1 apln2795&appp379-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2795 OF 2010 Mr.Anand Prabhuram Ahuja. .. Applicant. Vs. 1. The State of Maharashtra, & 2. Viresh Nyalchand Tolia. .. Respondents. WITH CRIMINAL APPLICATION NO.379 OF 2010 IN CRIMINAL APPLICATION NO.2795 OF 2010 Mr.Anand Prabhuram Ahuja. .. Applicant. Vs. 1. The State of Maharashtra, 2. The Senior Inspector of Police, Wagle Estate Police Station, Thane. .. Respondents. And M/s. Tolia Overseas Firm, through Mr.Viresh Nyalchand Tolia. ..Intervenor. .......... Mr.H.H.Ponda, Senior Counsel a/w. V.I. Pajwani, Advocate for the applicant. Mr.Majid Memon, Senior Counsel i/b. S.P. Munghate, Advocate for the intervenor in Cri.Application No.379/2010. Mr.K.V. Saste, A.P.P. for the State. .......... 2 apln2795&appp379-10 CORAM : A.R.JOSHI, J. DATED : 22ND JULY, 2010 P.C. 1. Heard rival submissions at length today. So also initially on 21st June, 2010 the arguments advanced on behalf of the applicant by learned Senior Counsel Mr.H.H. Ponda were heard. After such initial hearing, it was found fit by this Court to grant interim anticipatory bail till appearance of the original complainant/present respondent No.2 until the hearing of the matter. As such, yesterday the matter was heard at length. 2. Present application is preferred by the applicant/accused No.1, apprehending his arrest in the matter of C.R. No.I-168/2009 registered by Wagle Estate police station, Thane. Initially present respondent No. 2/orig.complainant, a partnership firm by name M/s. Tolia Overseas lodged a private complaint before the learned 3 apln2795&appp379-10 J.M.F.C. at Thane alleging commission of certain offences by the present applicant and other co-accused. The offences alleged against the applicant and others are punishable under Sections 409, 465, 466, 467, 468, 471 & 420 read with Section 34 and/or 120B of Indian Penal Code. 3. Learned J.M.F.C. at Thane passed an order under Section 156(3) of Cr.P.C. and sent the matter for investigation to the concerned police station. Consequently, the above mentioned C.R. was lodged. 4. In nutshell the transaction between the present applicant and respondent No.2, a partnership firm can be narrated as under : There was a sort of contract entered into between the parties for supply of about 24 metric tonnes of iron ores fines Fe by the present applicant through his company to respondent No.2 and said material was to be delivered at Vishakapatnam port. Terms and conditions of the agreement 4 apln2795&appp379-10 were entered into regarding the amount, quality and quantity etc. So far as the present matter is concerned what is relevant is the quality of the material which should contain more than 62% of the Fe in the iron ore fines. Along with this material, the analysis report showing the contents of the Fe was also produced. Said analysis report was prepared by another company M/s. Mitra S.K. Private Ltd., the office bearers of which are other co-accused. The report of the analysis showed the contents of Fe as more than 62% and as such it was in compliance of the terms and conditions entered into between the parties. Infact the shipping bill for the export was also prepared and chemical analysis report from the Customs was also prepared and even as per the analysis made through the Customs the contents of Fe was 62.79%. Said report was prepared by the Assistant Chemical Examiner (Customs). This Court has perused the said analysis reports produced by M/s. Mitra S.K. Pvt. Ltd. and also by the Assistant Chemical Examiner (Customs). Admittedly, an iron 5 apln2795&appp379-10 ore a mixture for that purpose was loaded in the ship sometime on 15th April, 2009 and the ship left the port of Vishakapattanam. 5. According to the complainant, they asked M/s. Mitra S.K. Pvt. Ltd., to again carry out the process of analysis after taking the samples of iron ore fines during the process of loading the shipment and the analysis report was received on 16th April, 2009. Said report show contents of Fe as 60.53%. Thereafter the complainant obtained two more test reports from Italab Pvt. Ltd., in respect of part of the supplied iron ore and those reports are dated 17th April, 2009. They show the contents of Fe as 60.45% and 58.05%. For said reports, the sampling was done on 15th April, 2009. At this juncture, it must be mentioned that such sampling was much belated after the delivery of the iron ore by the company of the applicant to the complainant in the month of February, 2009. 