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2018 DIGILAW 2539 (BOM)

AMOL v. STATE OF MAHARASHTRA

2018-10-19

T.V.NALAWADE, VIBHA KANKANWADI

body2018
JUDGMENT : 1. Criminal Application Nos. 5882/2017 and 6378/2017 are filed under sections 482 of Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.' for short) for relief of quashing of F.I.R. No. 212/2017 registered with Kranti Chowk Police Station, Aurangabad for offences punishable under sections 420, 406, 120-B of Indian Penal Code (hereinafter referred to as 'IPC' for short) and sections 3 and 4 of the Maharashtra Protection of Interest of Depositors (in Financial Establishment) Act, 1999 (hereinafter referred to as 'the Act' for short). Another relief for giving stay to the proceeding bearing Special Case (MPID) No. 2/2017, which is pending before Special Judge, Aurangabad is also claimed. Both the sides are heard. Papers of investigation were made available to this Court. 2. The crime is registered on the basis of report given by respondent No. 2 Rushikumar, who is resident of Aurangabad and who is trading in foodgrains. He has contended that he purchases foodgrain like Jawar, Bazara, maize, wheat etc. from farmers and he sells the foodgrains through broker Swastik Corporation of Aurangabad to various companies from other State. He had agreement with Swastik Corporation. It is his contention that on credit, he had sold 1007 quintile of maize to Anil Limited, Ahamadabad, Gujrat through Swastik Corporation and the value of the goods sold was around Rs. 14,48,754/-. 3. It is the case of the first informant that when the goods were sold to Anil Limited, the cheque issued on the account of Anil Mines and Mineral dated 31.5.2016 was given to him. It is contended that on inquiry, it was represented to him by the applicants that there was no money in the account of Anil Limited Company and so, the cheque, was given on the account of other company. It is contended that representation was then made that the amount of the first informant will be treated as deposit and the interest at the rate of 18% on it will be given to the first informant. Request was made not to present the cheque for encashment. 4. It is the case of first informant that due to aforesaid representation, he agreed to keep the amount of Rs. Request was made not to present the cheque for encashment. 4. It is the case of first informant that due to aforesaid representation, he agreed to keep the amount of Rs. 14,48,754/- as deposit in the company of the applicants as he was to get interest at the rate of 18% p.a. It is contended that till March 2017, the date of the report given to police, he was entitled to get total interest of Rs. 1,95,580/- on aforesaid deposited amount. It is contended that till the date of F.I.R. the amount was not given to him and the cheque was presented by him for encashment on 1.3.2017, but the check bounced as account was blocked. He mentioned the names of all the Directors of the company, who have filed the two proceedings as accused. He contended that in the same manner, by using similar modus operandi, other 15 to 17 traders from Aurangabad were deceived by the applicants. Due to nature of aforesaid allegations, the crime was registered under the Act also. 5. The learned counsel for applicants submitted that parties, the present applicants and the first informant had arrived at an agreement and applicants had agreed to return the entire amount along with interest as the amount is fixed under compromise and major portion of the amount is already returned. He submitted that the amount of around Rs. 50 lakh is due and it will be also given by the applicants to the first informant and other traders. The learned counsel for first informant submitted that time frame was given by the first informant, but within the fixed time, the amount was not paid. 6. There are many peculiar circumstances in the present matters. Present applicants are not disputing that the amount was due from them. The submissions made show that in place of the total amount which was due to the first informant and Others, which was around Rs. 11 Crore, the amount of Rs. 2.5 Crore more was agreed to be given by the present applicants. Present applicants are not disputing that the amount was due from them. The submissions made show that in place of the total amount which was due to the first informant and Others, which was around Rs. 11 Crore, the amount of Rs. 2.5 Crore more was agreed to be given by the present applicants. Though the applicants are saying that this is composite amount agreed to be given as per the settlement, the fact remains that there is the contention that there was representation that the amount was kept as deposit and the first informant was to get interest at the rate of 18% p.a. It appears that the first informant and Others have got some interest on the amount, which was kept in their names as deposit. There is copy of Memorandum of Articles of the company showing that the company has business of accepting deposits and giving interest on it as one of it's activity. Thus, the factual aspect of the matter shows that the amount was treated as deposit and interest is already given , though the entire amount is not returned. 