1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.457 OF 2011 Kamal Kishore Kacholia and others Applicants versus The State of Maharashtra and another Respondents Mr.H.V.Bhadbhade for applicants. Mr.Sanjeev P. Kadam for respondent no.3. Mr.D.P.Adsule, APP for State. CORAM : RANJIT MORE, J. DATE : 8th December 2011 PC : 1. Heard learned counsel for respective parties. The application arises out of proceedings for discharge under section 239 of the Code of Criminal Procedure. The application filed by the applicants under the said section came to be rejected by the Magistrate and subsequently the same order came to be confirmed by the learned 5th Additional Sessions Judge, at Pune. Therefore, the applicants are before this Court. 2. The respondent no.2 filed a complaint against the applicants for the alleged offence under sections 420, 109 read with section 304 of Indian Penal Code. It is the case of the respondent no.2 (complainant) that he was interested in Strawberry plantation. Therefore, he approached M/s.NTB Bowsmith Irrigation Ltd. (applicant no.2 herein) and visited its project and observed the plantation without fruits and then with fruits. The agreement came to be executed between respondent no.2 and applicant no.2 for a total amount of Rs.44.60 lakhs and the respondent no.2 accordingly made payment of Rs.19.60 lakhs to applicant no.2. In the said agreement dated 27th April 1995, the applicant no.2 stated that they 2 have already entered into agreement with AGREXCO and GIYO International and on the basis of those agreements, the respondent no.2 made an agreement for Strawberry plantation. Under the agreement, the applicants were to assist the respondent no.2 for obtaining loan from the bank. In view of the agreement, certain plants were provided by the applicants to respondent no.2, however, some of the plants were dead. So also, respondent no.2 could not secure loan for want of copies of the agreement between applicants and AGROEXCO and GIYO International in spite of demands made. So by filing present complaint, the respondent no.2 alleged that the applicants have cheated him and thereby committed offences under sections 420, 109 read with section 304 of the Indian Penal Code. However, the Police did not take any cognizance. Therefore, the complainant was constrained to file private complaint in the Court. 3. The complaint was sent for investigation to Police under section 156 of the Code of Criminal Procedure. After investigation of the crime, the Police filed `C' summary report. But, as the complainant filed protest petition, the learned Magistrate proceeded to hear the parties and issued process against the accused/ applicants. Application below Exhibit-11 in RCC No.28 of 2000 preferred by the applicants seeking discharge came to be rejected by learned JMFC, Court No.9, Pune vide order dated 27th June 2007. In Criminal Revision Application No.704 of 2007 the earned 5th Additional Sessions Judge, Pune rejected the revision of the applicants vide order dated 7th March 2011. 4. The main allegation of the complainant seems to be that despite no agreement between the accused and AGREXCO AND GIYO International, the accused represented the complainant that they have valid agreement. The applicants since inception were aware of the position and with dishonest intention made respondent no.2-complainant to part with a sum of Rs.19.60 lakhs. Clauses 12 and 13 of the said agreement reads as follows :- 3 (12.) International Marketing : AGREXCO is a Government of Israel undertaking which assists Israeli growers in the International Marketing of fruits and flowers. The party of the first part has a valid agreement with AGREXCIO SFOR MARKETING OF THE Indian fruit in U.K. and non European countries under the Internationally known "Carmel" brand name. NTB has also signed an agreement with Giyo International Ltd. (hereinafter referred as GIYO) Avihail, Israel 42910, for technical know-how and marketing of these strawberries in Europe. It is to be noted that party of the first part will ensure that similar agreements will be made between GIYO and the parties of the second part and third apart with the parties of the second and third part and GIYO having the same responsibilities as listed below for NHB Glyn respectively. Following is quote from the agreement made with GIYO by NTB i.e. party of the first part. 5. Marketing : (a) GIYO will "buy back" all strawberries produced a C.I.F. European port consignment basis. GIYO will charge for it 6% on C.I.F. Less air freight actual cost and E.E.C. import duty sales price to any destination. NTB will sell for export to Europe exclusively to GIYO. GIYO will identify buyers from International markets, who will guarantee to market the entire produce at prevailing market prices. The distribution costs will be jointly approved. (b) GIYO will arrange for the proper expertise for post harvest, packing and shipping of strawberries in India and in particular for export. (c) NTB will be responsible for handling the export produce up to the designated airport outside India. (d) NTB will be responsible for distribution and sales on the local market. It is estimated by the party of the first part that maximum 21 days time will be required by the selling company abroad to 4 credit the bank account of the growers i.e. parties of the second and third party. 