6. As such after noticing that the contents of Fe in the supplied material less than 62%, complaint was lodged 6 apln2795&appp379-10 before the concerned J.M.F.C. at Thane in the month of June, 2009 and it was sent for police investigation, as mentioned above. 7. It is a factual position that the applicant attended Wagle Estate police station and was interrogated in the month of November-December 2009 and January, 2010. Thereafter in April, 2010 anticipatory bail application was preferred before the learned Additional Sessions Judge at Thane being Bail Application No.657 of 2010. Interim relief was granted and was continued till 4th June, 2010 on which day said anticipatory bail application was rejected. Hence, present application before this Court by the applicant. 8. In order to appreciate the rival submissions, certain factual position is required to be narrated. The contract was executed in January, 2009 and goods were delivered at Vishakhapattanam port after obtaining the examination report showing contents of Fe more than 62%. Said goods were accepted by the respondent/complainant. As per the 7 apln2795&appp379-10 terms and conditions of the agreement between the parties, it was open for the complainant to reject the goods if iron ore contain Fe less than 62%. However, apparently the complainant had accepted the goods and never raised the question as to iron ore containing Fe less than 62%. During the period between 21.1.2009 to 9.2.2009 quantity of 24 metric tonnes and odd iron ore fines was delivered and that time all the lots were examined and composite certificate of analysis was given showing Fe contents more than 62%. At the cost of repetition, it must be mentioned that even the Assistant Chemical Examiner of the Customs examined the goods before they were sent to China and iron ore was found containing Fe as 62.79%. 9. During the arguments, learned Senior Counsel Mr.Ponda for the applicant brought attention of this Court towards the specific contents of the reply given by the Customs Department to the query made by the applicant under the Right to Information Act. In the said reply, it is 8 apln2795&appp379-10 mentioned by the Customs Office that the concerned party had objection for supply of the information regarding the contents of the analysis report and as such, such information could not be disclosed to the applicant. By pointing out this, it is submitted that the complainant do not want to get disclosed the factual position as to the iron ore containing more than 62% of Fe when the shipment was made. As such, further argued that this conduct of the complainant is mitigating circumstance to his case. 10. During the arguments various authorities were cited before this Court on behalf of the applicant and also on behalf of the original complainant. Some of such authorities cited on behalf of the applicant are as under : [i] A decision of this Court (Coram:H.H. Kantharia,J) dated 23.3.1988 in Cri.Appln.No. 605 of 1988 [Sham Bhatia Vs. The State of Maharashtra] [ii] 1998 BOMBAY CASES REPORTER (Cri) 735 [Mathloob Abdul Gafoor Qureshi & Ors. Vs. The State of Maharashtra & Anr.] 9 apln2795&appp379-10 [iii] A decision of this Court (Coram:D.B. Bhosale,J) dated 6.7.2004 in Cri.Appln.No.2390 of 2004 [Rajeev Madhadas Bajaj Vs. The State of Maharashtra.] By pointing the ratios propounded by the above authorities, it is submitted on behalf of the applicant that under the facts and circumstances of the present case, anticipatory bail can be granted to the applicant in as much as his custodial interrogation is not required when the evidence can be gathered by way of collection of documents. 11. Following authorities were cited on behalf of the original complainant : [i] 2009(1) Bom. C.R. (Cri.) 749 [Bapurao Trimbakrao Sonawane. Vs. State of Maharashtra & Anr.] [ii] AIR 1980 SUPREME COURT 1632 [Gurbaksh Singh Sibbia Vs. Sarbajit Singh and another.] [iii] AIR 2005 SUPREME COURT 1057(1) [Adri Dharan Das. Vs. State of W.B.] 10 apln2795&appp379-10 [iv] AIR 1977 SUPREME COURT 366 [Balchand Jain Vs. State of M.P.] By pointing out the above referred citations it is submitted by learned Senior Counsel Mr.Majid Memon that the relief of pre-arrest bail is required to be sparingly used only under exceptional circumstances. 