Manish Jain vs State Of Nct Of Delhi & Ors.
2012 Latest Caselaw 1781 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+               CRL.M.C. No. 1564/2008

     %                 Judgment reserved on: 12th December, 2011
                       Judgment delivered on:15th March, 2012

MANISH JAIN                                            ..... Petitioner
                                Through: Mr. Dharmendra Priyani, Adv.
                       versus

STATE OF NCT OF DELHI & ORS.             ..... Respondents
                  Through: Ms. Rajdipa Behura, APP for
                  State/R1.
                  Mr. R.N. Mittal, Sr. Adv. with Mr. Apurb
                  Lal, Ms. Kumari Alka and Mr. Ruchir Advs.
                  for R-2 & R-3.
                  Mr. Anil Kr. Aggarwla, intervener in Crl.
                  M.A. 8454/2011

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

Crl. M.A. 8454/2011

1. Vide the instant application, applicant Sanjay Kumar @ Sanjay Goyal has prayed for intervention and to be impleaded as interested party to contest the present petition.

2. It is submitted in the instant application that applicant is engaged in manufacturing and trading of stainless steel utensils. On his visit to Dubai sometimes in the year 2003, had a meeting, by chance, with the respondents accused brothers Vijay Choudhary and

Sandeep Choudhary. They introduced themselves to the applicant as the exporters from India dealing in export of stainless steel utensils in the name M/s. Jewel Craft at B-2/3 Model Town, Part-II, Delhi.

3. The applicant and the above named accused brothers entered into an understanding, thereby the accused brothers were to procure export orders and the applicant was to supply them utensils as per the order on receiving cheque from accused brothers as security against the cost on material supplied.

4. The accused brothers were to export utensils through IIIrd Party Export House. The applicant was to raise a bill in the name of Export House identified by the accused brothers, who were to procure, within 30 days of supply of utensils by the applicant, and pass on direct payment by the Export Houses to the applicant, on release / return of their own cheque of security.

5. In case of default, the accused brothers in getting to the applicant payment from the export houses, the applicant shall encash the cheque of security issued by the accused brothers.

6. It is further stated in the instant application that at the instance of accused brothers, applicant supplied them stainless steel utensils in the name of the some of the export house concerns as details below:

1. M/s. Jain Art Jewels.

2. M/s. Uni Direction Corporation

3. M/s. Premier Rice Land.

4. M/s. MVSL Trading Company

5. M/s. Delhi Mercantile Company

6. M/s. Pathetic Engineering Works

7. M/s. Overseas Jewels Inc.

8. M/s. Inder commercial (P) Ltd.

9. M/s. Sharan International

10. M/s. Am Kay Associates.

7. It is further stated in the instant application that initially the business transactions went on smoothly. The accused brothers used to collect the cheque payment from the exporters in time and after handing over the same to the applicant, they used to take back from the applicant, their cheque/s given as collateral advance. However, some bills raised during the financial year 2003-2004 remained pending.

8. It is further stated that after gaining the applicant's confidence in this manner accused brothers namely Vijay Chaudhary and Sandeep Chanduary issued various cheques of collateral advance amounting to Rs.1,90,17,416/- to the applicant during the financial year 2004-2005 for supply of utensils. After receiving the supply of the goods / utensils against the collateral advance / cheques from the applicant, accused brothers duo defaulted in giving cheques of actual payments from export houses to the applicant.

9. It is further submitted that whenever the applicant contacted the accused brothers to enquire about the payment due, they avoided him in one pretext or the other.

10. The Investing Officer seized the aforesaid cheques of accused, choudhary brothers from the applicant. Copy of cheque of security advance are placed on record as Annexure - A1.

11. It is further submitted that on contacting, Mr. Manish Jain, petitioner in the instant petition, the Partner of M/s. Jain Art Jewels, one of the export house to whom the utensils / goods were supplied by accused brothers, Manish Jain told him that he had already issued the cheques in the name of the applicant Firm Prime Enterprises against each of their orders and goods supplied and had handed over the same to the Chaudhary brothers and the said cheques were got encashed, but no payment whatsoever was received in the account of the applicant's firm Prime Enterprises.

