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2015 DIGILAW 717 (ORI)

Sunil Kumar Garg v. State of Orissa

2015-12-22

S.K.MISHRA

body2015
ORDER 22.12.2015.This order arises out of an application under Section 438 of the Cr.P.C., wherein the Directors of M/s. Good Luck Traders (P) Ltd. have prayed for anticipatory bail. They have been charge-sheeted for the alleged commission of offence under Sections 406 and 511/34 of the IPC in G.R. Case No.633 of 2014 of the Court of learned SDJM, Panposh, Rourkela, arising out of Raghunathpalli P.S. Case No.66 (24) of 2014. Initially on 24.12.2013, the complainant, namely, Shivom Minerals Ltd., through its Managing Director-Vikash Gupta filed a private complaint, bearing I.C.C. ;No.928 of 2014 before the Court of learned SDJM, Panposh for the alleged offence under Sections 379, 411 and 424/34 of the IPC against the accused, namely, Sunil Kumar Garg and Shyam Agarwal, Directors of M/s.Good Luck Traders. The allegation in that complaint is that the accused persons removed signed blank cheques stealthily from the possession and custody of the complainant. The same was forwarded to the Inspector in Charge, Raghunathpali P.S. for registration of the FIR. Accordingly, the aforesaid P.S. case was registered and the Investigation Officer took up investigation of the case. In course of investigation, it came to light that Sunil Kumar Garg had entered into two memorandum of Understandings (MKOUs) with Shivom Minerals Ltd. & received seven cheques for Rs.7.48 crores. First MOU was entered on November, 2012 for supply of iron ore to one Shivom Minerals. He received two cheques for Rs.1.40 crore each and another two cheques of Rs.1.40 crore and Rs.0.28 crore with forwarding letter to secure his payment against supply of iron ore to Shivom Minerals on credit basis. He promised to obtain mineral trading license but could not succeed. Thereafter, he entered another MOU for trading in joint venture with Shivom Minerals and received three cheques for Rs.1.0 core each towards 25% share of the investment against proposed business in April, 2013. It is apparent from the materials that both the MOUs were cancelled in 2013 due to non-grant of mineral trading license. Despite cancellation of MOUs, he was holding property of Shivom Minerals, i.e. all the seven cheques of Rs.7.48 crore and attempted to encash all the cheques without consent of the complainant. The charge-sheet has been submitted in FIR No.67/2014 of Raghunathpalli P.S. before the learned SDJM, Panposh against five cheques for Rs.5.80 crore. Despite cancellation of MOUs, he was holding property of Shivom Minerals, i.e. all the seven cheques of Rs.7.48 crore and attempted to encash all the cheques without consent of the complainant. The charge-sheet has been submitted in FIR No.67/2014 of Raghunathpalli P.S. before the learned SDJM, Panposh against five cheques for Rs.5.80 crore. The remaining two cheques i.e. cheque Nos.014226 and 014229 for Rs.1.68 crore are covered under the FIR, which was giving against first MOU related to iron ore supply. It is reported by the I.O. that after proper investigation, it was found that the accused persons misinformed that the two cheques were returned to the complainant. Upon search in office, those were not found and complainant reported the matter to the police station on 04.10.2013. From the statement of accused and complainant and various evidences, it is clear that the seven cheques were issued by the complainant against two specific MOUs related to proposed iron ore business and no way related to the steel business that the accused persons were doing from their branch office at D-4/2, Civil Township, Rourkela. It is further reported that few account statement and VAT returns were collected from Malkhana in Raghunathpalli P.S Case No.67/2014 which were seized from Rourkela Office of Good Luck Traders. The documents do not depict any outstanding dues of Rs.12 crores as claimed by the petitioner-Sunil Garg. Hence, finding a prima facie case under Sections 406, and 511/34 of the IPC, the I.O. submitted charge-sheet on 30.06.2015 before the Court of learned SDJM,Panposh. In course of hearing, the learned Counsel for the petitioners drew attention of the Court to Page-114 of the brief.At Paragraph – E of that page, which is an application for anticipatory bail filed before the learned Sessions Judge, Karkardooma Court, Delhi under Section 438 Cr.P.C. filed by Akash Gupta, who happens to be one of the Directors of Shivom Minerals Ltd., he stated that in terms of the MOU-1 supply of iron ore was to be made by GLT on credit basis in 30 to 45 days and hence two number of cheques vide No.014295 and 014296 for Rs.1.40 crore each were sent on 10.11.2012 to secure as security cheque for payment of supply of iron ore by GLT. In pursuance of Shyam Aggarwal of GLT another two cheques vide No.014226 and 014229 amounting to Rs.1.40 crores and Rs.0.28 crore were given in November, 2011 only to them against MOU-1 as security cheque if supply of any amount fall due can be recovered though these cheques with assurance for quick supply of iron ore which was acute shortage with Shivom. All the cheques were undated as per request of the Director of GLT and furnished as security cheque. It is apparent from the records that the criminal case arises out of a commercial transaction between two parties and the plea that certain signed blank cheques were stolen by the accused persons was found to be untrue. It gets ample corroboration from the material on record, i.e. statement made by the Director of the complainant-company in an application filed under Section 438 of the Cr.P.C. before the learned Sessions Judge, Karkardooma Court, Delhi. So, this Court is of the opinion that the dispute has arisen between the parties because of non-supply of iron ore, scrap materials and non-issuance of trading licence in favour of the present petitioners and their firm. The cheques were never stolen but entrusted to the petitioners as security for future supply of iron ore and scrap. Therefore, offence under Section 379, 424, 411/34 IPC is certainly not made out but the conditions required under Sections 406 and 511 of the IPC are satisfied as far as the petitioners are concerned as there has been an attempt on their part to encash those cheques. The offence under Section 406 of the IPC is punishable for imprisonment of three years or fine or both. It is also apparent from the records that the petitioners are very much permanent resident of Delhi having their business at Delhi. Hence, there is no chance of their absconding from justice. In that view of the matter, keeping in view the ratio decided in the case of Satilingappa Mhetre Vrfs.State of Maharashtra and others; (2011) 48 OCR (SC) 1 and Arnesh Kumar V. State of Bihar; AIR 2014 SC 2756 , this Court is of the opinion that anticipatory bail application should be allowed. Since charge-sheet has been submitted, the petitioners are given liberty to surrender before the learned SDJM, Panposh in the aforesaid case within 21 working days hence and pray for bail. Since charge-sheet has been submitted, the petitioners are given liberty to surrender before the learned SDJM, Panposh in the aforesaid case within 21 working days hence and pray for bail. On such event, the learned Magistrate shall hear and allow their application on the same day on such terms and conditions as deemed just and proper. In the meantime, if the accused are arrested by the Police, they shall be produced before the leaned Magistrate within 24 hours and the learned Magistrate shall grant them bail as directed above. The ABLAPL is disposed of. Urgent certified copy of this order be granted as per rules. ABLAPL disposed of.