( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4329 OF 2010 Mr. Sharad Hiraman Chaudhari, Age : 60 years, Occu.: Retired, R/o Janki Nagar, City, Tq. and Dist. Jalgaon .. Applicant VERSUS State of Maharashtra Copy to be served on P.P. High Court, Aurangabad .. Respondent WITH CRIMINAL APPLICATION NO. 4371 OF 2010 Shantaram S/o Motiram Sonar, Age : 69 years, Occu.: Retired, R/o 110, Balaji Peth, Jalgaon Tq. and Dist. Jalgaon .. Applicant VERSUS 1. The District Superintendent of Police, Jalgaon, District Jalgaon 2. The State of Maharashtra Through : City Police Station, Jalgaon, Tq. and Dist. Jalgaon .. Respondents WITH CRIMINAL APPLICATION NO. 4372 OF 2010 Shri Sanjay Gulabchand Agrawal, Age : 38 years, Occu.: Business, Resident of Navi Peth, Near Old Bus Stand, Jalgaon, Taluka and District Jalgaon .. Applicant ( 2 ) VERSUS 1. State of Maharashtra (Copy to be served on P.P. High Court, Aurangabad) 2. Superintendent of Police, Jalgaon .. Respondents WITH CRIMINAL APPLICATION NO. 4364 OF 2010 Sunilkumar S/o Onkardas Mungad Age : 40 years, Occu.: Service, R/o Infront of Yash Hall, Shahu Nagar, Jalgaon, Tq. and Dist. Jalgaon .. Applicant VERSUS 1. State of Maharashtra 2. The District Superintendent of Police, Jalgaon .. Respondents WITH CRIMINAL APPLICATION NO. 4991 OF 2010 Kesharlal Sitaram Badhade, Age : 59 years, Occu.: Chartered Accountant, R/o 32, Prem Nagar, Jalgaon VERSUS State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4993 OF 2010 Sunil Madanlal Zanwar Age : 43 years, Occu.: Business and Agri., R/o Paldhi, Tq. Dharangaon, Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent ( 3 ) WITH CRIMINAL APPLICATION NO. 4992 OF 2010 Kedarnath Kashinath Mundada, Age : 57 years, Occu.: Law Practitioner, and Tax Consultant, R/o 7, Radhika, Ganpati Nagar, Jalgaon .. Applicant VERSUS The State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4370 OF 2010 Mohan Suraji Tayade Age : 56 years, Occu.: Service, R/o. 174, Visangi Nagar, Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4322 OF 2010 Dr. Mrs. Mangla Prabhakar Jangle, Age : 59 years, Occu.: Service, 8 B, Navprabhat Society, Behind D.I.C. Jalgaon, Tq. and Dist. Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4323 OF 2010 Narayan Jayram Ahirrao, Age : 66 years, Occu.: Retired, R/o : Mahabal Colony, City, Tq. and Dist. Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent ( 4 ) WITH CRIMINAL APPLICATION NO. 4355 OF 2010 Mrs. Mamata Milind Rathi, Age : 38 years, Occu.: Business, R/o. : 148, B.J. Market, Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4351 OF 2010 Ramesh Gokulchand Lahoti, Age : 68 years, Occu.: Retired Professor and C.A., R/o Fulrani, 303, Navi Peth, Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4368 OF 2010 Meherchand Sitaldas Nathani Age : 54 years, Occu.: Business, R/o 38, Baba Hardasram Ho. So. Ganesh Nagar, Jalgaon .. Applicant VERSUS State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO. 4429 OF 2010 1. Pramod S/o Bhaichand Raisoni Age : 51 years, Occu.: Business, Resident of Ring Road, Jalgaon, Dist. Jalgaon ( 5 ) 2. Dr. Hitendra S/o Yashwant Mahajan, Age : 50 years, Occu.: Medical Practitioner, Resident of Prem Nagar Bendale Colony, Jalgaon, Dist. Jalgaon 3. Prashant S/o. Manilal Sanghvi, Age : 42 years, Occu.: Business, Resident of Adarsh Nagar, Jalgaon, Dist. Jalgaon 4. Rakesh S/o Jamnadas Vyas, Age : 30 years, Occu.: Service, Resident of Bhavani Peth, Jalgaon Dist. Jalgaon .. Applicants VERSUS 1. State of Maharashtra 2. District Superintendent of Police, Jalgaon, Dist. Jalgaon (Copy to be served on P.P. High Court, Aurangabad) .. Respondents AND CRIMINAL APPLICATION NO. 4369 OF 2010 Nilamdevi Champalal Soni, Age : 46 years, Occu.: Household, R/o. 57, Ganpati Nagar, Jalgaon ... Applicant VERSUS State of Maharashtra .. Respondent ....... Advocate for the Applicants / Criminal Application nos. Mr. P.N. Kutti, Advocate / 4329.2010, 4322.2010, 4323.2010 Mr. P.P. Chavan, Advocate / 4351.2010, 4355.2010, 4368.2010, 4369.2010, 4370.2010, 4991.2010, 4992.2010, 4993.2010 Mr. M.N. Navandar, Advocate / 4364.2010 Mr. K.C. Sant, Advocate / 4371.2010, 4429.2010 Mr. G.V. Wani, Advocate / 4372.2010 Mr. P.P. More, A.P.P. for the Respondent-State in all matters ...... ( 6 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 7th December, 2010] ORAL ORDER : 1. By this common order, I shall dispose of the fifteen (15) applications together in as much as they arise out of same set of circumstances and crime No. 98/2010, registered against the applicants alongwith others for various offences of cheating, preparation of false and fabricated record, misappropriation of the funds of the Cooperative Bank and duping of the depositors. 