12. It is further stated that the applicant was also informed by Manish Jain that Chaudhary brothers have opened a fake account in the name of the applicant's firm Prime Enterprises in another bank namely Federal Bank, Connaught Place Branch, with ulterior motives and malafide criminal intention to misappropriate the money due to the applicant. The accused brothers deposited the cheques received by them from the exporters against the goods / utensils supplied by the applicant in the said fake account and misappropriated the property / money rightfully due to the applicant.

13. It is fairly conceded by the applicant in the instant application that since he had no proof of delivery of utensils supplied during the financial year 2004-2005 to the exporters through the accused Choudhary brothers against which the payment was purportedly made by the exporters and deposited by the Chaudhary brothers in the fake account of the applicant's firm Prime Enterprises, the applicant did not institute any criminal or civil proceedings against Chaudhary brothers.

14. It is further submitted that the applicant was assured by Manish Jain (petitioner herein) and other exporters that they will initiate criminal action against Chaudhary brothers and on getting back from the accused brothers, the exporters would settle and clear all payments due to the applicant.

15. However, the applicant later on got informed that accused brothers and Manish Jain (petitioner herein) and other owners / partners of the export houses to whom utensils were supplied through the accused brothers have already shared and divided the misappropriated the money of the applicant, amongst themselves, but even before the applicant was informed about the fake account.

16. Though reply to the instant application has been filed by the non-applicant / respondent no. 2 & 3 and the petitioner, however, in the facts and circumstances as narrated by the applicant in the instant application, I am of the considered opinion that in this manner applicant cannot be allowed to be an intervener in the instant petition, as he has not initiated any civil or criminal proceedings against the petitioner or against respondent no. 2 & 3. Therefore, if he is aggrieved by any of the act or omission, which is against any law enforceable then he has liberty to take appropriate steps before the appropriate forum.

17. In the facts and circumstances, as discussed above, I find no merit in the instant application.

18. Crl. M.A. 8454/2011 is accordingly dismissed.

+ Crl. M.C.1564/2008

1. Vide the instant petition, the petitioner has sought to cancel the regular bail granted vide order dated 16.03.2007 to respondent no. 2 & 3 in Case FIR no. 283/05 registered at PS-Connaught Place for the offences punishable under Section 420/406/467/468/471/120B IPC.

2. Mr. Dharmender Priyani, ld. Counsel for petitioner submits that on the complaint of petitioner, FIR was lodged by Economic Offence Wing against respondent no. 2 & 3 for misappropriation of money by their fraudulent and dishonest misrepresentations that they were exporters for various foreign exporters and were dealing in Stainless Steel Utensils. They also claimed that they had huge orders from various parties, but they were short of funds, that is why they could not execute the same.

3. It is further submitted that in the month of January, 2004, respondent no. 2 & 3 approached the petitioner and asked for some amount to be paid to M/s. Primary Enterprise as advance. On their representation, petitioner gave Rs.77,00,000/- (Rupees Seventy Seven lacs) on various dates. All payments were made by cheques. When no utensils were given to the petitioner for some time, the petitioner became panicky and later on found that the respondent had not paid any money to M/s. Prime Enterprises and have siphoned of the money themselves.

4. After enquiry, it was found that the accused persons have opened fictitious bank account in the name of M/s. Prime Enterprise and siphoned off the money given by the petitioner for the original company and instead of handing over the cheques to that company, a fictitious account was opened with forged documents in the bank and the cheques were deposited and money accordingly misappropriated. Accordingly, a case was registered against respondent no. 2 & 3.

5. It is further submitted that respondent no. 2 & 3 were arrested on the date of FIR i.e. on 18.05.2005. Vide order dated 22.05.2005, they were granted conditional interim bail by ld. MM for 2 months, including the condition they shall make the payment to the complainant within a period of 2 months and settle their accounts.

