HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL…
Released on bail in Rs.10,000/- each with sureties, reporting twice in a week for six months.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 4683 OF 2009
with
CRIMINAL APPLICATION NO. 4684 OF 2009
Shri Suresh T. Bagadia...Applicant
vs.
The State of Maharashtra...Respondent
Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.Shreeram
Shirsat for the Applicant.
Mr.Hemang Jariwala with Mr.Mahesh Pol i/b.
M/s.Auroma Law for the Intervenor.
Mr.S.A. Shaikh, APP for the State in Cri.Appln.No.
4683/2009.
Mr.J.P. Kharge, APP for the State in Cri.Appln.No.
4684/2009.
WITH
CRIMINAL APPLICATION NO. 4605 OF 2009
Shri Haresh T. Bagadia...Applicant
vs.
The State of Maharashtra...Respondent
Mr.A.P. Mundargi, Sr.Counsel i/b. Mr.Shreeram
Shirsat for the Applicant.
Mr.Hemang Jariwala i/b.M/s.Auroma Law for the
Intervenor.
Mrs.P.P. Shinde, APP for the State.
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CORAM : V.M. KANADE, J.
DATED : DECEMBER 4, 2009
P.C. :-
1Heard the learned Senior Counsel for the
applicants and the learned Counsel for the
complainant and the learned APP for the State.
2The applicant in Criminal Application Nos.
4683 and 4684 of 2009 has been arrested on 25th June,
2009 when he surrendered himself to the D.B. Marg
Police Station. The applicant in Criminal
Application No.4605 of 2009 was arrested on 11th
September, 2009 by the V.P.Road Police Station.
Charge sheet has been filed in both these cases.
3The prosecution case is that the
complainant who is a diamond merchant had entrusted
diamonds to both the applicants on two different
occasions. The complainant had entrusted diamonds to
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Suresh Bagadia who is a broker working in the
diamond market and according to the complainant, he
had signed on a receipt which is known as Zangad
receipt and according to the practice which is
prevailing in the market, the original is given to
the broker who received the diamonds and carbon copy
is retained by the diamond merchant. According to
the Advocate for the complainant, the practice in
the diamond market is that the brokers are given
diamonds and the zangad receipt is signed by them
for the purpose of proving entrustment of diamonds
and thereafter, the said brokers keep these diamonds
in a packet and show them to number of customers. If
the diamonds are purchased by those customers, in
that event, the purchaser contacts the diamond
merchant who directly enters into a sale contract
with the purchaser and the broker�s zangad receipt
is then torn out. According to the complainant, in
the first case, diamonds worth Rs.1,46,00,000/- were
given to the broker Suresh Bagadia who signed the
zangad receipt and retained the original and xerox
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copy was retained by the diamond merchant and on the
second occasion, on 20th May, 2009, another stock of
diamonds was given to Suresh Bagadia who also
executed another Zangad receipt. So far as the
other accused Haresh Bagadia who is also broker in
the diamond market is concerned, he was given
diamonds worth Rs.20 lakhs, however, no zangad
receipt was signed by him. It is the case of the
complainant that Suresh Bagadia had signed on two
zangad receipts and diamonds worth Rs.1,46,00,000/-
and in the second, Rs.46 lakhs worth of diamonds
were given. According to the complainant however,
the broker Suresh Bagadia disappeared after 21st May,
2009. A missing complaint was filed. An FIR was
registered in both the cases on 6th June, 2009. A
private complaint was registered in the 18th Court,
Girgaon, on 1st June, 2009 and an order was passed
under Section 156(3) of the Cr.P.C. and as a result,
MECR was registered on 6th June, 2009 by the D.B.
