AJAY VERMA Vs. STATE

JUDGEMENT

(1.) THE petitioner seeks bail after a period of five months incarceration in a case registered against him initially under Sections 406/420/120 IPC for which he was subsequently charge-sheeted under Sections 406/420/465/468/471 IPC.

(2.) THE background in which the case was registered against the petitioner is that the complainant M/s. Fabritex Exports Pvt. Ltd. had exported goods through this petitioner, who was operating as a buying agent and a middleman for bringing the manufacturers in contact with foreign importers. Sometime in the beginning of June, 2006, the petitioner contacted the complainant Company, which was facing a lean season and induced the complainant into entering into an export order for the export of cushion covers to Australia. Various meetings were held between the petitioner and the complainant at its office premises in which the petitioner impressed the complainant that not only was he in the business of acting as a buying agent, but he was also acting as a middleman facilitating export from India of several products, including garments to destinations all over the world and that he had a long standing and excellent relationship not only with foreign importers but also with banks and that, therefore, because of his involvement in any deal, payments would not be a problem and the deal would go through smoothly. Based on these representations, the complainant was induced into entering into a Memorandum of Understanding (MOU), which was drawn up at Delhi on or about 10th June, 2006 and the said Memorandum of Understanding was drafted by the petitioner. As per the aforesaid MOU, the goods were to be exported by the complainant to a company by the name of NEGO C8, who were stated to be interested in importing cushion covers worth 1.5 million dollars. The petitioner also undertook to source the fabric on behalf of the complainant Company for which payment was to be made by the complainant in favour of the supplier before the opening of the Letter of Credit itself. It was also stipulated in the MOU that before the opening of the L/C, the complainant Company will get 4,600 mts of base fabric of cushion covers worth Rs. 10,70,788/- and 3,100 mts worth Rs. 9,25,970/- for border fabric of cushion covers and accessories. As a counter guarantee, cheque No. 482478 dated 30th June, 2006 amounting to Rs. 32,10,000/- of Punjab National Bank was issued in favour of M/s. Fabritex Exports Pvt. Ltd. (the complainant) with the understanding that if the L/C was not arranged from the buyer till 25th June, 2006, then the complainant would be at liberty to encash the said cheque and will give the manufactured items out of 1,250 sets of cushion covers to the petitioner. If and when the L/C was opened in favour of the complainant, the guarantee cheque of M/s. Sirdanwal Overseas, the sole proprietary concern of the petitioner, would be returned back by the complainant to the petitioner. Total shipment time in the L/C was stipulated as 55 days with a validity of 70 days. The petitioner priced the fabric at Rs. 200/- for each cushion cover, whereas the inherent price of the fabric of each cushion cover was Rs. 40/-, on the misrepresentation that this was the so-called scarcity value of the fabric and that unless the fabric was available, the complainant could not fulfil the order. As per the MOU, the petitioner issued a post-dated cheque as a guarantee till the opening of the L/C and upon the opening of the L/C on 28th June, 2006, the said cheque was duly returned to the petitioner.

(3.) IT is also alleged that the petitioner got the L/C dated 28th June, 2006 opened by one Diversified Impex Corporation, 445 Fifth Avenue Suite # 30H New York Ny10016 USA issued by the First International Merchant Bank Ltd., Malta, Sliema for US $ 3,88,800/- which was subsequently enhanced by way of amendment to US $ 13,50,000/- on 14th July, 2006. By 30th June, 2006, tthe complainant Company had gone into production and the finished product was made available to the accused for inspection on 21st August, 2006. The complainant alleges that no defect was found in the goods at the time of inspection, but subsequently, after three days, on 24th August, 2006, some defects were pointed out. On the complainant Company taking up the matter strongly that the defects subsequently pointed out were not such as were contrary to the original product specification, however, the petitioner got the L/C amended with the delivery time extended from 20th August, 2006 to 5th September, 2006 and the L/C expiry time extended from 5th September, 2006 to 15th September, 2006. After that, on one pretext or the other, the petitioner kept delaying the inspection and finally inspected the goods, which were lying ready for re-inspection, between 28th August, 2006 and 1st September, 2006. On 15th September, 2006, again the goods were deliberately failed in inspection for no rhyme or reason. By this time, the L/C had already expired and the petitioner made it clear that he would not get the L/C extended and that the complainant would have to ship the goods on a credit period term of 120 days. The complainant Company thereupon approached the Export Credit Guarantee Corporation (ECGC) to obtain insurance cover for 120 days and was informed by ECGC that NEGO C8 had a bad history and hence they were not willing to give an insurance cover on NEGO C8. The matter was brought to the notice of the petitioner, who, in order to allay the suspicion of the complainant, informed the complainant that the Common Wealth Bank had agreed to handle collection bills on behalf of NEGO C8 and to endorse any shipment documents consigned to the said Bank by the suppliers of NEGO C8. Thereafter, the consignment was inspected and found 'ok' between 30th September, 2006 and 27th November, 2006 and eventually the goods were shipped on 9th December, 2006. Confirmation was received by the bankers of the complainant Company regarding the due date of payment as 14.05.2007 in the sum of US $ 13,24,560/-, but payment was never received. On verification, it was found by the complainant that the buyer had not taken possession of the goods and that the goods were still lying in the docks. Subsequently, the complainant Company received notice of voluntary liquidation of NEGO C8 dated 11.07.2007 calling a meeting of creditors of NEGO C8. It was also learnt by the complainant that NEGO C8 had applied for de- registration as early as 5th April, 2007. It was also learnt by the complainant that a similar modus operandi of cheating had been adopted by the petitioner with various other similarly situate garment manufacturers and exporters, such as, SM Apparels, 45A Main Road, Velacheri, Chennai 600 032; DKA Exports, 9, Cathedral Road, Chennai ? 600 086; R.K. Industries, Race Course Road, Guindy, Chennai? 600 032; Lakshmi Graha Apparels, SF No. 106/1, Arasur to Avinash NH 47 LPT Bus Stop Arsur, Coimbatore ? 641 047 and Myco Pranave Creations, VSM Villa, 59 Appachi Nagar Main Road, Tirupur ? 641 607.