12. Bearing in mind, the ratios propounded by the authorities cited by the rival parties, it is to be ascertained by this Court whether the present offence is of such nature as to warrant custodial interrogation of the applicant when prima facie it cannot be ascertained that there was some cheating practised by the applicant in association with the co-accused including the office bearers of the company which had given the analysis reports. Specific factual position is required to be considered in as much as the analysis is of iron ore fines, which is a substance cannot have a homogeneous mass. Always a variation in the effective ingredients of the ore i.e. 11 apln2795&appp379-10 iron (Fe) in the present case, can always be expected when the analysis is of raw material of any metal. In other words, it must be accepted that in case of analysis of any metal filings or alloy filings, there is always a consistency in the percentage of particular metal. However, such cannot be a case when the analysis is of the raw material like metal ore which consists of other substances mainly the mud, coal, sand. As such, considering this position in mind, it can hardly be said that there was some mischief played while preparing the analysis report so as to suit the terms and conditions of the agreement. 13. Apart from the above, another circumstance is also to be taken into consideration in as much as the iron ore fines were supplied sometime in February, 2009 to the complainant along with the test report, whereas the said material was sent through ship and at that time again analysis report was obtained through Customs which again show the percentage of more than 62%. When the alleged test reports were 12 apln2795&appp379-10 obtained by the complainant indicating Fe percentage less than 62%, such sampling was done somewhere in the month of April, 2009. All the same, it would be the question of appreciation of evidence in order to find out whether the allegations of cheating and forgery are truthful or not. Suffice it to say at this stage that while dealing with the present anticipatory bail application such hair-splitting of evidence is not contemplated and considering the specific circumstance mentioned above regarding the analysis of the iron ore, there is no need for custodial interrogation of the present applicant. 14. Before parting with the present application, another argument advanced on behalf of the complainant/respondent No.2 is required to be mentioned. It is alleged on behalf of the complainant that M/s. Mitra S.K. Pvt. Ltd., is the company appointed by the present applicant for getting the analysis report. By way of this submission, it is tried to establish that it was the preplanned design of the applicant in connivance with the office bearers of M/s. Mitra S.K. Pvt. 13 apln2795&appp379-10 Ltd., to deceive the present complainant by showing fictitious C.A. reports and hiding the real percentage of Fe in the bulk of 24 metric tonnes and odd. On this aspect, learned Senior Counsel Mr.Ponda for the applicant brought attention of this Court towards the correspondence entered between the complainant and M/s. Mitra S.K. Pvt. Ltd., which goes to show that the present complainant had reposed much confidence on such company and infact independently asked them to carry out the analysis report and infact the appointment of said company to do the analysis was by consensus of the parties to the agreement i.e. by consensus of present applicant and the respondent/complainant. In view of this position, the arguments as to connivance with M/s. Mitra S.K. Pvt. Ltd., cannot be accepted. 15. In the result, it is held that it is a fit case in which the discretionary relief of anticipatory bail can be granted in favour of the applicant. Hence the order :- 14 apln2795&appp379-10 :: O R D E R :: [i] Criminal Application No.2795 of 2010 for anticipatory bail is allowed and accordingly disposed of. [ii] In the event of arrest of the applicant - Mr.Anand Prabhuram Ahuja in C.R. No.I-168 of 2009 of Wagle Estate police station, Thane, he shall be released on bail on his executing a P.R. bond in the sum of Rs. 20,000/- (Rs.Twenty Thousand Only) with one surety for the like amount. [iii] In the event of arrest and availing of bail, as above, the applicant shall attend the concerned police station once in a week on Monday between 10:00 a.m. to 12:00 noon till filing of the chargesheet. The effect of the present anticipatory bail order shall remain upto filing of the chargesheet and thereafter 15 apln2795&appp379-10 the applicant shall apply for regular bail. [iv] In view of the disposal of anticipatory bail application, Criminal Application No.379 of 2010 for intervention is also disposed of. (A.R.JOSHI,J.) PPD