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2019 DIGILAW 479 (GUJ)

Pankajkumar Ramniwas Agrawal v. State Of Gujarat

2019-04-29

VIPUL M.PANCHOLI

body2019
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicantaccused has prayed for anticipatory bail in connection with the FIR being C.R. No. I– 110/2018 registered with Kalupur Police Station, Ahmedabad City for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code. 2. Heard learned Senior Counsel, Mr. S.V. Raju appearing with learned counsel, Mr. Bhadrish Raju for the applicant, learned APP Mr. L.B. Dabhi for the respondent – State and learned advocate, Mr. A.S. Timbalia for the original complainant. 3. The gist of the allegations leveled in the FIR are as under, The accused persons in connivance with each other have reposed the trust of the complainant and purchased goods worth of Rs.9,52,08,402/from the complainant and did not pay the said amount and thereby the accused have committed an offence of cheating and criminal breach of trust. 4. Learned Senior Counsel, Mr. S.V. Raju appearing for the applicant submits that the applicant is working as broker in the Cloth Industries and he used to charge the brokerage on the transactions made between the parties. It is submitted that the FIR in question is filed against the applicant with a view to extort money towards the monetary transaction made by the complainant with other accused persons. It is submitted that the dispute between the parties is of civil nature. It is submitted that if the complainant has sold the goods to the concerned accused and if the amount is not paid for the said transaction by the concerned accused, the complainant can file civil proceedings before the competent civil court. It is further submitted that even otherwise, the alleged offences are punishable with imprisonment upto seven years and, therefore considering the law laid down by the Hon’ble Supreme Court in case of Arneshkumar Vs. State of Bihar, reported in (2014) 8 SCC 273 this Court may exercise the discretion in favour of the applicant. 5. It is further submitted that the transactions in question are in the nature of sale transaction and, therefore as per the decision rendered by the Hon’ble Supreme Court in case of State of Gujarat Vs. State of Bihar, reported in (2014) 8 SCC 273 this Court may exercise the discretion in favour of the applicant. 5. It is further submitted that the transactions in question are in the nature of sale transaction and, therefore as per the decision rendered by the Hon’ble Supreme Court in case of State of Gujarat Vs. Jaswantlal Nathalal, reported in AIR 1968 SC 700 , in a sale transaction, even if it is alleged that the goods have been diverted and there is no entrustment, no criminal breach of trust can be made out. At this stage, it is further contended that so far as the offence of cheating is concerned, the original buyers have made the payment to the complainant through their bank accounts and when the cheques issued by the concerned coaccused are dishonoured, the complainant has issued legal notices to the concerned coaccused under the provision of Section 138 of the Negotiable Instrument Act, 1881, hence, allegation of cheating may not be accepted. 6. At this stage, it is submitted that another FIR is filed against one of the buyers viz., Rishabh Enterprise by some other party, which clearly establishes that the buyer, Rishabh Enterprise existed. 7. Learned counsel thereafter would submit that the complainant has changed his stance to suit himself on several occasions and the allegations leveled by the complainant in the FIR are inconsistent with further statement of the complainant recorded by the Investigating Officer. Learned counsel referred to the allegations made in the FIR and pointed out that the original version of the complainant is that the goods were delivered to the respective parties through Dilip and Tejendra and they used to get delivery chalan signed through respective parties, however in the further statement recorded by the Investigating Officer, the complainant has stated that the goods were taken by Dilip to the present applicant and that the delivery chalans were signed by the applicant and that also payments were made by the applicant to the original complainant. At this stage, learned advocate has referred to the notice issued under Section 138 of the Negotiable Instrument Act, 1881 by the complainant to the original buyers and, thereafter, submitted that the complainant has averred in the said notices that the original buyers had handed over certain cheques and the said cheques were dishonoured. 8. At this stage, learned advocate has referred to the notice issued under Section 138 of the Negotiable Instrument Act, 1881 by the complainant to the original buyers and, thereafter, submitted that the complainant has averred in the said notices that the original buyers had handed over certain cheques and the said cheques were dishonoured. 8. Learned counsel thereafter submits that in a statement given by the coaccused, Suresh Jain under Section 161 of the Criminal Procedure Code, 1973, it is revealed that he has admitted that the said coaccused knew the applicant and Suresh Jain has utilized the original GST Number of Aadeshwar Enterprise and the said Suresh Jain has personally issued the cheques from his own account, whereas in the reply to the notice given by the said accused to the complainant produced before this Court, the said coaccused has stated that he does not know the complainant or the applicant. It is, therefore, contended that an inconsistent stand is taken by the complainant in different proceedings and, therefore, it has assumed significance. 