both the Applications and Mr. Chate,
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learned Counsel for the Intervener - first informant.
Anticipatory Bail Application No.2882 of 2021 :
7. The learned Counsel for the Applicant submitted that there is no
material to connect the Applicant with the crime. In fact, there was no transaction of
whatsoever nature between the Applicant and the first informant. The Applicant is
neither a partner of Trimurti Enterprises. Nor the Applicant had executed any
agreement. At best, the Applicant can be said to have been roped in for the only
reason that he introduced the Applicant - Pradeep Chaube to the first informant.
8. The learned APP and the learned Counsel for the first informant resisted
the prayer of the Applicant by asserting that it was the Applicant who introduced the
Applicant - Pradeep Chaube to the first informant and made initial representations.
Thus, though there is no material to show that the Applicant was infact a partner of
Trimurty Enterprises and executed any document in that capacity, the complicity of
the Applicant is made out by the allegations in the FIR.
9. A copy of the deed of partnership is placed on record, which shows that
apart from the Applicant - Pradeep Chaube, Mr. Mangesh Salvi, was another partner
of Trimurti Enterprises. Evidently, the Applicant - Badre Alam is not a partner. Nor
any document appears to have been executed by the Applicant. A copy of the Work
Order, under which the crane was hired, is also not signed by the Applicant.
10. In the aforesaid view of the matter, the submissions on the part of the
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Applicant that he had no concern with Trimurti Enterprises and the allegations of
fraudulent representation and the consequent inducement to part with the crane or
entrustment of the crane are, prima facie, not attributable to him, cannot be said to be
without substance. I am, therefore, persuaded to confirm the order dated 7 th
December, 2021 of interim pre-arrest bail as there is no material which warrants the
custodial interrogation of the Applicant necessary for effective investigation.
Anticipatory Bail Application No.150 of 2022 :
11. Dr. Chandrachud, learned Counsel for the Applicant submitted that
even if the case of the first informant is taken at par, no case of cheating can be said to
have been made out. Laying emphasis on the fact that the first informant alleges that a
part of the hire charges was paid by the Applicant and the principal grievance is about
non-payment of the balance hire charges, it was submitted that, by no stretch of
imagination, the elements necessary to constitute an offence of cheating are made out.
Since the Applicant had hired the crane and, on the own showing of the first
informant, a sum of Rs.32,64,500/- has been paid by the Applicant, it would be
impermissible to draw an inference that the intention of the Applicant was dishonest
since the inception of the transaction. Failure to pay the balance hire charges would
per-dominently constitute a civil dispute sans any element of criminality.
12. To lend support to this submission, Dr. Chandrachud placed reliance on
a Division Bench judgment of this Court in the case of Babusingh Pokarsingh
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Rajpurohit V/s. The State of Maharashtra and Anr. 1 wherein it was, inter alia, observed
as under :
"10. We have thoroughly considered the submissions advanced in the
light of the charge-sheet filed against the petitioner. If we consider the very
foundation of criminal proceedings initiated against the petitioner, then, it
can be seen that the prosecution has approached with a case that from April,
2007 to December, 2009 cloth material worth Rs.1,06,14,411/- was
purchased by accused and during that period total amount of Rs.81,98,842/-
has been paid to respondent No.2 towards the goods purchased and amount
of Rs.24,15,569/- was lying due against the petitioner. Thus, the very basis of
the criminal case initiated against the petitioner is an unpaid amount of
Rs.24,15,569/- due against accused towards the goods purchased on credit
during April, 2007 to December, 2009. Therefore, if we consider the entire
case of the prosecution to be true and correct, then still no offence
punishable under sections 420 and 406 of the Indian Penal Code can said to
be attracted as against the petitioner.
11. Dishonest intention from the very beginning is sine wp1094-12 qua non to
attract the commission of offence under section 420 of Indian Penal Code.
Even if we consider the allegations made in the complaint as true and
correct, still the petitioner cannot be said to have committed offence of
cheating. Admittedly, the goods in question were purchased on credit in the
account opened by complainant-respondent No.2 in the name of accused. As
against purchase of goods worth Rs.1,06,14,411/- an amount of
Rs.81,98,842/- has been paid to complainant-respondent No.2. The criminal
proceedings has been instituted against the petitioner and co-accused for the
reason that Rs.24,15,569/- which was due and payable by them in the
account was not paid by them in spite of repeated demands by complainant
respondent No.2. Thus, the allegations made in the complaint and evidence
gathered by the prosecution as presented in the form of charge-sheet no
1 2016 SCC Online Bom 1484,
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where discloses that the petitioner had acted with dishonest intention from
the very beginning. If they had any intention to deceive the complainant from
the beginning, then, payment of Rs.81,98,842/- would not have been made
by them. Only for the reason that certain amount was due and not paid,
dishonest intention on their part cannot be inferred in law."
13. Dr. Chandrachud further submitted that the prosecution suffers from
another vital infirmity. The learned Magistrate ordered investigation under Section
156(3) of the Code, in the absence of an Affidavit of the complainant in support of the
allegations, in conformity with the judgment of the Supreme Court in the case of
Priyanka Srivastava and Anr. V/s. State of Uttar Pradesh and Ors. 2. Failure to adhere to
the mandatory directions therein, according to Dr. Chandrachud, has been construed
to furnish a ground for quashing the prosecution.
14. There can be no two views about the mandatory nature of the directions
to file an affidavit, in the judgment of the Supreme Court in the case of Priyanka
Srivastava (supra). However, in the case at hand, it appears that the complaint was
duly supported by an affidavit affirmed by the first informant (page 29 of the
Application). I am, therefore, not inclined to delve into this aspect of the matter any
more.
15. In a commercial transaction, ordinarily, a mere failure to perform a
promise, which causes injury to the promisee, does not amount to cheating. It has to
be shown that both the elements, namely, deceit and injury were present. An offence
2 (2015) 6 SCC 287
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of cheating can be said to have been made out if from the nature of the transaction and
the attendant circumstances, a legitimate inference can be drawn that the intention of
the accused was dishonest since the inception of the transaction and the transaction
was a mere subterfuge to lure the victim. If the accused has made a part payment and
subsequently, there is a default on the part of the accused to pay the price of
goods/services or perform any other promise, dishonest intention since inception of
the transaction cannot be, generally, attributed.
16. In the case at hand, what is of critical significance is the fact that the
Applicant is alleged to have neither paid the balance hire charges nor returned the
crane. On the first count of allegation, Dr. Chandrachud would urge that the
Applicant, in turn, could not get payment from Simplex Infrastructure Ltd., on whose
project the crane was employed. Simplex Infrastructure Ltd., also alleged that the
crane had broken down and, therefore, it withheld the payment. This essentially gives
rise to a civil dispute, urged Dr. Chandrachud. It is, however, imperative to note that
the material on record does not indicate that, at any point of time, the Applicant had
raised a grievance that the crane which was hired had broken down and, therefore, the
Applicant was not liable to make the payment.
17. The failure on the part of the Applicant to return the crane is a matter
which necessitates effective investigation. Indisputably, the crane was entrusted to
the Applicant for a particular purpose and period. The crane was not returned even
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after 24 months of the work order.
17. Dr. Chandrachud attempted to salvage the position by banking upon the
FIR bearing No.043 lodged at Parampora Police Station, Srinagar, by the Applicant, to
the effect that the crane was missing from the project site. I am afraid the aforesaid
report would assist the cause of the Applicant. It is pertinent to note that the said
report came to be lodged after the filing of this Application. In the Application, the
Applicant had not adverted to the said fact of alleged theft of the crane. In this
context, an endeavour on the part of the applicant to press into service the situation
which arose on account of abrogation of Article 370 and Covid-19 pandemic in Jammu
and Kashmir, does not merit countenance.
18. The hard fact is that the crane was entrusted to the Applicant. The
Applicant failed to deliver the crane back to the complainant in accordance with the
terms of the contract, evidenced by the work order. A report of theft which came to
be lodged not only after the filing of the complaint in the instant case but also the
insant application for pre-arrest bail before this Court, cannot be pressed into service
to wriggle out of the situation. From this standpoint, in my considered view, the
custodial interrogation of the Applicant is necessary. Lest an effective investigation
would be a casualty.
19. I am, therefore, inclined to reject the Application. Hence, the following
order :
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ORDER
(i) Anticipatory Bail Application No.2882 of 2021 stands allowed.
(ii) The interim order dated 7th December, 2021 granting pre-arrest
bail to the Applicant is made absolute on the terms and conditions incorporated
therein.
(iii) In addition, the Applicant shall regularly attend the proceedings
before the jurisdictional Court.
(iv) Anticipatory Bail Application No.150 of 2022 stands rejected.
(v) Interim protection stands vacated.
(vi) In view of the disposal of the ABA No.150 of 2022, Intervention
Application No.637 of 2022 does not survive and stands disposed.
( N.J.JAMADAR, J. )
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