HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 1/13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CRIMINAL APPLICATION (ABA) NO. 182 OF 2011 Biswajit S/o. Ajoy Mitra vs.. The State of Maharashtra through the Police Station Officer, Umrer Police Station, Tahsil Umrer, Dist. Nagpur ............................................................................................................ Mr. Rohit Deo, Advocate for the Applicant Mr. S. S. Doifode, A.P.P. for the Respondent ............................................................................................................ WITH CRIMINAL APPLICATION (ABA) NO. 193 OF 2011 Shankar S/o Chindhbaji Gaikwad vs.. The State of Maharashtra through the Police Station Officer, Umrer Police Station, Tahsil Umrer, Dist. Nagpur ............................................................................................................ Mr. S. P. Bhandarkar, Advocate for the Applicant Mr. S. S. Doifode, A.P.P. for the Respondent ............................................................................................................ WITH CRIMINAL APPLICATION (ABA) NO. 194 OF 2011 Sunil s/o Nilkanth Bandekar vs.. The State of Maharashtra through the Police Station Officer, Umrer Police Station, Tahsil Umrer, Dist. Nagpur ............................................................................................................ Mr. S. P. Bhandarkar, Advocate for the Applicant Mr. S. S. Doifode, A.P.P. for the Respondent ............................................................................................................ WITH CRIMINAL APPLICATION (ABA) NO. 197 OF 2011 Shailendra S/o Deviprasad Gupta vs.. The State of Maharashtra through the Police Station Officer, Umrer Police Station, Tahsil Umrer, Dist. Nagpur ............................................................................................................ Mr. S. P. Bhandarkar, Advocate for the Applicant Mr. S. S. Doifode, A.P.P. for the Respondent ............................................................................................................ WITH HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 2/13 CRIMINAL APPLICATION (ABA) NO. 198 OF 2011 Shrikrushna s/o Shreedhar Supe vs.. The State of Maharashtra through the Police Station Officer, Umrer Police Station, Tahsil Umrer, Dist. Nagpur ............................................................................................................ Mr. R. K. Tiwari, Advocate for the Applicant Mr. S. S. Doifode, A.P.P. for the Respondent ............................................................................................................ Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM: U. V. BAKRE, J. ORDER RESERVED ON : 13th OCTOBER, 2011 ORDER PRONOUNCED ON: 19th OCTOBER, 2011 The applicants of all the above applications apprehend their arrest in Crime No. 53/2011 registered at Police Station, Umrer, for offence punishable under Sections 409, 420, 468 and 471 read with Section 34 of the Indian Penal Code (I.P.C.) and therefore have approached this Court for anticipatory bail, having failed to obtain the same from the learned Additional Sessions Judge, Nagpur. 2. Mr. Biswajit Mitra, the applicant of A.B.A. No. 182/2011, was working as Deputy Director, Social Forestry, Division, Nagpur as from 18/04/2007 to 02/06/2010. Shri. Shankar Gaikwad, the applicant of A.B.A. No. 193/2011 was working as Plantation Officer from January 2006 to 14/09/2010 at Bhiwapur. Shri. Sunil Bandekar (Bandebuche) HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 3/13 the applicant of A.B.A. No. 194/2010 was working as a clerk from the year 2005 till 25/11/2010 at Social Forestry Division, Nagpur. Shri. Shailendra Gupta, the applicant of A.B.A. No. 197/2011 was working as Assistant Plantation Officer at Bhiwapur for Wakeshwar Nursery from 01/07/2007 to 25/11/2010. Shri. Shrikrushna Supe, the applicant of A.B.A. No. 198/2011 was working as Plantation Officer at Umrer as from 03/07/2004 till 24/09/2010. The nurseries were developed at Umrer and Bhiwapur. 3. The Central Government has launched a scheme under the name of Mahatma Gandhi National Rural Employment Guarantee Scheme under which various works like raising of nurseries, plantation, construction of roads, soil and moisture construction work and other works are undertaken under the Employment Guarantee Scheme. The said scheme has to be implemented by the State of Maharashtra under the scheme of Maharashtra Gramin Rojgar Hami Yojana. The work of raising nursery at various ranges in Nagpur District has been undertaken by the Social Forestry Department and the said scheme has to be implemented through Collector, Nagpur. A procedure has been prescribed for implementation of scheme. 4. The allegation against the applicants is that they, in their capacity as Public Servants, in furtherance of the common intention, made false documents and dishonestly HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 4/13 used them as genuine and dishonestly misappropriated an amount of Rs. 2.79 Crores and thereby cheated the Government and also committed criminal breach of trust.. 5. The complaint has been lodged by the Deputy Collector, Employment Guarantee Scheme, on the basis of the preliminary inquiry report submitted by Shri. P.B. Kottewar, the Assistant Director. 6. The respondent has filed reply resisting all the applications vehemently. 7. Heard arguments. Perused the records made available to me by the learned A.P.P. The learned counsel for the applicants and respondent argued for a pretty long time. 8. It is well-settled that while dealing with application for bail, merits of the case are not required to be examined though reasons for prima facie conclusions have to be indicated. 