HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 69
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 1703 of 2020
Applicant :- Rajnish Jain
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Mayank Srivastava
Counsel for Opposite Party :- G.A.,Amit Daga
Hon’ble Dinesh Kumar Singh-I,J.
Supplementary affidavit has been filed and the same is taken on record.
Heard Sri Mayank Srivastava, learned counsel for the applicant, Sri Amit Daga, learned counsel for the informant, and Sri G. P. Singh, learned A.G.A. for the State.
This anticipatory bail application has been moved seeking bail in Case Crime No. 195 of 2018, under Sections 406 420 of I.P.C., Police Station Swaroop Nagar, District Kanpur Nagar, during the pendency of trial.
As per the F.I.R., the informant Dilip Kapoor has mentioned that he is director as well as partner of the firm M/s B.V.N. Chemical Pvt. Ltd. and the manager of the M/s. Sristi Traders. The informant company was involved in trading business of Duty Credits Scripts and the company of the accused applicant Rajnish Jain by the name of M/s. Jain Manufacturing (Ind. Pvt. Ltd.) was also dealing in the same business i.e. Duty Credit Scripts of which the applicant was a director and the other co-accused Mahendra Kumar Jain and Smt. Monika Jain were co-directors. The father of the accused applicant V. P. Jain was also working in the said company. The informant through his companies used to purchase Duty Credit Scripts in huge amount from the company of the accused applicant and used to give advance money through bank to the accused so as to run his business smoothly. On 14.08.2018, the applicant and his colleague asked the informant to make payment of the Rs. 2,00,00,000/- (two crores) in the morning stating that the same would be returned by 2 O’clock and hence, the informant transferred a sum of Rs. 1,00,000,00/- through R.T.G.S. company of the applicant on the said date but the same was not returned till 02:00 O’clock whereafter the informant demanded the said amount but the accused kept delaying. On 15.08.2018, the accused applicant came to the firm of the informant and said that he needed more money and that he should be given Rs. 1,00,000,00/- further amount and that he would supply the goods. Coming in deception of the accused applicant, the informant made payment of rs. 80,00,000/- more. The said amount was given due to large business of the informant and believing the words of the accused applicant. On 16.08.2018, the informant further transferred Rs. 2,50,000,00/- to the account of the accused’s company apart from the some more transactions but the goods were not provided and thus the informant grew suspicious and demanded money back from the accused applicant. On considerable pressure being exerted only one crore was returned and thus he has cheated of Rs. 3,30,000,00/- within three days time. It is further mentioned in the F.I.R. that in this manner two companies of informant i.e. B.V.N. Directors and B.V.N. Chemicals Pvt. Ltd. had to take Rs. 15,02,35,076/- from the accused applicant and Sristi Traders had to give Rs. 4,48,36,507/- to Jain Manufacturing Ind. Pvt. Ltd. (company of the accused). Thus, after deductions the informant have to receive Rs. 10,53,98,569/- from the accused applicant and accused applicant’s company which he did not return despite repeated demands. It is further mentioned that by sending fraudulent Whatsapp messages, the informant has been cheated and that an entry of Rs. 6,91,90,679.27/- is shown to have been made in the name of the informant’s company in their ledgers by the accused and had manipulated the account by sending their ledgers via e-mails. The accused applicants also removed the other co-accused Mahendra Kumar Jain and Smt. Monika Jain from the post of directors and made employee as a new director. On asking for the said money to be returned the threat is being given to the informant.
The submission made by the learned counsel for the applicant is that the initially F.I.R. was lodged under Section 420, 466, 467 468 I.P.C. but offence of these Sections were not found to be made out and only the offence under Section 406 I.P.C. was added to the above Sections and finally charge sheet has been submitted against the accused applicant and two other co-accused under Section 406 420 I.P.C. whereon cognizance has also been taken by the trial court vide order dated 01.07.2019 on criminal case registered as 17977 of 2019. It is further argued by him that the trial court has issued letter to S.H.O. for service of summons upon the accused applicant but order sheet no where reflects that any summons or processes were issued to the accused applicants, without any evidence of service of summons the trial court illegitimately issued bailable warrants of Rs. 20,000/- against him on 08.12.2019. The order sheet does not indicate that the prosecution had ever endeavoured to get the bailable warrants issued. It is further argued that before the court below it was wrongly stated by the informant before A.D.J., Court No. 4, Kanpur Nagar, that non-bailable warrant had been issued against the accused applicant on 08.01.2020. The applicant has reason to believe that he may be arrested, hence he has moved this anticipatory bail application. Further he has argued that F.I.R. as well as statement do not constitute offence under Section 420 and 406 of I.P.C. even if the version of the F.I.R. be taken to be true. The proceedings in this case is of civil nature as the parties had business relationship between them. He has emphatically argued that there is no entrustment of the property which may be stated to have been converted to his own use by the applicant which were necessary ingredient to constitute offence under Section 406 I.P.C. nor is there any evidence /averment made in the F.I.R. that he deceived or induced dishonestly the informant to deliver any property, therefore, the offence under Section 420 I.P.C. would also not be made out. He has drawn attention to order passed by division bench of this Court dated 14.03.2019 passed in Criminal Writ Petition No. 31124 of 2018 at page 257 to 258 of the paper book whereby the applicant was granted relief for not being arrested till the submission police report under Section 173(2) Cr.P.C. Further it is argued by him that other accused M. K. Jain and Monika Jain had moved Application U/s 482 Cr.P.C. No. 47397 of 2019 and Application U/s 482 Cr.P.C. No. 37715 of 2019 respectively in which both of them have been granted interim relief. Thereby proceeding against them have been stayed by order dated 21.01.2020 and 18.10.2019 respectively which have been annexed from page no. 261 to 266 of the paper book.
Reliance has been placed by a large number of rulings. He has relied upon MANU/SC/1297/2004 Anil Mahajan Vs. Bhor Industries Ltd. and others, in which the order of Magistrate was challenged before the court of Sessions and the Additional Sessions Judge Pune vide order dated 19.10.2001 had set aside the order of Magistrate issuing process and the Additional Session Judge has held that there was no allegation that the accused made any unlawful representation. Even according to the complaint they entered into memorandum of understanding. Grievance seemed to be that accused failed to discharge obligation under the MOU. In the complaint there was no allegation that there was fraud or dishonest inducement on the part of the applicant and thereby the opponent parted with the property. The reliance has been placed on various decision of the Apex Court holding that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning i.e. when he made the promises cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent dishonest intention is shown at the beginning of the transaction. In this case, it was held that after examination of the complaint it was clear from the substance that dispute was of civil nature between the parties. Requisite averments so as to make out a case of cheating were absolutely absent and that the principle laid down in Alpic Finance Ltd. Case (MANU/SC/0106/2001: 2001 (3) SCC 513, were rightly applied by the Additional Session Judge and it cannot be said that the ratio of the said decision was wrongly applied. On due consideration, Additional Sessions Judge had rightly set aside the order of the Magistrate issuing the process to the applicant and therefore, the impugned judgment was set aside and the order of the Additional Sessions Judge was restored.
It has been further argued that the accused has no criminal history. If released on bail he would not misuse the liberty and would co-operate with the investigation.
Learned counsel for the informant as well as learned A.G.A. have vehemently opposed the prayer for grant of anticipatory bail and have argued that on the basis of F.I.R., the charge sheet has been submitted which clearly suggests that the evidence brought on record against the accused applicant proves prima-facie case against him.
If I see the facts of the present case, I find that despite the fact that there was business transaction between two sides, the accused applicant is said to have demanded various sums at different points of times from the informant which were credited through R.T.G.S. and thereafter he did not supply the requisite goods nor did he return the said money and also there is allegation of some manipulation to have been made in the accounts of the company. The intention as to whether when the said amounts were being demanded by the applicant was there to return the said amount or in lieu of that the goods were to be provided to the informant or not, cannot be gathered at this stage as that would require evidence. There could be possibility that the accused may not have honest intention to supply the aforementioned items in consideration of the money which was credited by the informant and therefore, the entrustment of money and intention to cheat the informant may not be ruled out. Further, it can also be looked at as an entrustment of the amount in favour of the accused applicant by the informant which he was supposed to be returned but he did not return the same which appears to be the allegation mentioned in the F.I.R. hence, the facts of this case are totally different from the case on which reliance has been placed by the learned counsel for the applicant cited above. Large number of other citations have been given but I do not find it to necessary to quote all the laws as this is an application for anticipatory bail only, it does not require elaborate evaluation of the laws.
I have gone through the entire facts and find that there is a huge amount involved in this case, which is being stated to have been credited in the account of the company of the applicant which has not been returned nor the goods which were supposed to be given in lieu of that money had been given. There does not appear to be any false implication and taking into consideration the gravity of accusation and there being possibility of his fleeing from justice, without expressing any opinion on the merits of the case, this Court does not find good ground for enlarging the applicant, on anticipatory bail in this case.
The anticipatory bail application of the applicant Rajnish Jain, is, accordingly, rejected.
Order Date :- 24.2.2020