1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2077 OF 2009 Venkateswara Rao Pitchiah Mothukuru .. Applicant. Vs. State of Maharashtra & Ors. .. Respondents. Mr.A.P.Mundargi, Senior Counsel i/b Mr.Subodh Desai for the applicant. Mr.K.V.Saste A.P.P. for the State. Mr.Amol Deshpande for respondent nos.2 and 3. Coram: D.B. BHOSALE, J. Dated : 24th June, 2009 P.C. Heard learned senior counsel for the applicant, learned counsel for respondent nos.2 and 3 and learned A.P.P. for the State. 2. The applicant is seeking anticipatory bail in M.E.C.R.No.1 of 2009 of Chaturshringi Police Station, Pune. The crime has been registered against the applicant for having allegedly committed an offence punishable under sections 406, 417, 419 r/w 511 of IPC. 3. The crime has been registered in pursuance of the directions issued under section 156(3) of the Code of Criminal 2 Procedure on a private complaint filed by respondent no.3. Respondent No.3 was a Director of respondent no.2-company which was engaged in designing and manufacturing structured packing and internals for refineries and chemical industries. It was initially incorporated as a partnership firm. The applicant was one of its partners. Subsequently, the firm was dissolved and incorporated into a company. The applicant was appointed as a Managing Director of the said company (respondent no.2). Over a period of time there arose differences between the directors interse. The Directors in order put an end to the disputes signed Memorandum of Understanding (MoU) dated 24.11.2005. As per the terms of MoU the applicant had agreed to pay Rs.78 Lacs to the other Directors and they had agreed to walk out. The MoU did not work and as a result thereof the applicant resigned as a Director/Managing Director of the said company on 20.9.2006. After the applicant resigned in September, 2006, respondent no.3 filed a private complaint on 15.12.2008 making several allegations in the complaint. In the complaint they have given a list of about 33 articles which according to the complainant, the applicant retained after he resigned. However, the main allegations are that the applicant retained the company record, designs, ROC, technical books etc. It is also alleged that the export licence issued by Director General of Foreign Trade (DGFT) has also been retained by the 3 applicant. The next allegation in the complaint is that the applicant took away software key which caused tremendous inconvenience to the company. Then it is alleged that there was an order, placed by a company at Hyderabad, with respondent no.2-company and the applicant had received Rs.10 Lacs by way of advance. The said amount, according to the complainant, was never accounted by the applicant and he retained it with him. 4. On 5.5.2009 the statement was made before this court by Mr.Mundargi, learned senior counsel that the applicant would handover all the record, that the applicant was having, and, accordingly, the record was handed over to respondent no.2-company. The statement to that effect was made by learned A.P.P. and it was recorded in the order dated 15.6.2009. Insofar as software key is concerned, Mr.Mundargi submitted that the software key got expired long back and it is always open to the company to pay the dues and seek a new key from the software company. The applicant denies that he carried software key with him. Even in respect of the export licence issued by DGFT, the applicant denies that he retained it with him. Mr.Mundargi submits that it is always open to the company to apply for duplicate licence. 5. Insofar as the last allegation in respect of Rs.10 Lacs is concerned, it appears that a notice was given by the company 4 and it was replied by the applicant vide advocate’s letter dated 29.8.2007, explaining about the amount in paragraph 5 of the reply. Paragraph 5 of the reply dated 29.8.2007 reads thus: “5. My client specifically denies allegations in para No.4 of your letter, dated 07.08.2007, to the effect that, he deceived the company by fraudulently obtaining some amount from M/s.Virchow Petro Chemicals Private Limited, Hyderabad by telling them that, Fenix Process Technologies Private Limited is a Sister Concern of Finepac Structures Private Ltd., or that, he tried to get the orders in name of Finepac Structures which will be transferred to his company by mentioning false address to M/s.Alpha Laval (I) Ltd. My client says that, his company Fenix Process Technologies Private Limited received order from Virchow Petro Chemical Private Limited and has also received advance part payment. Subsequent to that, a negotiations in between both of you and my client for settlement of issues was started and practically finalized to the effect that, my client will take over Finepac Structures Private Limited. Upon arriving that solution, my client had diverted order of Virchow Petro Chemicals from his personal company to Finepac Structures and executed the same order from your company. At that time, due to shortage of funds with Finepac Structures, my client had put Rs.20,00,000/- in Finepac 5 Structures out of which Rs.10,00,000/- were received by him as an advance payment from Virchow Petrochemicals Pvt. Ltd. Thus, my client has provided Rs.10,00,000/- as a loan to your company for executing the order of Virchow Petrochemicals Pvt. You both are very well aware of these particular fact. Accordingly, the order of Virchow was executed by Finepac and the balance payment of the said order was also received by your company. Thus, my client has actually done a good job by executing the order of Virchow received by him from your company and ultimately profit of the said order had gone to Finepac Structures. You both are knowing these facts fully, with a malafide intention made false allegations against my client to defame him and to have illegal gains.” 6. During pendency of this application the applicant was directed to report to the concerned police station for quite sometime and accordingly the applicant did report regularly. During the investigation a car has also been recovered from possession of the applicant. Mr.Mundargi submitted that respondent no.2-company also owes huge amount to the applicant as mentioned in the letter dated 29.8.2007. Mr.Mundargi submitted that it is always open to the company to value all the articles mentioned in the complaint and if they prove that the applicant retained those articles and carried with 6 him they can seek appropriate directions from the court in the final judgment. Having considered the submissions of learned counsel for the parties and the material on record I am satisfied that custodial interrogation of the applicant is not necessary in the instant case. Hence the following order: In the event of arrest, the applicant be released on bail in the sum of Rs.25,000/- with one or two sureties to make up the said amount, subject to the conditions incorporated in sub-section (2) of Section 438 of Cr.P.C. However, the applicant shall report to the concerned police station as and when called. 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 uninfluenced by the observations made in this order. Application is disposed of. (D. B. Bhosale, J.)