1. Petitioner/accused, a Director of Trans Asia Distribution Ld. Having its office at Mauritius Free port devel opment (MFD), Freeport Zoe - 5, Mer Rouge, Port Louis, Mauritius, has been arrested by Police Station Crime Branch in case FIR No. 13 of 2011 under sec tion 409, 420 RFC. The arrest has been effected at Worli, Mumbai on 4.11.2011 and the petitioner has been eversince in Police custody and thereafter in Ju dicial custody. 2. Through medium of instant pe tition, petitioner seeks bail on the grounds set out therein. It is averred that the transaction of which the crimi nal case is an offshoot, is a contractual in character and the dispute between the complainant and the petitioner es sentially is civil in nature. The petitioner's/accuser's case is that a civil dispute cannot be given colour and complexion of an offence merely be cause the contract between the peti tioner and the contractor, has not been performed/acted upon, for the reasons beyond control of the petitioner/ac cused. It is next urged that investiga tion has been concluded and custodial interrogation of the petitioner/accused is no more required, so as to take in vestigation to its logical end. The bail application is also based on health grounds. It is pleaded that the peti tioner/is a patient of epilepsy, has been under continuous medical treatment and his continuous custody is likely to further deteriorate his condition. 3. The petition is opposed on the grounds that the investigation has prima facie established commission of offence punishable under section 409, 420 RPC by the petitioner and that the petitioner/accused cannot claim bail as a matter of right. It is denied that the dispute is civil in nature and that there is no room for intervention by the police in the matter or the complain ant had no reason to set Police machin ery into motion. It is further pleaded that the Chief Judicial Magistrate, Jammu and thereafter Sessions Judge Jammu, have rightly rejected the earlier appli cations filed by the petitioner for his enlargement on bail and there is no reason for this Court to take a view dif ferent from one taken by the Courts below. 4. Heard and considered. 5.
It is further pleaded that the Chief Judicial Magistrate, Jammu and thereafter Sessions Judge Jammu, have rightly rejected the earlier appli cations filed by the petitioner for his enlargement on bail and there is no reason for this Court to take a view dif ferent from one taken by the Courts below. 4. Heard and considered. 5. The record available on the file reveals that M/s P.V. Traders 14/2 Ex tension Trikuta Nagar, Jammu (here inafter complainant) bagged an order for supply of 20 Snow Mobiles with Rescue Sledges from Northern Command some time in 2010. The complainant, at the instance of the petitioner/accused who claimed to be Managing Director of Trans Asia Distribution Ltd. Mauritius and dealer of M/s. Polaris Sales INC. 2100 Highway 55, Medina, MN 55340, manufacturer of Snow Mobiles and Res cue Sledges, placed a supply order for making supplies of the aforesaid equip ment with the petitioner. The complain ant made full payment of Rs.92,49,520/- to the petitioner/accused on 29.10.2010. The petitioner/accused, however, did not make the supplies and when repeated requests and reminders went unheeded, the complainant ap proached the Chief Judicial Magistrate Jammu with a complaint alleging therein that the petitioner/accused had committed offence of cheating and that even the Senior Superintendent of Police, Crime Branch, Jammu, had not taken any action on the report lodged by the complainant. 6. Ld. Chief Judicial Magistrate Jammu on 8.7.2011, having regard to the allegations made in the complaint, referred it to the Sr. Superintendent of Police, Crime Branch, Jammu, for con ducting preliminary enquiry in the matter and to investigate the matter in the event preliminary enquiry estab lished commission of cognizable offence by the petitioner/accused. In compli ance of the order of Chief Judicial Mag istrate Jammu and accord of approval by Crime Headquarters J&K vide No.CHQ/Clt/J-314/11-10159 dated 13.8.2011, a preliminary enquiry was initiated. The officer entrusted with preliminary enquiry on the basis of the material collected, arrived at a prima facie conclusion that the petitioner with criminal intention dishonestly induced the complainant to part with Rs.92,49,520/- misappropriated the amount intentionally and committed of fence of cheating and breach of trust. The result of preliminary enquiry prompted the Police Station Crime Branch to register case FIR No. 13/2011 under section 409, 420 RPC and to seek warrant of arrest from Chief Judicial Magistrate, Jammu.
The result of preliminary enquiry prompted the Police Station Crime Branch to register case FIR No. 13/2011 under section 409, 420 RPC and to seek warrant of arrest from Chief Judicial Magistrate, Jammu. In execution of the warrant the petitioner was arrested from Worli, Mumbai on the date men tioned above. 7. Ld Counsel for the petitioner make a strenuous effort to convince that the transaction between the par ties is purely civil in nature and falls within the realm of contract and the complainant has to press into service remedies available under the Contract Act to get his grievance set right. 8. The main focus of arguments advanced by Ld. Counsel for the petitioner, has been on the nature of alle gation levelled against the petitioner and whether the offence of cheating and criminal breach of trust can go hand in hand. It is argued by Mr. Thakur Sr. Advocate that the offence of cheating and criminal breach of trust are anti thesis to each other in as much as only such property can be alleged to have been misappropriated which is inten tionally handed over to the person al leged to have misappropriated the prop erty and not under deception. Elaborat ing his arguments Mr. Thakur, Sr. Adv. states that in case the petitioner is al leged to have dishonestly induced M/s P.V. Traders 14/2 Extension, Trikuta Nagar Jammu (complainant) to pay Rs.92,49,520/- to the petitioner with out having any intention to supply 20 Snow Mobiles with Rescue Sledges, the petitioner cannot be accused of having dishonestly misappropriated said amount or converted it to his own use so as to commit offence of criminal breach of trust. It is reiterated that in order to constitute offence of criminal breach of trust, the entrustment of the property must be free from any decep tion. Mr. Thakur, points out that once the complaint lodged by M/s P.V. Trad ers 14/2 Extension Trikuta Nagar, Jammu, is held not to reveal commis sion of offence punishable under sec tion 409 RFC, the only offence that would be disclosed by the complainant is one under section 420 RFC - bailable in terms of Schedule II of Code of Crimi nal Procedure Smvt. 1989. Ld.
