IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRI.APPLICATION NO.3303 OF 2008 CRI.APPLICATION NO.3303 OF 2008 CRI.APPLICATION NO.3303 OF 2008 Harshad S Dama, .. Applicant Vs State of Maharashtra, through EOW Unit III, Crime Branch, CID, .. Respondent. Mr Rajiv Patil i/b Mr J.S.Kini i/b Mr suresh dubey, for the applicant. Mr K.V.Saste, APP, for the State. Mr Subhash Jha, for the intervenor. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 14/11/2008 DATE : 14/11/2008 DATE : 14/11/2008 PC: PC: PC: 1. Heard Mr.Patil, learned counsel for the applicant, Mr.Jha, learned counsel for the complainant and Mr.Saste, learned APP, for the State. 2. The applicant is seeking anticipatory bail in C.R.No.34 of 2008 of EOW, Unit -III, Crime Branch, CID, Mumbai. The said crime has been registered against the applicant and his two partners for having allegedly committed an offence punishable under section 409 read with 34 of IPC. 3. Complainant-Gopal Ahuja is one of the partners of M/s Ganesh International and M/s.Rameshkumar Gopaldas. These firms are importers of dryfruits, spices and kirana items. They sell imported goods in market through agents/facilitators. According to the complainant, agents/facilitators place their orders of imported goods, which the complainant earmark in their account code. The agents/facilitators then deal with prospective buyer, fix the rate of goods and supply them to the buyers. Thereafter, the agents/facilitators request the complainant to raise bills on the purchasers and also raise their own bills for storage, packing, warehouse rents etc. Both these bills are then sent to the purchasers and they pay separately to the agents/facilitators and the complainant, but the cheque in favour of the complainant is handed over to the facilitators, which, in turn, is sent it to the complainant and settle the bills raised by him on the purchaser and thus the transaction is complete. This is how, according to the complainant, they sell their imported goods in market through agents/facilitators. 4. The applicant’s firm,having three partners, is one of such facilitating firms which deals with buyers on behalf of the complainant. The case of the prosecution is that between June 2006 and November, 2006 the applicant’s firm placed orders of imported lavang (clove), which the complainant earmarked and transferred the ordered stock of clove in the applicant’s account code. The stock of lavang (clove) was stored in Sawla Cold Storage. The applicant had removed about 652 bags of clove worth Rs.92,06,950/- from the said Cold Storage. The goods so removed were supplied to different buyers including one Arunkumar Ashar. All the buyers, according to the complainant, paid sale price to the applicant’s firm. Arunkumar Ashar also allegedly paid Rs.2.5 lacs in cash to the applicant for 25 lawang (clove) bags which amount, according to the complainant, was never paid by the applicant’s firm to the complainant. Similarly, the monies paid by several other buyers were also not paid to the complainant. According to the complainant, they called upon the applicant repeatedly to make payment in respect of the goods entrusted to them and which they supplied to various buyers and accepted the payments from them but the firm of the applicant failed and neglected to make the payment and thereby committed an offence punishable under section 409 of IPC. 5. Mr Jha, learned counsel for the complainant submitted that the goods, which were entrusted to the applicant’s firm, were removed from the cold storage and sold in the market and the applicant received huge amounts from the purchasers, which they misappropriated by not remitting it to the complainant. He submitted that looking to the gravity of offence and the nature of evidence, it is clear that the provisions of Section 409 read with section 405 IPC stand attracted and that the applicant and his partners are liable to be prosecuted for an offence punishable under section 409 of IPC. He submitted that if the applicant is granted anticipatory bail, there is every possibility that he may tamper with the evidence, which tendency is clear from the averments made in the application, wherein the applicant has made detailed reference to the statements of several persons recorded by the investigation officer. The statements recorded during investigation were not supposedly known to the applicant. He then submitted that the statements of transporters, godown keepers, supervisor clearly implicate the applicant. In support of his contentions, he placed reliance upon the judgment of this Court in Harshad S Mehta Vs. Union of India, (1992) Cri.L.J.4032 and the judgment of the Supreme Court in State Representative, by the CBI Vs. Anil Sharma (1997) 7 SCC 187. 