CRM-M-15610 of 2011 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-M-15610 of 2011 Date of Decision:01.12.2011 Suresh Kumar Jindal and others . . .Petitioners Versus State of Haryana and another . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.A.P.S. Doel, Sr. Advocate, with Mr.Rajiv Kumar Trikha, Advocate, for the petitioner. Mr.Sagar Deswal, AAG, Haryana. Mr.G.L. Rawal, Sr. Advocate, with Mr.Ajay Ghanghas, Advocate, for respondent No.2. ***** RAKESH KUMAR JAIN, J. (ORAL) This is a petition for pre-arrest bail in a case registered vide FIR No.230 dated 11.4.2011 under Sections 420, 406, 467, 323, 357, 506 & 338 of the Indian Penal Code, 1860 (for short ‘IPC’) at Police Station Ballabgarh City, District Faridabad. The petitioners are the partners of firm M/s J.D. Wines, who have L1 & L2 license for the year 2009-2010 issued by the Government of Haryana for the purpose of sale of liquor/beer at their 69/70 outlets in Gurgaon. The dispute in the present case is with M/s SKOL Breweries Ltd., who is the manufacturer of various brands of beers. The said manufacturer entered into an agreement on 01.04.2009 with M/s Mahalaxmi Traders (respondent No.2), who expressed its interest to be appointed as promoter and Del Credere agent. Respondent No.2 was to operate in the territory of Haryana and as per Clause 2.2 of the agreement it was to obtain orders for sale of product of the CRM-M-15610 of 2011 - 2 - manufacturer at their prices stipulated in writing from time to time. Respondent No.2 was also liable to collect money from parties to whom goods were sold/dispatched and was to suffer bad debts for which manufacturer was not responsible. The manufacturer started selling the product to the petitioners. In the first quarter started from 1.4.2009 to 30.6.2009, the petitioners alleged to have made the payment of `25 lacs by way of cheque No.10654 dated 12.6.2009 and cheque No.10655 dated 25.6.2009 of the same amount whereas the manufacturer had raised a demand of `3,53,13,015/-. Petitioners raised a dispute about the aforesaid demand, however, in order to maintain the business relations, the petitioners had allegedly issued 5 post-dated cheques of `25 lacs each (four cheques) and `40,000/- (one cheque). The date of the said cheques were somewhere in the end of third quarter and when the cheques were presented, they were bounced and consequently five separate complaints under the Negotiable Instruments Act, 1881 were filed against the petitioners in the Court at Delhi by the manufacturer. Not only this, the manufacturer also filed a civil suit for recovery in the High Court of Delhi with regard to the amount of `3,64,98,698/- in which the written statement has already been filed and this Court is informed that the said case is now at the stage of admissions and denials. It is also not disputed that the manufacturer had supplied the goods in the second quarter starting from July 2009 till September 2009 and for that the petitioners have already made payment of `1,41,10,000/-. Thereafter, the present FIR came into existence on 11.4.2010 because of an incident dated 20.3.2010 when S.P. Mehta, representative of the manufacturer company was allegedly beaten and `10,000/- was snatched from him. As per the case of the complainant, the matter was reported to the Police but since the FIR was not registered, therefore, the complaint under Section 156(3) of the Code of Criminal Procedure, 1973 was filed in the Court of Illaqa Magistrate on the basis of which the present FIR came into being. The petitioners being afraid of their arrest applied for pre-arrest bail before the learned Courts of Session at Faridabad which was declined vide its order dated 10.5.2011. Apropos, the present bail CRM-M-15610 of 2011 - 3 - application has been filed in which following order was passed on 20.5.2011: “Learned counsel for the petitioners submits that notwithstanding the fact that various legal issues have been raised in this petition, the petitioners, in order to explore the possibility of an amicable settlement qua the complaints filed under Section 138 of the Negotiable Instruments Act and / or otherwise, are willing to pay a sum of `1 crore to the complainant. On the oral prayer made by learned counsel for the petitioners, the complainant, namely, M/s Mahalaxmi Traders, Regd. Office X-18A, Okhla Industrial Area Phase-II, New Delhi, is ordered to be impleaded as party respondent No.2. Registry is directed to carry out necessary correction(s)/amendment(s) in the memo of parties. Let notice of motion be issued to the respondents for 06.7.2011. Meanwhile and subject to the undertaking given before this Court, the petitioners are directed to surrender before the Investigating Officer and join the investigation. However, in the event of their arrest, they shall be admitted to interim bail on their furnishing bail bonds to the satisfaction of the Investigating Officer. The CRM-M-15610 of 2011 - 4 - petitioners shall abide by the conditions as enshrined in Section 438(2) Cr.P.C. The petitioners shall bring a demand draft of `1 crore in the name of the complainant on the date fixed without prejudice to the legal rights of both the parties.” Pursuant to the aforesaid order, on 6.7.2011, a sum of `1 crore by way of two demand drafts amounting to `40 lacs and 60 lacs each was brought in Court. The said order dated 6.7.2011 is reproduced hereunder: “In pursuance of the order dated 20.5.2011, the petitioners have brought two drafts for`40 lacs and `60 lacs each total amounting to `1 crore which have been handed over to the complainant-Ashok Chawla, who is present in Court. At this stage, learned counsel for the parties have submitted that there is a possibility of settlement of the dispute between the parties. In view thereof, the matter is placed before the Mediation Centre of this Court and the parties are directed to appear before the Mediator on 18.7.2011 at 10.00 a.m. List this case before this Court on 02.08.2011. Interim order to continue till the next date of hearing.” CRM-M-15610 of 2011 - 5 - At this stage, learned senior counsel for the petitioners, on instructions received from Suresh Kumar Jindal (petitioner No.1) has submitted that it was wrongly