( Exh.1) :: 1 :: Anticipatory Bail Appln. No.1152/2022 Anticipatory Bail Application No.1152/2022
Mr.Anil Vasudeo Khemani and other three .. Applicants/accused
Vs.
State of Maharashtra (P.I. Bhadrakali Police Station) .. Respondent.
ORDER BELOW EXH.1
1] This bail application is filed u/s.438 of Cr.P.C. in C.R. No.275/2022 for the offence punishable u/s.406, 420 r/w. 34 of Indian Penal Code registered at Bhadrakali Police Station.
2] The facts of the prosecution case is summarized as follows :
The complainant alleged that he is area distributor of the Realme Mobile Company at Aurangabad. On 5th March, 2020 a welcome e-mail from the Director of Eagle Electronic Indian Pvt. Ltd. (hereinafter called as ‘said company’) Mr.Anil Khemani. The said email was also sent to Mr.Shrinath Ahirwadkar, accused no.5 who works as an employee in the said company. He came to know that all of the directors of said company were working as Zonal Distributor.
He transferred amounts pertaining to the purchase from the account maintained by his firm with the Bank of Baroda bearing A/c.No.04600500000558 to the account of applicants’ company’s current account held with the Axis Bank bearing A/c. No.920020020217083. Likewise he used to receive goods that was purchased. The director of the said company i.e. applicant no.1 asked him to increase his business in order to earn good money. Therefore, the complainant through Supermoney Finance increased his limit to an amount of Rs.35,00,000/-.
3] It is further alleged that applicant no.1 without taking any consent from the complainant; transferred an amount of Rs.12,64,754/-, Rs.10,51,181/- Rs.10,84,065 on 01.07.2022 in his bank A/c.No.92003004381211. Applicant no.1 had sent him some portion of the product. Complainant objected for transfer of the amounts without consent; on which he assured that he will give huge
profit subject to payment of 80 to 90 lacs in his account. Accordingly, complainant transferred Rs.70,08,010/- in the account of applicant no.1 held with Axis Bank bearing No.920030043812411 on
22.07.2022. The applicant no.1 did not sent any goods/products. On communication to Aurangabad Rural Distributor Mr.Chhajed. He informed to the complainant that applicant no.2 has also told him
that Realmi Mobile Telecommunication Corporation Ltd. is not releasing goods/products and that he has paid Rs.96,83,820/-. Thus, complainant and Mr.Paras Chhajed inquired with the all distributors
coming under the applicant company inquired with them and all of them inquired with Realme Mobile Company National Head Mr.Deepak Nakra who informed that Realme mobile company has revoked bank guarantee given by applicant company and asked to meet them personally. On 14.09.2022 when all of them went to Mumbai and met Mr.Deepak Nakra, who informed that they have cancelled the agreement with the applicant’s company. All of them went to the house of applicants at Nashik. But they did not found to them and acknowledged that applicants no.1 to 4 in-furtherance of common intention with accused no.5 Manager committed breach of trust and thereby misappropriating huge amount in order to cheat various area distributors and complainant for the tune of Rs.4,06,08,216/-. Accordingly, offence registered under the aforesaid sections.
4] The case of the applicants’ is that applicant no.1 is a person who is responsible for day to day management and affairs of the said company as a Managing Director. Accused no.5 was helping applicant no.1 as a manager since 2013. Applicant no.3 and 4 have resigned from the company as a Board of Director as on 14.08.2022. The same were accepted and the information was made over to the
ROC. It is concocted story He has denied allegation of communication with Paras Chhajed and his wife applicant no.2. Bank guarantee which were provided by said company to the manufactures were also foundation for his own secured creditors to provide scheme with the credit facility which was used by him to carry out his businesses. Due to the Covid-19 pandemic he faced serious liquidity crises. He has carried out business of Rs.35,92,13,597/- till date with the complainant subject to deposit by complainant of Rs.1,24,53,000/- to the said company. Applicant no.1 has maintained his ledger and documents sincerely. The money received by all concern have been accounted for. This is false
complaint of the complainant alongwith six area distributors.
5] I have heard Ld.Adv. Shri.Bhate for the applicants/accused who pithily submitted that Eagle Electronic Indian Pvt. Ltd. is a Maharashtra wholesale distributor for Realme Mobile Company. Already bank guarantee was given to the Realme Company as well as Jio Company. The issue arises due to the
liquidity crises and nothing else. Applicants have given credit note against interest and supplied all goods as per requirements of area distributor till August, 2022. They are the reputed person of society
and they will abide the conditions.
