1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 1654 of 2008 With Criminal Application No. 1466 of 2008 With Criminal Application No. 1467 of 2008 With Criminal Application No. 1448 of 2008 With Criminal Application No. 1449 of 2008 With Criminal Application No. 1450 of 2008 With Criminal Application No. 1451 of 2008 With Criminal Application No. 1452 of 2008 With Criminal Application No. 1485 of 2008 With Criminal Application No. 1530 of 2008 With Criminal Application No. 1958 of 2008 With Criminal Application No. 1588 of 2008 [1] Criminal Application No.1654/2008 : Dr. Dattatray son of Jaikrishna Gotmare, aged 49 years, occupation Medical Practitioner, resident of Khaparde Plots, Paratwada, Tah. Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. 2 [2] Criminal Application No. 1466/2008 : Dilip Chandrashekhar Dhage, aged about 52 years, occupation – business, resident of Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [3] Criminal Application No. 1467/2008 : Ku. Sunanda d/o Vithalrao Garudi, aged 40 years, occupation – business, resident of Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. ***** Mr. A.S. Mardikar, Adv., for applicants. Mrs. T.D. Khade, Additional Public Prosecutor for respondent. ***** [4] Criminal Application No.1448/2008 : Praful Mahajan, aged 45 years, 3 occupation – farmer, resident of Sarmaspura, Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [5] Criminal Application No.1449/2008 : Amit son of Arvind Deshmukh, aged 30 years, occupation Tax Consultant, resident of Jaistambh Square, Paratwada, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [6] Criminal Application No.1450/2008 : Kalpana Sawarmal Agrawal, aged about 27 years, occupation – business, resident of Jaistambh Square, Paratwada, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, 4 Paratwada, Distt. Amravati. .... Respondent. [7] Criminal Application No.1451/2008 : Lalita Gangadharpant Dabhne, aged about 42 years, occupation – Housewife, resident of Sarmaspura, Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [8] Criminal Application No.1452/2008 : Kalawatibai wd/o Gangadharpant Dabhne, aged about 72 years, occupation – Housewife, resident of Sarmaspura, Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. ***** Mr. S.S. Sanyal, Adv., for applicants. Mrs. T.D. Khade, Additional Public Prosecutor for respondent. ***** 5 [9] Criminal Application No.1485/2008 : Narayan Janardhan Dhande, aged about 63 years, occupation resident of Khaparde Plot, Paratwada, Tq. Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [10] Criminal Application No.1530/2008 : Rajesh Anandrao Rodge, aged about 36 years, occupation – teacher, resident of Abbaspura, Achalpur City, Tq. Achalpur, Distt. Amravati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [11] Criminal Application No.1588/2008 : Hemant Madhukar Metkar, aged about 36 years, occupation Agriculturist, resident of Chota Bazar, 6 Paratwada, Tq. Achalpur, Distt. Amrvati. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. [12] Criminal Application No.1958/2008 : Amol Narayanrao Dhande, aged about 30 years private, resident of Dombiwali, Mumbai, Distt. Thane. .... Applicant. Versus State of Maharashtra, through its PSO Police Station, Paratwada, Distt. Amravati. .... Respondent. ***** Mr. M.P. Kariya, Adv., for applicants. Mrs. T.D. Khade, Additional Public Prosecutor for respondent. ***** CORAM : A.H.JOSHI, J. Reserved on : 09th September,2008, and Sr.No.1 reserved on : 10th September, 2008. Pronounced on : 25th September,2008. O R D E R : 7 Facts & background in brief 1. The First Information Report No. 30/08 of Achalpur Police Station is lodged by the Administrator of Achalpur Co-operative Urban Bank Ltd., Achalpur, who is also Assistant Registrar of Co-operative Societies, Achalpur, on 17th March, 2008. This FIR is lodged on the basis of the letters dated 14th and 22nd January, 2008, received from the Reserve Bank of India and the Report of Inspection/Enquiry conducted under Section 89-A of the Maharashtra Co- operative Societies Act by the Asstt. Registrar, Co- operative Societies, Achalpur. 2. Few amongst persons, who have been named as accused in Crime No. 30/08, have filed these applications for anticipatory bail, after rejection of same prayer by Sessions Court. 3. The accused are broadly classified as follows:- [a] Directors of Achalpur Urban Co-operative Bank Limited, [b] Borrowers who are related to the officers of the Bank. [c] Borrowers, who are Family Members or relatives of the Directors or Employees of the Bank, 8 [d] Borrowers, who are not in categories [a] and [c] above. 