1 Appln 641-10 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4890 OF 2010 WITH CRIMINAL APPLICATION NO.641 OF 2010 Ramesh Prasanna & anr. .Applicants V/s. The State of Maharashtra .Respondent And Pandurang Dhondiram Ukharde .Intervenor Mr.P.M.Havnoor, Advocate, for the Applicants Mrs.S.D.Shinde, APP, for the Respondent  State Mr.M.S.Lagu i/b. M/s.Khaitan & Jayakar, Advocate, for Complainant/Intervenor CORAM : R.C.CHAVAN, J. DATE : 21ST DECEMBER, 2010 P.C. . Heard the learned Counsel for the respective parties. 2. This is an application by a person claiming to be exporter of Grapes and another claiming to have nothing to do with export of Grapes. Interim order had been passed granting protection to the applicants. Applicants' claim that applicant No.1 is 2 Appln 641-10 exporter of Grapes and applicant No.2 conducts a separate business for his Company Focusdyne Technologies Private Limited. FIR were registered against applicant No.1 at Dindori Police Station, Nashik & Niphad Police Station respectively on 7th October, 2010 & 16th October, 2010 respectively. Applicant No.2 Ashish Patil is not an accused in FIR registered with Niphad Police Station. 3. According to the applicants, grapes which are exported to European Union are not expected to have some 98 pesticides which have been listed by APEDA which is the Apex body regulating exports under a statute. According to the applicants, on 10th September, 2009, European Union added 99th entry of pesticide by name Chlormequat to the list. The applicants point this out from a Website having the following address :- http://ec.europa.eu/sanco_pesticides/public/ index.cfm?event=substance.info&id=51 3 Appln 641-10 The contents on the page which have been annexed as 'Exhibit D' to the application are as under :- Chlormequat Annexes Reg.396/2005 Legislation Annex II Req.(EC)No.822/2009 Annex IIIB Entry into force : 10/09/2009 History: Req.(EC)No.839/2008 Req.(EC)No.149/2008 Footnotes 4. On the basis of this material, applicants contend that Chlormequat is banned pesticide. They further contend that this addition to the list did not result in a consequential change in the list issued by APEDA. Consequently, the Grapes of first informants and other farmers were exported without checking whether this pesticide Chlormequat was in the Grapes. Ultimately, Grapes reached in the European Union and were rejected. It is the applicants' contention 4 Appln 641-10 that consignments which were on the Ship or in the Ports were destroyed. As a result, the applicants could not pay the grape growers and cheques issued to them could not be honoured. On a report by the farmers offences have been registered in which, it is alleged that the applicants have not only committed offence punishable under Section 138 of the Negotiable Instruments Act but also that of cheating and misappropriation. 5. The learned Counsel for the applicants submits that in such cases, the only offence that could be made out is one punishable under Section 138 of the Negotiable Instruments Act and there could be no allegation of cheating or misappropriation in respect of the entire transaction, since the applicants did have an intention to repay to the farmers and it is only on account of the consignments being destroyed by the importers that the applicants have not been able to pay the farmers. On 5 Appln 641-10 being asked, as to what is the scheme of the applicants to liquidate dues, applicants have filed an Affidavit on 7th December, 2010 stating that the applicants would be paying farmers at the rate of Rs.20/- per Kg in six instalments starting from 6th May, 2011 and complete the payment before 30th October, 2011, not just to the first informant farmers but to all those from whom grapes have been procured for the purpose of export. 6. The first informants have filed an intervention application and the learned Counsel for the applicants has an objection to the proposed payment at the rate of Rs.20/- per Kg. He also states that it was because of the malpractices by the applicants that they have been made to make over the Grapes for export, and are now, finding it difficult to repay the loans taken by them. 7. Though, the application was filed way 6 Appln 641-10 back on October, 2010, till now, the applicants have not been able to show any authentic documents that pesticide Chlormequat has been added to the list by the European Union and relied only on a page downloaded on Website by European Union (quoted earlier). There is no Order, Notification, Circular or Communication by APEDA which shows that this Chlormequat has been added to the list after 10th September, 2009. There is nothing to show that the importers have refused to accept the applicants' consignment for this reason, namely that the Grapes contained Chlormequat. There is nothing whatsoever to show that the consignments were destroyed or that importers have not paid the applicants for this reason. It is difficult to imagine that the applicants would not get any communication from importers about refusal to accept the applicants' consignment or to communicate to the applicants the reason for doing so. Therefore, in the absence of any material to 7 Appln 641-10 show that what the applicants contend is correct, the allegation that the applicants cheated the farmers into believing that the Grapes would be exported cannot be refuted at this stage and would require further investigation. 8. The learned Counsel for the intervenor rightly pointed out that applicant No.2 claims in the application that he has absolutely nothing to do with the export of Grapes. Yet he is shown to have written to Smt.Sonia Gandhi as exporter. In view of this, since the applicants have not shown their bona fide by depositing atleast a part of the payment which they have committed to make to the farmers, there will be no question of granting any protection to the applicants. 9. Criminal Applications are, therefore, rejected. Interim order granted earlier will continue to operate for a further period of 8 Appln 641-10 two weeks. Since the learned Counsel for the applicants states that applicants would be carrying the matter further. (R.C.CHAVAN, J.)