Boaz Augustin v. The State Of Ap.,
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR CRIMINAL PETITION NO.12761 of 2015 ORDER :
The petitioners, who are accused Nos.1 and 7 in Crime No.173 of 2015 of Visakhapatnam IV Town Police Station, preferred the present application under Section 438 Cr.P.C. seeking release in the event of their arrest in connection with the above crime, registered for the offences punishable under Sections 420 and 120 (b) IPC.
The case of the prosecution is that the petitioners along with others canvassed that one BORG Energy India Private Limited is engaged in the business of installing solar projects in India and also in foreign countries. Accused Nos.4 and 5 approached the informant company in the month of February, 2014 and represented that the BORG Energy India Private Limited Company are experts in establishing SOLAR project and offered to establish solar project of 1 M.W. capacity in the informant company's land situated at Pandrangi Village for an estimated project cost of Rs.7.60 crores. Believing the promises made, the informant company entered into an agreement with BORG Energy Private Limited Company. As per the understanding, the informant company paid Rs.1.12 crores to BORG company by way of RTGS transfers of Rs.36.00 lakhs each on 31.03.2014 and 11.04.2014 respectively. Later the accused failed to fulfil their promise and stopped replying to the mails
and phone calls. After much persuasion, accused Nos.1 to 3 issued cheque dated 29.12.2014 for Rs.92,00,000/- and for Rs.20,00,000/- dated 25.11.2014 towards refund of advance amount, but the said cheques when presented were returned for want of sufficient funds. Enquiries made by the informant revealed that accused No.1 company cheated several other persons with the same modus operandi by taking crores of rupees as advance on false promises. Basing on these allegations the above crime came to be registered.
Heard learned counsel for the petitioners, Additional Public Prosecutor appearing for the respondent-State and also the learned counsel appearing for the informant, who got impleaded himself as party respondent.
Learned counsel for the petitioners mainly submits that the transaction is purely a business transaction. He further submits that as the informant failed to comply with the terms and conditions of the agreement by paying the balance of amount, the material could not be delivered. It is urged that since it is only a breach of agreement, the ingredients constituting the offences punishable under sections 420 and 120 (b) IPC are not made out.
On the other hand, learned counsel for the informant, who got impleaded himself as party respondent opposed the application contending that all the ingredients constituting offences punishable under Sections 420 and 120 (b) IPC are
made out. He further submits that under the guise of business transaction, the petitioners are cheating number of people in different parts of the country. He not only placed on record the crimes registered against the petitioners but also took me through the contents of various crimes which were registered in different parts of the country to show their modus operandi.
Learned Additional Public Prosecutor opposed the application contending that the order of stay of arrest has been misused by the petitioners and that they are not cooperating with the investigating agency. A perusal of the docket orders would show that on 21.12.2015 this Court directed the police not to arrest the petitioners. The Additional Public Prosecutor submits that the said order came to be passed only with a view to facilitate the petitioners to compromise the matter with the informant. It is stated that neither any effort was made by the petitioners to get the matter settled nor did they co-operate with the investigating agency by appearing before them. Though at first blush, the transaction appeared to be a business transaction, but a close perusal of the averments made proved to be otherwise. The averments in the report and the case dairy would show that a false promise was made to establish solar project in the company of the informant and accordingly received Rs.1,12,00,000/- towards advance. After receiving the said amount, the
petitioners failed to fulfil their promise and started evading the informant. The record further shows that after much persuasion the petitioner issued cheques for Rs.92,00,000/- and Rs.20,00,000/- towards refund of the advance amount, but the same were returned un-paid due to insufficiency of funds.
Learned counsel for the petitioners further refers to the statement of account issued by the Central Bank of India show that the amount received from the informant has been sent to the person, who was supposed to deliver the goods, but the same in my view appears to be incorrect for the reason that on 01.10.2013 the BORG company received Rs.85,00,000/- but there is no debit entry showing transfer of the money to the supplier.
As held by the Apex Court, a breach of contract would amount to cheating where there was a deception played at the very inception. The circumstances referred to above clearly indicate the same.
The material further discloses that earlier the petitioners herein filed W.P.No.19779 of 2015 seeking quashing of the proceedings in Crime No.173 of 2015 of Visakhapatnam IV Town Police Station. In the said writ petition, there was an interim order dated 01.07.2015 for six weeks which was not extended after as the respondent therein filed an application for vacating the interim order. Since the interim order is not extended in the writ
petition, the petitioners preferred the present Criminal Petition seeking release in the event of arrest. The material on record also shows that number of crimes registered against the petitioners. The details of which are as under:
1. Crime No.37 of 2015 of Bhimavaram II Town Police Station, registered for the offences punishable under Sections 420 and 406 IPC.
2. Crime No.31 of 2015 of Madhurai District Crime Branch, registered for the offences punishable under Sections 323, 406, 417, 420 and 506 IPC.
3. Crime No.15 of 2016 of Banjara Hills Police Station, Hyderabad, registered for the offences punishable under Sections 420 and 406 IPC.
4. CSR No.910 of 2015 of Abhirampuram Police Station.
5. Crime No.54 of 2015 of Madhurai District Crime branch.
Since the ingredients constituting the offences alleged are prima facie made out and in view of the registration of number of crimes against the petitioners in different parts of the country and having regard to the nature of offence committed, I am not inclined to grant anticipatory bail to the petitioners.
Accordingly, the Criminal Petition is dismissed. Miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
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JUSTICE C. PRAVEEN KUMAR 09.03.2016 gkv