{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4284 OF 2009 Vijaykumar Suganchand Jain Age-59 years, Occ-Business R/o Ghat Road, Chalisgaon Dist-Jalgaon APPLICANT VERSUS 1. The State of Maharashtra 2. Superintendent of Police Jalgaon, Dist-Jalgaon RESPONDENTS ....... Mrs.S.S.Jadhav, Advocate for applicant Mrs.Y.M.Kshirsagar, APP for respondents State ....... [CORAM : A.V.POTDAR, J.] DATE: 7th January 2010 PER COURT: 1. By the present application, the applicant has approached this Court for his release on anticipatory bail in the event of his arrest in connection with CR No.259/2008 registered with Chalisgaon police station for an offence punishable u/s 406, 409, 420, 465, 468, 471 and 120-B r/w 34 of the Indian Penal Code. {2} 2. Heard learned counsel for the applicant followed by the submissions of the learned APP. Perused the papers of investigation carried out till today. 3. It appears that the said offence came to be registered on the complaint of Special Auditor on the allegations that the present applicant had submitted bogus documents to the bank while obtaining loan and cheated the bank in connivance with the office bearers of the said bank and obtained loan of Rs.15 lacs, which came to be renewed from time to time. As the applicant did not repay the said loan amount within stipulated period, the offence came to be lodged. 4. The fact that the applicant has obtained the said loan, is not disputed. However, at the same time, learned counsel for applicant has drawn my attention towards Dispute No.614/2005 filed by the bank in the Cooperative Court against the applicant and the same is still pending in the Cooperative Court, Jalgaon / Dhule. It has to bear in mind that the subject matter of the transactions for which the complaint is lodged is the subject matter of dispute pending before the Cooperative Court. This dispute is filed by the bank against the applicant for recovery of the amount, which is due from him. The documents, on the basis of which said loan was sanctioned to the applicant, are the subject matter of the said Dispute also. The Cooperative Court has not come to a conclusion that the loan was granted to the applicant on {3} the basis of bogus documents, as alleged by the Special Auditor. Hence, it is prayed to release the applicant on anticipatory bail. 5. Learned APP opposed the application on the ground that the applicant has not denied the fact that he has obtained the loan. 6. It is not the case of the applicant that he has not obtained the loan at all, however, it is urged that due to recession and financial crises, he could not repay the loan within the stipulated time. In the premise, if the loan is not repaid due to recession or financial crises, then it cannot be said that an offence of cheating is committed by the applicant. Considering the report of the Special Auditor also it cannot be said that with an intention to cheat the bank, loan was obtained by the applicant causing wrongful loss to the bank and wrongful gain to the applicant. It also requires to be considered that the documents, which are submitted by the applicant while availing the loan, are the subject matter of dispute before cooperative court and hence it cannot be said, at this stage, that the applicant has forged the same and used the same for the purpose of cheating the bank. In the premise, case is made out to exercise discretion u/s 438 of the Criminal Procedure Code to enlarge the applicant on anticipatory bail. 7. In the result, the application is allowed. The interim {4} protection granted on 9th December 2009 that in case of arrest of the applicant in connection with CR No.249/2008, he be released on bail on his furnishing surety in the sum of Rs.15,000/- and on executing PR bond in the like amount, is hereby confirmed. This protection is granted for a period of further 12 weeks, within mean time the applicant may apply for regular bail. The applicant is directed to cooperate with the investigating agency. [A.V.POTDAR, J.] drp/A10/criapln4284-09