1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (ABA) No.87/2011 ( Suresh S/o Suganchand Katariya ..Vs.. State of Maharashtra, through Police Station officer, Police Station, Samudrapur, Distt. Wardha ) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. P.P. Kotwal, Adv. for applicant. Mr. D.B. Patel, APP for respondent/State. CORAM : M.N. GILANI, J. Reserved On : 22/6/2011. Pronounced On : 29.6.2011. 1. The applicant who has been arrayed as an accused in Crime No.15/2011, registered at the police station Samurdapur, District Wardha, under sections 408, 420, 467, 468, 471, 120-B of the Indian Penal Code, is seeking directions of this Court under section 438 of the Criminal Procedure Code for his release in the event of his arrest in the aforesaid crime. 2. The applicant was working as Sales Manager with Pee Vee Textiles Limited, Jam, District Wardha. Said Pee Vee Textiles manufactures yarn. On 5/2/2011 one Paras Munot Vice-President of the Pee Vee Textiles lodged F.I.R. against the present applicant and six others levelling allegations of cheating, breach of trust, forgery and criminal conspiracy. When in the month of April 2010 the applicant was on leave, his successor noticed 2 various irregularities which resulted in detailed investigation. 3. The applicant was working with the complainant - company since the year 1991. From the year 1995 he is looking after the sales division. During the relevant period he was working as Yarn Sales Manager. His responsibility was to manage the yarn sales, to oversee the payments from the various customers, managing the accounts, keeping and supervising entries of the payments etc. As per the practice, the payments are received from various customers after delivery of the yarn is given. In turn, the customer is supposed to transfer the amount to the complainant - company either through demand draft or through cheque. The intimation of receipt of the cheque or demand draft is received from the concerned bank. It was the responsibility of the applicant in the capacity of Yarn Sales Manager to verify the payments received and to post/credit them in the account of the concerned customer. This was done either by writing the name of the customer or by mentioning his code number on the intimation slip. 4. During the period from 2007 to 2010 the applicant in pursuance to the conspiracy and in connivance with some of the customers manipulated the receipts. The purpose was to credit the amount not to the account of the customer who had made the payment but to the account of some different customers. When the correspondence was made with the genuine customers about the amount due from them, it was revealed that they had already dispatched the payments. On close scrutiny of the documents, it was revealed that the payments of Rs.1 Crore 88 Lakhs received from 34 different customers were not credited to their account but were credited to one M/s. Harinanda Yarn Suppliers, Ichalkaranji. 3 5. The case of the applicant in a nutshell is that he is working with the company since 19 years and because of his honesty and hard work could gain the confidence of the company. There is a separate account section which is responsible for maintaining the accounts. He is not at all concerned with the posting of the credits in the account of the particular customer. According to him, Mr. Paras Munot, who lodged the complaint, is working in the capacity of head of the Account Section. The amount which has been wrongly posted in the account of M/s. Harinanda Yarn Suppliers can be recovered by filing civil suit. Instead of taking action against him the present applicant is being made scape-goat. There is a conspiracy on the part of the officers of the company to get rid of him. On 2/11/2010 the complainant informed him about the false entries appearing in the accounts alleged to have been managed by the applicant. He then received second letter stating that irregularities were committed by the applicant. Thus the F.I.R. dated 5/2/2011 is nothing but an after thought story cook up to frame the applicant along with six others with the sole intention to recover the dues of the company from the defaulting purchasers. The applicant went to the extent of stating that the false case has been foisted upon him. 6. Apprehending his arrest he filed application before learned Additional Sessions Judge, Wardha who rejected the same and therefore he has approached this Court. According to him learned Additional Sessions Judge should have exercised the jurisdiction under section 438 of the Criminal Procedure Code in protecting him from an unwarranted arrest. 7. In order to demonstrate that how the intimations of payment received from the concerned bank were manipulated, the copies of some 4 intimations have been produced on the record. They show that the amount used to be credited to the account of the complainant company through the banker I.D.B.I. One intimation shows that payment was made by Maheshwari Enterprises, Solapur. Instead of it being credited to his account it was posted in the account of M/s. Harinanda Yarn Suppliers. In some receipts their appear over-witting on the drawers name. According to the prosecution the endorsement like “Harinanda Sales Corporation A8H06” has been made by the applicant/accused. Such endorsements are appearing on almost all such receipts. Therefore, it is contended that with the active participation of the present applicant, the aforesaid offences have been committed. Because of showing the credits to the account of M/s. Harinanda Yarn Suppliers, the complainant - company continued to supply the yarn to them believing that they were regularly making the payments. Ultimately, it was found that the amount of Rs.1crore and 88 Lakhs had not been received from the said concern but it was amount received from 34 different customers. In reply, filed by the prosecution, it is stated that investigation point out active involvement of the present applicant in the commission of serious offences and for that custodial interrogation is necessary. Not only offences of cheating have been committed but false entries have been made by interpolation. 8. It is the contention of the applicant that after the interim bail was granted he visited the police station on number of times and therefore, there is no need to revoke the order of interim bail. He has relied upon the number of authorities. It would be suffice to refer the recent decision in case of Siddharam Satlingappa Mehtre V/s. State of Maharashtra and others 5 reported in 2011 (1) S.S.C.514 wherein Their Lordships have laid down following parameters which could be taken into consideration while dealing with the anticipatory bail as follows. “(i) The nature and gravity of the accusation and the exact role the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with grater care and caution because overimplication in the cases is a mater of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered 6 and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 9. The facts of the present case reveal that the accused/applicant worked with the company over a period of 19 years. He gained confidence of his superiors and was then posted as Sales Manager Yarn. He was given onerous responsibility of supervising and monitoring the payments received from the various customers. He was the person responsible to make endorsement as to which customer’s account the credit should be posted. Had he not gone on leave in April 2010, similar things would have continued for further period. Because of his absence, his successor could notice the irregularities. Involvement of the applicant in the offences of making false entires, cheating his employer, is discernible from the record. There is no element of falsity in the said allegations. The act with which the accused/applicant is charged is not an isolated one. It was during the period from 2007 to 2010 and with the active involvement of other accused persons. Therefore, for an effective and thorough investigation the arrest appears imperative. This Court believes that the material produced before this Court justify the refusal to exercise the power under section 438 of the Criminal Procedure Code. 10. Application is rejected. 11. At this stage, learned counsel for the applicant prayed for continuing the interim protection for a further period of two weeks. The prayer made is allowed. 7 The interim protection shall continue for a further period of two weeks from today. 12. A copy of this order, authenticated by the Court Sheristedar, be supplied to the parties. JUDGE Tambaskar.