recorded in the order dated 6.7.2011 that the drafts were amounting to `40 lacs and `60 lacs rather it were `96 lacs and `4 lacs. Be that as it may, the matter was thereafter placed before the Mediation Centre of this Court to explore the possibility of a compromise, if any, as the dispute is with regard to the recovery of amount due on account of sale of goods. Unfortunately, the matter could not be resolved before the Mediation Centre of this Court and as per order dated 11.8.2011, the Director of the Mediation and Conciliation Centre placed this case before the Court for the purpose of decision on merits. Learned counsel for the petitioners has submitted that the FIR is registered under Sections 420, 406, 467, 323, 357, 506 & 338 of the IPC out of which Sections 323, 357, 506 & 338 IPC are bailable offences. There is no word in the FIR which could constitute an offence under Section 467 IPC as there is no allegation of forging a document or a valuable security. Insofar as Sections 420 & 406 IPC are concerned, it is submitted that there was a business transaction between the parties. No doubt, goods/beers were supplied to the petitioners in first quarter i.e. from April to June and some payment was made but since the complainant/manufacturer did not give 20% rebate on the billing amount and a discount of `50 lacs on account of advertisement/display of the goods which were supplied by the petitioners, therefore, the entire money was decided not to be paid. He submits that there was no dishonest intention when the agreement was entered into but the dispute between the parties has arisen with regard to 20% rebate on the billing amount as well as the deduction of the amount of advertisement / display of the boards. He further submits that post-dated cheques were given with the hope that the matter would be resolved but since it was not resolved, therefore, notice was given to the Bank for stopping the payment as a result of which those cheques were bounced. He further submits that the petitioners have already made payment of `1 crore in Court during the pendency of the case and the matter is sub judice before the Delhi High Court in the suit for CRM-M-15610 of 2011 - 6 - recovery where their main stand is that they are entitled to 20% rebate on the billing amount and discount of an amount of `50 lacs towards advertisement. He also submits that the petitioners have already joined the investigation and since the matter is sub judice before the Delhi Court, therefore, order of bail which has already been granted may be confirmed. Learned counsel for the complainant has vehemently opposed the bail application. At the first instance, he has submitted that the petitioners do not deserve concession of bail for their own act and conduct. He has drawn the attention of this Court to para No.5 page 21 of the paper book to show that they had intentionally mentioned that undated cheques were handed over to the complainant as security whereas at page 107 of the paper book in the written statement filed before the Delhi High Court, it was mentioned that it was post dated cheques which were given as security. He relies upon a decision of this High Court in the case of “Tejinder Pal Bedi Vs. State of Punjab” 2001(1) RCR (Criminal) 220. He further submits that the petitioners have also not approached this Court with clean hands because the account statement which have been produced on record with the reply shows that rebate has been given to them on various dates for various outlets in which even the credit memos have been given to them. He also submits that the petitioners have no intention to make the payment of the amount due as it is apparent from the fact that cheques given by them may be as security as alleged, have ultimately been dishonored. He further submits that when the amount was asked for they had even beaten the employee of the manufacture and had also been kept on saying that the complainant is a stranger though the cheques are issued in the name of the complainant. Learned counsel for the State, on instructions received from SI Nahar Singh, has submitted that all the four petitioners have joined the investigation on 26.6.2011, however, the recovery is yet to be effected, therefore, custodial interrogation of the petitioners is required. I have heard learned counsel for the parties and perused the record with their able assistance. CRM-M-15610 of 2011 - 7 - This is a case wherein except for Sections 420, 406 & 467 IPC all offences are bailable. Insofar as the dispute is concerned, it is apparently a dispute between two business groups in which the petitioners have not denied the amount which is to be recovered by the complainant but their stand is that they are also entitled to 20% rebate in the payment on the billing amount and `50 lacs towards expenses on the advertisement. There is already a suit for recovery pending between the parties in which the petitioners have taken the same stand. Petitioners had also made a payment of `1 crore before this Court which is also a part of the amount which is to be paid by them but it is yet to be decided as to whether the petitioners are really liable to make the payment to the complainant or are entitled to the amount of rebate in the billing amount and `50 lacs towards advertisement as claimed by them. At this stage, it could not be ascertained that the petitioners had induced the complainant for the purpose of entering into an agreement for the purpose of sale and purchase and has usurped their amount because it is not denied that the amount is liable to be paid but they have also some amount to be recovered from the complainant. Insofar as the averment made by the petitioners about the undated cheques in para 5 of the petition is concerned, in my view it is not a ground for the purpose of dismissing the bail application. Keeping in view the facts and circumstances that the petitioners have already joined the investigation and the suit for recovery is still pending before the Delhi High Court, the present bail application is allowed and the order dated 20.5.2011 is hereby made absolute subject to the conditions already contained therein. (RAKESH KUMAR JAIN) DECEMBER 01, 2011 JUDGE Vivek