Salim vs The State Of Madhya Pradesh
2022 Latest Caselaw 14785 MP

                                                                           1
                                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                                  AT JABALPUR
                                                                        BEFORE
                                                          HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                               ON THE 14th OF NOVEMBER, 2022

                                                       MISC. CRIMINAL CASE No. 51858 of 2022

                                                BETWEEN:-
                                                SALIM S/O SHRI HAJI ASAM, AGED ABOUT 34
                                                YEAR S , OCCUPATION: DRIVER MALAKHEDA
                                                POLICE STATION HATHIM TAHSIL PALBAL
                                                (HARYANA)

                                                                                                         .....APPLICANT
                                                (BY SHRI SANKALP KOCHAR - ADVOCATE)

                                                AND
                                                THE STATE OF MADHYA PRADESH THROUGH
                                                POLICE STATION SURKHAI DISTRICT SAGAR
                                                (MADHYA PRADESH)

                                                                                                       .....RESPONDENT
                                                (BY SHRI MANAS VERMA - GOVT. ADVOCATE)

                                              This application coming on for admission this day, the court passed the
                                        following:
                                                                            ORDER

This is third bail application on behalf of the applicant-Salim, S/o Shri

Haji Asam, aged about 34 years, in connection with Crime No.286/2021, registered at Police Station Surkhi, District Sagar (M.P.), for offence punishable under Sections 406, 407, 409, 120-B of IPC.

2. Though in the application date of arrest is mentioned as 14.01.2022, but Shri Sankalp Kochar, submits that it is a typographical error and actually applicant is in custody 14.01.2021. 3. Shri Kochar submits that after rejection Signature Not Verified SAN

of second bail application, witness of the transporter, namely, Krishna Kumar Digitally signed by ASHWANI PRAJAPATI

S/o Sohanlal, Manager of Transport Firm Middle Mile Pro. LLP, Gurgaon, is Date: 2022.11.16 10:13:57 IST

examined before the trial Court on 29.10.2022. Reading his statement, it is pointed out that incident took place on 12.06.2021. Krishna Kumar had reached the spot on 14.06.2022. He had taken the container from Surkhi Dhaba to Gurgaon and written complaint was lodged on 02.08.2021 i.e. after almost two months lapse of time. There is no complaint from the owner of the goods, namely, Amazon Company.

4. It is submitted that there are neither any call details nor global positioning system tracking with the charge sheet to show that how movement of the offending container was made. It is further submitted that offence under Sections 407, 409, 120-B IPC will not be made out, inasmuch as, there was no

entrustment of goods to the present applicant Salim and at best it was to the Transport Company and its driver-Irshad.

5. Reliance is placed on the judgment of Hon'ble Supreme Court in N. Raghvender Vs. State of Andhra Prades, CBI, in Criminal Appeal No.5 of 2010, decided on 13.12.2021, wherein, reading paragraphs 41, 42, 43, it is pointed out that how offence under Section 409 IPC will be constituted. It is submitted that no offence under Section 409 of IPC is made out against the present applicant and, therefore, mere recovery of Rs.4 lacs from possession of present applicant which too has been accounted for in the form of affidavit of one Varis Khan S/o Jamil Khan (Annx.A/6), who deposed that he had purchased Hundai Verna Car bearing registration No. HR-51-BG/0916, from the applicant Salim and had paid a sum of Rs.5,20,000/- (Five Lacs, Twenty Thousand) in cash, has been made out. Therefore, there is no ground to keep the applicant in custody.

Signature Not Verified SAN

6. It is further pointed out that as per the law laid down by Supreme Court in Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.16 10:13:57 IST

Arnesh Kumar Vs. State of Bihar and another [(2014) 8 SCC 273] and

Satendra Kumar Antil Vs. C.B.I. and another SLP (Criminal) No.5191/2021, judgment dated 07.10.2021, at best offence under Section 411 IPC will be made out, for which applicant is required to be enlarged on bail.