4. Loans leading to filing of FIR are broadly classified as follows:- [a] Loans granted in the names of Directors and employees of the Bank and/or their family members. Though these loans appear to be secured by mortgage, those are in default, and have turned either doubtfuler bad debts. [b] Borrowers different from those described in [a] above who claim that entire amount of loan was paid to the Chairman of the Bank. [c] Loans where there may be irregularity from the point of view of lending, or non-observance of provisions of Maharashtra Co-operative Societies Act. Prima facie, these loans are secured by mortgage or other security, however, loss to the Bank is ensuing, as the debt is turning either doubtful or bad, and according to FIR, however, these are cases of misappropriation by the concerned borrowers. 5. In relation to certain loans by the Directors/employees, it is seen that the accused have been named to be responsible for pilferage or destruction of documents. 9 6. Based on the documents leading to First Information Report, it is alleged that various borrowers named therein who are 36 in number and who are given loans, have misappropriated money belonging to the Bank in the guise of borrowing. 7. It is further alleged that the persons named at the end of text of the First Information Report, who are the Directors of the Bank and employees etc., have, in collusion with each other, cheated the Bank by sanctioning bogus loan proposals and thereby misappropriated the amount of the Bank. Contentions in support of applications for anticipatory bail 8. According to applicants :- [a] These are routine loan transactions which are duly recorded. [b] These are secured loans, and most borrowers are willing to repay, and, therefore, no offence is committed. [c] That even if there are some irregularities in process of sanction and disbursement of the loans, those would not transform the transactions of loan into misappropriation by conspiracy and abatement thereof and of forgery and fabrication of documents for this purpose. 10 [d] Three accused, who were borrowers and other accused, who are Chairman, Directors, and Employees named in Crime No. 3/08, are again arrayed as accused in present Crime, i.e. 30/08, which is not permissible. [e] In Crime No. 3/08, that all other accused, except Chairman – Mr. Gotmare, are released on bail. Present FIR is based on same footing and applicants are entitled to the same treatment. 9. For the relief sought, applicants are relying on various cases, namely:- [1] Ashok Dhingra Vs. N.C.T ., of Delhi [(2000) 9 SCC 533], [2] Criminal Application No. 2308/2002 decided on 7-10-02 [Coram : J.A. Patil, J.], [3] Babanrao Tukaram Ranjane Vs. State of Mah. [(2006) 9 SCC 422], [4] State of Maharashtra Vs. Ketan Parek & etc. [ 2008 (2) AIR Bom. R 150], [5] Bhagirathsinh Mahipat Singh Judeja Vs. State of Gujarat [(1984) 1 SCC 284], [6] Chandraswami & another Vs. Central Bureau of Investigation [ AIR 1997 SC 2575], [7] Jayendra Saraswathi Swamigal Vs. State of Tamil Nadu [AIR 2005 SC 716], [8] Chenna Boyanna Krishna Yadav Vs. State of Maharashtra & another [(2007) 1 SCC 242], and [9] T.T. Anthony Vs. State of Kerala & ors.[AIR 2001 SC 2637], and [10] Order granting anticipatory bail passed in Criminal Application No. 2160 of 2008 by this Court in favour of Shailesh son of Arun 11 Mahajan. GROUNDS RAISED FOR OPPOSING BAIL 10. Heard learned Additional Public Prosecutor Mrs. T.D. Khade opposing the applications who has submitted that:- [a] Money belonging to small investors /depositors is misappropriated under the garb of granting or availing loans. [b] Present is a group of cases where Directors, employees, their kins and friends have misappropriated funds almost in an organized way. [c] The conduct complained of is no less serious than any other serious aggravated forms of theft and robbery. [d] Present is a case of economic offence – a new way in crime, and it needs to be dealt, with a heavy hand. [e] It is seen that the transactions in their loan accounts are barely of withdrawal of almost entire money barely in three to five withdrawals. [f] At this stage, the allegations by borrowers that amount of loan was, in fact, given to the Chairman Dr. Gotmare, are corroborated by the affidavit sworn by the Chairman of the Bank – Shri Gotmare, who has undertaken to pay the said amount being responsible as a recipient of the money is prima facie believable. 12 [g] At this stage, there is ample evidence to book the applicants. [h] Case is based on documentary evidence apart from confessional statements. [i] The inspection reports furnished by Reserve Bank of India and officers of Department of Co- operation are a strongest piece of evidence supporting conclusions that the accused have committed the offence alleged against them. [j] There is no evidence of any restitutive and corrective measure by or on the part of any one amongst the accused. 