6. As against this, Mr Patil, learned counsel for the applicant, submitted that the applicant’s firm was acting as a facilitator and that they were not supposed to and in fact they did not accept any payments either in cash or by cheque from the buyers, as alleged in the complaint. According to Mr Patil, since there has been some problem in recovering the amount of the goods supplied through the applicant’s firm, the complainant seeks to blame the applicant’s firm for those transactions. He submitted that the applicant is prepared to cooperate with the complainant to recover monies from the buyers. He submitted that the applicant is not at all guilty and that his firm was acting as sellers’ broker and not the buyers’ broker. He then submitted, though the applicant has not committed any offence, as alleged, still in order to secure the amount of the complainant, he offered a flat, worth seventy lacs, belonging to their firm as security to the complainant till the monies of the complainant were recovered from the concerned party. 7. I have perused the entire record with the assistance of the learned counsel for the parties. It is clear that the applicant was acting as agent/facilitator between the complainant and the buyers. The applicant admits that he did remove the goods from the godown and supplied them to different buyers and thereafter they also supplied the names and all other details of the buyers to the complainant in order to receive/recover the monies of the goods supplied to the said buyers. The applicant is prepared to cooperate even now with the complainant and with the investigating agency, as submitted by learned counsel for the applicant, to recover the amount from the buyers or with the investigtion. The applicant has denied that he has received cash of Rs.2.5 lacs from Arun Kumar Ashar. Though prima facie, I find substance in the submissions of Mr Patil, learned counsel for the applicant, that looking to the nature of transactions it is not possible that a buyer would pay Rs.2.5 lacs "in cash", I would not like to express any opinion on the submissions at this stage. Even if it is assumed that the names of the buyers and other particulars were not provided to the complainant, as claimed by them, still it is open to the complainant to seek such information from the applicant’s firm and if they fail to do so, to take legal action as may be advised. This, prima facie, appears to be a tripartite commercial transaction. Looking to the nature of transaction, in my opinion, the provisions of Section 409 are not attracted. In view of categoric stand of the applicant that they have supplied goods to the buyers in market, no custodial interrogation would be necessary. In the circumstances, I am inclined to grant anticipatory bail to the applicant. It is open to the investigation officer to investigate further and decide whether to file chargesheet in the case. However, if the applicant’s firm do not cooperate with the investigation by providing a list of all the buyers with other necessary particulars, it is always open to the investigation officer to seek cancellation of anticipatory bail. It is pertinent to note that the applicant was granted interim protection and directions were issued by the Sessions Court to the investigation officer to give 72 hours notice to the accused persons if he decides to arrest them. Accordingly, the notice, only to the applicant, was issued and hence an application for pre-arrest bail was once again instituted before the Sessions Court. The Sessions Court rejected the application on the very same day. During the period, that is, from the date of issuing directions to the investigation officer to issue 72 hours notice to the applicant and the date on which such notice was issued, the applicant was interrogated on eight occasions.The State in their affidavit has not made grievance that the applicant did not cooperate with the investigation during the aforesaid period. The grounds on which the State has opposed the prayer in the application loose significance in view of the specific and positive stand taken by the applicant that he did remove goods from the cold storage and supplied to the buyers in the market and that he is once again prepared to provide names and other particulars to the complainant and to the I.O. I am satisfied that no custodial interrogation is necessary at this stage. In view of the peculiar facts and circumstances of the case, the judgments relied upon by Mr Jha are of no avail to the complainant. Hence, I pass the following order. . In the event of arrest, the applicant to be released on bail in the sum of Rs. one lac with one or two sureties to make up the said amount, subject to condition that the applicant shall report to the concerned investigation officer everyday for a period of 20 days from the date of his formal arrest between 5 and 7 pm and thereafter on every Saturday for a period of 90 days or till the chargesheet is filed, whichever is earlier. This order of anticipatory bail shall remain in force till filing of the chargesheet and for a period of one week thereafter, in which case the applicant will have to surrender before the appropriate court and seek regular bail. . While passing this order I shall not be understood to have expressed any opinion on merits of the case and the trial Court shall deal with the case without being influenced by the observations made in this order. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.)