Bombay High Court
Karishma Kaku vs State Of Maharashtra And Anr on 16 November, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.3123 OF 2022
Karishma Kaku .. Appellant
Versus
State of Maharashtra & Anr. .. Respondents
ALONG WITH
ANTICIPATORY BAIL APPLICATION NO.3125 OF 2022
Ishita Gala .. Appellant
Versus
State of Maharashtra & Anr. .. Respondents
...
Mr.Vineet Naik, Senior Advocate a/w Pranav Badheka,
Mr.Hrishikesh Mundargi, Komal Joshi, Pushkraj Deshpande,
Pawni Chadda, Piyush Pandhare, Ashwin Hirulkar i/b ALMT
Legal for the Applicant in ABA no.3123/2022.
Mr.Ashok Mundargi, Senior Advocate a/w Mr.Vineet Naik,
Senior Advocate, Pranav Badheka, Hrishikesh Mundargi, Komal
Joshi, Pushkraj Deshpande, Pawni Chadda, Piyush Pandhare,
Ashwin Hirulkar i/b ALMT Legal for the Applicant in ABA
No.3125/2022.
Mr.Sudeep Pasbola a/w H.S. Venegaonkar, Mithilesh Mishra,
Mudit Ahiya, Amit Vyas i/b Vertias Partner for Intervenor in both
the Applications.
Smt.A.A. Takalkar, APP for the State.
API Kamlesh Jadhav, EOW, Unit-5 present.
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CORAM: BHARATI DANGRE, J.
DATED : 16th NOVEMBER, 2022
P.C:-
1 The two applicants, in the two applications are
apprehending their arrest in C.R.No.8/2022 registered with
EOW, Unit-5 Mumbai, on being arraigned as accused. The said
CR invoke Sections 406, 409, 420, 465, 471 r/w Section 34 of
the IPC.
2 Suffice it to note that Ishita, the applicant in ABA
No.3125/2022 is named as accused no.9 in the proforma FIR,
whereas the applicant Karishma in ABA No.3123/2022 is
arraigned as Accused no.15.
3 Heard learned senior counsel Shri Ashok Mundargi
for the applicant (Ishita Gala), in ABA No.3125/22 and learned
Senior counsel Mr.Vineet Naik for Karishma Kaku in ABA
No.3123/22.
The respective senior counsel claim that the
Applicants have no connection with the accusations that are
levelled in the complaint, wherein three entities are alleged to be
the culprits, being Dentsu Communication India Pvt.Ltd,
Suumaya Industries Limited and it's subsidiary Suumaya Agro
Ltd.Co, and one Veda Multi Corp. LLP. It is submitted that in
the narration of the longish events contained in the complaint,
which is lodged on account of the business relationship shared
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between the parties, inter-se and as far as Ishita is concerned, it is
argued that she ceased to be Director of Dentsu, when the
agreement was entered, revolving around which the accusations
are levelled in the complaint.
4 As far as applicant Karishma is concerned, the
submission is, she is the wife of brother of Ishita i.e. Accused
no.11 and merely because some amount is transferred in a
Company, in which she is a Director, (MUSK), the allegations are
too far fledged to demand their custody for the purposes of
investigation.
5 Before I appreciate the said contentions advanced by
the learned counsel for the applicants and by the learned counsel
Mr.Pasbola and Advocate Venegaonkar appearing for the
Intervenor as well as the learned APP for the State, I must briefly
refer to the accusations levelled in the complaint.
It is alleged by the complainant, one Vinay Kumar
Agarwal, the head of Supply Chain Finance in one non-banking
financial company, Cap Save Finance Pvt. Ltd, and Chief Business
Officer of the sister company Capalpha Trade Pvt.Ltd. He
narrated that he is occupying the said post since February 2021
and the Company deal in trade finance, and is in the business of
supplying finance to the vendor company, pursuant to which the
vendor company supply the material/goods to the client
company, and the purchaser client company, within the stipulated
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period and the decided margin repay the finance to their
company. Both the aforesaid companies are described to be the
subsidiaries of one Rent Alpha Pvt.Ltd.
