Madhya Pradesh High Court
Neeraj Kumar Verma vs The State Of Madhya Pradesh on 29 March, 2016
Author: S. K. Gangele
Bench: S. K. Gangele
1
HIGH COURT OF M. P. PRINCIPLE SEAT : JABALPUR
Misc. Criminal Case No.5193/2016
Neeraj Kumar Verma & others
Vs.
State of Madhya Pradesh
For applicants : Shri Naman Nagrath, Senior Advocate,
assisted by Shri Siddharth Singh, Advocate.
Respondent/State : Shri P. K. Chourasiya, Panel Lawyer.
Respondent/ Objector : Shri Anil Khare, Senior Advocate
assisted by Ms. Namrata Kesharwani, Adv.
ORDER
(Passed on 29.3.2016) PER S. K. Gangele J.
1. Applicants have filed this petition under Section 438 of Cr. P. C. for grant of anticipatory bail to the applicants, as they are under apprehension of their arrest in connection with Crime No.241/2016, registered at P. S. Kotwali, Katni for the offences punishable under Sections 418, 420/34 of IPC.
2. The complainant/ Mahavir Coal Resources Pvt Ltd. Katni lodged a complainant at P. S. alleging that it had supplied coal to the company of the applicants, which runs a cement company. Since 20.11.2012 an amount of Rs.5,44,11,157/- was due against the applicants company upto 1st of April 2014 in regard to supply of coal. The amount was not paid by the company thereafter on 30.3.2015, 30.3.2015, 31.3.2015 and 6.4.2015 four cheques were issued by the applicants company in favour of the complainant company for an amount of Rs.25,00,000/- each total amount of rupees one Crore. The cheques were lodged with a Bank for encashment in the account of complainant company and cheques were bounced. Thereafter an intimation was given to the applicants. The cheques were again presented in the Bank, however, they were bounce. The complainant pleaded that applicants had committed cheating and fraud with the complainant company. It had regularly purchased the coal, however did not pay an amount of rupees five crores thirty four lacs and thereafter for an amount of rupees One crore four cheques were 2 issued, which were bounce. Hence, a criminal case be registered against eight persons.
3. On the basis of aforesaid complaint police registered an offence against the applicants punishable under Sections 418, 420/34 of IPC. Police recorded the statement of Mr. Anurag Jain, under Section 161 of Cr. P. C. and also recovered the cheques which were bounce on the ground of insufficient fund. The police issued notice to the applicants under Section 160 of Cr. P. C. for their presence on 10.3.2016, in spite of service of notice the applicants did not appear before investigating agency. Thereafter, another notice was issued on 12.3.2016 and applicants were directed to appear on 14.3.2016, but they were not present before the investigating agency. The applicants filed an application under Section 438 of Cr. P. C. for grant of anticipatory bail before the trial Court. The trial Court rejected the application on the ground that the applicants with fraudulent intention received the coal from the complainant company and an amount of rupees five crores thirty four lacs was due against the applicants company up to 1st of April, 2014. Four cheques were issued for total amount of rupees one crores, which were dishonoured. The applicants did not appear before investigating agency nor have extended cooperation with the prosecution agency. Investigation of offence is necessary, prima-facie offence is made out against the applicants. Hence, the applicants are not entitled for extending the benefit of Section 438 of Cr. P. C.
4. Learned Senior counsel appearing on behalf of the applicants has contended that applicants No.2, 3 and 4 are Vice President while applicant No.1 Officer of the Company and they are not responsible for day to day working of the company and they are also not residing within the jurisdiction of police station where offence is registered. It is further submitted by the Senior counsel that there was a contract between KJS Cement Ltd and the complainant company in regard to supply of coal. Complainant company supplied inferior quality of coal. Hence, it is a commercial dispute in regard to payment of coal. The complainant company also filed a case under Section 138 of Negotiable Instrument Act.
35. Learned Senior counsel further submitted that no offence under Section 418 and 420-B of IPC is made out against the applicants because no criminal act has been committed by them. Learned senior counsel further submitted that the dispute is about commercial transaction, hence it is a civil dispute and prayed that the applicants are entitled to be released on anticipatory bail. In support of his contentions learned senior counsel relied on the judgments in the matter of Umashankar Gopalika Vs. State of Bihar and another reported in (2005) 10 SCC 336 and in the matter of R. Kalyani Vs. Janak C. Mehta and others reported (2009) 1 SCC 516.
6. Learned senior counsel appearing on behalf of the complainant has contended that KJS Cement had received the supply of coal from the complainant company and it has not paid amount of rupees five crores thirty lacs. Subsequently four cheques were issued by the company but the same were bounce. It is further submitted by the learned senior counsel that total thirty two cheques for amount of rupees seven crores were issued in favour of the complainant company, which were bounce. Learned senior counsel further submitted that if the inferior quality of coal was supplied by the complainant company, there was no occasion to accept the coal for long period and issue cheques in favour of the complainant company. He further submitted that custodial investigation is necessary and at present prima-facie there is involvement of applicants. Hence, the offence under Section 418 and 420/34 of IPC has rightly been registered. Hence, they are not entitled to get the benefit of anticipatory bail under Section 438 of Cr. P. C.