9. It was argued by Shri. Rohit Deo, the learned Counsel for the applicant, Mitra that Mr. P.B. Kottewar was a Subordinate Officer to the applicant and had submitted all the proposals and had verified the disbursement of funds, etc as per the requirements of the prescribed procedure. He argued that there is prescribed hierarchy through which the HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 5/13 projects of the scheme are undertaken and therefore there cannot be any mistake. He also stated that admittedly a blue print of all works to be carried out was prepared by the plantation officer which has been approved by the Collector. He pointed out that the entire project is carried out under the jurisdiction and competency of the Collector of Nagpur. According to learned Advocate Shri Deo, the F.I.R. is confusing and there are conflicting versions and different figures of amount of alleged misappropriation. He pointed out that Mr. Mitra is the only person not suspended and is having unblemished carrier and clean service and even if some negligence somewhere is noticed it cannot be prima facie held that he has committed offence. He contended that no offence of criminal conspiracy is involved and there is no evidence to rope in Mr. Mitra with the aid of section 34 of I.P.C. 10. Learned Advocate Mr. S. P. Bhandarkar argued that there is intra-departmental rivalry which has resulted into filing of false complaint. He argued that the F.I.R. is based on the report of Mr. P.B. Kottewar who is part and parcel of the scheme and who was responsible for inspecting the nursery 50 times a year and therefore he must be deemed to be having knowledge. He pointed out that as per paragraph 18.6 of Chapter 1 of the Employment Guarantee Scheme, the Collector is required to scrutinize the case of misappropriation, etc. with the help of Public Prosecutor and HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 6/13 only after accord given by the Public Prosecutor, the F.I.R. can be filed. He also pointed out discrepancies in the amounts allegedly misappropriated. As far as Shri. Sunil Bandekar is concerned, learned Advocate Mr. Bhandarkar argued that he has only typed the documents. 11. Learned Advocate Mr. R. K. Tiwari adopted the arguments of learned Advocate Mr. Deo and Mr. Bhandarkar and argued that there are checks and counter checks and hence no mistakes are possible. According to him, a blue print of the works to be undertaken was prepared by the Plantation Officer and submitted to the Collector through Tahsildar for approval. He argued that the committee appointed by the Central Government had visited the nurseries in 2009 and 2010 and had passed outstanding remarks. 12. The learned counsel for all the applicants have mainly contended that after filing of the complaint, the Collector of Nagpur on 19/05/2011 has appointed a committee of five members in order to fix responsibility on concerned officials with regard to the said alleged misappropriation and this committee has not yet submitted the report. They therefore say that the complaint dated 10/05/2011 is premature. 13. On the contrary, learned A.P.P. Mr. S. S. Doifode HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 7/13 has brought to the notice of this Court, on the basis of documentary evidence, as to how there is criminal breach of trust and misappropriation of huge amount in crores of rupees, at the hands of the applicants, who according to the learned A.P.P. are in collusion with each other. He argued that custodial interrogation of the applicants is essential for recovery of the misappropriated amount; to find out as to how the applicants have disposed of the said amount; to find out as to how the bogus and fabricated documents, bills muster record and other records were prepared and where they were prepared; and to find out how many other persons are involved in the commission of the offence. 14. The learned Counsel for the applicants have relied upon the guidelines laid down by the Hon’ble Apex Court in the case of “Gurbaksh Singh Sibbia v/s State of Punjab” [1980(2) S.C.C. 565] and in the case of “Siddharam S. Mhetre v/s. State of Maharashtra” [2011(1) Bom C.R. (Cri) 293]. 15. As per the provision of the scheme, the Deputy Director (Mitra) is empowered to sanction an amount upto Rs. 5,00,000/- for such work of one nursery. In the present case, the total estimate is of crores of rupees and in order to win over the said situation of the sanction limit of Rs. 5 lakhs, various estimate reports have been prepared with intention to divide the work into several branches to show that it is of HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 8/13 less than Rs. 5,00,000/-. By letter dated 04/01/2010, the applicant, Mr. Mitra (Deputy Director) has requested the Collector to accord Administrative sanction to the work fragmented into parts as if the same is one single work. The said estimates were prepared by S. S. Supe and S. G. Gaikwad (Plantation Officers) at some place in Nagpur, but not in office. Mr. Sunil Bandekar(Clerk) from the office of Mr. Mitra has prepared those estimates at his folder, in the computer. 16. As per the provision of the Scheme, the bank account should be opened in the names of the Deputy Director and Accounts Officer. It is the contention of the prosecution that though there was one person by name Samarth working as Chief Accounts Officer, however, Mr. Sunil Bandekar who is only a clerk was chosen by the Deputy Director for opening the joint account. The list of the employees of the social forestry division was showed by the learned A.P.P. Admittedly, the Assistant Director (Mr. P. B. Kottewar, in the present case) is to be asked by the Deputy Director to inspect the work and submit report and only after satisfaction of the genuineness of the demand, the demand made by the Plantation Office is to be sent by Deputy Director, for approval. The Deputy Director cannot release the funds in favour of the Plantation Officer (Mr. Shrikrushna Supe and Mr. Shankar Gaikwad, in the present case) unless the work is inspected and verified by the Assistant Director HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 9/13 (Mr. P.B. Kottewar). The learned A.P.P. has demonstrated as to how the said Assistant Director, Mr. Kottewar has been by- passed in respect of the above material requirements. 