6 The complaint makes reference to one Dentsu
Communications India Pvt.Ltd (A1). It is alleged that one
Smt.Dhwani Dattani established contact with the complainant
through Linkedin and by introducing herself, she informed that
she was working as a consultant for Suumaya Group Companies,
which has received a contract from Dentsu Communications
India Pvt. Ltd, for supply of PPE kits as a part of Corporate Social
Responsibility (CRS) and she made inquiries for invoice finance
for Suumaya Group. The proposal was accepted and the
complainant Cap Save agreed to provide invoice finance as
desired on completion of documentation. The arrangement was
arrived as, Dentsu would place order to Captcha trade, who on
receiving the agreed commission, would place an order with
Suumaya, who would send goods to Dentsu, who would confirm
the receipt of goods to the complainant, upon which the payment
would be made to Suumaya and Dentsu would settle it's account
with the complainant. Since the invoice finance would have
limit on the amount of transaction, it was agreed to provide trade
finance and accordingly, on 19/2/2021, a new Company by name
'Capalpha' was incorporated. This Company was introduced to
Dentsu through Suumaya as Capalpha had, in the past, done
some vendor financing transactions with Suumaya.
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The proposed arrangement was agreed as under :
"a) Dentsu was the buyer, Suumaya was the nodal
supplier and Capalpha was providing supplier/buyer
credit as a trade intermediary in respect of certain
goods/commodities like rice, wheat, pulses etc. with
respect of Dentsu (uyer's) Need to Feed Program
supposedly received from the State Government of
Hariyana which was introduced by the Accused.
b) Considering the Credit rating of Dentsu the
Capalpha agreed to participate trade financer in the CSR
Need to Feed Program. As per the arrangement,
Dentsu issued Purchase Orders (PO's) to the Capalpha
who then issued back to back Purchase Orders to
Suumaya. So, the invoicing was done by Suumaya upon
the Capalpha and the goods were to be shipped directly
to Dentsu by Suumaya or as per Dentsu directions at
the address provided by Dentsu and the Capalpha
would raise an invoice upon Dentsu for which the
payment was to be made within a period of 30 plus 15
days (where mutually agreed).
c) The Capalpha made payments to Suumaya for
the goods supplied upon the confirmation from the
authorized representatives of Dentsu. Capalpha was to
get around 6% margin for participating in the said
arrangement.
7 As per the arrangement, initially the payments were
cleared by Dentsu, however when the magnitude of the
transactions grew, the delay in the payments started. As per the
re-confirmations from Dentsu officials and initial transactions, the
Capalpha continued to discharge its part of the transaction/s and
Dentsu kept on confirming the receipt of the goods from
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Suumaya. Until one day, Dentsu based on an internal enquiry,
disputed the earlier transactions citing that the goods have never
been delivered and that it was defrauded by its employees.
A complaint was filed with EOW, Mumbai thereafter,
wherein the investigation revealed that the "Need to Feed"
program was bogus and that the lorry receipts prepared by
Suumaya showing the dispatch and delivery of goods were fake
including certain other crucial documents. It was further
discovered that Dentsu was told that the goods were being
supplied directly to Veda by Suumaya and Dentsu was asked to
confirm the delivery without ever seeing the goods personally.
For the said conformation by Dentsu, it was receiving a
significant margin on the said transactions. Subsequently, a FIR
was registered by the EOW, Mumbai on 12.02.2022.
8 In the light of the accusations in the complaint, it can
be seen that the applicant Ishita is sister of Ushit Gala (the
Chairman and Managing Director of Suumaya). She was the
Managing Director for some period of time, but she resigned on
2/1/2021 before the agreement was entered with Cap Alpha on
19/4/2021.
9 Pertinent to note that the agreement/MOU dated
19/4/2021, the trade arrangement was mutually agreed by both
the signatories and in the month of February and March 2021,
orders for PPE kit under the need to feed campaign was placed
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for the said purpose, finance of Rs.120 crores was provided by
Capalpha. The payment for the same was received by Cap Alpha
in full, in the month of May and June respectively.
The submission on behalf of the applicant is, post
June the payments were delayed for further orders due to Covid-
19 Second wave. For the month of June and July, Capalpha again
financed towards the 'need to feed programme' and for the said
transaction, Dentsu was supposed to repay Capalpha, an amount
of Rs.117,73,12,128/- by August 2021, and the said amount was
not paid and this is the thrust of the allegation levelled in the
complaint.
It is the case of the prosecution that in the month of
September 2021, Dentsu raised Purchase Order of Rs.51 crores
on Capalpha but since the past payments were not made by
Dentsu, Suumaya proposed that Cap Alpha may issue Purchase
Orders on Suumaya, and can pay Suumaya, when Dentsu make
past payments to Capalpha. However, since Cap Alpha did not
receive payment from Dentsu, they did not pay to Suumaya.