Marg Police Station. During the course of
investigation, one suicide note was recovered from
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the house of Suresh Bagadia in which he has
allegedly stated that if something untoward happens
to him, the five diamond merchants whose names he
has mentioned in the suicide note should be held
responsible. Suresh Bagadia surrendered to D.B. Marg
Police Station on 25th June, 2009 and Haresh Bagadia
was arrested on 11th September, 2009. Both the
accused were remanded to police custody and
thereafter, transferred to the judicial custody. No
recovery, however, has been made at the instance of
the present applicants. Charge sheet thereafter has
been filed.
applicants submitted that besides zangad receipt,
there is no other material on record to show
involvement of the present applicants. He submitted
that the applicants have not received the diamonds
as alleged by the complainant and therefore, there
was no question of misappropriation or conversion of
the said diamonds by the applicants herein. He
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submitted that in any case, in the first complaint
which was filed, no reference is made about other
witnesses having seen the diamonds being entrusted
to the applicant Suresh Bagadia and in the case of
Haresh Bagadia, no zandad receipt had been signed
and thirdly, there was no witness. He submitted that
however, subsequently, statements of certain
witnesses have been recorded who claimed that they
had seen the said diamonds being entrusted to the
two applicants. He submitted that the zangad receipt
which has been produced is not the original zangad
receipt but is the carbon copy and it is submitted
that the said signature does not belong to the
present applicant Suresh Bagadia. It is submitted
that since the charge sheet was filed, further
detention of the applicants in judicial custody is
not required and it is, therefore, submitted that
both the applicants may be released on bail.
5The learned Counsel for the complainant, on
the other hand, vehemently opposed the application
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for bail filed by both the applicants. He submitted
that it is a practice which is followed in the
diamond market of handing over the diamonds to
brokers and zangad receipt is executed and a copy is
retained by the diamond merchants. He submitted that
on few occasions on trust, the diamonds are given to
the brokers and even, no zangad receipt is signed.
He submitted that the Handwriting Expert�s opinion
was obtained by the complainant who has opined that
the signature on the zangad receipt is that of the
applicant Suresh Bagadia after the Handwriting
Expert compared the signature on the suicide note
executed by the applicant Suresh Bagadia. He
submitted that therefore, this is not a fit case for
grant of bail. The learned APP also admitted the
submission made by the complainant.
6In the present case, charge sheet has been
filed. No recovery unfortunately could be made at
the instance of the present applicants though they
were in custody in police for two weeks and
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thereafter, in judicial custody. The entire case of
the complainant hinges primarily on the zangad
receipt which is allegedly signed by the applicant
Suresh Bagadia. Though some witnesses now have given
their statements that they had seen the diamond
merchant - the complainant handing over the
diamonds, admittedly, in the first complaint before
the Magistrate, no such mention has been made about
the diamonds being handed over in the presence of
any other person. Under these circumstances,
therefore, in that event, entrustment of the
diamonds is not established by the complainant, the
applicant then may be entitled to get the benefit
of doubt since the case hinges on this slender
thread and unless entrustment is established, the
police may not be in a position to prove the case
against the applicants herein. Under these
circumstances, therefore, custodial detention of the
applicants in jail for an indefinite period of time
is not warranted since the applicants are permanent
residence of Mumbai and they are diamond brokers and
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they have their families in Mumbai and they are not
likely to abscond.
7The applicants, therefore, be released on
bail in the sum of Rs.10,000/- each with one or two
sureties each in the like amount. They shall,
however, report to the DB Marg Police Station twice
in a week for a period of six months and thereafter,
once in a week till the pendency of the criminal
case. The applicants shall not try to tamper with
the evidence. The trial, however, is expedited. The
learned Magistrate is directed to decide the case,
as expeditiously as possible. The trial Court shall
not be influenced by any observations made by this
Court in this order since these observations are of
a prima facie nature.
8 Applications are disposed of.9S.O. to 14th December, 2009 for directions.
(V.M. KANADE, J.)
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3 issues framed by the court
Whether the entrustment of diamonds to the applicants is established on record.
Whether custodial detention of the applicants for an indefinite period is warranted given the单薄 prosecution case.
Whether bail for the applicants should be granted subject to reporting conditions.
1 provisions across 1 enactments
Shri Suresh T. Bagadia
Shri Haresh T. Bagadia
The State of Maharashtra
V.M. KANADE
J.
As recorded by the court registry
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