17. It is noticed that the Deputy Director (Mr. Mitra) has issued bearer cheques in the names of the Assistant Plantation Officer (Mr. S. S. Supe and Mr. S. G. Gaikwad, in the present case). False vouchers towards purchase of huge nursery articles like soil, manure, poly bags, etc, sometimes even without calling for quotations/tenders of the items of the value above Rs. 50,000/-, which is beyond the limit of the Deputy Director, have been prepared by the clerk Mr. Sunil Bandekar (Bandebuche). The learned A.P.P. has shown from the evidence so far collected that actually no such purchases were entirely made nor such expenditure was actually made. It is seen that expenditure has been shown towards the transporters. But no deduction of income tax at source has been made and in reality no such transporters or their vehicles were engaged. There are on record statement of various witnesses in whose names the vouchers are prepared. They have all clearly stated that they had not transported anything nor had sold/supplied anything, etc, etc. There are statement of labourers to the effect that they had not worked in any of the said nurseries. It is found that money was deposited in the accounts of these people and subsequently withdrawn by Shri. Sachin Navghare and/or Shri. S. S. Supe with the assistance of the said persons or HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 10/13 paid back by those persons to Shri. S. S. Supe. There are several transport owners, labourers, contractors and others who have not received any amount but they have been shown on paper to have received the amounts. 18. It is further seen from the record that whatever actually purchased was of low quantity and even less quantity has been purchased by showing more on paper. As far as poly bags are concerned, even no estimate was prepared. The estimates are signed by the Plantation Officers and the Deputy Director only. The alleged bogus vouchers are signed by the Plantation Officer, Assistant Plantation Officer and the Deputy Director. 19. Various panchnamas conducted into the nurseries reveal that the sapplings have dried. No iron boards, which were required to be raised in the nursery, except a few were found. No use of Neem cake powder was done. Cement poles which were required to be erected, were not seen. Sand mixed soil, as mentioned in the estimates, was not seen to have been used but black soil which was degraded and having small stones and rubbles, was found to have been used. Old used cement bags alleged to have been used were not found at site during inspection and verification. 20. For example, the statement of one Shankar HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 11/13 Hiwarkar reveals that he was engaged by S. S. Supe to carry the sapplings to Wakeshwar nursery, even without fixing rates for transport. The Assistant Plantation Officer, Mr. Shailendra Gupta told him not even to worry about the passes for carrying the said plants. He has done that work without any transport passes. He has not been paid the entire amount. 21. There is therefore prima facie evidence against all the applicants. 22. I am aware of the principles laid down by the Hon’ble Apex Court in “Siddharam Mhetre” case, supra. The nature and gravity of the accusation against the applicants and the role prima facie showed to have been played by each of them compels the court to hold that custodial interrogation would be essential. The acts of the applicants, demonstrated above, cannot be termed as mere negligence or mismanagement. Criminality is prima facie apparent. In the case of “Soma Chakravarty V/s State (Through CBI)”(AIR 2007 S.C., 2149), the Hon'ble Supreme Court has held that in a case of fraud and misappropriation of Government money, when there is charge against the accused of dishonestly processing and verifying fake bills, plea that accused had signed bills in question in normal course of duty and that accounts section was negligent, is not tenable because once person signs on document he or HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 12/13 she is expected to make some enquiry before signing it. 23. The transaction, in the present case, is of such a magnitude and is of such a nature, as has been rightly argued by learned A.P.P. Shri. S. S. Doifode, that the same cannot happen without collusion of all the applicants. Contending that other responsible persons have been left out or that no offence of criminal conspiracy has been registered, may not help the applicants. The matter is still under investigation and anything can be added or subtracted. Similarly, merely because a new committee has been appointed for enquiry, that also will not make the complaint pre-mature, as the offence has been registered and police investigation has commenced. The enquiry by new committee would be an internal departmental action. 24. One of the applicants, namely S. S. Supe has allegedly threatened a witness Shri. Devendra Chakole, an Assistant Plantation, to kill him since he has given a statement to the police. N.C. case under Sections 504 and 506 of I.P.C. has been registered on 04/06/2011 against Shri. Supe. 25. I am of the opinion that none of the applicants are entitled for anticipatory bail, in the facts and circumstances of the case. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/Sandeep/191011/ABA182.2011.odt 13/13 26. Hence, all the applications are rejected. JUDGE 27. At this stage, the learned counsel for the applicants seek time of six weeks to approach before the Hon’ble Apex Court and pray for extension of interim protection granted by this Court to all the applicants to continue for six weeks. 28. Request is granted. 29. Interim protection granted by this Court to all the applicants shall continue till 30th November 2011. JUDGE Punde.