7. Shri Manas Verma, learned Govt. Advocate, in his turn, submits that firstly, allegation on the present applicant is that when Irshad was tavelling with the container, then close to Narsinghpur in the State of Madhya Pradesh, applicant Salim along with two other persons, namely, Rafiq and Tarif Fouzi, were part of the conspiracy, who were keeping a track of the driver and on the instructions of somebody from Chennai, driver had stopped the truck when material was transshipped from the truck carrying the material from Chennai/Bangalore to Gurgaon into another truck under the supervision of abovenamed three persons, namely, Salim, Rafiq and Tarif Fouzi. It is submitted that not only a sum of Rs.4 lacs has been recovered from the present applicant, but the stolen goods were also recovered from different places. It is also submitted that there is no material on record as to when this witness Krishna Kumar had given intimation to the Amazon Company and there is probability that Amazon Company might have taken insurance claim on account of loss of the goods.

8. After hearing learned counsel for the parties and going through the record, firstly, first bail application was dealt with by this Court in some details an was decided vide order dated 20.04.2022. It has come on record that Varis S/o

Jamil Khan had given statement before the Investigating Officer that the vehicle bearing registration No. HR-51-BG/0916, was registered in his name, but he had not taken possession of said vehicle. He had not transferred any amount either

Signature Not Verified SAN cash or through the bank in favour of Salim. There is another aspect, which has

Digitally signed by ASHWANI PRAJAPATI been dealt with is that goods worth Rs.4,07,29,948/- were robbed by different Date: 2022.11.16 10:13:57 IST

stake holders. Their strategy was to rob the goods and then make a claim against the Insurance Company.

9. It has also come on record that three persons, namely, Salim, Rafiq and Tariq Fouzi were travelling in white colour Creta of Salim along with 12 wheeler truck of Tariq Fouzi. Material was transferred from the container of Irshad to another container, after which Tariq Fouzi along with his truck and other persons/accomplishes, namely, Salim and Rafiq and Tariq left for Haryana in the Creta of Salim. These materials besides consideration of the criminal history of present applicant Salim for an offence registering case Crime No.496/2018 under Sections 148, 149, 323, 341, 354-A, 365, 379-B, 506, 511 IPC and 25 of the Arms Act and another case registering case Crime No.17/2022 under Sections 353, 332, 186, 148 and 149 IPC were the circumstances which were taken into consideration to reject application of bail.

10. As far as present applicant is concerned, statements of Krishna Kumar may be culpatory or self implicatory. That is a matter of investigation. Why Amazon Company has not lodged report is a matter which can be best described by them and whether they have fraudulently raised a insurance claim, or they were entitled only to seek goods recovered on the complaint of Krishna Kumar in Supurdginama is a matter of further investigation and for the trial Court to consider whether they too are required to be implicated as an accused or not, but for the present none of the circumstances reveal that there are any substantial changed circumstances calling for extension of benefit of bail in favour of the present applicant.

11. In fact, in case of N. Raghavender (supra), it is noted in para 43 that Signature Not Verified SAN

"unless there is some actual use by the accused in violation of law or contract, Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.16 10:13:57 IST

coupled with dishonest intention, there is no criminal breach of trust. The

second significant expression is 'mis-appropriates' which means improperly setting apart for ones use and to the exclusion of the owner. This definition and interpretation of the Hon'ble Supreme Court is to be examined by the trial Court while deciding the case on its own merits and while considering a bail application, it is not an appropriate stage to interpret the provisions of Section 405, 407 or 411 IPC.

12. Even otherwise, it is settled law that charge of theft or anyother charge can always be added at any stage of trial, if the trial Court on the basis of the evidence of the prosecution witnesses comes to an opinion as appears to be prima facie made out that present applicant besides criminal breach of trust etc. were also responsible for committing theft.

13. Accordingly, this third bail application fails and is dismissed.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.16 10:13:57 IST