9. Learned counsel thereafter would submit that so far as Rishabh Enterprise is concerned, from the bank account details of the said Enterprise, it would highlight that the account operated by the said party is genuine, in which, large number of transactions are made by the said party. It is further submitted that the learned APP has also verified from the Investigating Officer that the bank account opening forms of the concerned parties are genuine and thus, Rishabh Enterprise is genuine entity with genuine address. It is therefore contended that the allegations leveled by the complainant that the account of the said firm was operated by the applicant, may not be believed. Learned counsel has produced on record FIR being C.R. No.I25/2019 registered against Ratan Prabhuraj Patel, Proprietor of Rishabh Enterprise by one Pawankumar Agrawal. In the said transaction with Pawankumar Agrawal, one Sajjankumar Singhal has acted as broker and the said broker is released on anticipatory bail by this Court. 10. It is further submitted that so far as the transaction with Kashish Enterprise is concerned, the complainant and the owner of the said Kashish Enterprise belonged to the same community, whereas the applicant is from different community and, therefore, it is unbelievable that the complainant would not know the person of his community involved in the same business operated in the same area. 11. 11. Learned counsel thereafter submits that the complainant has made false statement regarding the socalled proximity between the applicant, Rishabh Enterprise and Kashish Enterprise due to certain payments transferred from the account of the family members of the applicant into the account of Rishabh Enterprise and Kashish Enterprise. In fact, the applicant used to transfer the money to earn interest in the account of several businessmen. The applicant through his account and account of his family members has also transferred huge amount in the bank account of complainant as well. 12. Learned counsel would further contend that the applicant has been protected by this Court by an interim order in the proceedings filed under Section 482 of the Criminal Procedure Code, 1973, whereby the Police authorities were directed to follow the guidelines issued by the Hon’ble Supreme Court in case of Joginder Kumar Vs. State of Uttar Pradesh & Ors., reported in (1994) 4 SCC 260 . Further in the present proceeding, this Court has granted protection to the applicant and, therefore, the applicant has appeared before the Police authority thrice and thereby the applicant has cooperated with the investigating agency. 13. Learned counsel further submits that the complainant has alleged that one FIR is filed against the applicant and other complaints under Section 138 of the Negotiable Instrument Act, 188 are also filed against the applicant, however, FIR which is filed against the applicant, is with regard to the personal dispute between the family members. So far as the application filed before the Police authority by one M/s. Lovely Creation against the applicant is concerned, same dispute is settled between the parties and MOU is also executed. It is submitted that pendency of the complaint under Section 138 of the Negotiable Instrument Act, 1881 cannot be considered as criminal antecedents. Learned counsel, therefore, urged that the custodial interrogation of the applicant is not required in the facts and circumstances of the present case and, therefore, this application be allowed. 14. On the other hand, learned APP has opposed this application and submitted that during the course of investigation, the Investigating Officer has recorded the statements of concerned witnesses, from which, it is revealed that there is sufficient material against the applicant to connect him with the alleged offence. 14. On the other hand, learned APP has opposed this application and submitted that during the course of investigation, the Investigating Officer has recorded the statements of concerned witnesses, from which, it is revealed that there is sufficient material against the applicant to connect him with the alleged offence. Even the statement of the coaccused, Suresh Jain is recorded, wherein also the said coaccused has alleged against the present applicant and pointed out as to how the transaction in question is entered into. Thus there is enough material in the investigation papers against the applicant, from which, it is revealed that the goods in question are in fact received by the applicant by using GST Numbers of some other coaccused. The applicant has deposited cash amount in the account of another coaccused and other coaccused has thereafter issued cheques in favour of the original complainant. Thus looking to the transaction in question, the custodial interrogation of the applicant is required and, therefore, this Court may not exercise the discretion in favour of the applicant. 