IMPORTANT POINT
The right to default bail under Sec. 167(2) of the Cr.P.C. is an indefeasible right, and the applicability of Sec. 409 of the IPC, which includes life imprisonment, necessitates adherence to the 90-day limit for filing the charge-sheet.

JUDGMENT/ORDER

1. By this application, the applicants who have been arraigned as accused in connection with First Information Report (FIR) No. 28 of 2023 registered with Economic Offences Wing (EOW), Unit VI, Crime Branch, Mumbai for alleged offences punishable under Ss. 406, 409, 420 read with 120-B of Indian Penal Code (IPC) claims an indefeasible right accrued in favour of the applicants under Sec. 167(2) of the Code of Criminal Procedure (hereafter "Cr.P.C.", for short) for default bail.

2. The complainant lodged FIR No. 28 of 2023 dtd. 05/07/2023 alleging as under:

The applicant - Parth Kashinath Jadhav is the Director of M/s. Royal Agro Mart Pvt. Ltd. The complainant - M/s. K.G. Invest Company is based in Kyrgyzstan, placed an order with the applicant's company for the supply of S-30 sugar in package of 50 Kgs. PP- bags of the crop year 2021-2022 @ USD 520/- per MT which aggregates to USD 62, 400/-. The complainant remitted USD 30, 00, 000/- on or about 15/06/2022. The allegation is that the applicant's company did not export any sugar and at later point of time returned back USD 10, 00, 000/- to the first informant company on 20/09/2022. The applicants and other accused came to be arrested on 05/07/2023 at 5.30 p.m. and they were produced in the Court of learned Metropolitan Magistrate's 47thCourt at Esplanade, Mumbai, on the following day. On 06/07/2023, the applicants were remanded to police custody till 11/07/2023 which was later extended.

3. According to Shri Jha, learned counsel for the applicants, the maximum period to file the charge-sheet would be 60 days. Despite the applicants being charged under Sec. 409 of IPC, the charge-sheet still would be required to be filed under Sec. 167(2)(a)(ii) of Cr.P.C. within 60 days as a minimum sentence of 10 years as provided under Sec. 167(2)(a)(i) is not applicable to Sec. 409 of IPC, as it is a discretion of a Court of Magistrate to impose the punishment. It is submitted that the Court of Magistrate in view of Sec. 29(1) of Cr.P.C., even if the case is tried before the Chief Judicial Magistrate and/or Chief Metropolitan Magistrate does not have the power to impose sentence of more than 7 years. It is submitted that the applicants are being prosecuted in a case which is triable by the Court of Magistrate.

4. Shri Jha submitted that the charge-sheet should have been filed within 60 days from the date of arrest i.e. on or before 04/09/2023. The applicants, therefore, filed applications to enforce their indefeasible right under Sec. 167(2) of the Cr.P.C. to get default bail on 11/09/2023. It is further submitted that the Additional Chief Metropolitan Magistrate rejected the applications on the ground that Sec. 409 of IPC provides for imprisonment for life or imprisonment for either description for a term which may extend to ten years. The applicant filed applications in the Sessions Court, Mumbai, seeking grant of default bail under Sec. 167(2) of Cr.P.C.

5. Shri Jha submitted that the learned Magistrate failed to comprehend the twofold issue raised, in as much as (i) Sec. 409 of IPC cannot be pressed into service because of the transaction between the parties being that of buyer and seller and there is no 'entrustment of property' as is the requirement under Sec. 409 of the IPC and (ii) assuming that Sec. 409 of the IPC is applicable, then also, the period for filing the charge-sheet is 60 days and not 90 days.

6. Shri Jha further submitted that the transaction was pure and simple in nature in which the complainant had placed an order with the accused company which is in the nature of sales/purchase and assuming there is a breach of contract, the remedy is to either approach the arbitrator or file proceedings in the Civil Court. It is submitted that Sec. 409 of IPC can not be pressed into service as the applicants are not an entity specified by Sec. 409 which is sine qua non for applicability of Sec. 409 of IPC. It is, therefore, submitted that Sec. 409 of IPC is not attracted.