1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1593 of 2010 Umesh Baburao Kothikar ..VERSUS.. State of Maharashtra, through P.S.O., P.S., City Kotwali, Akola Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.P.Dharmadhikari, Senior Advocate for the applicant. Mr. J.B.Jaiswal, A.P.P. for the respondent-State. CORAM : Prasanna B. Varale, J. DATED : 26 th Octo ber , 2010 . Heard Mr. S.P. Dharmadhikari, learned Senior Advocate for the applicant and Mr. J.B.Jaiswal, learned APP for the respondent/ State. By this application the applicant is seeking bail in Crime No. 85/2009, registered with Police Station, City Kotwali, Akola for the offences punishable under Sections 420, 467, 468, 409 and 120-B of Indian Penal Code. The sum and substance of the report lodged by the complainant is that certain amount of the Municipal Corporation, Akola was deposited in a co-operative bank, contrary to the provisions of The Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as ‘the said Act’) and the accused/applicant caused loss to the M.C., Akola. Learned Senior Advocate for the applicant has submitted that at the relevant time the applicant was discharging his duty as Deputy Commissioner of Municipal Corporation, Akola. He invited my attention to Section 49 of the said Act and submitted that being Deputy Commissioner of M.C., Akola, the applicant was expected to 2 discharge his duty as per the directions and as per the delegation of the powers by the Commissioner. The matter of depositing the funds came up before the Corporation and the Commissioner had made endorsement on the proceeding sheets that at the insistence of the Mayor, the amount of about Rs.One Crore has been deposited in Vidarbha Urban Co-operative Bank, Akola. He further referred to the provisions that relates to investment of surplus Municipal Fund i.e. Section 92 of the said Act, which reads thus : “92. Investment of surplus moneys : (1) Surplus moneys at the credit of the Municipal Fund which cannot immediately or at an early date be applied to the purposes of this Act or of any loan raised thereunder may be, from time to time, deposited an interest in the Imperial Bank of India or any other scheduled bank or an approved co-operative bank or deposited with the State Government or with any statutory corporation approved by the State Government or be invested in public securities. Provided that the amount of money to be deposited in an approved co-operative bank shall not exceed such amount as may be specified by the State Government generally or specially in respect of any approved co-operative bank. (2) All such deposits and investments shall be made by the Commissioner on behalf of the Corporation with the sanction of the Standing Committee and, with the like sanction, the Commissioner may at any time withdraw any deposit so made or dispose of any securities and redeposit or reinvest the money so withdrawn, or the proceeds of the disposal of such securities. (3) The loss, if any, arising from any such deposit or investment shall be debited to the Municipal Fund. In view these provisions, learned Senior Advocate submitted that the surplus money is to be deposited in the Imperial Bank of India or any other scheduled bank or an approved co-operative bank. He further submitted that the prosecution has not placed on record any material to show that the deposit of the amount in Vidarbha 3 Urban Co-operative Bank is contrary to the provisions of law and said bank is not an approved co-operative bank. He submitted that as per the Office Orders dated 04/3/2009 of M.C., Akola, the powers of drawing and disbursement were delegated to the applicant as the regular Deputy Commissioner Shri Vaibhav Aware had proceeded on leave. Learned Senior Advocate has placed on record three documents i.e. the proceeding sheets, office order dtd. 4/3/2010 and Marathi version of the relevant provisions of said Act on record. The documents are taken on record and marked as “X’ for identification. Learned APP has filed reply and opposed the application. Learned APP submitted that the offences are serious in nature. Learned APP also expressed an apprehension that if the applicant is released on bail, he may not be available for further investigation. It is further submitted that the applicant had approached the Sessions Court, Akola for grant of bail. However, learned Sessions Judge has rejected the application vide order dated 29/9/2010 on the ground that the applicant is prima facie responsible for causing loss to the Government as well as to the Corporation. He, therefore, prayed for rejection of the application. Learned Senior Advocate for the applicant submitted that there is no reference in the reply filed by the State so as to show that depositing the amount in Vidarbha Urban Co-op. Bank is contrary to the provisions of Section 92 of the said Act. He further submitted that the act done by the applicant was under the directions of the Commissioner and the only objection raised by the prosecution agency is that the applicant has not objected for depositing the amount in Vidarbha Co-op. Bank. According to him, it was the primary duty of Municipal Chief Auditor under Section 47 of the said Act, particularly Section 47 sub-section 1(c) of the said Act. Learned Senior Advocate for the applicant inform the Court 4 that the main accused as alleged i.e. Municipal Commissioner namely Giridhar Kurve had approached this Court by filing Criminal Application No. 1328/2010 for seeking bail and this Court while considering the application, was pleased to observe that - “3. Prima facie, it appears that there was no intention to cheat and action appears to have been taken in good faith. Appicant is already placed under suspension and I do not think, any fruitful purpose would be served in continuing his detention particularly when he would be away from official records being under suspension. ..........” Learned Senior Advocate submits that the present applicant is also similarly circumstanced i.e. applicant is also put under suspension and the set of circumstances as alleged against the Giridhar Kurve are similar in case of the applicant. In view of the order passed by this Court in the case of Girdhar Kurve, learned Senior Advocate is claiming parity to the present applicant. Learned APP opposing the application has submitted that in absence of sanction of the Standing Committee, the amount was deposited in the Vidarbha Co-op. Bank. It is clear that under SEction 47, the duties and powers are assigned to the Municipal Chief Auditor and admittedly the applicant was not holding that post, but he was discharging his duty as Deputy Commissioner of M.C., AKola. He invited my attention to the provisions of SEction 92(2) and submitted that no sanction of Standing Committed was accorded. It is to be noted that Section 92(2) requires the sanction of the Standing Committee and the power is vested with the Commissioner. Mr. Dharmadhikari, the learned Senior Advoicate submitted that the applicant, who was discharging his duties as Deputy Commissioner, has no independent powers vested with him, but as 5 per the provisions, the applicant is supposed to exercise his powers under SEction 49 of the said Act i.e. powers deleted by the Commissioner. He submitted that even accepting the case of the prosecution, the objection raised by the applicant could have amounted to insubordination. Learned Senior Advocate submits that the scrutiny of the documents is expected in the investigation of the crime and the applicant, who is put under suspension, is away from official records. As already observed by this Court in the case of Girdhar Kurve, no fruitful purpose would be served in continuing the detention when the applicant would be away from the official record being under suspension. In view of the submissions of learned Senior Advocate, prima facie case is made out by the applicant for grant of bail. The apprehension expressed by learned APP can be taken care of by imposing conditions on the applicant. In the result, the application is allowed. The applicant be released on bail on furnishing P.R. bond of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency and attend the police station, City Kotwali, Akola every Sunday between 9.00 a.m. to 12.00 noon, for three months from today or till filing of the charge sheet, whichever is earlier and thereafter as and when called by the police. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the 6 investigating agency. d] In case the applicant is moving out of the area of police station, City Kotwali, Akola, he shall inform the police station about his visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale