Bombay High Court
Hitesh Narendra Kanungo vs The State Of Maharashtra on 7 December, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
Sknair 901-aba-1820-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 1820 OF 2018
Hitesh Narendra Kanungo ... Applicant
Vs.
State of Maharashtra ... Respondent
WITH
CRIMINAL APPLICATION NO. 1107 OF 2018
IN
ANTICIPATORY BAIL APPLICATION NO. 1820 OF 2018
Vallourec ... Intervenor
In the matter between
Hitesh Narendra Kanungo ... Applicant
Vs.
State of Maharashtra ... Respondent
...
Mr. Subodh Dharmadhikari, Sr. Advocate a/w Mr. D.V. Chavan
I/by Mr. Dilip H. Shukla for the applicant.
Mr. S.R. Agarkar, APP for the Respondent.
Mr. Mehul Shah for the intervenor
Mr. Nitin Chavan, API, V.P. Road is present.
...
CORAM : PRAKASH D. NAIK, J.
DATE : 7th DECEMBER, 2018.
P.C.
Applicant is apprehending arrest in connection with C.R. No.
166 of 2018 registered with V.P.Road Police Station for offence
punishable under Sections 420, 465, 467, 468, 471 read with 34 of
Indian Penal Code.
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2. The case of the prosecution in nutshell is that on 16 th
February, 2017, complainant company had received an e-mail
from DNOW Company stating that Mill Test Certificate (MTC)
issued by complainant company in favour of International Pipeline
Structural Solutions Ltd (IPSS) and further sought verification of
the material by the complainant company in favour of which said
certificate was issued by the complainant. E-mail also contained
scan copy of the said certificate. E-mail was forwarded to the
Senior Officers of the complainant company on 19th February,
2017. The employee of the complainant-company received
another e-mail id with similar contents in respect of another
transaction by DNOW Company. On 20th February, 2017 one of
the employee of the complainant-company namely Naree Kim
issued an email to DNOW Company seeking information regarding
IPPS company based at UK and the steel material supplied by the
said company on the same day DNOW replied to complainant
company that IPSS had received the said steel material from India.
It is further alleged that thereafter two Mill Test Certificates
(MTC) were tested by German Consultant of the complainant-
company and the same were found to be false for five different
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reasons. It is alleged that the aforesaid DNOW Company cancelled
the order placed on IPSS and contended by M/s Trident Steel and
Engineering Company situated at C.P. Tank, Mumbai, and
requested them to take back the steel material which the applicant
to accept stating that there are problem in the Customs
Department and also refused to return 33385 USD involved in
transacction. The complainant also received the complaint from
Arabian Industries Manufacturing LLC (situated at Muscat, Oman)
alleging that Trident steel and Engineering Company is involved in
similar MTC false certificate matter concerning the complainant.
Subsequently, the complainant filed a commercial suit in this High
Court and during the pendency of the suit inquiry were made by
the High Court and directions were issued for investigation into
the matter. Subsequently, First Information Report was registered
on 29th June, 2018 for the aforesaid offences.
3 Applicant preferred an application for anticipatory bail
before the Court of Sessions which was rejected by order dated
28th August, 2018. The applicant therefore preferred this
application for anticipatory bail before this Court.
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4. Learned Senior Advocate Shri Dharmadhikari submitted that
applicant has been falsely implicated in this case. The prosecution
has not made out the case for custodial interrogation. The co-
accused arrested were granted bail. There is no cogent evidence
on record to establish that the applicant was involved in preparing
fabricated Mill Test Certificate. It is submitted that the applicant
had no deal with Dharampal Singh directly. The prosecution case
is based on the statement of the co-accused which is not
corroborated by any evidence. There is no material on record to
substantiate that the applicant is involved in the crime. It is
submitted that the applicant has co-operated with the investigating
machinery. After filing of commercial suit, the applicant was
summoned by the Civil Court and in pursuant to that they
appeared before the Court. Learned counsel for the applicant
drew my attention to the order passed by this Court in Commercial
Suit wherein it is observed that the applicant is co-operating with
investigation and also deposited the amount of Rs.30,50,000/- in
this Court which comprises of the profit and payment made by him
to Mr. Dharampal Singh. It is submitted that in the said order
dated 12th June, 2018, this Court has also observed that the
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Investigating Officer not to take action on the basis of contents of
paragraph 3 of the order dated 13 th February, 2018 and shall
proceed with the investigation on its own merit. It is therefore
submitted that in the light of the said observation, the applicant
cannot be subjected to custody. The statement of the applicant is
also recorded by the Investigating Machinery and he appeared
before them which shows that he has co-operated with the
investigation. It is submitted that subsequently the Court wherein
the commercial suit was filed, has directed to carry out the
investigation into the matter by making certain observations and
in pursuant to that FIR was registered. Learned counsel for the
applicant pointed out the order passed by the Division Bench of
this Court in commercial appeal No. 434 of 2018 wherein the
order passed by the Single Judge of this Court in the commercial
suit was under challenge and while disposing of the said appeal,
this Court had made observations with regards to the directions for
investigation issued by Court on certain observations made by the
learned Single Judge in the said commercial suit. Learned counsel
for the applicant drew my attention to various observations of the
Division Bench in the said order. It is submitted that the applicant
is a business man. He has been falsely implicated on the basis of
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the statement of co-accused Dharampal Singh. The applicant is
carrying the business in the name and style of M/s Trident Steel
and Engineering Company. The complainant instituted an IPR
Suit under Section 27, 29 of the Trademarks Act and Section 63 of
the Copyright Act, 1957 claiming certain interim relief.
Considering the nature of disputes which is apparently civil in
nature, the applicant cannot be subjected to custody. All
payments were made in relation to the said invoices were made
through RTGS / NEFT as per the bank details provided by the co-
accused. In case of payments by cheque issued in the name of
Accurate Multi Trade were handed over to Mr. Upadhyay. The
cheques have been presented and the demand drafts have been
received by Accurate Multi Trade. The said entries are duly
reflected in the books of account. The photocopies of Mill Test
Certificate in relation to the said supplies were also handed over to
applicant by Mr. Upadhay. C.S. Seamless pipes had been supplied
to applicant by Accurate Multi Trade and Mr. Upadhyay were of
Vallourec brand, which belongs to the plaintiff/complainant.
These pipes were thereafter dealt with by the applicant. It is
submitted that transactions were fortified by requisite documents.
It is submitted that Dharampal Singh who has played a major role
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has been arrested and he has been granted bail and other accused
were arrested and were also granted bail. Applicant has co-
operated with the investigation and also willing to co-operate the
investigating machinery in whatever manner. Considering the fact
that the matter relating to the document, the custodial
interrogation of the applicant is not necessary. The applicant may
be granted.
5 Learned counsel for the applicant further pointed out the
statements of wife of Satish Upadhyay recorded during the course
of investigation which form part of the chargesheet filed against
the co-accused. It is submitted that said statement indicate that
Shri Lalchand Upadhyay was acting as broker in steel business.
Amount received by him was being deposited at Ahmedabad
Mercantile Bank. However, she is not aware about the details of
the transaction. She has expired on 13 th January, 2018. Learned
counsel for the applicant also pointed out the statement of other
witnesses recorded during the course of investigation and
documents collected by the Investigating Machinery. It is
submitted that there is no cogent evidence to establish that the
applicant was involved in fabricating of manufacturing the pipe.
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6 Learned APP submitted that there is strong evidence against
the applicant. After registration of the FIR, the applicant has not
made himself available for investigation. Although, intimations
were given to him to attend the police station. He had not
responded. It is submitted that the application for anticipatory
bail preferred by him was rejected on 28th August, 2018 by the
Sessions Court by assigning cogent reason. The applicant is
absconding and not made himself available for the purpose of
investigation. It is submitted that applicant is the main person
who is involved in the case. He is responsible for false and
fabricating Mill Test Certificate. The co accused were arrested and
they were interrogated. During the course of investigation, they
had disclosed the complicity of the applicant in the crime. Learned
APP brought to my notice, the statement recorded during the
course of investigation. It is further submitted that while applicant
had appeared before the learned Single Judge of this Court dealing
with the commercial suit had admitted the receipt of the amount
and the false certificate. It is submitted that although, the
applicant has deposited the amount as reflected in the order
passed by the Commercial Court, the evidence collected during the
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course of investigation discloses his involvement in crime and he
has not made himself available for effective investigation.
7 Learned counsel for the intervener opposed the grant of bail.
It is submitted that the applicant has played active role in this
crime. Learned counsel for the intervenor submitted that although
the Division Bench of this Court in 16 th / 17th October, 2018 has
made certain observations with regards to the directions issued by
the learned Single Judge while hearing the commercial suit in
paragraph 75 of the said it is observed that since all the reports of
the investigation carried out till date are on the file of the civil
suits in this Court, the same be forthwith transferred to the file of
the competent criminal court. It is for the competent criminal court
to then decide as to whether a prima facie case has been made out
against the persons named therein and can a charge be framed
against them. Once these reports are placed before the competent
criminal court, it is its duty and function in accordance with the
Criminal Procedure Code, 1973 to take an appropriate decision.
That decision will be taken strictly in accordance with law. While
taking that decision, the criminal court shall not be influenced by
any opinion or expression of any opinion in the orders under
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challenge. It is further submitted that the evidence collected by the
police during the course of investigation clearly indicates the
involvement of the applicant. Applicant had played the major role
in the crime. Infact, he is the main accused who instrument in
committing the alleged act, the custodial interrogation of the
applicant is necessary.
8 Having heard both the sides. I have perused the documents
on record. The case relates to fabrication of MTC. The First
Information Report was registered on 29th June, 2018. On perusal
of documents it appears that in the civil proceedings certain
directions were issued. It was observed that the brand name of the
complainant company is used and forged MTC certificate was
issued by applicant in connivance with other accused. Although,
the applicant has deposited the amount after the arrest of co-
accused, investigation reveals his complicity. The applicant has not
made himself available. It is true that applicant had preferred this
application for anticipatory bail before the Sessions Court which
was rejected and subsequently he has preferred an application
before this Court. The record indicates that purchase order was
issued by the accused which was supplied by the present applicant.
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According to the prosecution, the applicant had issued the
fabricated certificate. The contention of the applicant is that the
same was received by him from Upadhay. The investigation is still
going on. During the investigation, the statement of arrested
accused were recorded by the police which discloses the
involvement of the applicant in the said crime. It is true that
statement of all accused cannot be relied upon, however, for the
purpose of investigation and to collect leads in investigation. The
same are referred to. The investigating authority has collected
evidence. Apart from the circumstances put-forth by the
prosecution it shows the involvement of the applicant in the crime.
While granting bail to Dharampal Singh, the Sessions Court has
observed that initially the Investigating Officer had alleged that
the goods in question were purchased from the Dharampal Singh.
But at the conclusion of the investigation, it was found that the
main accused is Hitesh Kanungo (applicant) who is not available.
The record shows that the accused Dharampal Singh had issued
company bills, e-bills which is of together a different transaction to
that for gaining commission. He has issued several purchased bill
without jurisdiction in actual transaction. The case of the
prosecution in the present case is with regards to manufacture,
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selling of pipe alongwith issuance of duplicate and fabricated MTC
Certificate. The other accused were arrested and they were
interrogated and subsequently they were granted bail. However,
considering the nature of evidence and the material collected
during the course of investigation, I find that custodial
interrogation of the applicant is necessary and submission
advanced by the applicant cannot be accepted at this stage to
grant relief under Section 438 of Code of Criminal Procedure. The
applicant has apparently played major role in the said crime and
hence, no case for grant of bail is made out.
9 Hence, I pass the following order.
ORDER
i. Anticipatory Bail Application No. 1820 of 2018 stands rejected.
ii. Criminal Application No. 1107 of 2018 stands disposed off. iii. The observations made in this order are prima-facie for adjudicating the application for anticipatory bail and trial Court shall not be influenced by the same at the time of trial.
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