6] I have heard Ld. APP Smt.Aparna Patil, who pithily submitted that despite of revoking bank guarantee by Realme company, no intimation was given to area distributor including
complainant. By inducing to pay more interest they have received huge amount from all area distributor. Hence, objected to grant pre-arrest bail.
7] Ld. Adv. Shri.Pratik Kalantri for original complainant and for Mr.Suyog Kalani, Mr.Soni, Mr.Suhas Unawane. He vehemently submitted that the transactions with the Realme company were terminated since 24.07.2022. Bank guarantee of the Realme company withdrawn on 5.9.2022. Applicants’ never paid GST and income tax.
8] I have also heard Adv. Chandak holding for Mr.Bhate, who submitted that they are ready to settle the dispute and accordingly pursis is filed that after settling the account applicants will pay the amount to the complainant and other victim.
9] Heard both side at considerable length. Perused application and say filed by the investigation agency. Perused all documents, ledger accounts etc. Perused say filed by the original complainant.
10] I have gone through the say filed by the prosecution which reveals that applicants in-furtherance of common intention induced all the area distributors to pay huge amount for purchasing the mobile phones/goods. Instead of supplying the goods they have misappropriated huge amount to the tune of Rs.4,06,08,216/-. It is also stated that custodial interrogation is required to ascertain the cash flow and nexus between the overt-act and all applicants. It is also necessary to inquire with the applicants regarding the transfer of various amounts from their accounts to other accounts and also property purchased if any from the said fund.
11] Ld. Adv. Chandak submitted that accused are ready to pay the amount after settlement of the dispute. I have gone through the FIR which prima-facie reveals that despite of knowledge that the
transactions in view of the agreement between the Realme Mobile Company and Eagle Company has been terminated since 24.7.2022, no such intimation has been given by the applicants. It is true that
the applicant no.3 and 4 are old aged person and they have resigned from the Directorship by submitting resignation alongwith E-form to the ROC. But after minutely assessing the dates it reveals that the transaction were stopped from 22.7.2022 and the resignation were submitted to the Egal Company on 14.8.2022. It is nothing but the malafide intention of accused no.3 and 4 to avoid any type of criminal litigation and to avoid the responsibility from the clutches of various area distributors. Therefore, I am not agree with the arguments advanced by Ld. Adv.Bhate for the applicants that
applicant no.3 and 4 are ousted from the responsibility as a director from the said company. It is also suspicious act on the part of the directors as they never take pains to resign in between 5th March
2022 i.e. date of transaction till termination of transaction i.e. 24.7.2022. It is to be noted that despite of revoking bank guarantee of huge amount by Realme company, no such intimation has been given by the applicants to complainant and other victim. This overt-act is a suspicious conduct of all the applicant which shows malafide intention since inception to cheat and deceive the complaint and other victims. Today, all the area distributors present in the Court and vehemently submitted that they are suffering at the instance of the applicant for huge amount in crores at the fault of applicants. Prima-facie after minutely scrutinizing all the ledger account and the documents filed by both the party it seems that huge amount has been entangled in this case where the allegations levelled of breach of trust. To unveil truth to find out the cash flow of money transaction, to find out the overt-act with intention to deceive and to find out the reason for not intimating the withdrawal of the bank guarantee (of Rs.7 Crore). I am of the considered opinion that physical custody of all applicants/accused is essential.
12] Ld.Adv. for the intervener has placed reliance on Nikhil Roy Vs. State of Maharashtra, Laws (Bom) 2020-7-161, wherein it is bserved by the Hon’ble Bombay High Court that, “the Hon’ble Apex
Court in a catena of decision has held that, discretionary power to grant pre-arrest bail in economic offences should be sparingly exercised taking into consideration the facts of the case.”
It is also held in P.Chidambaram Vs. Director of Enforcement by judgment dated 5.9.2019, in which Hon’ble High Court held that, “power under Section 438 of Cr.P.C. beibng an extra- ordinary remedy, has to be exercised sparingly, more so, in cases of economic offence. Economic offence stand as a different class as they affect the economical fabric of the society.”
13] Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which
might have been concealed. Hence, considering the above discussion, in a serious economic offence where custodial interrogation is necessary. Hence, I pass following order –
O R D E R
1) Bail Application below Exh.1 is rejected being devoid of merits.
2) Criminal Bail Application accordingly disposed off.
(Dr. U. J. More) Date : 22.09.2022. (I/c.) Additional Sessions Judge, Nashik.