1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3721 OF 2011 Pankaj Suresh Barole ...Applicant VERSUS Police Inspector, State Crime Investigation Department, Nashik ...Respondent ..... Shri Shirish Gupte, Senior Counsel i/b Shri D.B.Thoke Patil, advocate for the applicant Shri B.V.Wagh, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 6th September, 2011 PER COURT : 1 Issue notice to the respondent. Shri Wagh, learned A.P.P. accepts service of notice for the respondent. 2 Perused the investigation papers which were made available for inspection purpose and heard respective learned counsel for the parties finally. 2 3 This is the second round of litigation of anticipatory bail by the applicant praying that he be released on bail in the event of his arrest in connection with C.R. No. 2 of 2011, registered at Chopda City police station, District Jalgaon, for the offences punishable under Sections 406, 408, 409, 420, 468, 471, 120(B) r/w 34 of the Indian Penal Code. 4 It appears that the offence has been registered on the basis of the complaint lodged by Narayan Dhrupatrao Gadhekar, Special Auditor, on 3.1.2011, alleging that the Chairman, the family members and the Directors of Tapi Cooperative Credit Society siphoned the amount of the said society to the tune of Rs.31,38,09, 204/-. 5 Admittedly, the applicant had preferred application seeking anticipatory bail before the learned Additional Sessions Judge, Amalner earlier, which was rejected on 21.1.2011. Thereafter, the applicant preferred application for anticipatory bail before this court, which also came to be rejected by this court on 29.4.2011. Thereafter, the applicant approached the Hon’ble 3 Supreme Court seeking anticipatory bail, but it is reported that the said application was also dismissed by Hon’ble Supreme Court. It is submitted that the applicant had also filed Review Petition before the Hon’ble Supreme Court, but it is submitted that the same was withdrawn by the applicant. 6 On this background, the applicant has preferred application seeking anticipatory bail before the learned Additional Sessions Judge, Amalner, contending that when loan transactions were done, the applicant was out of India for studies, and therefore, he could not be held liable for the loan transactions. However, the said plea raised by the applicant was not accepted by the learned Additional Sessions Judge, Amalner and application seeking anticipatory bail preferred by the applicant before the said court was rejected on 20.5.2011. Thereafter, the applicant has approached this court by filing the present application seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure. 7 Learned Senior Counsel for the applicant canvassed that :- 4 (i) Although the plea of absence of the applicant, due to departure abroad, at the relevant time, was available to the applicant earlier, same could not be taken by the applicant inadvertently, which be permitted to be taken on the afore said scenario. (ii) As against the total liability of Rs.31,38,09, 204/-, as stated in the first information report, almost amount of Rs. 34,00,00,000/- with interest has been deposited to the society and even the applicant has mortgaged his property and he is ready and willing to give undertaking to repay his share of liability to the tune of about Rs.5,96,33,396/- with interest, within the period of six months. 8 Accordingly, to elaborate the afore said arguments, learned Senior Counsel for the applicant canvassed that since the applicant intended to go out of India to pursue his studies for post graduate diploma in Business Administration, he applied to the society on 6.9.2005 for leave and the said application was allowed in the meeting of the society held on 15.9.2005 by 5 passing the resolution to that effect. Thereafter, the applicant left India in September, 2005 and returned to India on 30.11.2006 after completion of his course of post graduate diploma in Business Administration. Hence, it is canvassed by learned Senior Counsel for the applicant that when the resolution sanctioning loans were passed on 1.10.2005, 15.10.2005, 15.12.2005 and 15.1.2006, he was absent and the said resolutions disclose that he was on leave, and therefore, it is submitted that the liability of the alleged siphoned amounts cannot be fastened upon the applicant herein. 9 Learned Additional Public Prosecutor countered the said arguments and opposed the present application vehemently and submitted that the alleged plea of alibi, which now has been raised by the applicant herein, was available to the applicant earlier, but same was not raised by the applicant and no plausible explanation has been given therefor. Learned Additional Public Prosecutor also canvassed that the applicant was unsuccessful in seeking pre-arrest bail upto the Hon’ble Supreme Court and even the Review Application, preferred by the applicant, was withdrawn by the applicant before the Hon’ble 6 Supreme Court and on the said background, there is no change in circumstances, and hence, it is submitted that present application, on the afore said new plea of alibi, cannot be entertained, and therefore, same deserves to be rejected. 10 Considering the rival submissions advanced by the respective learned counsel for the parties, at the out set, the alleged plea of alibi, now raised by the applicant, was available to the applicant earlier, but same was not raised by the applicant earlier, although the applicant approached the Sessions Court, thereafter this Court and also the Hon’ble Supreme Court, as mentioned herein above. Moreover, no convincing and plausible explanation has been given by the applicant for not raising the said plea earlier, which was very well available to the applicant and which was within the knowledge of the applicant earlier, and hence, the said inaction on the part of the applicant disentitles him to raise the said plea now at the later stage after losing the battle upto the Hon’ble Supreme Court. 11 Besides, sight cannot be lost of the aspect that the provision of Section 73(1AB) of the Maharashtra Cooperative 7 Societies Act, 1960, which provides, that the members of the committee shall be jointly and severally responsible for all the decisions taken by the committee during its term relating to the business of the society and the members of the committee shall be jointly and severally responsible for all the acts and omissions detrimental to the interest of the society. 12 In the said context, learned Senior Counsel for the applicant pointed out the proviso to the said Section and submitted that the applicant was not present in the meeting, in which business of the society was transacted and he has subsequently not confirmed the proceedings of the said meeting. However, the said aspect can be dealt with properly and aptly at the appropriate stage and this is not the stage to consider the said aspect. Accordingly, the first leg of the argument canvassed by the learned Senior Counsel for the applicant cannot be accepted. 13 As regards the another leg of the argument canvassed by the learned Senior Counsel for the applicant, the learned Additional Public Prosecutor pointed out that out of the total 8 amount of embezzlement, as shown in the first information report i.e. Rs.31,38,09, 204/-, an amount of Rs.23,57,67,273/- only has been deposited. Moreover, it is also pointed out by learned Additional Public Prosecutor that the applicant’s liability is to the tune of Rs.5,96,33,396/- with interest thereon and also pointed out that the applicant is liable jointly and severally for the same as per the provision of Section 73 (1AB) of the Maharashtra Cooperative Societies Act, 1960. 14 In the said context, the observations made by this court, while rejecting the earlier application preferred by the applicant on 29.4.2011, cannot be ignored, which are as follows :- “ The applicant no. 5 Pankaj is son of the Chairman. Though he claims having cleared the loan, however, this is simply window dressing. His firms did not execute proper documents being widely demonstrated, does not deserve protection. “ 15 In view of the said position, the second leg of argument canvassed by learned Senior Counsel for the applicant also 9 cannot be accepted. 16 In the circumstances, present application bears no substance, and therefore, same stands dismissed. 17 It is made clear that the above observations are prima facie in nature and shall be restricted to this order only and shall not be used in any other matter while deciding it on merits. 18 The present application stands disposed of finally. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3721.11