6. On the application moved by State and petitioner under Section 439 (2) Cr.P.C., the regular bail granted to respondent no 2 & 3 was cancelled by ld. Addl. Sessions Judge, Patiala House Courts, New Delhi. Accordingly on 07.06.2005, respondent no. 2 & 3 surrendered before the ld. MM and they were sent to judicial custody.

7. Ld. Counsel has further submitted that on 17.6.2005, bail application filed by the accused persons were dismissed as withdrawn from the Court of Addl. District & Sessions Judge.

8. Thereafter again on 23.06.2005, bail application of respondent no. 2 & 3 were dismissed by ld. MM, Patiala House Courts, Delhi. The second bail application of respondents was dismissed by ld. Addl. District & Sessions Judge, vide its order dated 11.07.2005.

9. Charge-sheet was filed by the Crime Branch against both the respondents mentioned above. Thereafter another bail application filed by respondent no. 2 & 3, which was also dismissed by ld. MM, Patiala House Courts, New Delhi vide its order dated 30.08.2005.

10. Thereafter, on application being moved before the ld. Addl. District & Sessions Judge, respondent no. 2 Sandeep Chowdhury was granted interim bail for one month as respondents offered to make payment to the petitioner and also to other complainants, and matter was listed on 28.09.2005.

11. Vide order dated 10.09.2005, passed by ld. Addl. District & Sessions Judge, interim bail was granted to respondent no. 3 also. Thereafter on 17.09.2005, respondent no. 2 & 3 entered into a Memorandum of Understanding with petitioner and with other complainant. Accordingly, interim bail of both the respondents were extended till 15.12.2005 and ultimately thereafter extended up to 26.09.2006.

12. Ld. Counsel for the petitioner has pointed out that respondent no. 2 & 3 never honoured their commitments and made default in the payments to the complaints.

13. It is further submitted that on the application of respondent no. 2, ld. Addl. Sessions Judge condone the delay in payment vide order dated 14.09.2006 and directed the respondent to clear the entire payment along with interest @ 8% per annum vide 26.09.2006.

14. Vide Crl. M.C. No. 5987-88/2006 filed before this Court, respondent no. 2 and 3 sought extension of time of payment of instalments, at request their interim bail was extended till 16.10.2006.

15. During interim protection, again respondents approached this Court and vide Crl. M.C. 6594-96/2006 sought confirmation of interim bail; deletion / modifications of terms and condition imposed by Addl. District Judge, New Delhi while granting interim bail, with the directions to respondent no. 2 to make further payment from January, 2007 onwards and challanged the order.

16. Thereafter, on 18.09.2005, they entered into another MOU in continuation of the previous MOU with the petitioner wherein they acknowledge the previous MOU and again made commitment to pay.

17. Accordingly, the respondents sought extension of interim bail on the basis of the MOU with the complainants and present petitioner.

18. Ld. Counsel for the petitioner further asserted that this court dismissed the Crl. M.C. No. 6594-95/2006 of respondent no. 2 & 3 and remanded back the bail mater to ld. ASJ to decide the bail on merit of the respondents.

19. Thereafter on 02.03.2007, respondents filed Crl. MA. 1981/2007 while seeking permission to deposit the installments amount of the MOU with Registrar of this Court along with undertaking that they will deposit further instalments before 15th day of every month.

20. Vide order dated 14.03.2007, bail application of respondent o. 2 & 3 were dismissed by ld. ASJ, Patiala House Courts, after hearing on merit as per the direction of this Court.

21. They again approached this court and on 16.03.2007, this Court accordingly granted bail to respondent no 2 & 3 with directions to abide by the terms and conditions of the MOU. The bail bonds of the respondent no. 2 & 3 were accepted by ld. MM on 02.05.2007 in compliance of the order dated 16.03.2007.