1989. Ld. Counsel for the petitioner seeks to draw support from judgment rendered by High Court of Punjab and Haryana in criminal Misc matter No. 43667 of 2003 titled Basant Mishra and others v/s State of Haryana and others decided on October 3rd 2008. Reliance on aforesaid judgment to put forth the legal preposition that the of fence of cheating and criminal breach of trust cannot go together, is grossly misplaced. Though in aforestated case a plea was raised that offence under section 420 and 406 RFC are anti the sis to each other, yet the court did not hand down any finding on the plea raised and decided the petition on jurisdictional question. The Court held that the cause of action or any of the parts thereof had not arisen under the terri torial jurisdiction of the Court at Sonipat that had taken cognizance of the matter and passed an order under section 156(3) Code of Criminal Proce dure resulting in registration of case FIR No. 127 dated 22.8.2003 at Police Station Murthal, District Sonipat. 9. In any case it is too early in the day to frame an opinion as regards the offence/offences that may be on inves tigation of the matter prima-facie found to have been committed by the peti tioner. Such a discussion is to be left to the Trial Court as and when charge sheet is presented by the Police Station, Crime Branch. It is neither necessary nor advisable to deal with this aspect of the case and opine whether the peti tioner had dishonest intention from day one and motivated by such intention deceptively induced the complainant to pay an amount of Rs.92,49,520/- or there was no such deceptive intention when the transaction was negotiated and the petitioner developed an inten tion to misappropriate the amount only after the payment was made by the com plainant. 10. Even if legal preposition put for ward by the counsel for the petitioner, is accepted and offence of cheating and criminal breach of trust held to be anti thesis to each other, still such a find ing would not change the complexion of the matter because that cannot neces sarily lead to the conclusion that peti tioner prima facie committed offence punishable under section 420 RFC and not one punishable under section 409 RFC.
This takes us to the main ques tion involved in the present petition i.e. whether petitioner deserves to be ad mitted to the bail. 11. It is well settled law that a court when called upon to consider grant of bail to an accused alleged to have com mitted non bailable offence, is required to have due regard to the gravity or se riousness of the offence alleged, the chance of the accused tampering with prosecution evidence or otherwise ob structing or hampering investigation and last but not least the chance of ac cused fleeing from justice. The court while evaluating/assessing gravity and seriousness of the offence has to be alive to contemporary realities and societal concerns. The punishment pre scribed by the law makers for an offence is not the sole indicator of the serious ness and the gravity of offence. Again only such offences are not to be treated as serious that involve bodily harm and a bodily injury to the victim. Over the years a mind set has developed to treat only such offences as serious and grave which involve bodily harm or bodily in jury. Resultantly, while offences like attempt of murder, grievous hurt, ab duction, kidnapping, rape and like of fences are treated as serious offences by the law courts, the offences of crimi nal breach of trust, bribery, criminal misappropriation, amassing of wealth by the public servants disproportionate to known source of income, tax evasion, offences against environment/eco-sys-tem, grouped as "white collar crimes" or "economic offences" do not raise any eyebrows and are not viewed with same seriousness. This mind set is to be dis pelled and get rid of. The while collar crimes or economic crimes as against offences involving bodily harm or bodily injury, pose threat to the whole society and even generations and not to an in dividual as the case may is, in case of former group of offences. However, with out downplaying the seriousness or gravity of the offence involving bodily harm and bodily injury, it needs to be emphasis that seriousness of "economic offences" or "white collar" crimes must not be ignored while dealing with an ap plication for grant of bail. 12. In the present case the peti tioner is alleged to have induced the complainant to pay an amount of about Rs.
12. In the present case the peti tioner is alleged to have induced the complainant to pay an amount of about Rs. 1.00 Crore on the promise of supply ing 20 Snow Mobiles with Rescue Sledges that the complainant was to supply to Northern Command of the Army for its use in forward areas. The petitioner as per material collected dur ing investigation, allegedly did not pay even a rupee out of the amount ad vanced by the complainant to M/s Po laris Sales Inc., USA, manufacturer of Snow Mobiles and Rescue Sledges and instead the money received from the complainant was siphoned and depos ited by the petitioner in his different accounts where from it was withdrawn by the petitioner or on his order. 13. The petitioner is alleged to have continued to withdraw the money from his Bank accounts even during custody, employing different means. The peti tioner, in case results of investigation are looked at, allegedly not only misap propriated the amount paid by the com plainant, made it impossible for the complainant to fulfil his commitment with Northern Command of the Army, but also caused inconvenience to the Armed Forces engaged in defence of the country in snow bound areas by non availability of snow mobiles and Rescue Sledges. This apart the petitioner does not have his family business office or any immovable property within the State and has his offence outside the country in Mauritius. In other words the petitioner is without any roots in the State. 14. So viewed, the offence alleged to have been committed by the petitioner are grave and serious in nature, there is likelihood of the petitioner hamper ing investigation and obstructing and impeding trial in the event of his bail. There is also every likelihood of the pe titioner giving a slip to the law in the event he is enlarged on bail. 15. For the reasons discussed, the bail application is dismissed. Needless to state that the petitioner would be free to make a fresh bid for bail before the Trial Court and in the event such ap plication is filed, it shall be dealt with and disposed of on its own merits.