1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3344/2009 Anil s/o Vasanta Amale. ..Applicant. V E R S U S The State of Maharashtra and another. ..respondents. Shri V.D.Sapkal, Advocate for the applicants. D.R.Khekale, APP for the State. CRIMINAL APPLICATION NO. 3373/2009 Babarao Sadashiv Ingle. ..Applicant. v e r s u s The State of Maharashtra. .Respondents. Mr. U.B. Bondar, Adv. for applicant. D.R.Khekale, APP for Sate. CORAM : K. U. CHANDIWAL, J. DATE : 06TH OCTOBER, 2009. PER COURT :- 1. Heard. Both the applicants are seeking discretion in terms of section 438 of Criminal Procedure Code in crime No.213/2009 registered at Kopargaon Police Station for offence punishable under section 120-B, 2 405, 408, 415, 420, 464, 465, 468, 469, 470, 471 of Indian Penal Code being initiated at the instance of the auditor Pandurang Vinayak Gaikwad. 2. The counsel submits that on identically placed facts Nitin Mishrilal Bothra lodged complaint before the Ld. Judicial Magistrate F.C being RTC No.316/2006 in which investigation was carried pursuant to the directions dated 02.09.2006. The prosecution by said Nitin was tested by the present applicants and particularly Anil Vasantrao Amale and Baburao Sadashv Ingle in criminal application No.2575/2008 and in 2745/2008 before this Court and by order dated 14.08.2008 request for quashing prosecution was turned down since it was without merits. However, in paragraph No.7 of the said order it is directed the applicant shall not be arrested without giving them due notice of 15 days after charge sheet or final report is filed, by the Ld. Judicial Magistrate. In the intervening period, before filing of charge sheet or final report, they shall be released on bail, if arrested by Investigating Officer with leave of the Ld. Magistrate on furnishing bail bonds in the sum of Rs.20,000/- each with one surety. 3. The counsel assert that in the light of such directions being 3 showered on the present accused-applicants they need same treatment based on the prosecution. As nature of allegations in the private complaint and that of the special auditors are covering same period of transaction, with the respective applicants, who were Chairman of the Credit Cooperative Society. 4. The second limb of the submission is nothing is to be recovered from the accused-applicants as other directors are indeed released on bail and since present accused are the respective chairman of the society, their applications are rejected. 5. The order of this Court referred above arising out of criminal application No.2575/2008 and 2745/2008 is based on general allegations made by the original complainant Nitin Mishrilal Bothra of emblazonment, misappropriation, disbursement of loan to the family members without security and purchase of stationary, computer without any valid reason without following prescribed procedure. 6. It was based on the directions issued to the competent officer, who carried out the audit of the credit cooperative society namely Mahalaxmi Nagari Sahakari Patsanstha Maryadit Kopargaon, he 4 found that loan to 64 members disbursed to the tune of Rs.28,30,320/- was without valid documents and illegal. Rebate to the tune of Rs. 2,23,960/- in payment of interest without any authority was pondered to kith and kin which show disdain. Stationary was allegedly purchased worth Rs.1,50,000/- without any necessity. The premises of the ex- chairman was taken on lease with unauthorized deposit of Rs.51,000/-. 7. It is a matter on record that applicant Anil Vasanta Amale was a chairman up to 31.10.2005 and thereafter it was Babarao Sadashiv Ingle who acted as Chairman. It is also an aspect that subsequent chairman did not bother to furnish day book to the Auditor though it was obligatory on him for which he was notified. It was in this scenario the auditor was required to carry the audit in the legal manner to verify as to disbursement of loan and efforts made for recovery thereof however, he has done same based on the ledger entries. 8. The auditor report is subject of challenge in an appeal and result is awaited. 9. It is more than clear that earlier prosecution by Nitin will not come as a lever to stall prosecution by Auditor against present accused 5 applicants as auditor has specifically carried the audit and has found misappropriation, illegal disbursement of loan to the family members without obtaining the requisite documentation. There was emblazonment in the pigmi accounts to the tune of Rs.35,695/-. These details primafacie indicts the accused applicants as it was a society, they cannot throw away their responsibilities to meet with the obligations and avoid allegation which was their combined efforts. This has facilitated the undeserving persons. Purchase of stationary not desirable, but recklessly done. In this scenario of the matter, it is only, the custodial interrogation which will resolve the controversy. It cannot be said that, entire record is with the auditors and nothing is to be recovered , the manner in which the public money is dealt with shattering faith of the depositors needs action. I do not see any merit. Both the applications rejected. The observations are primafacie in nature. [ K. U. CHANDIWAL, J. ) JUDGE. ..... aaa/3344.09