22. Supplementary charge-sheet was filed by the Crime Branch, EOW 01.06.2007, thereafter on 24.02.2008, petitioner wrote a letter to respondents reminded them about the order dated 16.02.2007, passed by Coordinate Bench of this Court and also the undertaking given by them to encash the post-dated cheque of Rs.32,00,000/-. However, the respondents did not reply to the letter. The petitioner had no option but to deposit the cheque in the Bank for encashment.

23. On 19.03.2008, Cheque of Rs. 32, 00,000/- issued by Respondent no. 3 Vijay Chowdhury was dishonoured by their Bankers for the reasons "Insufficient Fund". Accordingly on 08.04.2008, petitioner issued notice informing respondent no. 2 & 3 about the dishonour of cheque and also informed them about their fraudulent and malafide intention seeking one year's time on the pretext of false undertaking. Accordingly, they were called upon to Pay Rs.32,00,000/- within 15 days of the receipt of notice.

24. Vide their reply dated 22.04.2008, respondents no. 2 & 3 stated that they did not have any legally enforceable liability to pay Rs.32,00,000/- and further stated that the cheque shall get honoured only after the quashing of FIR.

25. Due to the violation of undertaking given before various courts including this Court, as discussed above the petitioner has filed the instant petition.

26. Mr. R.N. Mittal, Sr. Advocate appearing on behalf of the respondents no. 2 & 3 submits that FIR no. 283/2005, under Section 420/406/467/468/471/120B IPC was registered against the respondents no. 2 & 3 on the allegations that from the month of May, 2004 to July, 2004, Rs.35,61,500/- were returned by them in the account of the petitioner and still balance of Rs.41,38,500/- remained to be paid back to the petitioner. Respondent no. 3 Vijay Choudhary assured the petitioner that balance payment would be made soon, as they are getting further orders. However, one day, petitioner received a phone call from M/s Prime Enterprises for submitting ST-49 Form and on enquiries, came to know that they had never received the payment as aforesaid, nor any order was received by them for fabricating the utensils nor was the consignment was ever rejected. The petitioner had a talk with Mr. Sanjay Kumar, Proprietor of M/s. Prime Enterprises, who informed them that they did not receive Rs.77,00,000/- as mentioned above. Hence, there was no question of refund of Rs.35,61,500/-.

27. It is further recorded in the FIR that petitioner went to Federal Bank at Connaught Place, bank of respondents no. 2 & 3 and on enquiries, they told that Vijay Chaudhary, respondent no. 3 had opened an account in the name of Prime Enterprise situated at B-2/3, Model Town-II, Delhi - 110009 and the account was introduced by his brother Sandeep Chaudhary, respondent no. 2 in the same branch. All these payments as aforesaid, they received from them vide Cheques to be paid to Prime Enterprises A-103/10, Industrial Area, Wazirpur, Delhi, which were deposited for payments in their accounts.

28. It is further recorded in the aforesaid FIR that they got opened a fictitious accounts in the name of Proprietorship firm and got deposited the cheques in the said account and when they put pressure on them, to gain time to gain confidence, they got Rs.35,61,500/- transferred to their accounts by transfer entries, however they told them that account had been refunded to them by Prime Enterprises Wazirpur Industrial Estate, Delhi. By this Modus Operandi both these brothers respondent no. 2 & 3 in conspiracy with each other had dishonest intentions from the beginning to cheat the petitioner for the huge amount and in the initial stage as per the plan gain confidence and subsequently cheated them, by getting the forged and fabricated accounts opened in a bank and got depositing the cheques, which were not meant for them and hand over them and caused wrongful loss to the complainant / petitioner of Rs.41, 38,500/-.

29. Mr. R.N.Mittal, Sr. Adv. has drawn the attention of this court to the order passed in Bail Appl. NO. 614/2007 & Crl. M.A. No.

409/2007 in Crl. M.C. 3247/2009 (for Extension of Bail) & Crl. Ma. 2357/2009 passed by the predecessor Court, wherein the respondents (petitioner herein) admitted that petitioners (respondent no. 2 & 3 herein) have paid the settled amount in petition mentioned above i.e Crl. M.C. 3247/2007. Therefore, petitioners will have no objection for quashing of the FIR in case any such petition filed.

