Madhya Pradesh High Court
Chetan Jain vs The State Of Madhya Pradesh on 8 February, 2024
Author: Prakash Chandra Gupta
Bench: Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 8 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 49532 of 2023
BETWEEN:-
CHETAN JAIN S/O KANAK KUMAR JAIN, AGED ABOUT
35 YEARS, OCCUPATION: BUSINESS R/O 115, BLOCK 1
SITA SHRI RESIDENCY AIRPORT ROAD INDORE
(MADHYA PRADESH)
.....APPLICANT
(SHRI JAGDISH BAHETI, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION CRIME BRANCH
INDORE (MADHYA PRADESH)
.....NON-APPLICANT/STATE
(SHRI HEMANT SHARMA, GOVERNMENT ADVOCATE)
(SHRI ANIL MALVIYA, ADVOCATE FOR COMPLAINANT)
This application coming on for order this day, th e Court passed the
following:
ORDER
Heard with the aid of case diary.
This is first application filed under Section 439 of Cr.P.C. for grant of
bail to the applicant/accused, relating to FIR/Crime No.55/2023 dated (not
mentioned) registered at Police Station Crime Branch, District Indore (M.P.) for
commission of offence punishable under Sections 409, 420, 406 and 34 of IPC.
2. Prosecution story in brief is that the accused persons Chenaram and
Diwakar Mishra are the proprietors of Balaji Enterprises and DK Trading Co.
respectively situated at Indore. Accused persons Chenaram and Diwakar
alongwith present applicant Chetan and co-accused persons Arvind Pandey,
Rashmikant Shukla, Dev Prasad Upadhyay, Diwakar and Mahesh Mishra
enterred into criminal conspiracy and opened the aforementioned firms to gain
wrongfully by cheating others. Applicant Chetan helped the accused persons in
registration and other formalities of the aforementioned firms in Indore.
Complainant firm named Simu Impex Pvt. Ltd., Saroli, Gujarat used to carry on
trade of textiles in wholesale by his company at Indore named Vanshika Textile
Agency, from where Balaji Pvt. Ltd. and DK Trading Co. used to purchase the
material in wholesale quantity. Applicant Chetan was the agent in the
aforementioned transaction of business between the complainant company and
the company of the accused persons. The business between both the parties
went well for a year and after that the accused persons started to order in higher
quantities and stopped the payment of the same. Applicant Chetan and other
co-accused persons used to divide the receipts amongst themselves after
purchasing material on credit. Thereafter the present applicant and co-accused
persons closed their company and fled away. By this, the present applicant and
co-accused persons wrongfully gained a sum of Rs.25,64,832/- and
Rs.41,33,327/- from Simu Impex Pvt. Ltd. and Vanshika Textile Agency of the
complainant. During investigation, it was also discovered that the present
applicant and other co-accused persons have committed cheating by gaining
wrongfully from 10 other firms in similar manner. Thereby the accused persons
wrongfully gained a sum of Rs.2.50 crores. (approx.) by defrauding others.
3. Learned counsel for the applicant/accused submits that the applicant
has not committed the offence and has falsely been implicated in the case. It is
further submitted that name of the applicant is not mentioned in the FIR. The
FIR was lodged only against proprietor Chenaram and Diwakar Mishra. It is
also submitted that the matter is purely civil in nature. Therefore, no offence is
made out against the applicant. It is also submitted that as alleged, the applicant
was not the proprietor of accused firms. He was working as a broker.
Therefore, no offence punishable u/S 409 is made out against the applicant. It is
also submitted that the applicant got arrested on 14.10.2023 and he was on
interim bail due to his illness from 24.11.2023 to 23.01.2024 and after
completion of interim bail period, he surrendered before learned Trial Court on
24.01.2024, since then he is in custody. After completion of investigation,
charge-sheet has been filed. Trial will take considerable long time for its
disposal, therefore, it is prayed that the applicant be released on bail. Learned
counsel has placed reliance on the judgement of the Apex Court in the case of
Randheer Singh V State of Uttar Pradesh and Ors. [(2021) 14 SCC 626]
and the High Court of Madras in the case of Kandula Radhakrishna Rao
and Ors. V The Province of Madras and Ors. [Appeal Nos.365, 447, 468,
551 and 641 of 1947].
4. On the other hand, learned counsel for the non-applicant/State has
opposed the prayer of the applicant and submits that the accused persons being
merchant or agent committed breach of trust against complainant firm,
therefore, offence u/S 409 of IPC is prima-facie made out in this case. It is also
submitted that co-accused persons Chenaram proprietor of Balaji Enterprises,
and Diwakar Mishra proprietor of DK Trading Co., are absconding. The
offence is serious in nature. If bail is granted to the applicant, it is likely that he
will influence the witnesses therefore, the applicant is not entitled for bail.
5. In the case of Randheer Singh (Supra), the Apex Court in paragraph
30 has held as under:-
"30. In Vesa Holdings Private Limited (supra), this Court held:-
13. It is true that a given set of facts may make out a civil wrong as also
a criminal offence and only because a civil remedy may be available to the
complainant that itself cannot be a ground to quash a criminal proceeding.
The real test is whether the allegations in the complaint disclose the criminal
offence of cheating or not. In the present case there is nothing to show that at
the very inception there was any intention on behalf of the accused persons to
cheat which is a condition precedent for an offence under Section 420 IPC. In
our view the complaint does not disclose any criminal offence at all. The
criminal proceedings should not be encouraged when it is found to be
malafide or otherwise an abuse of the process of the court. The superior
courts while exercising this power should also strive to serve the ends of
justice. In our opinion, in view of these facts allowing the police investigation
to continue would amount to an abuse of the process of the court and the High
Court committed an error in refusing to exercise the power under Section 482
of the Criminal Procedure Code to quash the proceedings."
6. In the case of Kandula Radhakrishna Rao and Ors. (Supra), the
Madras High Court (Full Bench) in paragraph 17 has held as under:-
"17. The other learned Judge also came to the conclusion that an
agent can in no event be included in the definition of a dealer. But there
are observations in his judgment which appear to me to be not
inconsistent with the view I am taking. I do not for a moment differ from
him when he says
a broker or commission agent who merely brings together the
buyer and seller does not transfer the property in the goods.
But with respect I am unable to follow how an agent who might
effect transfer of the property in the goods to the buyer if he had been
authorised to sell by the owner of the goods cannot be said to have sold
the goods in view of the definition of sale in the Act. Again I do not
disagree with him in the following statement of the law:
A broker is an agent who, in the ordinary course of his business,
is employed to make contracts for the purchase of sale of goods of which
he is not entrusted with the possession or control. Usually he contracts
in the name of the principal & arranges contracts of sale or purchase in
such a way as to bind both the buyer and the seller. There may be other
kinds of agents for the sale or purchase of goods on behalf of and
employed, by a principal. It is elementary that goods can be sold so as to
transfer title to the buyer only by the owner of the goods or by a person
acting under his authority or with his consent."
7. Having considered the rival submissions and after perusal of the case-
diary so also considering the facts and circumstances of the case, this Court is
of the view that it is not a fit case to grant bail to the applicant. Case laws cited
by the learned counsel for the applicant are not applicable in this case, as based
on different footing,
8. Resultantly this application for bail is dismissed.
(PRAKASH CHANDRA GUPTA)
JUDGE
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