Madhya Pradesh High Court
T.V.S. Maheshwara Rao vs The State Of Madhya Pradesh on 14 February, 2018
1
HIGH COURT OF MADHYA PRADESH, JABALPUR
M.Cr.C. No.28740/2017
M.Cr.C. No.627/2018
14.2.2018
Mr. Manish Datt, learned senior counsel, with Ms. Swati
Aseem George, learned counsel for the applicant in M.Cr.C.
No.28740/2017.
Mr. Manish Datt, learned senior counsel, with Mr. Anuj
Agrawal, learned counsel for the applicant in M.Cr.C.
No.627/2018.
Mr. Ashutosh Tiwari, learned Government Advocate for the
respondent-State.
Mr. Vasant Daniel, Mr. Aakash Singhai and Mr. Sanjay Verma, learned counsel for the objectors.
As both the above mentioned bail applications arise out of the same crime number of the same police station, they are being heard analogously and disposed of by a common order.
1. The applicants T. V. S. Maheshwara Rao and Nitin Rai are in judicial custody since 16.12.2017 and 12.12.2017 respectively in the aforesaid cases. According to the case of the prosecution, three sellers, Tula Food Products Pvt. Ltd., Singhai Trading Company and Badri Prasad Shankar Lal Nema, were approached by the applicant Nitin Rai and the co-accused Vijay Rai, who is stated to be absconding, and they are stated to have told the three sellers that they have a party in Andhra Pradesh, which is the applicant T. V. S. Maheshwara Rao, who is a prospective purchaser of pulses. Thereafter consignments of various kinds of pulses were sent through the applicant Nitin Rai and the co- accused Vijay Rai to three entities, Salasar Traders Nalgonda, Surya Mitra Traders Guntur and Maruti Impex at Chennai. The allegation against the applicant T. V. S. Maheshwara Rao is that he has not paid the full amount for the material dispatched by the sellers and received by the applicant T. V. S. Maheshwara Rao.
22. Learned counsel for the objectors have stated that about Rs.52,00,000/- is still pending payment out of a total of over rupees one crore of Tula Food Products Pvt. Ltd. In all, Rs.76,24,389/- is pending payment from the applicant T. V. S. Maheshwara Rao to the three sellers, which are Tula Food Products Pvt. Ltd., Singhai Trading Company and Badri Prasad Shankar Lal Nema. It is undisputed that over Rupees 40,00,000/- has been paid to Tula Food Products Pvt. Ltd. and likewise out of Rs.19,65,000/- worth of merchandise sold by the seller Badri Prasad Shankar Lal Nema, he has received approximately Rs.12,00,000/- and a little more Rs.7,00,000/- is still pending payment.
3. The undisputed facts which appear from the FIR and the statements of witnesses is that the three sellers, never directly interacted with the purchaser T.V.S. Maheshwara Rao. The consignments were always sent through the applicant Nitin Rai and the co-accused Vijay Rai to Salasar Traders, Surya Mitra Traders and Maruti Impex. It is also undisputed that there is no written contract in this case. Prima facie, the existence of a contract between the three sellers and the purchaser/applicant T. V. S. Maheshwara Rao, also appears suspect as they have never met the applicant T. V. S. Maheshwara Rao as per the records of the case. The element of consensus ad idem between the sellers the applicant T. V. S. Maheshwara Rao is missing. Both, the sellers and the buyer, have dealt with the middle-men/ applicant Nitin Rai and the co-accused Vijay Rai.
4. Learned counsels for the applicants submit that as and when informed by the applicant Nitin Rai and the co- accused Vijay Rai, the applicant T. V. S. Maheshwara Rao would transfer money into the accounts of the sellers through RTGS. It is also undisputed that there has never been any cash payments in this case.
35. Mr. Vasant Daniel, learned counsel, who appears on behalf of the sellers Tula Food Products Pvt. Ltd. and Badri Prasad Shankar Lal Nema, has argued with great vehemence that Maruti Impex, which the learned counsels appearing on behalf of the applicants states, does not belong to the applicant T. V. S. Maheshwara Rao, is actually run and managed by the applicant T. V. S. Maheshwara Rao. In support of this contention, the learned counsel for the objectors have submitted and also drawn the attention of this court to the documents like the ledger maintained by the seller Tula Food Products Pvt. Ltd. and Badri Prasad Shankar Lal Nema, which show the sales being made by them to Maruti Impex. The corresponding payments received by the complainants from the consignee is reflected in the bank accounts of the sellers Tula Food Products Pvt. Ltd. and Badri Prasad Shankar Lal Nema as having been paid by Surya Mitra Traders, a firm owned and managed by the applicant T.V.S. Maheshwara Rao. The issue raised by the learned counsels for the objectors is, that if the applicant T. V. S. Maheshwara Rao was not the Proprietor of Maruti Impex, then why did his firm Surya Mitra Traders make payments on behalf of Maruti Impex? To the said query posed by the Ld. Counsel for the objectors, the learned counsel for the applicants has submitted that the purchaser never dealt with the sellers directly and that the amounts were transferred from his (applicant T.V.S. Maheshwara Rao's) account in the name of Surya Mitra Traders as and when the middle- men/applicant Nitin Rai and the co-accused Vijay Rai asked him to do so and into such accounts as he was directed to by the applicant Nitin Rai and the co-accused Vijay Rai.