30. In view of the compromise, counsel for the petitioners sought leave to withdraw the petition and accordingly the said petition was dismissed as withdrawn.

31. Ld. Counsel has further drawn the attention of this Court to the order dated 16.03.2007 passed by Coordinate Bench of this Court in Crl. M.C. 3063/2007 and Crl. M.C. 3064/2004 wherein on instruction from the petitioners (Respondent no. 2 & 3 herein) submitted as under:

"They have settled the matter and payment will be made by the petitioners to Sh. Manish Jain and Shri Tarun Vij as per the MOU, starting from 15th April, 2007 for a sum of Rs.2 Lacs every month (Rs.1,50,000/- to Shri TarunVij) till their balance claim which is the subject matter of this FIR is exhausted.

Petitioners also agreed that there is another MOU, though that does pertain to the present FIR, yet the petitioners are ready and willing to make the balance payment of Rs.32 Lacs (Rs.30 Lacs Principal + Rs. 2 Lacs interest on account of delay in payment) though a post dated cheque in terms of the said MOU as well, which will be got encashed by Shri Manish Jain after one year, subject to the quashing of the FIR bearing no. 283/2005, Police Station - Connaught Place."

32. Mr. R.N. Mittal, Sr. Adv. has further submitted that as per the MOU, starting from 15.04.2007, a sum of Rs.2 Lacs every month (Rs.1,50,000/- to Sh. Manish Jain and Rs.50,000/- to Sh. Tarun Vij) shall be paid till their balance claim, which is the subject matter of this FIR.

33. It is further submitted that respondent no. 2 & 3 also agreed that there was another MOU though that does not pertain to present FIR, yet the respondents no. 2 & 3 were ready and willing to make the balance payment of Rs.32,00,000/- (Rs.30,00,000/- in Principal + Rs.2,00,000/- as interest on account of delay in payment) though post dated cheque in terms of the said MOU as well as it will be got encashed by Sh. Manish Jain (petitioner herein) after one year subject, to the quashing of the FIR bearing no. 283/2005, police station - Connaught Place.

34. Ld. Counsel has further submitted that there is no violation of the order dated 16.03.2007 and the claim herein of the petitioner is qua another MOU as mentioned in the order dated 16.03.2007. Therefore, the instant petition cannot be allowed.

35. On perusal of the order dated 16.03.2007, it is emerged that after seeing the sincerety of respondent no. 2 & 3 and settlement / agreement including in another MOU, it is recorded in the said order that:

"Respondents shall abide by the terms and conditions of MOU and settlement made by them herein above and shall

not commit any default in the payment of the installments as offered by the complainants."

36. Vide order dated 16.03.2007 respondents no. 2 & 3 were directed not to leave the country without prior permission of the ld. trial Magistrate and shall file the affidavit to this effect before the ld. Magistrate within 2 weeks.

37. Vide the said order 3 days time for furnishing bail bonds and surety bonds, before the ld. Trial Magistrate, were granted. Accordingly, trial court accepted their bail bonds and released them on bail.

38. As per the statement of respondent no. 2 & 3, they were agreed to make the payments as per the aforementioned MOUs mentioned above, therefore at this stage, they cannot say that they agreed to another MOU voluntarily and are not bound to make the payment.

39. The instant petition filed way back in the year 2008 and on 13.05.2008, notice issued to the respondents, and the matter was adjourned to 27.05.2008. However, they did not appear and on that day Predecessor Court directed the IO concerned, who was present in the court to ensure the presence of the respondent no. 2 & 3 / accused persons in the court.

