Jatin Haresh Kumar vs State Of Rajasthan
2023 Latest Caselaw 5547 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 4001/2023

1. Jatin Haresh Kumar S/o Shri Haresh Kumar Adhiya, Aged About 38 Years, R/o Aalap Heritage Flat No. D/07 Near Satya Sai Hospital Rajkot

2. Phoram W/o Shri Jatin Aadhiya, Aged About 37 Years, R/o Aalap Heritage Flat No. D/07 Near Satya Sai Hospital Rajkot

----Petitioners Versus State Of Rajasthan, Through P.P.

                                                                ----Respondent


For Petitioner(s)         :    Mr. Rajesh Shah
For Respondent(s)         :    Mr. Laxman Solanki, P.P.

For Complainant           :    Mr. Tirath Raj Singh Sodha.
                               Mr. Rajesh Tiwadi, I.O., Police Station
                               Kotwali, Tonk.
                               Mr. Ugmaram, I.O., Police Station
                               Gulabpura, District Bhilwara.


           HON'BLE MR. JUSTICE KULDEEP MATHUR
                                    Order
03/08/2023

The present application for anticipatory bail under Section

438 Cr.P.C. has been preferred on behalf of the petitioners who are

apprehending their arrest in connection with F.I.R. No.90/2023,

registered at Police Station Gulabpura, District Bhilwara, for the

offences under Sections 420, 406 & 120-B IPC.

Heard learned counsel for the petitioners, learned Public

Prosecutor and learned counsel for the complainant. Perused the

material available on record.

As per prosecution, complainant- Sanjay Rathi, director of

Mamta Hygiene Product Pvt. Ltd. submitted a written report dated

(2 of 7) [CRLMB-4001/2023]

17.03.2023 before Police Station, Gulabpura, District Bhilwara

averring inter alia that his company is in the business of exporting

rice and refined flour. The complainant's company was assured by

the petitioners and co-accused Nitesh Thakkar that they are in the

business of import-export. It was further stated in the written

report that between 19.02.2019 and 23.02.2019, through

company of petitioners- Jatin Haresh and Phorum, consignment of

refined flour worth USD$1,91,844 was sent from Ukraine to

Madagascar, on which Jatin kept assuring that he will get the

goods released. For which, document of amount of USD$ 78,780

was taken from the bank with the guarantee of paying back the

amount in 30 days. On non-payment, the complainant did not

receive the amount. Petitioner- Jatin Haresh, thereafter prepared

a forged document showing payment to the bank, informed the

complainant that amount has been given to one of the persons of

the complainant's company in Dubai. The ukraine seller

whereupon initiated legal proceedings against the complainant's

company, in which he was awarded usd $1,91,844 and expenses

to the tune usd $35,663.

The petitioners and co-accused again assured the

complainant through telephonic call and invited him to

Madagascar, where, on 22.10.2019, after deliberation, the

petitioners and co-accused agreed to clear the dues of the

complainant's company for the refined flour and rice to the tune of

USD $1,93,480. The petitioners further assured the complainant

that pending dues for other transactions will also be duly cleared

once they resume business with them. Co-accused Nitesh Thakkar

(3 of 7) [CRLMB-4001/2023]

also told the complainant that the petitioners are honest and

trustworthy persons.

On 04.12.2019, believing upon the petitioners and co-

accused Nitesh Thakkar, the company sent refined flour from

Egypt to Madagascar. The petitioners did not make payment for

the goods (refined flour) and the same got stuck at the port,

leading to demurrage fees being levied on them. Petitioner- Jatin

told the complainant to get released the goods, otherwise the

same will become spoiled and that he will repay the amount in

some time. The company again sent ten containers measuring 20

feet from Egypt to Madagascar.

The complainant's company denied the petitioner from giving

any further goods without payment since the petitioners did not

make payment of the goods sent earlier. The petitioners on this,

told the complainant to hand over the documents of the goods to

co-accused Nitesh, who will then, give the goods to the seller and

also pay the seller along with advance amount given by the

complainant. It was stated in the written report that no such

payment was made by co-accused Nitesh. The company of the

complainant by believing upon the petitioners and co-accused has

suffered a loss to the tune of USD $ 5,01,817.

On 23.01.2023, petitioner- Jiten, through a mobile call told

the complainant that he may come to Madagascar and all of his

dues will be cleared. On 04.02.2023, petitioner- Phoram sent

Whatsapp messages to the complainant that they will clear the

accounts shortly. The petitioners kept avoiding the payments due

(4 of 7) [CRLMB-4001/2023]

to the complainant and then clearly refused to pay any amount,

stating that they by conspiring, had cheated him of his money.

Learned counsel for the petitioners submitted that the

petitioners have been falsely implicated in the present case.

Learned counsel submitted that from the perusal of the FIR, it is

evident that dispute between the parties does not give rise to

criminal prosecution for cheating against the present petitioners.