7. Learned P. L. has submitted that the offence committed by the applicants are serious in nature. The applicants have received huge quantity of coal and did not make the payment. The applicants have taken a shelter of inferior quality of coal, which is an eyewash and custodial interrogation of the applicants is necessary. Hence, the application of the applicants for grant of anticipatory bail is liable to rejected. In support of his contention he relied on the judgment of the Apex Court in the matter of State Vs. Anil Sharma reported in (1997) 7 SCC 187.
48. Admitted facts of the case are that M/s KJS Cement Ltd had entered in to an agreement with the complainant company in regard to supply of coal. On the query made by the Court the applicants submitted the information to the effect that turn over of KJS Cement Ltd in the year of 2014-2015 was 603.86 crores and expected turn over during the financial year 2015-2016 would be 586 crores. The company was incorporated under the provisions of Companies Act. The company also procured coal from other private companies also. The complainant company was doing the business with KJS Limited since 2012. Some payment was also made to the complainant company. There is an arbitratin clause in the contract and there was some dispute in regard to payment of coal because inferior quality of coal was supplied by the complainant company.
9. The complainant company also submitted information in the shape of affidavit to the effect that it is a company named as Mahavir Coal Resources Pvt Ltd. incorporated under the provisions of Companies Act 1956. Annual turn over of the complainant company in the year 2014-2015 was Rs.268, 62,55,000/-. The company had supplied coal to other companies also namely J. P. Cement and A. C. C. Cement.
10. Apart from bounce of these cheques, Mr. Anurag Jain submitted a notice to the effect that company had issued near about 32 cheques of rupees 7,14,75,000/-, however, they were bounced on account of insufficiency of fund. Notice was issued, inspite service of notice amount was not paid to the complainant company. It is mentioned in the notice that total amount Rs.12,48,86,157.53 was due against the applicants company KJS Cement.
11. In reply to notice, which is also on record submitted by M/s KJS Cement Ltd, it is mentioned that in terms of supply order inferior quality of coal was supplied and in spite of notice there was no improvement in the quality of coal and thereafter amount was deducted and amount of Rs.8,11,26,980/- was due against the complainant company.
12. From the reply to the notice submitted by the petitioner KJS Cement Ltd, it is clear that an amount of rupees five crores was due 5 against the applicants company inspite of that applicants company did not pay the amount and issued cheques in favour of the complainant company, which were bounce. The applicants did not appear before the investigating agency inspite of notice, even the documents which were produced on record by the applicants is accepted then also it is clear that a huge amount is due against the applicants company, no explanation offered by the applicants that why the purchase of the coal was not stopped even when the coal supplied by the complainant company was of poor quality and when the company accepted coal and used the same, thereafter plea that quality of coal was poor can not be accepted. Even if the reply submitted by KJS Cement Ltd is taken into consideration huge amount of near about rupees five crores is due against the complainant company, no cogent explanation has been offered in this regard by the applicants company.
13. In regard to plea of the applicants that they are Vice Presidents or the Officer of the Company, they have no role. This plea cannot be accepted at this stage when investigation is yet to complete. The applicants and KJS Cement Company has not extending the cooperation to the Investigating agency nor it produced all the relevant documents rather than it has taken a shelter that it is a commercial dispute that plea can only be accepted if it can offer a plausible explanation that the amount claimed by the complainant company is not correct, there is no explanation that why such large number of cheques were issued in favour of the complainant company and they were dishonoured.
14. Learned Senior counsel has contended that FIR is in regard of four cheques. However, Investigating Agency is at liberty to investigate all the transactions of the company in order to come to the conclusion that whether any offence is committed by the applicants or not. FIR is only an information in regard to commission of some offence. Investigating Agency is at liberty to conduct the investigation in order to find out truth. On the basis of the aforesaid facts of the case, in my opinion, prima-facie it cannot be ruled out that an offence has been committed by the applicants. The grant of benefit of Section 438 of Cr.
6P. C. is discretionary remedy, various facts are to be considered by the court.
15. Looking to the nature of allegations and material available on record, in my opinion the applicants are not eligible to get the benefit of Section 438 of Cr. P. C. for grant of anticipatory bail at this stage specially when investigation could not be proceeded due to non- cooperation of the applicants. The applicants are Vice Presidents or the officers of the Company, if anticipatory bail is granted at this stage then it would hamper investigation and investigation agency will not be able to find out real truth. Hence, I do not find any merit in this petition for grant of anticipatory bail at this stage. It is hereby dismissed.
(S.K.Gangele) Judge kkc 7 Misc. Criminal Case No.5193/2016 Neeraj Kumar Verma & others Vs. State of Madhya Pradesh For applicants : Shri Naman Nagrath, Senior Advocate, assisted by Shri Siddharth Singh, Advocate.
Respondent/State : Shri P. K. Chourasiya, Panel Lawyer. Respondent/ Objector : Shri Anil Khare, Senior Advocate assisted by Ms. Namrata Kesharwani, Adv.
ORDER Post it for 29.3.2016 (S.K.Gangele) Judge