Decided on November 07,2007

SAURABH Appellant


SHIV NARAYAN DHINGRA, J. - (1.) THIS application for bail has been made by the accused who is involved in an offence under Section 420 read with Section 34, IPC. Accused along with his brother and father is alleged to have cheated the complainant of Rs. 36,70,523/ - between 9.2.2007 and 10.4.2007.
(2.) THE complainant has been doing business of selling and purchasing garments in the name of 'Shri Mahalaxmi Industry S Idquo' in Delhi. The accused's mother and complainant's mother are real sisters and, thereforee, the complainant and accused are closely related to each other. Complainant stated in the complaint that the accused persons came to him and told that they have been doing work of garments in the name of Sandeep Enterprises, Bhilwada and they wanted to include complainant in the business and they will sell the garments of the complainant in Bhilwada and he would earn profits. Complainant trusted the accused persons because of relationship. Complainant sent goods to the accused persons on credit against receipts and bills between 9.2.2007 and 10.4.2007 worth Rs. 36,70,523/ -. The goods were asked from time -to -time by the applicant, his brother Sandeep Toshniwal and his father Satyanarayan Toshniwal. The complainant was assured that he would be paid the price of the goods very soon and he should trust them. Complainant stated in the complaint that the present applicant, his brother and father have been persuading him to send the goods. A cheque for Rs. 11,74,000/ - was also given towards part payment of the goods drawn on ICICI Bank. The cheque got bounced because of insufficient funds. The complainant in order to talk to the applicant and other two accused persons, went to the address of the firm and learnt that there had been no firm in existence at the given address at any point of time and the applicant, his brother and father had hatched up a conspiracy to cheat the complainant. Complainant then tried to contact the accused persons but without success. Thereafter he made a complaint in June 2007 to the police. The police alter receipt of the complaint took action and investigated the matter and found that the accused along with his brother and father had cheated the complainant of more than Rs. 36 lakh. The accused was apprehended. His brother Sandeep Toshniwal could not be apprehended as he absconded. It is argued by the learned Counsel for the applicant that the applicant has been falsely implicated. He had nothing to do with the business of his brother and father, and he was a student regularly going to college. The allegation against him is that he talked to the complainant at telephone only and there is no allegation of cheating against the applicant.
(3.) ON these averments, Counsel for the applicant was asked to place on record the documents showing that the accused was regularly attending the college. The documents filed by the Counsel show that the accused was only a student of distance learning and he was not going to any college or school. The accused was very much involved in the business along with his father and brother. The accused, his brother and father, all the three have been inducing the complainant to send his goods to them by falsely and fraudulently representing that they were in the business of selling garments. The investigation show that the applicant, his brother and father look goods worth more than Rs. 36 lakh from the complainant taking benefit of relationship and making false assurances to the complainant. In between a cheque was issued, so that complainant may continue sending goods. The cheque got bounced as there were no funds in the account. From the entire circumstances, prima facie it is apparent that from the very beginning the applicant was involved in a conspiracy to cheat the complainant and the three together cheated the complainant of more than Rs. 30 lakh within a span of two months. None of them is prepared to pay back a single paisa to the complainant. The cheque of Rs. 11,74,000/ - has also been dishonoured. Even that amount has not been offered to the complainant.;

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