11. Learned APP Mrs. Khade has placed reliance on following judgments:- [1] Rameshchandra Nandlal Parikh Vs. State of Gujarat & another [(2006) 1 SCC 732], [2] Natvarbhai Pitamberbhai Patel Vs. State of Gujarat [2004 ALL MR (Cri) Journal 19], [3] State of Maharashtra Vs. Pramodkumar Damodhar Wani & another [2008 ALL MR (Cri) 1099], [4] Dinesh Kumar Vasudev Nayak Vs. State of Gujarat [2003 (3) Crimes 497], and [5] C. R. Patil Vs. State of Gujarat & ors. [2005 CRI. L. J. 1231]. 12. According to learned Additional Public Prosecutor, all Judgments relied upon by applicants are distinguishable, and have no application to present case as precedents in view of distinguishing facts and offences, 13 the sentence which is available therein etc. CONSIDERATION OF SUBMISSIONS, CONCLUSIONS & REASONS FOR ORDER 13. Perused First Information Reports 3/08 and 30/08 and other investigation papers, and considered rival submissions. 14. Judgments relied upon in support of applications by learned Advocate Mr. Mardikar and other Advocates are for the purpose noted below in each case:- [a] Ashok Dingra's case : This case was of allegation of cheating to the magnitude of a huge amount of Rs.65 lakhs. Hon'ble Supreme Court found that there were no grounds to refuse bail, as presence of accused was duly secured and there are no grounds for further detention. [b] [i] Criminal Application No. 2308/02, [ii] Babanrao Tukaram Ranjane Vs. State of Mah., and [iii] State of Maharashtra Vs. Ketan Parek & etc. : These Judgments at Item Nos. 2 to 4 in para no.9 are relied upon by the applicants to urge that in relation to matters where financial irregularities are alleged, the bail could not be refused on that ground, when presence of accused is secured. 14 [c] [i] Bhagirathsinh Mahipat Singh Judeja Vs. State of Gujarat, [ii] Chandraswami & another Vs. Central Bureau of Investigation, [iii] Jayendra Saraswathi Swamigal Vs. State of Tamil Nadu, and [iv] Chenna Boyanna Krishna Yadav Vs. State of Maharashtra & another : The above four remaining judgments at Item Nos. 5 to 8 in para 9 are relied upon for prepositions that the objective or perspective to be kept in mind while considering the bail application pending trial has to be the points such as:- [a] Refusal of bail is not for causing detention prior to conviction; [b] need of custodial interrogation must be compelling; [c] securing presence of the accused initially for interrogation, and later for trial is the objective; [d] assurance to abide by the conditions, such as non- interference in the investigation, not influencing the witnesses or otherwise, not influencing the investigation should be ensured, and [e] the rule is bail and not the jail. The emphasis is given on the observations contained in Jayendra Saraswathi Swamigal's case as 15 reiterated in Chenna Boyanna Krishna Yadav's case. [d] T.T. Anthony Vs. State of Kerala & ors.: This Judgment mentioned at Item No.[9] in Para 9 is relied to urge that there cannot be multiple FIRs for same incident. [e] Order of bail in favour of Shailesh son of Arun Mahajan, an accused amongst present group of accused persons : In this case, it was alleged that the accused had got loans sanctioned in the name of his family members. It is alleged that these loans amount to misappropriation. This Court has granted anticipatory bail to this accused. 15. The learned Additional Public Prosecutor, on the other hand, has relied upon various observations contained in the Judgment of this Court as well as that of Gujarat High Court, and inferences emerging from the Judgment of the Hon'ble Supreme Court in case of Rameshchandra Nandlal Parikh. The emphasis is on the point that the crimes of present nature are graver enough to refuse bail, if on facts, accused are prima facie involved in commission of offences and it cannot be prima fcie found that they are not guilty. 16. This Court has considered the rival submissions 16 and perused the record, case diary and other documents. 17. What is seen from the Statements of Accounts of different borrowers is that the loans, which are referred to in FIR No. 3/08, were sanctioned in one meeting and allegation is of tampering of the record after the proceedings of meeting were over. The contents and imputations contained in FIR 3/08 are made part of report of larger crime reported at Crime No. 30/08. 18. So far as the other loans are concerned, various irregularities, as noted in the First Information Report, are prima facie seen present. The manner of disbursement, and the availment of loan also corroborates the allegations contained in the First Information Report. Information collected by the prosecution also concurs with the type of sanctions with irregularities of grave character as noted in all the cases, relied upon by the prosecution. 