1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1968 of 2009 Anand Kumar Mandan v. State of Maharashtra -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Anil Mardikar, Advocate for applicant Ms S. Wandile, APP assisted by Mr Shyam Dewani, Advocate for respondent-State Coram : A.P. Bhangale, J Dated : 5th August 2009 1. Heard learned counsel for the parties. Applicant is seeking anticipatory bail in Crime No. 131/2009 registered with Police Station, Lakadganj, Nagpur for an offence punishable under Sections 406, 420 read with Section 34 of the Indian Penal Code. 2. It is contention on behalf of the applicant that First Information Report dated 28.4.2009 was lodged by complainant M/s Mayar India Limited is that first informant is agent of Mayar (HK) Limited, Hongkong. Applicant under Memorandum of Understanding agreed to work for both the above Companies as their consultant and took responsibility for sale/procurement of pulses, grain, maize oil, oil seeds and sugar etc. and that he was to get commission of 1 per cent on the sale. 2 He was also to receive as advance commission in the sum of Rs. 2 lacs per month from 20th September 2008. Applicant agreed to achieve target of around one lac tonne per annum. On the recommendation of applicant, co-accused Rahul Mittal was appointed by the complainant Company as Deputy General Manager in its Pulses Division who started procuring pulses from abroad for the Company and also started sailing pulses on behalf of the Company in India. According to the first informant, the Company has to recover Rs. 3.86 crores from applicant towards the price of goods supplied to him. In order to clear the liability, applicant had even issued four cheques described in the FIR, but it was noticed that there was no amount in credit balance in his concerned account. Applicant represented that he would make the payment under cheques, but in vain. Instead of making payment of liability, the applicant has started alleging that he has suffered losses and he is entitled to receive an amount of Rs. 1 crore from the Company. On this complaint, Lakadganj Police have registed offences punishable under Sections 420, 406 read with Section 34 IPC against applicant and co-accused Rahul Mittal for cheating and criminal conspiracy. 3. Learned counsel for the applicant contended that applicant has not indulged into any criminal conspiracy or cheating. He submitted that applicant procured orders from various customers from time to time and has done business of more than 300 containers of pulses. He further submits that 3 because of shooting of prices, Mayar (HK) Limited has not supplied goods and they are hard pressing the applicant as the applicant was mediator between the said Company and the customers. Learned counsel contends that a sum of more than Rs. 1 crore is receivable by the applicant from the said Company. He submitted that applicant is not prima facie involved in any of the two offences and his custodial interrogation is not at all necessary. 4. On the other hand, learned APP opposing the bail application, contended that custody of applicant is very much required. It is contended that the applicant has taken delivery of 2400 bags of toor whole FAQ from Burma to Nagpur by fabricating documents and has stored the material in the name of his Firm in the go-down of Central Warehousing Corporation. She submits that the investigation is at the very initial stage and custodial interrogation of the applicant in a crime involving nearly Rs. 4 crores is very much essential. She prayed for dismissal of the application. 5. Applicant had moved before the Sessions Court earlier for grant of anticipatory. However, learned District Judge-5, Nagpur vide order dated 6th May 2009 rejected the said application. It has been observed in paragraph 6 of the order that the applicant was appointed as a broker and there is nothing on record to indicate that the applicant made payment of disputed amount of Rs. 3.86 crores. It was also found that the bill in question was prima facie forged one and prima facie case 4 involving the applicant in serious offences punishable under Sections 420 and 406 IPC was made out. 6. Interim anticipatory bail in the event of his arrest was granted to the applicant by this Court vide order dated 15th May 2009. When the matter was listed on 19th May 2009, a statement on behalf of the applicant was made that in order to show his bonafides, applicant would deposit Rs. 1 crore in the Registry of this Court by 21st May 2009 and on that undertaking interim protection was extended. However, when the matter was listed on 22nd May 2009, applicant backed out and claimed that he merely wanted to show his bonafide and he was not under compulsion to make deposit of the said amount. 7. It is pointed out to the Court that the applicant is already taken in custody from 17th June 2009 in another case in Crime No. 151/09 by Economic Offences Wing, Navi Mumbai in connection with offences punishable under Sections 420, 465, 468, 471 read with Section 34 of the Indian Penal Code for cheating and fraudulently deriving benefit of Rs. 2 crores. Co- accused Rahul Mittal is still absconding and eluding investigation. 8. Considering the attitude of the applicant who is trying to evade investigation, no sympathy can be shown to him. Investigation into the serious offences involving huge amount running in crores is in progress. In similar offences, applicant is already taken into custody by Economic Offences Wing, Navi Mumbai. In my opinion, custodial interrogation of the applicant 5 is very much and the investigating agency must be given free hand to reach a logical conclusion. Learned counsel for the applicant that applicant has been given interim protection since long. However, it is well settled that grant of interim bail can hardly be a circumstance while deciding the anticipatory bail application on merits. A persoj already in jail need not be granted benefit of anticipatory bail under Section 438 Cr.P.C. The discretion of granting anticipatory bail has to be exercised sparingly and in appropriate cases with due care and caution. Taking into consideration the facts and circumstances of the case, this is not a fit case where anticipatory bail should be granted to the applicant. 9. Application is rejected. Interim order granting anticipatory bail to the applicant stands cancelled. Judge. Hsj