2. It is worthy to be noted that these applications alongwith some other applications filed by the main accused persons like accused No. 1, 2, etc. were to be heard together for final disposal. A group of the main accused persons, who have prima facie nexus with the dubious transactions, sought time to deposit the amounts and as such, their applications were segregated and are scheduled for consideration on 22nd December, 2010 as they desired to show their bonafides by depositing the entire amounts which are found due against them or about which the responsibility is fixed against them in the ( 7 ) Audit Inspection report. 3. There is a Siddhi Venkatesh Cooperative Bank, Jalgaon. The Audit Inspection of the said Cooperative Bank for period between 1st April, 2005 and 31st March, 2009 was carried out. The auditor noticed a large number of financial misdeeds, irregularities and bunglings in the context of transactions of the said Cooperative Bank. The auditor of the Cooperative Societies gave a detailed audit report whereby he gave details of the dubious transactions made by various accused persons. He named in all sixty (60) persons as responsible for duping the Bank to the tune of Rs. 2,27,67,243.84 paise (Rupees two crores twenty seven lacs sixty seven thousand two hundred forty three and paise eighty four). 4. The applicants alleged that they are unconcerned with the dubious transactions which were made by the Chairman and the main accused persons. They alleged that they were not consulted while entering into the dubious transactions done in the fictitious accounts of the persons who withdrew various amounts. It appears prima facie that an account was opened in name of Siddhi Venkatesh Cooperative Society and through such ( 8 ) account, certain payments were made to BHR Credit Society. It further appears that a building of Siddhi Venkatesh Cooperative Credit Society was sold away and the amount was deposited in the account of BHR Credit Society. The report of the auditor prima facie purports to show that large scale financial bunglings were made by various persons who were having domain over the affairs of the Cooperative Bank. 5. The applicants seek anticipatory bail on the ground that they are likely to be arrested without any tangible evidence regarding their involvement in the financial misdeeds. They would submit that they have no concern, whatsoever, with the transactions about which the auditor reported adversely. 6. Heard learned advocate for the applicants, learned A.P.P. and perused the relevant investigation papers as well as the report of the auditor. An intervener has also filed his affidavit while opposing the applications. The intervener's affidavit is perused. 7. So far as directions under section 438 of the Criminal Procedure Code are concerned, the very purpose of the ( 9 ) provision under the Criminal Procedure Code is to protect an innocent person from arrest which may cause his humiliation without there being any tangible reason or prima facie evidence appearing against him of committing a cognizable offence. 8. For grant of anticipatory bail the legal criterion to be applied is to examine whether the applicant/s is/are likely to be arrested without there being tangible material to infer complicity of his/theirs. The grant of anticipatory bail is extra-ordinary power available under section 438 of the Code of Criminal Procedure with a view to avoid unnecessary humiliation of an innocent person. So if there is material to show innocence of the applicants, then only the anticipatory bail can be claimed. The extra-ordinary relief cannot be granted just for asking and only for the reason that some of the applicants are old aged persons. The role played by the applicants or either of them in the alleged commission of the huge misappropriation and financial bunglings in relation to the funds of the co-operative bank is required to be appropriately examined. The chief observation made by the auditor is that the co-operative bank was brought to the lowest financial ebb and was shown "Dooms Day" due to the ( 10 ) irregularities and financial misdeeds of the applicants. 