19. The case is based on documentary evidence. Bank's money has been siphoned by using legally available channel by illegal means and ends. Prima facie, there is nothing on record that can be denied, nor on facts, any one has denied having signed. 17 20. Thus, prima facie, it is seen that facts are patent, nothing is latent or hidden. 21. Limited question to be considered is whether on what facts emerging prima facie, in law, the applicants are entitled for regular and anticipatory bail as applied in different cases. 22. Upon considering the law relied upon by the Advocates for the applicants, it is seen that the prepositions which they are advancing are on well settled positions of law. The Judgments relied upon by them are on the point of cheating by an individual to other individuals and the perspective of fiscal mal-administration having taint of misappropriation of entrusted amount or defalcation of funds entrusted to them as Banker or as a trustee is not the shade available in those cases. 23. The rule of bail and not jail is, no doubt, a salutary rule to be followed, nevertheless, while reading this rule, it cannot be read in dis-junction with primary rules on which said rule is founded, namely that when the case is one governed by Section 473 (1) of Criminal Procedure Code, i.e., where the sentence attracted is of a 18 life imprisonment, liberty by way of bail is to be earned and not a natural fallout, lest the provision contained in Section 437 of Criminal Procedure Code would be rendered nugatory. Court ought to arrive at a prima facie opinion that the accused is not guilty, and also on facts, he is entitled to be released on bail. 24. Now, it would be necessary to come to the precedents relied upon by the learned APP. 25. Rameshchandra Nandlal Parikh [supra] at Item No.1 in para No.11 above : [a] In this case, a composite prayer was made before High Court of Gujarat for quashing First Information Report and for seeking bail, and both these prayers were rejected. [b] Hon'ble Supreme Court in the Special Leave Petition:- (i) declined to interfere and refused to quash First Information Report; (ii) by finding recorded in para 16, declined to interfere in the order of High Court of Gujarat refusing to grant bail. [c] It shall be useful to refer to para 16 of the Judgment of Hon'ble Supreme Court in this case. For ready reference, it is quoted below:- 19 “16. Special Leave Petition (Crl.) No. 6200 of 2004 is directed against the judgment of the Gujarat High Court dated 8-4-2004 declining to grant bail to the petitioner. Having perused the order and the record, and in the light of the submissions made before us, we are not satisfied that in the facts and circumstances of the case, the petitioner is entitled to be released on bail. The order of the High Court appears to be justified. We find no reason to interfere.” [Emphasis is supplied]. [d] In order to appreciate emphasized portion, it becomes necessary to advert to the facts, which have to be read from contents of paragraph no.2 of the same judgment. [e] For convenience, para 2 of the judgment is quoted below:- “2. .....It was alleged in the special civil application that the main branch at Shahibaug (Ahmedabad) and the Mandvi branch (Mumbai) were involved in a large economic scam, which involved inter alia, advancing large sums of money to persons of dubious antecedents without taking steps to verify their creditworthiness in violation of applicable banking procedures and regulations......” [Emphasis supplied]. [f] It is, thus, seen that the Rameshchandra Nandlal Parikh was a case of sanction of loan to parties without taking steps to verify their creditworthiness and in violation of banking procedure and regulations. [g] Though the text of this Judgment [Rameshchandra 20 Parikh] [supra] does not contain reasons leading to rejection of bail applications at length, reasons spelt out from reading do positively convey in unambiguous terms what is the dictum in force as a precedent as to grounds on which bail was declined. 26. Observations contained in para Nos. 3 and 2 of the Judgment of this Court in case of State of Maharashtra Vs. Pramodkumar Damodhar Wani & anr.