Learned counsel submitted that the complainant is trying to

convert civil dispute into a criminal proceedings with a view to

harass and humiliate the petitioners, after about four year from

the date, the dispute arose between the parties.

Lastly, learned counsel submitted that no crime has been

committed in the territorial jurisdiction of this Court since the

transactions/supply of goods were made directly to the

international companies and the petitioners are neither director

nor promoter of any of the company involved in the present case.

Learned counsel submitted that the offences alleged to have been

committed by the petitioners are triable by Magistrate. He thus,

implored the Court to enlarge the petitioners on bail.

Learned counsel placed reliance on judgments rendered by

Hon'ble the Supreme Court in the cases of Mitesh Kumar J. Sha

vs. The State of Karntaka & Ors. reported in 2021 SCC

OnLine SC 976, Usha Chakraborty & Anr. vs. State of West

Bengal reported in 2023 SCC OnLine SC 90 and Sarabjit Kaur

vs. State of Punjab & Anr. reported in (2023) 5 SCC 360.

Per contra, Learned Public Prosecutor and learned counsel for

the complainant vehemently opposed the bail application. Learned

(5 of 7) [CRLMB-4001/2023]

Public Prosecutor present before the Court with Investigating

Officer submitted that petitioner- Phoram has preferred a S.B.

Criminal Misc. (Petition) No.2191/2023, before this Court praying

for quashing of the FIR No.90/2023, lodged against her at PS

Gulabpura. This Court vide order dated 03.05.2023, while granting

interim protection to petitioner- Phoram from arrest in the

aforementioned criminal miscellaneous petition, directed her to

join the investigation. However, petitioner- Phoram has not joined

the investigation without any valid reason or justification.

Learned Public Prosecutor and Investigating Officer jointly

submitted that investigating agency has found the offences of

cheating with dishonest intention against the petitioner to be

prima facie proved. Learned counsel submitted that during

investigation, it has been found that petitioners are in the

business of import-export who assured the complainant that they

will manage the import- export of Mamta Hygiene Product Pvt.

Ltd. (complainant's company) and thereby, dishonestly induced

them to export goods from Ukraine to Madagascar and Egypt to

Madagascar. On the strength of above submissions, learned Public

Prosecutor and learned counsel for the complainant implored the

Court not to grant concession of bail to the petitioners.

Heard learned counsel for the petitioner, learned Public

Prosecutor and learned counsel for the complainant. Perused the

factual report submitted by the Investigating Officer as well as the

impugned order.

After perusing the factual report and the impugned order,

this Court prima facie finds that essentially in the FIR, allegations

(6 of 7) [CRLMB-4001/2023]

against the petitioner is of denying payment to the complainant in

connection with the goods supplied by him to the companies of

foreign origin. The allegation prima facie appears to be that goods

were supplied by the complainant on the assurance given by the

present petitioners that they are into the business of import-

export. This Court however, is astonished to note that after the

petitioners defaulted/did not pay the amount in relation to

transport of goods from Ukraine to Madagascar, the Ukraine seller

initiated legal proceedings against the complainant's company, in

which he was awarded USD $1,91,844 and expenses of USD

$35,663. This Court prima facie finds that even after passing of

award against the complainant, he re-entered into business

transaction with the petitioners for exporting goods of

complainant's company from Egypt to Madagascar. Therefore, in

the prima facie opinion of this Court, this is a case of breach of

promise, given by the petitioners in relation to a business

transaction.

This Court also finds that the FIR has been lodged after a

prolonged delay of four years, without assigning proper reasons

justifying the delay.

This Court also prima facie finds that the prosecution case

hinges around documentary evidence and no recovery/discovery

of any document is to be made, therefore, custodial interrogation

of the petitioner is not necessary in the facts and circumstances of

the case

As per the FIR, the offences alleged to have been committed

by the petitioners are triable by Magistrate.

(7 of 7) [CRLMB-4001/2023]

The upshot of the above discussion is that the bail

application is allowed and the accused-petitioners are ordered to

be released on bail upon their arrest/surrender subject to

following conditions:

(a.) The petitioners shall furnish personal bond of Rs.50,000/-

(Rupees fifty thousand) with two sureties of like amount to the

satisfaction of learned trial Court.

(b.) The petitioners are further directed to cooperate during

investigation in relation to the FIR and appear for interrogation

before the investigating officer as and when called upon to do so.

(c.) The Petitioners shall neither leave the Country, nor change

their residential address without prior permission of the learned

trial Court.

(d.) The petitioners shall not directly or indirectly make any

inducement, threat or promise to any person acquainted with the

facts of the case so as to dissuade him from disclosing such facts

to the Court or any police officer.

(e.) If any necessity is felt by the learned trial Court for imposing

any other condition, depending on attending facts and

circumstances, it shall be at liberty to prescribe the same.

It is however, made clear that findings recorded/observations

made above are for limited purposes of adjudication of bail

application.

(KULDEEP MATHUR),J Prashant/-

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