9. At this juncture, the observations of the Apex Court in case of "HDFC Bank Ltd. V. J.J. Mannan @ J.M. John Paul and anr. 2010 CRI.L.J. 2293" may be taken into account. The Apex Court observed that where the accused in collusion with others had defrauded the bank to the tune of over 2 crores, he was not entitled to anticipatory bail under section 438 of the Code of Criminal Procedure. In the given case, the Apex Court deprecated the practice of passing blanket orders in such a case. The Apex Court succinctly clarified the object of section 438 of the Cr.P.C. It is observed: "15. The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. 10. The Apex Court in "AIR 2006 S.C. 179 Himanshu Chandravadan Desai and ors. Vs. State of Gujarat" held that having regard to the huge amounts involved the abscondance of ( 11 ) the accused was the danger, if released on bail, or attempting to tamper with the evidence by pressurizing the witnesses and as such regular bail Application was rejected. In the present matter, one has to deal with the Applications under section 438 of Cr.P.C., wherein the yardstick is somewhat hard as compared to the yardstick applied to the regular bail Application under section 439 of the Cr.P.C. The provision of anticipatory bail is not the shield given to those who are prima facie involved in the commission of the crime but is a protection given to those who are prima facie innocent and likely to be humiliated due to the arrest. The provision under section 438 of Cr.P.C. stands in between liberty of an innocent person and the apprehended action of the arrest. 11. So far as the present applications are concerned, it is necessary to segregate group of the applications in which the Directors are the applicants. These applications are Criminal Applications No. 4329/2010, 4322/2010, 4323/2010, 4351/2010, 4355/2010, 4368/2010, 4369/2010, 4370/2010, 4371/2010, 4991/2010, 4992/2010 and 4993/2010. So far as these applications are concerned, the learned A.P.P. would submit that these Directors are not concerned specifically and not involved in the alleged dubious transactions. They are named ( 12 ) in the FIR only on account of their positions as Directors. It prima facie appears that they are not borrowers of any dubious loans. It also appears prima facie that they have not withdrawn any of the amount from suspicious dubious accounts. Nor they are concerned with Siddhi Venkatesh Cooperative Credit Society which seems to have been an instrumental agency by siphoning of the amounts of the Bank. Nothing is to be recovered from these applicants. The necessary record is collected by the Investigating Officer. There is no reply- affidavit to pinpoint exact role played by the Directors. They were not the members of the Loan Committee. It prima facie appears that several resolutions were taken without the consent and contribution of the Directors who have filed the above applications. It goes without saying, therefore, that the applicants involved in the above referred applications are likely to be harassed and humiliated if they are arrested. Needless to say, their applications deserve consideration and will have to be granted on certain terms. 12. Coming to the applications bearing Criminal Application No. 4364/2010, 4372/2010 and 4429/2010, the learned A.P.P. has strong objection to release the applicants in these applications by granting the discretionary relief. ( 13 ) It is argued by learned advocate for the applicant in Criminal Application No. 4364/2010 that applicant Sunilkumar Mungad has no concern with the dubious transaction. The learned advocate would submit that the applicant has resigned his post from Siddhi Venkatesh Patsanstha i.e. Credit Society. It is argued that the applicant is not concerned with the transaction of overdraft of Rs. 25 lacs. It is pointed out that there was no resolution to grant one time settlement in respect of the said transaction. 13. Considering the investigation papers, it prima facie appears that applicant Sunilkumar Mungad was the Secretary of the Siddhi Venkatesh Cooperative Credit Society. The account No. 1/17 was opened in name of the said Credit Society. The overdraft was granted in favour of the Credit Society without adopting any resolution. The applicant may come out with a case that he has resigned, but such allegation is yet to be verified. He cannot abdicate his responsibility regarding the dubious transactions which are made in name of the said Credit Society. It appears that a building of the said Credit Society was sold away and the amount was credited in the account of another Credit Society from which other transactions were done and thereafter, the account of the ( 14 ) Siddhi Venkatesh Cooperative Credit Society was allowed to be closed. It is obvious that such transactions require appropriate verification after due interrogation of applicant Sunilkumar Mungad. 