10 In the wake of the accusations, when the role of the
applicant Ishita is to be searched for, admittedly she is not a
signatory to the MOU dated 19/4/2021, entered between Cap
Alpha and Suumaya, to cater to the demand of Dentsu for certain
agro commodities. The MOU specifically agreed to the terms
that First Informant company would place back to back orders on
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Suumaya, through Purchase Orders, against the Purchase Orders
received from Dentsu and the said orders were on a 60 day credit
limit and there was an agreement to support and pay Sumaya on
the terms and conditions set out in the MOU. Pursuant to the
said purchase orders, Suumaya had to supply the agro products
directly to Dentsu and the products were to be despatched from
any one of the warehouse of Suumaya and would be dropped to
the requisite locations given by First Informant Company and
this would be transported in trucks by way of a carrier, raising a
lorry receipt, reflecting the invoice number, quantity of goods
being transports and the pickup and drop off location. The
complaint after, narrating the entire methodology to be adopted,
alleged that for the period from 4/6/21 to 16/7/21, an amount of
Rs.117,73,12,128/- is to be received from Dentsu.
11 In the whole sequence of events which are narrated in
the complaint, which is purely a business transaction and since
the agreement contain an arbitration clause, it is informed that
the parties had approached the learned Arbitrator.
Copy of the Arbitration Petition filed by the
complainant Capalpha Vs. Dentsu Communication India Pvt.Ltd
is placed along with the application. The agreement contain a
specific clause for reference of all disputes between the seller and
buyer arising under/pursuant to this order, which reads thus :
15. DISPUTES & JURISDICTION : All disputes
between the seller and the buyer arising under/ pursuant
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to this order or relating to the price payable thereunder
or any other matter relating to this order shall be settled
by arbitration of a sole arbitrator appointed by the
mutual consent of the seller and the buyer under and in
accordance with the provisions of the Arbitration &
Conciliation Act, 1996.
Since the parties have chosen the route of arbitration
and are agitating their difference/ disputes between the learned
Arbitrator, I do not think that in absence of the specific
accusations levelled against Ishita, her custodial interrogation is
necessary.
Further, as far as the allegation that Ishita has
purchased large number of shares fom the amounts gained from
the proceeds of offence, forming the subject matter in the FIR,
that by itself, is not sufficient to show her complicity in
commission of the offence. As far as Ishita is concerned, along
with the application, a meeting of Board of Directors of Suumaya
Industries Limited, which took place on 12/2/2021, the minutes
are placed on record which clearly reveal that the applicant was
not present in the said meeting, though Mr.Pasbola would
vehemently submit that she was operating behind the curtains. I
do not think this submission can be accepted.
12 As far as the other applicant Karishma is concerned,
she is the wife of Ushit Gala and the allegation against her is to
the effect that amount which was received by Sumaya
Corporation Limited, came to be transferred in Suumaya Agro
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Limited, the sister concern and it was used for purchase of two
flats on the very same date.
It is alleged that the amount of which Capalpha was
defrauded, was used for purchasing the flats and she is one of the
Director along with her husband, in MUSK Investments Pvt.Ltd.
For the same reason, that the dispute being arbitrable, has been
referred for arbitration, which is in progress, and the amount
which is alleged to have been defrauded is sought to be recovered
through the said process. In absence of any specific and active role
attributed to the two women, in the whole episode, I am inclined
to protect them from arrest by the following order :-
ORDER
(a) Applications are allowed.
(b) In the event of their arrest in connection with C.R.No.8/2022 registered with EOW, Unit-5, Mumbai, the applicant Karishma Kaku in BA 3123/2022 and applicant Ishita Gala in BA No.3125/2022 shall be released on bail on furnishing P.R. bond to the extent of Rs.50,000/- each with one or more sureties of the like amount.
The Applicants shall report to the EOW, Unit - 5, on Thursday and Friday between 3.00 pm to 5.00 p.m for a period of four weeks, and thereafter as and when directed.
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(c) The applicants shall not directly or
indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence.
( SMT. BHARATI DANGRE, J.) Tilak ::: Uploaded on - 23/11/2022 ::: Downloaded on - 03/01/2023 05:57:27 :::