[supra] are pertinent and are relevant which is quoted as below:- “3. .................................... ..........The examination of record showed that 87 loan cases were sanctioned without verification of credentials of the borrowers without obtaining proper securities and a large number of borrowers were not in existence. Some of the loans were sanctioned to relatives of Chairman Rajendra Wani and also to members of the Board of Directors. There was a designed plan, prima facie, to defraud the depositors and members of the Co- operative Credit Society. The Credit Co- operative Society was put to loss of approximately Rupees eight (8) crores due to such financial bunglings, manipulations and money laundering. The Auditor noticed that members of the Loan Committee, including Chairman Rajendra Wani, his wife as well as members of the Board of Directors have defrauded the depositors who were allured to deposit amounts in the Cooperative Credit Society by floating schemes like giving of free gifts such as gold rings etc., on making deposits. He lodged F.I.R. Thereupon the police registered Crime No. 75/2007 at Savda Police Station for offences punishable under sections 420, 406, 408, 409, 465 read with Section 34 of the I.P. Code.”, “12. In the fact situation of the present 21 case, there is sufficient material available to infer that the Directors joined hands with Chairman Rajendra Wani while sanctioning the loan cases on a single day, in the four lots mentioned above, which resulted into huge financial loss to the Co-operative Credit Society. Nobody made any attempt to verify whether the borrowers were eligible, whether the proper procedure was followed, whether the sufficient securities were obtained and whether such huge loans were likely to be recovered. Since some of the borrowers are not in existence at all and no security is obtained from many of them, it is obvious that recovery of the loans under the Maharashtra Co-operative Societies Act would be difficult. The learned Additional Sessions Judge failed to consider these aspects of the matter. He did not record sufficient reasons and vaguely observed that the respondents were not directly involved in the financial misdeeds. Needless to say, the impugned orders are illegal, perverse and liable to be quashed.” Based on these findings, this Court had cancelled anticipatory bail which was granted by Sessions Court in the petition for cancellation moved by State Government. 27. The case before the Gujarat High Court, i.e., Natvarbhai Pitamberbhai Patel Vs. State of Gujarat [supra], is, more or less, of a similar nature as one at hand. What was observed therein on the basis of the investigation papers is found in para 11, which is quoted below for ready reference:- “11. During the course of hearing, the learned Public Prosecutor had placed for perusal the papers of investigation carried out so far and it could, prima facie, be seen 22 that the petitioner was actively involved in the activities of the Society since its inception. At the time when initial financial facilities were extended by the bank, he was admittedly a member of the Board of Directors and even those facilities, increased from time to time to the extent of rupees three crores, were supposed to be by way of hypothecation of goods and, factually, even a statement of such goods supposed to have been hypothecated to the bank did not appear to have been filed and such loans were secured by such guarantees and collateral securities as were evidently insufficient to protect the bank against default. It would be inappropriate and premature to analyse the material at this initial stage of investigation and all ingredients of one or the other particular offence may not be found, at the initial stage of investigation, against each individual accused but involvement has to be gathered from the broad facts emerging from the record. On these parameters, prima facie, serious offences are disclosed in the facts of the case emerging from the papers of investigation. The definition of “criminal breach of trust” as given in Section 405 of the Indian Penal Code is wide enough to cover the cases where a person entrusted in any manner with property dishonestly uses such property or even willfully suffers the disposal of such property in violation of any direction of law prescribing the mode in which such trust is to be discharged. In the facts of this case, the apparent commercial activity in the co- operative sector, prima facie, turns out to be systematic siphoning of crores of rupees in cynical disregard of not only the in-built checks and balances, but the penal provisions of law. The funds entrusted by the Bank to its officers and officer-bearers for the purpose of legitimate business of banking appears to have been given away or rather taken away by the Chairman of the Board of Directors and his group by using the corporate personality of the society. And the office-bearers of the society appear to have facilitated such grant in the form of loan on the basis of documents and 23 formalities which would turn out to be an exercise in futility