13. Technical Know-how : NTB has a large technical beam of Agriculture Engineers, Agronomists, Plant Pathologists, Agricultural entomologists etc. In 1994-95, NTB has successfully completed strawberry projects on 65 acres. NTB has also tied-up with GIYO LTD. who are providing expert services to NTB/NTB customers in the growing and marketing of strawberries. The technical know-how packages includes : a. 5 visits of Israel expert, b. 3 independent visits by NTB experts as and when required by the customer. c. NTB's Agronomist will be available at customer site from 1.6.1995 to 31.5.1996 on 50% cost sharing basis. The parties to the second part will make his arrangements for stay whereas boarding to be debited to the account of first party. 6. GIYO will provide NTB with the CONSULTING SERVICES relating to the scheme as well as in the course of the growing period of the agricultural products and marketing pursuant to the scheme, which will include the following : a. Comments, guidance and instructions relating to the scheme, including to the use of various varieties of the agriculture products and their introduction in the market. b. A strawberry expert from Israel will visit India every month for about one week, starting August 1995, up to March, 1996 during the first year and by a mutual understanding an expert from Israel will continue after it. c. Visits to NTB of GIYO's experts during the season and co-ordination and instruction visits between seasons, such expert to be, at GIYO's decision. Mr.Eitan Israely, a fertilizer expert, a breeder, a strawberries growing expert, pest control expert, post harvest and marketing expert. d. Providing of study visits for NTB in Israel relating to strawberries. NTB assures that by reason of their tie-up with GIYO Ltd. they are in a position to extend the necessary technical 5 know-how package to the party of the second and third part, if necessary NTB shall arrange for a technical know- how agreements between GIYO LTD. and the parties of the second and third part." Reading of these clauses makes it clear that the applicants made representation to the respondent no.2-complainant that they had valid agreement with AGREXCO for marketing of Indian Fruits with United Kingdom and non European countries under the "Carmel" brand name. It was also represented that they had agreement with GEO International Pvt. Ltd. for technical know how and marketing of the Strawberries in Europe. Mr.Bhadbhade appearing for the applicant by inviting my attention to pages 190 and 193 stated that the applicants had an agreement/collaboration with the AGREXO and GEO International. A perusal of those documents reveals that the period of collaboration between the applicants and the AGREXCO was between September 1994 and November 1994. The applicants agreement with respondent no.2 was executed on 27th April 1995 i.e. subsequent to the above period. So far as agreement between the applicants and GEO International is concerned, Mr.Kadam produced a copy of the letter from GEO International dated 15th February 1996. The letter discloses that since the applicants did not pay 18,000$ at the signing of the agreement, the agreement became automatically invalid as non payment of 18,000$ was a condition precedent for execution of agreement between the applicants and GEO International. Despite this factual background, the applicants entered into agreement with the complainant and represented assured technical know-how from GEO International. 5. The material placed on record give rise to grave suspicion of applicants' involvement in the offence alleged against them. The Court is not expected to make roving enquiry at the stage of discharge. Taking over all facts and circumstances of the case into consideration, I find no error in the impugned order refusing to discharge the applicants from the criminal proceedings. The application being without merits stands dismissed. 6 6. At this stage Mr.Bhadbhade seeks extension of continuation of stay for a period of six weeks from today. Mr.Kadam states that reasonable time may be granted. In the interests of justice, I deem it fit to continue the interim stay for a period of six weeks from today. Ordered accordingly. (RANJIT MORE, J.)