Bombay High Court
Varshaben Jasminbhai Savalia vs The State Of Maharashtra on 2 January, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO.2838 OF 2019
Smt.Varshaben Jasminbhai Savalia,
Age 44 years, Occ.Business,
R/o.Purusharth, Bhaktinagar,
Station Plot, St.No.2, Rajkot, Gujarat. Applicant
versus
The State of Maharashtra Respondent
Ms.Ameeta Kuttikrishnan i/by Chinmay P. Gaonkar for applicant.
Smt.Veera Shinde, APP, for State.
Mr.Piyush Toshnival i/by Chetan Damre for intervenor.
Mr.Sachin Balasaheb Navle, PSI, Dindori Police Station, Nashik
Gramin, present.
CORAM : PRAKASH D. NAIK, J.
DATE : 2nd January 2020 PC :
1. The applicant is seeking anticipatory bail in CR No.I-214 of 2019 registered with Dindori Police Station, District Nashik, for offences punishable under Sections 406, 420, 506 r/w 34 of Indian Penal Code.
2. The applicant had preferred an application for anticipatory bail before the Court of Sessions, at Nashik. By order dated 18 th December 2019, the application was rejected.
3. The prosecution case is that the complainant and other agriculturists had entered into a transaction with regards to export of Grapes with the applicant-accused. The complainant has a cold ::: Uploaded on - 04/01/2020 ::: Downloaded on - 04/01/2020 21:03:20 ::: 2 of 5 1.ABA.2838.2019.doc storage at Palkhed Bhandhara, Tal.Dindori, District Nashik and he used his cold storage for exporters. There was an agreement between the parties for cold storage and a lease agreement for packhouse, pre-cooling and cold storage for Grape season 2019 and 2020. It is alleged that the accused were handed over consignments of grapes by the farmers. The applicant had promised that the grapes would be exported. However, payments in respect to the grapes which were parted to the applicant, was not made. The accused thereafter contended that the goods were of inferior quality. It is alleged that there is misappropriation of Rs.1,98,74,860/-.
4. Learned counsel for applicant submitted that there is no element of cheating in the transaction. The FIR itself mentions that initially the payments were made. It is submitted that the goods were of inferior quality. The invoices which are annexed to this application, would indicate that the grapes were indeed exported to various companies. It is submitted that the correspondence exchanged between the companies to which the grapes were delivered, mention that the goods were not of standard quality. The debit note shows that the payments were not received by the applicant in light of the fact that the grapes were of inferior quality. It is further submitted that the applicant had filed a Commercial Suit before the competent Court against the first informant. It is submitted that the grapes were collected through the first informant. It was the responsibility of first informant to provide better quality grapes. However, on account of inferior quality of grapes, the applicant has not wrongfully gained any amount. In fact, the applicant has to receive amount towards grapes exported by her to the companies. It is submitted that the agreement relied upon by the ::: Uploaded on - 04/01/2020 ::: Downloaded on - 04/01/2020 21:03:20 ::: 3 of 5 1.ABA.2838.2019.doc complainant is disputed since no such agreement was executed by the applicant. It is submitted that the applicant is willing to co- operate with the investigation. She would provide the specimen of handwriting qua the disputed signatures on the agreement. She is willing to co-operate with the investigation by attending Police Station. Learned counsel further submitted that the applicant is willing to give bank guarantee to the investigating machinery with regards to the amount involved in this transaction.
5. Per contra, learned APP submitted that the dishonest intention of the applicant was apparent right from inception. The defence that the grapes were of inferior quality, was raised for the first time after a period of five months, after the grapes were delivered to the applicant. It is submitted that false defence about quality of grapes is being agitated by the applicant. It is further submitted that there was an agreement in the nature of lease contract for packhouse, pre- cooling and cold storage for grape season 2019 and 2020 between the parties. There are certificates issued by Agmark with regards to quality of grapes, which were packed and then exported by the applicant. It is further submitted that quality of goods was also verified by another agency namely APEDA (Agricultural Product Export and Development Authority). It is submitted that several farmers were duped of their legitimate amount. It is submitted that the amount misappropriated is huge and considering the circumstances the anticipatory bail may not be granted to the applicant.
6. Learned counsel for intervenor submitted that huge loss is caused to several farmers. The applicant is giving bank guarantee ::: Uploaded on - 04/01/2020 ::: Downloaded on - 04/01/2020 21:03:20 ::: 4 of 5 1.ABA.2838.2019.doc but not interested in making payments to the farmers who have been deceived by her.
7. I have perused the FIR and other documents placed on record by the applicant as well as investment papers pointed out by learned APP. The contention of the prosecution is that the applicant had played major role in this transaction. She had entered into an agreement with the complainant and it cannot be said that the responsibility of the first informant was to perform grading and all other formalities. The investigation papers show that there is Agmark Certificate, which indicates that the goods were of `A' grade and there is certificate to show that the grapes were not of inferior quality and on such premises the goods were loaded, checked in foreign countries at the time of delivery and no authority has given any letter that the grapes were not of good quality. It is apparent that original complainant had entered into a contract with the applicant namely lease contract for packhouse, pre-cooling and cold storage for grape season 2019 and 2020. There is document to show that the grapes were exported according to proper procedure and were considered to be free from quarantine paste and practically free from other injurious paste and those are considered to confirm with the current sanitary regulation of the import country. The investigation also discloses that the exporters named in this document has mention of Crown International which is the company of applicant in whose name the certificate is issued. The statements recorded during the course of investigation and other material on record prima facie indicate that the victims were deceived by the applicant in connivance with other accused.
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8. Taking into consideration the factual matrix of the case, custodial interrogation of the applicant is necessary. Hence, no case for grant of anticipatory bail is made out. Accordingly, Criminal Anticipatory Bail Application No.2838 of 2019 is rejected.
(PRAKASH D. NAIK, J.)
9. At this stage, learned advocate for applicant submits that the applicant intends to approach higher Court and interim protection may be extended for a period of three weeks. Learned APP opposes extension of interim protection on the ground that the applicant was not available for investigation. When inquiry was made on the earlier occasion the investigating agency was informed that the applicant was out of India. Learned counsel for applicant submits that presently applicant is in India. Considering the submissions, interim protection granted by this Court is extended by a period of two weeks.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 04/01/2020 ::: Downloaded on - 04/01/2020 21:03:20 :::