40. Accordingly, on 17.07.2008, Counsel appeared on behalf of respondent no. 2 & 3 and sought time to file reply.

41. I note, as recorded in the order dated 01.10.2008, after some arguments, submitted by ld. Counsel for respondents, that he will seek

instruction from the respondents no. 2 & 3 whether they are prepared to pay Rs.32,00,000/- to the petitioner, if some more time was to be granted. Accordingly, matter was adjourned.

42. Counsel for the petitioner was prepared to accept the offer of the respondents to pay remaining amount in instalments of Rs. 1,00,000/- per month, as is recorded in the order dated 02.02.2008.

43. I further note, it is recorded in order dated 27.01.2009 that:

"At the outset Mr. Mittal, Ld. Sr. Counsel appearing for the respondents no. 2 & 3 states that the reply filed on behalf of respondents no. 2 & 3 in this Court on 20th August, 2008 in Crl. M.C. No. 1564 of 2008 was a mistake and he has instructions from he said two Respondents to unconditionally withdraw the entire reply and further that they apologise this Court for the inconvenience caused. The said reply dated 20th August, 2008 would therefore stand withdrawn.

As regards the affidavit dated 24th November, 2008 filed by Sandeep Chaudhary enclosing a proposed payment plan, Mr.Mittal submits that as far as Tarun Vij is concerned, he is not present before this Court and his instructions are that payments have been made to Tarun Vij as per the order dated 16th March, 2007 passed by this Court granting bail to Respondents no. 2 & 3. There is no case for any grievance on behalf of Tarun Vij. As regards Manish Jain and Narinder Kumar are concerned, Mr. Mittal states that two demand drafts favouring each of them in the sum of Rs.1,50,000/- will be produced in this Court on 2nd February, 2009 without fail to demonstrate the bonafides of the respondents that they will be making the payments as per the proposed payment plan."

44. Thereafter on various dates, respondents no. 2 & 3 continued to make the payment as their wishes and used make promises to make the payments as per the agreed plan and understanding.

45. Mr. R.N. Mittal, Ld. Sr. Advocate appearing on behalf of the respondents has submitted that due to some loss in the business, they could not adhere with the promise made before the Courts on various dates and could make the payment within the stipulated period.

46. I further note that vide order dated 27.07.2010 of this Court it is clarified that if the respondent no. 2 & 3 failed to clear all the dues within the stipulated period, a contempt proceedings shall be initiated against them. Thereafter till date on one pretext or the other, respondent no. 2 & 3 has not complied the order dated 16.03.2007 in letter and spirit.

47. Respondent nos. 2 & 3 have been making false promises to the petitioner before this Court. It is not a case that respondents no. 2 & 3 failed once or twice. Perusal of the order sheets reveals that respondents no. 2 & 3 have taken the courts for granted. They do not bother what would be the consequences. Thus, they not only mislead the court also wasted the public time, as this petition has been listed on various dates for the last 4 years. Respondents no. 2 & 3 have bluffed the petitioner and the court as well and therefore they do not deserve any leniency and sympathy.

48. Even otherwise, granting bail is discretionary of the court, keeping in view the total facts and circumstances of the case. Once it

is granted, the court normally does not cancel it, until and unless the situation warrants. But the accused has to be vigilant and careful not to break any of the undertaking or promise given before the court. If, he does so, the courts have powers to withdraw the concession granted. Such concession is neither permanent nor absolute. It is always with observations or conditions. Therefore, if any of the undertaking given before the court found to be not complied with, then the concession granted may be withdrawn. The present case is fit into this situation.

49. Keeping in view the facts and circumstances as discussed above, bail granted to respondents no. 2 & 3 vide order dated 16.03.2007 in FIR no. 283/2005, registered at PS-Cannought Place, under Section mentioned above, is hereby cancelled.

50. Consequently, Crl. M.C. 1564/2008 is allowed with costs of Rs.50,000/- each on the respondents no. 2 & 3 to be paid in favour of High Court Legal Services Committed.

51. The above mentioned costs shall be deposited within three months from the date of receipt of this order. Proof of the same shall also be placed on record.

SURESH KAIT, J

March 15, 2012 jg