1 BAG-871.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.871 OF 2011 {For Bail} Shishir Prabhakar Dharkar .... Applicant Vs. The State of Maharashtra .... Respondent WITH CRIMINAL APPLICATION NO.392 OF 2011 {For Intervention} IN CRIMINAL APPLICATION NO.871 OF 2011 {For Bail} Shishir Prabhakar Dharkar .... Applicant Vs. The State of Maharashtra .... Respondent And Naren Vasudev Jadhav & Ors. .... Intervenors AND CRIMINAL APPLICATION NO.1246 OF 2011 {For Bail} Girish Prabhakar Gupte .... Applicant Vs. The State of Maharashtra .... Respondent S/Shri R.G. Merchand with S.L. Wagh for the Applicant in BA-871/2011. S/Shri Shirish Gupte, Senior Advocate with Prakash Naik for the Applicant 2 BAG-871.11 in BA-1246/2011. Ms A.A. Mane, APP, for the State in both the Applications. S/Shri Shriram Kulkarni with Mandar Kulkarni for the Interveners (APPP- 392/2011). CORAM: R.C. CHAVAN, J. DATED: OCTOBER 19, 2011 P.C: 1. These are two applications for bail by an erstwhile Chairman of the Pen Co-operative Urban Bank Limited and its Deputy General Manager. They have been arrested in Crime No.34 of 2011, registered with Pen Police Station, District Raigad for the offences punishable under Sections 418, 420, 409, 465, 467, 468, 417, 471, 477, 163 and 120-B r/w Section 34 of the Indian Penal Code, and Section 3 of the Maharashtra Protection of Interest of Depositors (In Finance Establishment) Act, 1999 and Section 147 of the Maharashtra Co-operative Societies Act, 1960 on 2-4-2011 and 26-3-2011 respectively. Investigation is completed and the charge-sheet is filed, though the investigation is stated to be still going on and a supplementary charge-sheet is slated to be filed. 3 BAG-871.11 2. Four of the investors have filed an application for intervention, which is also being disposed of along with these bail applications. Intervener No.4 in his affidavit has made out grievances of the investors in the manner in which the Bank was brought to a bankruptcy. 3. The learned APP has also drawn my attention to the affidavit of PI Suresh Eknath Mirghe, who has been investigating into the offences. 4. The allegation is that, at the instance of the erstwhile Chairman Shishir Dharkar, bogus accounts were opened, loans were given to fictitious entities, loans were also given to companies in which Dharkar had interest and which on papers were shown to have been transferred to others. The account books were forged, the computer system which was supposed to maintain the account books was tampered with, minutes books of meetings were also tampered with and a total amount of `511/- crores was defalcated, principally by Dharkar with the help of the Chief Operating Officer of the Bank, Shri Purshottam Joshi, who has also 4 BAG-871.11 been arrested and is in jail and is alleged to be instrumental in this fraud. Applicant Girish Gupte and other Directors were also involved and were arrested. One Sharma, an expert Director, is also allegedly involved and his application for anticipatory bail is pending. All the other Directors are stated to have been bailed out. 5. The allegations show that, the funds of the Bank were given for purchasing a property in the name of some account holders. That property was then sold and the sale proceeds have gone somewhere else. The allegations are indeed very serious. Even so, there is a limit to which persons who are involved in such offences could be detained in prison pending trial, particularly in the context of the fact that charge-sheet running into 800 pages and citing 300 witnesses has been filed, with the threat of a supplementary charge-sheet also being on the way. Therefore, the trial is not likely to commence soon, and even if it commences, is unlikely to conclude soon. Considering this, it would be better to secure the interest of the investors first rather than wait for the end of the trial by which time nothing tangible may be available 5 BAG-871.11 for the investors. 6. The learned counsel for the erstwhile Chairman submitted that his client is ready to create charge of all his assets, a list whereof has been made available, for such sums as his client may be ultimately found to be liable to pay.In addition, he states that the applicant s wife has a sum of `2,33,99,227/-, possibly in an inoperable account of the same Bank, and she too agrees to make this amount available to satisfy the dues of her husband in the event he is found liable to pay the same. 7. The learned counsel for applicant Gupte states that, Gupte owns a small property of about 900 sq.ft. and he too would make his property available for eventual liquidation of such dues as may be found recoverable from him. 8. The learned counsel for the interveners submits that allowing such fraudsters to go away after committing fraud by offering to pay back only a part of the amount which may be due would set a very bad precedent and would encourage fraudsters to go ahead with such frauds. The sentiments expressed cannot be doubted. All the same, a practical and 6 BAG-871.11 pragmatic approach in these matters would be necessary. Since charge-sheet running into 800 pages, which lists 300 witnesses, has been filed and a supplementary charge-sheet is on way, one can imagine the time the trial would eventually take. The learned counsel for the interveners also submits that there is nothing to show that the I.O. had done any meaningful interrogation of the erstwhile Chairman, who is one of the applicants, since such interrogation could have thrown light on the manner in which the fraud is committed. While this also may be true, nothing could be done in this regard now six months after the applicants have been arrested and are in judicial custody. 9. In view of the above, both the applicants be released on bail in Crime No.34 of 2011, registered with Pen Police Station, District Raigad on their furnishing P.R. Bond in the sum of `1,00,000/- each with one or more solvent sureties in the sum aggregating to `1,00,000/- per applicant on the following conditions: (i) Applicant Girish Prabhakar Gupte shall file an undertaking on oath charging his property situated on the first floor of 7 BAG-871.11 Chandraprabha Building, Prabhu Ali, Post & Taluka Pen, District Raigad (Pin 402 107) to satisfy such amount as he may eventually be found to be liable to pay by Competent Courts. (ii) Applicant Shishir Prabhakar Dharkar shall also likewise file an undertaking in respect of his assets which are listed in the Certificate dated 19-10-2011, issued by K.M. Rege & Co., Chartered Accountants, filed by his counsel disclosing therein the details of the assets of his client and the market value thereof. The said certificate is taken on the record and marked X for identification. (iii) In addition, Dharkar shall state in the undertaking that he has no other properties except those mentioned in the affidavit and the Certificate of his Chartered Accountant and should there be any other properties, they shall also stand charged. (iv) Applicant Dharkar s wife who volunteers to furnish the amount in her Bank 8 BAG-871.11 account for securing the release of her husband shall also file an undertaking on oath with respect to the said amount. The undertaking would have to be filed before Dharkar is actually released on bail. (v) The applicants will file their undertakings with the necessary title documents or supporting evidence about their ownership of the properties. (vi) The applicants will not tamper with the evidence, etc. (vii) The undertakings of the applicants would have to be filed before the trial Court within a period of one week after their release. If such undertakings are not filed, this order shall stand automatically cancelled. 10. The properties which are now offered for satisfaction of such liability as may be eventually saddled on applicant Dharkar or Gupte would not preclude initiation of action by the interveners/investors or others for recovery of their dues by taking appropriate 9 BAG-871.11 proceedings before the Division Bench of this Court or before the appropriate Court which would be independently dealt with by the competent Court. It is clarified that the offer of all these properties for satisfaction of debts for the purpose of securing bail in these applications would not obstruct any recovery proceedings even against these properties which may be independently taken. 11. At this stage, the learned counsel for the interveners makes an oral request to stay the order insofar as applicant Dharkar is concerned because his clients want to test the order in the Supreme Court. The request is rejected. 12. The applications accordingly stand disposed of. 13. In view of disposal of the bail applications, no further order is required to be passed on the application for intervention and it also stands disposed of. (R.C. CHAVAN, J.)