1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4683 OF 2009 with CRIMINAL APPLICATION NO. 4684 OF 2009 Shri Suresh T. Bagadia ...Applicant vs. The State of Maharashtra ...Respondent Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.Shreeram Shirsat for the Applicant. Mr.Hemang Jariwala with Mr.Mahesh Pol i/b. M/s.Auroma Law for the Intervenor. Mr.S.A. Shaikh, APP for the State in Cri.Appln.No. 4683/2009. Mr.J.P. Kharge, APP for the State in Cri.Appln.No. 4684/2009. WITH CRIMINAL APPLICATION NO. 4605 OF 2009 Shri Haresh T. Bagadia ...Applicant vs. The State of Maharashtra ...Respondent Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.Shreeram Shirsat for the Applicant. Mr.Hemang Jariwala i/b.M/s.Auroma Law for the Intervenor. Mrs.P.P. Shinde, APP for the State. 2 CORAM : V.M. KANADE, J. DATED : DECEMBER 4, 2009 P.C. :- 1 Heard the learned Senior Counsel for the applicants and the learned Counsel for the complainant and the learned APP for the State. 2 The applicant in Criminal Application Nos. 4683 and 4684 of 2009 has been arrested on 25th June, 2009 when he surrendered himself to the D.B. Marg Police Station. The applicant in Criminal Application No.4605 of 2009 was arrested on 11th September, 2009 by the V.P.Road Police Station. Charge sheet has been filed in both these cases. 3 The prosecution case is that the complainant who is a diamond merchant had entrusted diamonds to both the applicants on two different occasions. The complainant had entrusted diamonds to 3 Suresh Bagadia who is a broker working in the diamond market and according to the complainant, he had signed on a receipt which is known as Zangad receipt and according to the practice which is prevailing in the market, the original is given to the broker who received the diamonds and carbon copy is retained by the diamond merchant. According to the Advocate for the complainant, the practice in the diamond market is that the brokers are given diamonds and the zangad receipt is signed by them for the purpose of proving entrustment of diamonds and thereafter, the said brokers keep these diamonds in a packet and show them to number of customers. If the diamonds are purchased by those customers, in that event, the purchaser contacts the diamond merchant who directly enters into a sale contract with the purchaser and the broker s zangad receipt is then torn out. According to the complainant, in the first case, diamonds worth Rs.1,46,00,000/- were given to the broker Suresh Bagadia who signed the zangad receipt and retained the original and xerox 4 copy was retained by the diamond merchant and on the second occasion, on 20th May, 2009, another stock of diamonds was given to Suresh Bagadia who also executed another Zangad receipt. So far as the other accused Haresh Bagadia who is also broker in the diamond market is concerned, he was given diamonds worth Rs.20 lakhs, however, no zangad receipt was signed by him. It is the case of the complainant that Suresh Bagadia had signed on two zangad receipts and diamonds worth Rs.1,46,00,000/- and in the second, Rs.46 lakhs worth of diamonds were given. According to the complainant however, the broker Suresh Bagadia disappeared after 21st May, 2009. A missing complaint was filed. An FIR was registered in both the cases on 6th June, 2009. A private complaint was registered in the 18th Court, Girgaon, on 1st June, 2009 and an order was passed under Section 156(3) of the Cr.P.C. and as a result, MECR was registered on 6th June, 2009 by the D.B. Marg Police Station. During the course of investigation, one suicide note was recovered from 5 the house of Suresh Bagadia in which he has allegedly stated that if something untoward happens to him, the five diamond merchants whose names he has mentioned in the suicide note should be held responsible. Suresh Bagadia surrendered to D.B. Marg Police Station on 25th June, 2009 and Haresh Bagadia was arrested on 11th September, 2009. Both the accused were remanded to police custody and thereafter, transferred to the judicial custody. No recovery, however, has been made at the instance of the present applicants. Charge sheet thereafter has been filed. 4 The learned Senior Counsel for the applicants submitted that besides zangad receipt, there is no other material on record to show involvement of the present applicants. He submitted that the applicants have not received the diamonds as alleged by the complainant and therefore, there was no question of misappropriation or conversion of the said diamonds by the applicants herein. He 6 submitted that in any case, in the first complaint which was filed, no reference is made about other witnesses having seen the diamonds being entrusted to the applicant Suresh Bagadia and in the case of Haresh Bagadia, no zandad receipt had been signed and thirdly, there was no witness. He submitted that however, subsequently, statements of certain witnesses have been recorded who claimed that they had seen the said diamonds being entrusted to the two applicants. He submitted that the zangad receipt which has been produced is not the original zangad receipt but is the carbon copy and it is submitted that the said signature does not belong to the present applicant Suresh Bagadia. It is submitted that since the charge sheet was filed, further detention of the applicants in judicial custody is not required and it is, therefore, submitted that both the applicants may be released on bail. 5 The learned Counsel for the complainant, on the other hand, vehemently opposed the application 7 for bail filed by both the applicants. He submitted that it is a practice which is followed in the diamond market of handing over the diamonds to brokers and zangad receipt is executed and a copy is retained by the diamond merchants. He submitted that on few occasions on trust, the diamonds are given to the brokers and even, no zangad receipt is signed. He submitted that the Handwriting Expert s opinion was obtained by the complainant who has opined that the signature on the zangad receipt is that of the applicant Suresh Bagadia after the Handwriting Expert compared the signature on the suicide note executed by the applicant Suresh Bagadia. He submitted that therefore, this is not a fit case for grant of bail. The learned APP also admitted the submission made by the complainant. 6 In the present case, charge sheet has been filed. No recovery unfortunately could be made at the instance of the present applicants though they were in custody in police for two weeks and 8 thereafter, in judicial custody. The entire case of the complainant hinges primarily on the zangad receipt which is allegedly signed by the applicant Suresh Bagadia. Though some witnesses now have given their statements that they had seen the diamond merchant - the complainant handing over the diamonds, admittedly, in the first complaint before the Magistrate, no such mention has been made about the diamonds being handed over in the presence of any other person. Under these circumstances, therefore, in that event, entrustment of the diamonds is not established by the complainant, the applicant then may be entitled to get the benefit of doubt since the case hinges on this slender thread and unless entrustment is established, the police may not be in a position to prove the case against the applicants herein. Under these circumstances, therefore, custodial detention of the applicants in jail for an indefinite period of time is not warranted since the applicants are permanent residence of Mumbai and they are diamond brokers and 9 they have their families in Mumbai and they are not likely to abscond. 7 The applicants, therefore, be released on bail in the sum of Rs.10,000/- each with one or two sureties each in the like amount. They shall, however, report to the DB Marg Police Station twice in a week for a period of six months and thereafter, once in a week till the pendency of the criminal case. The applicants shall not try to tamper with the evidence. The trial, however, is expedited. The learned Magistrate is directed to decide the case, as expeditiously as possible. The trial Court shall not be influenced by any observations made by this Court in this order since these observations are of a prima facie nature. 8 Applications are disposed of. 9 S.O. to 14th December, 2009 for directions. (V.M. KANADE, J.) 10