15. Learned advocate, Mr. Timbaliya appearing for the original complainant has referred to the averments made in the affidavitinreply filed by the complainant and also other documentary evidence placed on record during the course of hearing of this application and, thereafter, contended that the applicant used to contact the complainant showing himself having good contact with concerned buyers and, thereafter, the goods were supplied by the complainant. The amount involved in the transaction in question is more than Rs.9.00 crores. In fact, the applicant has illegally used GST Number for dealing with the complainant and thereby committed alleged offence. From the record, it is pointed out by learned advocate for the complainant that before issuance of the cheque by the Proprietor of Kashish Enterprise, cash amount was deposited in his account by the present applicant. Learned advocate has referred to the bank accounts of the said party. It is further submitted that the statement of the wife of coaccused, Kamal Chhablani – owner of Kashish Enterprise has been recorded by the investigating agency and from the said statement, it is revealed that the socalled owner of Kashish Enterprise is doing job in the market. Similarly in the account of the another coaccused i.e. Proprietor of Rishabh Enterprise, cash deposits were made and, thereafter, the cheques were issued by the concerned coaccused. Similarly in the account of the another coaccused i.e. Proprietor of Rishabh Enterprise, cash deposits were made and, thereafter, the cheques were issued by the concerned coaccused. It is also contended that more than Rs.27,00,000/is transferred from the account of the applicant or his family members in the account of Rishabh Enterprise. It is further submitted that GST Numbers of other coaccused are also misused by the applicant and looking to the criminal antecedents of the applicant, this Court may not exercise the discretion in favour of the applicant. It is, therefore, urged that this application be dismissed. 16. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the FIR in question is filed for the alleged offences punishable under Sections 406, 420 and 114 of the Indian Penal Code against the applicant and other coaccused. From the material produced during the hearing of this application, it is revealed that the Investigating Agency has recorded the statements of certain witnesses, from which, it can be said that socalled Proprietor of Kashish Enterprise viz., Kamal Chhablani is in fact serving in Kalupur Market and is not the Proprietor of Kashish Enterprise. From the statement of the witness, Dilip Thakor, it is revealed that when the goods were supplied by the complainant, he has supplied the goods to the present applicant and after obtaining the signatures in the chalan by the applicant, the said witness used to collect the said chalan from the applicant and he has never seen other coaccused. Even the coaccused, Suresh Jain – Proprietor of Aadishwar Enterprise has also specifically stated that the applicant herein used to obtain the goods from the complainant in the name of said coaccused. GST Numbers of other coaccused are also alleged to have been misused by the applicant herein and the amount involved in the transaction is more than Rs.9.00 crores. 17. Even the investigation is at crucial stage and the manner and method in which the transactions are entered into by the applicant in the name of other coaccused, require detailed investigation, for which, the custodial interrogation of the applicant is required. The documentary evidence are also required to be collected. 17. Even the investigation is at crucial stage and the manner and method in which the transactions are entered into by the applicant in the name of other coaccused, require detailed investigation, for which, the custodial interrogation of the applicant is required. The documentary evidence are also required to be collected. It is submitted by learned advocate for the applicant that the applicant used to transfer the money in the account of various businessmen including Rishabh Enterprise and Kashish Enterprise to earn the interest. It is further stated that the amount was also transferred from the account of the family members of the applicant from the account of the complainant. Thus from the said fact admitted by the applicant himself, the custodial interrogation of the applicant herein is required as to whether the amount deposited by the applicant and his family members in the account of the coaccused are for the purpose of earning interest or for some other transactions. It is also not in dispute that similar type of written complaints were filed against the applicant alleging commission of offences punishable under Sections 406, 402 etc. of the Indian Penal Code and the fact, which is not in dispute that the applicant has settled the dispute with one M/s. Lovely Creation. Another FIR is also pending against the applicant and proceeding under Section 138 of the Negotiable Instrument Act are also filed for dishonour of cheque by the concerned complainant. 18. Thus, there is a prima facie case against the applicant and in the facts of the present case, as observed hereinabove, custodial interrogation is required. 19. In the aforesaid overall facts and circumstances of the present case, I am not inclined to exercise the discretion in favour of the applicant. Accordingly, the present application is dismissed. Rule is discharged. Interim protection, if any, stands vacated.