14. As regards Criminal Application No. 4372/2010, Mr. Wani submits that applicant Sanjay Agrawal is not a borrower nor has withdrawn any amount and is unconcerned with the dubious transactions pertaining to the account of Siddhi Vinayak Marketing, which is an Agency. It is argued that the applicant i.e. Sanjay Agrawal is named in the FIR only because he introduced the person in whose name the concerned dubious account was opened. It is contended by Mr. Wani that the applicant - Sanjay Agrawal cannot be held responsible for any dubious transactions only on the basis that he was introducer of the account holder. I find it difficult to countenance the argument of Mr. Wani. It appears that the account of the said Agency was closed on 31st March, 2005. It appears that a cheque of Rs. 36 lacs was deposited in the said account and the amount was withdrawn. It prima facie appears that applicant Sanjay Agrawal facilitated opening of the fictitious account in name of the said Agency. He is not that naive to introduce any stranger. His role in the large scale financial ( 15 ) embezzlements and misappropriation of amounts is required to be ascertained. Consequently, his application is not worthy of consideration. 15. Similarly, in Criminal Application No. 4429/2010, the applicants are said to be mere members of the Board of Administrators which was appointed in the year 2007. It is argued by learned advocate Mr. Sant that the applicants were not concerned with the dubious transactions because they came in the picture only in the year 2007 and in order to save the Bank from financial crisis. It is further argued that they initiated the recovery proceedings and, therefore, they had no ill-intention, whatsoever, to dupe the Cooperative Bank. It is contended that the applicants became members of the Board of Administrators on 18th March, 2007 and gave rebate to the account holders in order to ensure recoveries. It is further argued that due to the efforts of the applicants, more than one (1) crore rupees have been recovered. 16. So far as the said applicants are concerned, it is pertinent to notice that an amount of Rs.57 Lacs is shown to have been withdrawn vide cheque no. 70832. It is contended that the said amount was transferred to Siddhi Venkatesh Co- ( 16 ) operative Credit Society and therefrom in the account of BHR Credit Society. This is of course a dubious transaction. This transaction of huge amount is within the period when the applicants were members of the administrative board. They are required to explain as to how such transactions were allowed. One of the applicants is incharge Manager. He appears to be also concerned with BHR Credit Society being a clerk employed in that Society. In other words, without connivance of these applicants, such huge transactions, which ultimately caused defrauding of the creditors, could not have occurred in the Co-operative bank. 17. Taking overall view of the matter, Criminal Applications no. 4364 of 2010, 4372 of 2010 and 4429 of 2010 are dismissed. The interim relief, if any, granted to the applicants in these three applications is vacated with immediate effect. The rest of the applications bearing Criminal Applications no. 4329/2010, 4322/2010, 4323/2010, 4351/2010, 4355/2010, 4368/2010, 4369/2010, 4370/2010, 4371/2010, 4991/2010, 4992/2010 and 4993/2010 are allowed. The applicants in these twelve (12) applications shall be released on bail, in the event of their arrest, on furnishing of bail ( 17 ) bonds in sum of Rs.20,000/- (Rs.Twenty Thousand) each, before the Arresting Officer and on condition that they shall attend the concerned Police Station on each Sunday between 10.00 am. and 2.00 pm. and shall actively co-operate with the Investigating Officer during the course of investigation till the chargesheet is filed. The anticipatory bail will come to an end on filing of the chargesheet/final report. [V.R. KINGAONKAR] JUDGE NPJ/criapln4329-10-GROUP