7. The submissions made and the record show that aforesaid cheque mentioned by the first informant was issued when the signatory was kept in jail in connection with similar offences. It is surprising that in all 18 such cheques of total amount of more than Rs. 11 Crore were issued by one of the applicants when he was in jail in favour of the persons who could have file separate reports against him. The cheques bounced and the submissions made show that the authority constituted under the Companies Act had probably given such direction to block the account as there were many complaints received of similar nature against this company. The learned counsel for the applicants submitted that the amount actually given by the applicants is amount of the applicants and it is not the amount of the company. 8. The submissions made show that atleast one more case under the provisions of the Act was registered against the applicants. In support of contentions made in this matter, the learned counsel for applicants has produced on record the copy of judgment delivered by this Court at Goa Bench and the decision is reported as [Nilesh N. Shah and Ors. Vs. The Officer in Charge/Investigating Officer and Ors, (2017) AllMR(Cri) 3220.]. In support of contentions made in this matter, the learned counsel for applicants has produced on record the copy of judgment delivered by this Court at Goa Bench and the decision is reported as [Nilesh N. Shah and Ors. Vs. The Officer in Charge/Investigating Officer and Ors, (2017) AllMR(Cri) 3220.]. It appears that in that matter, the provisions of sections 403, 405, 409, 420 r/w. 34 of IPC were used and it was the case of misappropriation of money received by selling air tickets of Air India. The amount involved was around Rs. 1.38 Crores. It was submitted for Air India that there was insurance cover and so, there was possibility of settlement of the claim of Air India. The facts were altogether different and the Court granted relief of quashing in that matter. The facts of the present matter are altogether different. 9. In the present matter, there is one peculiar circumstance. In the past, present applicants had filed proceedings like Criminal Application No. 1606/2017, Criminal Writ Petition No. 518/2017, Criminal Application No. 1646/2017, Criminal Application No. 1645/2017, Criminal Application No. 1644/2017 and Criminal Application No. 1643/2017 and relief of quashing of present F.I.R., F.I.R. No. 212/2017 was claimed. This Court dismissed the proceedings after considering the allegations made in the F.I.R. and admitted circumstances. The submissions made and the record show that Petition (s) for Special Leave to Appeal (Cri) bearing No.3621/2017 was filed in respect of the decision given in Criminal Application No. 1646/2017 and the petition was dismissed and direction was given to the petitioners to surrender before the Trial Court. Thus, on merits, relief of quashing of the F.I.R. is refused by this Court in the past, but in both the present proceedings similar relief is claimed. The relief of stay to the proceeding filed under the provisions of IPC and the Act is also claimed. But the fact remains that the allegations made in the F.I.R. were considered by the Court on merits in the past. The submissions made show that the applicants are involved in similar matters and authority under the Companies Act was required to take steps due to many complaints received against them. These circumstances cannot be ignored in the present matters. But the fact remains that the allegations made in the F.I.R. were considered by the Court on merits in the past. The submissions made show that the applicants are involved in similar matters and authority under the Companies Act was required to take steps due to many complaints received against them. These circumstances cannot be ignored in the present matters. Further, there is provision of section 362 of Cr.P.C. which creates bar to reconsider such matters and particularly, there is circumstance that the Apex Court has also refused to interfere in the order made by this Court in the past. 10. The learned counsel for applicants submitted that the amount which is with the applicants cannot be treated as deposit under M.P.I.D. Act. This submission is not at all acceptable. The learned counsel for applicants submitted that the present matter falls under Explanation II of section 2 (c). Explanation II runs as under :- Explanation II. - Any credit given by a seller to a buyer on the sale of any property (whether movable or immovable) shall not be deemed to be deposit for the purpose of this clause. In the present matters, it is the business of the company of the applicants to accept the deposit and give interest on it. There is specific allegation that the amount was kept many months as deposit and interest was also agreed. Admittedly, more amount than the amount which was due from applicants' company is actually given and at present, inference is easy that the additional amount was give as interest. 