1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3595 OF 2009 Ajay S/o.Shesherao Salunke, Age-45 years, Occu-Agriculturist, R/o.Shahunagar, Beed, Tq. And Dist. Beed APPLICANT VERSUS The State of Maharashtra, Through Police Inspector, City Police Station, Beed, Tq. and Dist. Beed RESPONDENT Mr.S.S.Thombre, learned counsel for applicant. Mr.N.R.Shaikh, learned APP for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 03/12/2009 PER COURT : 1. By the present application, the applicant has approached this Court for his release on anticipatory bail in the event of his arrest in connection with CR No.56/2009, registered in Beed City Police Station for an alleged offence u/s. 409, 408, 406, 467, 468, 477, 107, 420, r/w. 34 of IPC, and u/s.73(1-A,B) of The Maharashtra Co-op. Societies Act, 1960. 2. Heard learned counsel appearing for applicant followed by the 2 submissions of learned APP appearing for the State. Perused the papers submitted alongwith the application on behalf of applicant as well as compilation of papers of investigation till carried out by the learned APP. 3. From the perusal of the record, which is placed before me for my perusal, it can not be disputed that the present applicant was elected as a Director of Champawati Nagari Sah. Bank Ltd., Beed somewhere in the year 2004. He was also elected as a Vice Chairman on 26/08/2008. The criminal complaint was lodged by the Special Auditor, who has carried out the audit of said co- operative bank for the period 01/04/2006 to 03/03/2007. During the said audit report, it is noticed that there is mis-appropriation of funds of bank in the sum of Rs.4,18,29,500/-. This complaint came to be lodged on 10/06/2009 for the aforesaid sections which I have mentioned in para no.1 of this order. 4. During the course of submissions across the bar, it is tried to urge on behalf of learned counsel appearing for the applicant that in the audit report, how the mis-appropriation occurred or noticed is mentioned under 10 different heads. In the said audit report, no individual liability was saddled on this applicant by the Auditor and it is contended that so far as the liability about irregularities carried out in the transaction of the bank, is the joint liability of the present applicant alongwith other accused. It was also tried to urge across the bar that the applicant is not a member of the Loan Sanction 3 Committee nor any loan was sanctioned at his individual instance to any of the member. In the premise if any irregularity is noticed by the Auditor, the applicant may not be held liable for it and merely because his name is shown in the FIR, he may not be arrested in connection with that offence. It is also urged across the bar that the present complaint is lodged by the Special Auditor on the basis of audit carried out by him. While carrying out the audit, all the registers, relevant documents were taken in charge by the team of the auditor and now nothing is required for the custodial interrogation so far as the present applicant is concerned. It is also urged across the bar that other directors of the bank were released on anticipatory bail who have granted loan to some of the members and in view of this, on the ground of parity, this applicant also given the liberty of releasing him on anticipatory bail. 5. This application is opposed by learned APP appearing for State on the ground that he has given 4 instances about the loan sanctioned at the instance of the present applicant, they are under the head of personal loan as on 31/03/2008, salary loan as on 31/03/2008, the loan balance list at IR balance as on 31/03/2008 and the loan sanctioned to Rushi Medical at the hands of this applicant. It was also urged that all the meetings which were conducted by the bank during the period 01/07/2005 to 31/06/2006, all these meetings were attended by this applicant in which loans were sanctioned to different members or the persons by the Board of Directors of the Bank and on this ground, the 4 application for bail to be refused. 6. It is also urged that for the provisions u/s. 73 (1-A,B) of The Maharashtra co-operative Societies Act, the present applicant being a Director or Member, is jointly and severally liable for mis- appropriation of the funds of bank. 7. Considering these submissions across the bar, it is submitted across the bar that the applicant to be held liable jointly and severally with other directors of the bank, but not individually to be held liable for the transactions under which the Auditor has submitted his report. It can not be overlooked that in the entire audit report, no individual liability is saddled on this applicant by the Auditor. What is pointed out by the Expert Committee of Reserve Bank of India, who has verified this Auditor report submitted by the Special Auditor that number of irregularities at the hands of Board of Directors of the Bank were noticed. At the same time, the loan which were disbursed and yet to be recovered, steps to be taken by the bank for the recovery of those loans. It is not sufficient to say that as this director has not put the protest about the sanction of loan, he be held liable for the loan. Considering the fact that even though the charges against this applicant are about cheating, criminal breach of trust, falsification of documents and under the provisions of The Maharashtra Co-operative Societies Act, at the most, the Directors to be held liable and if it is so, this is not a case where even though the name of the applicant accused is arrayed as an accused in the 5 complaint lodged by the Auditor, but this is a case where custodial interrogation of the applicant is not required. A case is made out to use discretionary power u/s. 438 of The Cr.P.C. Hence order - O R D E R 1. Application is allowed. 2. In the event of arrest of applicant in connection with CR No. 56/2009 registered in Beed City Police Station, the applicant be released on bail on furnishing surety in the sum of Rs.20,000/- and on executing PR bond in the like amount. 3. The applicant to give attendance to the Beed City Police Station whenever required on the written requisition from the concerned Investigation Officer. 4. This protection is given for the period of 6 weeks. Within meantime, the applicant may apply for regular bail before the appropriate Court. 5. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.3595-09