6. Learned counsel for the applicants have also submitted that if it was the intention of the applicants to hoodwink/cheat the sellers by making them believe that he 4 was the Proprietor of Maruti Impex, he would never have made payments through RTGS from the account of Surya Mitra Traders, which undisputedly belongs to him, as the same would be reflected while being credited into the account of the sellers. He has further submitted that in such a situation, the applicant would have made the payments through a demand draft so that the same cannot be traced to him. Under the circumstances, he submits that the reason why the name of Surya Mitra Traders is reflected in the bank accounts of the sellers is on account of genuine payments being made by the applicants herein under the instructions of the middle-men/applicant Nitin Rai and the co-accused Vijay Rai.
7. Learned counsel for the applicants have also placed before this court a very recent judgment of the Supreme Court in Dataram Singh Vs. State of Uttar Pradesh and another [arising out of SLP (Criminal) No.151/2018 delivered on 6.2.2018]. The said judgment is an enunciation on the principles governing grant of bail. The Hon'ble Supreme Court has observed categorically that an important facet of criminal justice administration in the country is the grant of bail being the general rule and the incarceration of a person in prison or a correction home as an exception. It has further observed that "unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated for longer periods. This does not do any good to our criminal jurisprudence or to our society". In paragraph 5, the Hon'ble Supreme Court has held "to put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this, including maintaining 5 the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Re- Inhuman Conditions in 1382 Prisons". In paragraph 7, the Hon'ble Supreme Court has clarified that it should not be understood to mean that bail should be granted in every case and that its grant or refusal is entirely within the discretion of the judge hearing the matter and though the said discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. In paragraph 8, the Hon'ble Supreme Court observes that it has been constrained to make these observations in the said appeal in which the grant of bail has not been opposed by the State, but there is vehement opposition by the complainant. The contents of paragraph 9 reflect that the facts in that case were quite similar to the present case where again the allegations against the appellant Dataram Singh, in the case before the Supreme Court, was of having cheated the complainant of an amount of Rs.37,00,000/- and thereby having committed an offence punishable under sections 419, 420, 406 and 506 IPC.
8. The hallowed and humane view of the Supreme Court, strongly in favour of liberty of the individual in matters relating to the grant or denial of bail, are not merely a guiding principle for this Court but also extends to the District Judiciary which also exercises the same power of grant or denial of bail u/s. 437, 438 and 439 Cr.P.C, as the High Court. The denial of bail by any Court, must be an exception exercised only in those cases where the material on record reveals a strong prima facie case, supported by direct evidence or by way of strong and credible circumstantial evidence of the accused having committed an offence that is "malum in se" or offences which are of 6 such nature which are inherently evil and shocks the human conscience and a more liberal view must be taken in offences which are "malum prohibitum" or acts which are offences on account of legislative sanctions alone.
9. In this case also, there is no justification that has been placed before this court by either the State or the learned counsels for the objectors as to how the continued incarceration of the applicants herein is expedient in the interest of justice. The applicants herein are in judicial custody for almost two months. The case, if at all sustainable, would be a case based upon documentary evidence.
10. Thus, the continued incarceration of the applicants herein, in a case which prima facie glows with elements of a civil/commercial transaction, in which substantial moneys have been paid by the applicant T. V. S. Maheshwara Rao, which has not been denied by the sellers, this Court is inclined to allow the applications and direct that the applicants T. V. S. Maheshwara Rao and Nitin Rai be enlarged on bail upon their furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each with one solvent surety each in the like amount to the satisfaction of the Trial Court.
Certified copy as per rules.
(Atul Sreedharan) Judge ps PRASHANT Digitally signed by PRASHANT SHRIVASTAVA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=ece48d19937645a6267b9b5ec6a49fcd15bfc0 SHRIVASTAV 4d16d24c3fe6b477bde7632d74, 2.5.4.45=032100BFC09C21F653197D5C6ABDD9407ED 291D50FA29DD7A75CB320970F5526F49C03, serialNumber=b50f9acd70429d8e2206a4dcf7d842519 A c8c350377a9375c8d8a94cf9dbc6def, cn=PRASHANT SHRIVASTAVA Date: 2018.02.15 11:04:40 +05'30'