11. The learned counsel for applicants made one more submission. He submitted that the main purpose behind the Special Act is to see that fraud amount is recovered. It is true that there is one purpose of recovery of the fraud amount, but that is not the only purpose behind the legislation. In such cases, when fraud is involved punishment for term which may extend to six years is also provided and fine also can be imposed. The provision of section 3 of the Act shows that every Director and even staff members who are responsible for the management or or conducting of the business can be held liable under this Act. In such cases, when fraud is involved punishment for term which may extend to six years is also provided and fine also can be imposed. The provision of section 3 of the Act shows that every Director and even staff members who are responsible for the management or or conducting of the business can be held liable under this Act. Peculiar facts mentioned above shows that the cheque on the account of different company was issued and it is clear that this was done only to avoid the filing of the case under Negotiable Instruments Act. This circumstance can be used to infer that there was intention to deceive. Only when the relief was refused by this Court and Apex Court refused to interfere in the order made by this Court, some steps were taken by the applicants to get out of the clutches of law. They are involved in other similar matters and so, this Court holds that the provision of section 482 of Cr.P.C. cannot be used in favour of such persons. 12. The learned counsel for applicants placed reliance on some reported cases and they are as under :- (i) [Devendra and Others. Vs. State of U.P. & Anr, (2009) 7 SCC 495 .], (ii) [Shobhana Bhartia and Others. Vs. State of Maharashtra & Anr,2009 SCC OnLine(Bom) 795.], (iii) [State Vs. K.V. Rajendran and Others., (2008) 8 SCC 673 ], (iv) [Simrikhia Vs. Dolley Mukerjee & Ors, (1990) 2 SCC 437 .], (v) [M.Sundareswaran Vs. State of Maharashtra & Anr, (2007) 109 BLR 2192.], (vi) [Parbatbhai Aahir and Others. Vs. State of Gujarat & Anr,2017 SCCOnLine(SC) 1189.], (vii) [Narinder Singh and Others. Vs. State of Punjab & Anr, (2014) 6 SCC 466 .], (viii) [Yogendra Yadav and Others. Vs. State of Jharkhand & Anr, (2014) 9 SCC 653 .], (ix) [Gian Singh Vs. State of Punjab & Anr, (2012) 10 SCC 303 .], (x) [Farida Aslan Khan and Others. Vs. State of Maharashtra and Anr,2016 SCC OnLine(Bom) 5169.], (xi) [Sundar Bhanudas Khose and Others. Vs. State of Maharashtra & Anr, (2016) AllMR(Cri) 4055.], (xii) [Vikas Vs. State of Maharashtra, (2015) AllMR(Cri) 273], (xiii) [Laxman and Others. Vs. State of Maharashtra & Ors, (2015) AllMR(Cri) 1550.], (xiv) [Shalini Harpalsingh Dugal and Others. Vs. State of Maharashtra,2016 SCC OnLine(Bom) 3968], (xv) [Bapurao Vs. State of Maharashtra and Ors, (2016) AllMR(Cri) 4030.], (xvi) [Juergen Langer and Others. Vs. State of Maharashtra & Anr, (2016) AllMR(Cri) 4055.], (xii) [Vikas Vs. State of Maharashtra, (2015) AllMR(Cri) 273], (xiii) [Laxman and Others. Vs. State of Maharashtra & Ors, (2015) AllMR(Cri) 1550.], (xiv) [Shalini Harpalsingh Dugal and Others. Vs. State of Maharashtra,2016 SCC OnLine(Bom) 3968], (xv) [Bapurao Vs. State of Maharashtra and Ors, (2016) AllMR(Cri) 4030.], (xvi) [Juergen Langer and Others. Vs. State of Goa and Ors, (2016) AllMR(Cri) 2558.], (xvii) [Amit Kumar Vs. State of Maharashtra, (2016) AllMR(Cri) 1553], (xviii) [Sayyed Tareque Ali Vs. State of Maharashtra & Anr,2011 SCCOnLine(Bom) 1096.], (xix) [Anita Sandip Khese Vs. State of Maharashtra & Ors, (2015) AllMR(Cri) 2295.], (xx) [Dimpey Gujral and Others. Vs. Union Territory of Chandigarh & Ors, (2013) 11 SCC 497 .], and (xxi) [Vithal and Others. Vs. State of Maharashtra & Ors, (2016) AllMR(Cri) 4713.]. The facts and circumstances of each and every case are always different. In the present matter, provisions of Special Enactment are involved and there are aforesaid circumstances. This Court holds that general provisions cannot be used in such a case otherwise the very purpose of the Enactment will get defeated and the matter cannot be treated as dispute between the applicants and the first informant only. In the result, Criminal Application Nos. 5882/2017 and 6378/2017 stand dismissed. The learned counsel for applicants requested for continuation of interim relief. It is refused. Other proceedings also stand disposed of.