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MHNS010039152022
Order below Exh. 1 in Criminal Anticipatory Bail
Application No. 937/2022.
1.

This is an application for anticipatory bail under section 438
of Cr.P.C. in C.R.No. I­259/2022 registered against applicant Smt. Pushpa
Vilas Shinde at Panchvati Police Station for the offence punishable under
sections 420, 406 r/w section 34 of the Indian Penal Code.

2.

In short, the applicant submit that she along with her
husband are conducting the business of fruits and vegetables since
20 to 25 years. Two shops are purchased in her name at
Sharadchandra Pawar Market Yard. In the year 2021­2022 her
husband purchased fruits and vegetables and was to sent to North
India, however, suddenly lock­down was declared and the vegetables
got rotten in the vehicle itself due to which various traders sustained
loss. The shops are in the name of applicant due to which offence is
registered against her.
agriculturist.

She has never purchased vegetables from
Applicant’s husband has paid many farmers whose
vegetables have been destroyed. Time and again applicants husband
requested the Market Yard Committee to give the agriculturist
Rs.8,00,000/­ which was given as security and deposit. Applicant
husband has given amount by cash or through bank witness no. 11
and 15. Whereas cash amount has been given to witness no. 5, 2, 4
for which they have taken security by misleading to agriculturist.
Complaint has been lodged against the present applicant that her
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husband has not paid Rs.16,24,222/­ to agriculturist. The market
yard committee has not cooperated in returning the money to the
agriculturist and offence is registered against her.
criminal antecedents.

There are no
She is ready to abide by the terms and
conditions, hence, prayed that application is allowed.
3.

Say was called of Investigating Officer he has objected
this application on the count that by keeping faith the agriculturist
have sold their tomato’s and cheated them. 21 agriculturist gave
receipts totaling to Rs.29,00,435/­ which amount has to be recovered
from the applicant. Investigation is at preliminary stage. There is
possibility that the numbers of agriculturist will increase. They have
to enquire whether other agriculturist are cheated. Applicant is
absconding since registration of offence. If applicant is released on
bail the amount of the agriculturist will not be recovered. They have
to inquire whether from the cheated amount applicant has purchased
immovable property. Hence, prayed that application be rejected.
4.

Heard Learned Advocate for the applicant and Learned
APP for the State. It is contended by the Advocate for the applicant
that husband of the applicant purchased the shop in the name of the
applicant to obtain rebate. She has no role to play in purchasing the
tomato’s from the agriculturist. There was no intention to cheat the
agriculturist, however, due to sudden lock­down the goods got
rotten.

Hence, prayed that bail be granted.

contention he has relied upon :­
In support of his
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1)
Priyatam Sen Vs. Kanchan Prasad. Reported in 2003
ALL MR Page No. 12 wherein Hon’ble Court has held that,
averments do not show that petitioner had dishonest intention at the
time of placing the order. It is well known that mere breach of
contract cannot give rights to criminal prosecution under section 420
of IPC unless fraudulent or dishonest intention is shown right at the
beginning of the transaction.
2)
International Advance Research Center for Powder
Metallurgy and New Materials Vs. Nimra Cerglass Technics (P)
Ltd., Reported in 2015 ALL MR (Crimes) 4101 wherein the
Hon’ble Court held that whether alleged act of accused is mere
breach of contract or cheating depends upon intention of accused at
the time of alleged inducement.
Perused both the citations. It is seen that first citation is
with respect to quashing of the FIR which was initiated under section
138 of N.I. Act r/w section 420 of IPC. Whereas the second citation
is with respect to appeal preferred against rejection of quashing og
criminal proceedings and in those circumstances the observation
were made. However, present application is for anticipatory bail,
hence, at this stage both the citations will not applicable.
5.

On perusing the FIR it is seen that as per the rules of
Market Yard Committee commission agent after weighing the
vegetables, fixed the price and it is his responsibility to make the
payment to the agriculturist. It is also seen that the agriculturist
demanded the amount, however, they denied which led to filing of
the complaint.

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6.

On considering the say of investigating officer it clearly
reflects that the agriculturist to whom payment is to be made has
increased from Rs.16,24,222/­ to Rs. 29,00,435/­.

There is also
possibility that the amount will increase further. Investigating officer
has categorically stated that recovery has to be made as well as
inquiry has to be made about purchase of immovable property from
the cheated amount. Applicant is the commission agent of
Sharadchandra Pawar Market Yard Committee even though she is
not dealing with the business directly her responsibility towards the
agriculturist cannot be avoided. Though it is contended by the
applicant that they have informed the committee to divert the
deposit amount to the agriculturist however they failed to do so.
Except for contending the same there is nothing on record to reflect
that applicant has directed the Market Yard Committee to transfer
the amount to the agriculturist, hence, mere contention cannot be
considered. Nothing has been brought to reflect that applicant has
been falsely implicated in the crime.

All these factors reflect the
involvement of the applicant for which custody is essential. Thus,
considering the nature of allegations, prima­facie case is not made
out by applicant for grant of pre­arrest bail. Hence, I pass the
following order :­
ORDER
Application is hereby rejected.

Nashik.
Date : 30/07/2022.

Sd/­xxx
(V.S.Malkalpatte­Reddy)
Additional Sessions Judge,
Nashik.