1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL APPLICATION NO.: 2708 OF 2009 Bapusaheb Sahadu Kothule Versus State of Maharashtra and another *** Mr. V. D. Hon, Advocate for the Applicant. Mr. K. M. Suryawanshi, A.P.P. for the Respondent/ State. *** CRIMINAL APPLICATION NO.: 2770 OF 2009 Kisan Bhaurao Berad Versus The State of Maharashtra and another *** Mr. V. D. Hon, Advocate for the Applicant. Mr. K. M. Suryawanshi, A.P.P. for the Respondent/ State. *** CRIMINAL APPLICATION NO.: 2808 OF 2009 Kaccheshwar Ramji Bhabad Versus The State of Maharashtra. *** Mr. P. D. Bachate, Advocate for the Applicant. Mr. K. M. Suryawanshi, A.P.P. for the Respondent/ State. *** CRIMINAL APPLICATION NO.: 2810 OF 2009 Vijaysing S/o Kisansing Pardeshi Versus The State of Maharashtra. *** 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Mr. P. D. Bachate, Advocate for the Applicant. Mr. K. M. Suryawanshi, A.P.P. for the Respondent/ State. CORAM: K. U. CHANDIWAL, J. DATED: 11th SEPTEMBER, 2009. 1. The accused/ applicants seek discretion in terms of section 438 Cr.P.C. in Crime No.229 of 2009 registered at Tofkhana Ahmednagar Police Station for offence under sections 420, 408, 409, 418, 468, 471, 472, 474, 477 read with 34 of IPC. 2. The accused/ applicant Bapusaheb (2708 of 2009) is Vice Chairman of the Sangh and also a Managing Committee Member. The accused/ applicant Kisan [2770 of 2009] was a Vice Chairman for a period from 10th January, 2006 to 24th November, 2006. The Accused/ applicant K. R. Bhabad [2808 of 2009] was the General Manager, claims to have resigned on 31st March, 2006. The accused/ applicant Vijaysing Pardeshi [2810 of 2009] was the Chairman of the Doodh Sangh. The 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. respective counsel representing the accused/ applicants thoroughly took me to the provisions of Maharashtra Cooperative Societies Act, 1960 and Rules, 1961. However, at this stage, without criticising on the role in terms of section 81, 82 action under section 88, the fact remains in terms of section 88 (3) of the said Act, it being an non- obstante clause there is no inhibition in initiating criminal prosecution. Consequently, the submissions of audit report, its defect, its purity are taken away. 3. Then comes the situation of preferring appeal to the learned Minister. However, the very order itself indicate that the stay to the auditor's report was for a specified period of fifteen days and counsel could not inform that there is any continuation of stay from any of the competent authority. Thus, the earlier statements made by the respective counsel, at the time of interim protection, is negatived. 4. So far as Accused/ applicant Bapusaheb 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Kothule is concerned, at Exhibit-B, page 37, is the copy of resolution dated 22nd Dece3mber, 2004 which needs consideration. Bapusaheb was the Vice Chairman for the period from 10th January, 2006 to 24th November, 2006. This resolution indicate that he has shown in inability to act in terms of Sub-rule 21.1.3 and 21.1.4 and consequently it was resolved that he will not be able to sign the cheques and other correspondence of the Doodh Sangh, and it followed that the powers were delegated to the Chairman Vijaysing [2810 of 2009] and General Manager of the Sangh K.R.Bhabad [2808 of 2009]. Bapusaheb, as appears from the pleading, is 80 years old. In the light of what is stated above, he had remained to be simply a Director without any activities in the administration of the Doodh Sangh. He could not be defined to be in-charge of the Chilling Plant where the major chunk of misappropriation has surfaced. Consequently, I find custodial interrogation of 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Bapusaheb Kothule, the Vice Chairman, is not warranted. 5. Then comes Kisan Bhaurao Berad, the another Vice Chairman. His period is stated to be from 10th January, 2006 to 24th November, 2006. However, he was under the authority, in-charge of the Chilling Plaint where the misappropriation has taken place. That apart, he also routed the transportation and billing of the transportation and also tours. His role being requiring investigation, he does not deserve any bail. His application rejected. 6. Then comes role of K.R.Bhabad. Mr. Bachate strenuously urged that the misappropriation indicated by the auditor in terms of the entries of sale or disposal of the milk is inaccurate as the Government record specified that the milk was indeed supplied to the government dairy in March, 2006. The auditor has stated that the bills are prepared subsequently or this stock was of subsequent period. At this stage, 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. same cannot be criticised. The auditor has analytically given details. It was on a thorough inspection of the record which indicate that the milk was collected in the month of April but pre-dated entries were effected. There was apparent misappropriation noticed by the auditor. It is not the single instance but several instances are quoted by the auditor with specific role by General Manager Mr. K. R. Bhabad. Consequently, he does not deserve any protection. 7. Then comes Chairman Vijaysing [2810 of 2009]. He was Chairman from 22nd December, 2004 to 9th January, 2006. The resolutions indicate he had the signing authority of the cheques and general supervision was with the General Manager Mr. K. R. Bhabad. All the vouchers are snecked away under signature and authority of the Chairman. Though, the learned counsel representing the Chairman invited my attention to several applications made by him, 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. seeking information under Right to Information Act, however, by that itself his responsibility will not be diluted to answer the misappropriation. It is not the case that it was irregularity in the accounts but the record glaringly indicate that there was misappropriation and manipulation of the record to dupe the society/ the Sangh for personal gains. IN terms of Section 71-IAB there is personal responsibility for which an indemnity bond is given by the Chairman with other Directors. Its effect cannot be prima facie obliterated to contend that the requisite information, as sought, was not furnished in time or that the audit report was incomplete. 8. Other submission was about political rivalry. However, this Court has nothing to do with it since the record reveals against the accused applicant. Hence, order. 9. The application No.2708 of 2009 is allowed. In the event of arrest of accused Bapusaheb Sahadu 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Kothule, he be released on his furnishing P.R. Bond and surety in the sum of Rs.15,000/- [Rupees fifteen thousand only] till charge sheet. 10. The accused/ Applicant Bapusaheb Kothule shall attend the concerned investigator on last Sunday of every month between 10.00 a.m. to 05.00 p.m. till filing of charge sheet. 11. The other applications i.e. Criminal Application Nos.2770 of 2009, 2808 of 2009 and 2810 of 2009 are rejected. 12. The observations are prima facie in nature. [K. U. CHANDIWAL, J.] Dated:11/09/2009. ans/2708