Cri. Apln. Nos. 2432 & 2483/2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2432 OF 2011 1. Dr. Nandkumar Yadavrao Tasgaonkar, R/o. Sumati Krishna Niwas, Shiv Sena Bhavan Path, Dadar (W), Mumbai. 2. Shri. Ramdas Vasu Shetty, R/o. Nerul, New Mumbai. ....Applicants. Versus The State of Maharashtra ....Respondents. AND CRIMINAL APPLICATION NO. 2482 OF 2011 Shri. Shashikant Ramchandra Gangawane, R/o. Shivadi Mumbai A-9, Near T.B. Hospital, Officer Quarter, Mumbai. ....Applicant. Versus The State of Maharashtra ....Respondents. Mr. V.D. Salunke, Advocate for applicants in both applications. Mr. B.J. Sonawane, APP for State/respondent in both applications. Cri. Apln. Nos. 2432 & 2483/2011 2 CORAM : T. V. NALAWADE, J. DATED : 27th June, 2011. PER COURT : 1. These two applications are filed for anticipatory bail in Crore No. 2/2011 registered in Chopda City Police Station, Jalgaon for offences under sections 420, 471, 34, 120-B etc. of the Indian Penal Code. Both the sides are heard. The papers of investigation were made available. Today the advocate for the applicants submitted some record like the record of loan transaction, copy of registered agreement of sale made in favour of applicants in the first proceedings. 2. The crime is registered on the basis of report given by Special Auditor. He has made allegations that when he did the audit of account of Tapi Sahakari Pat-Pedhi Maryadit, Chopda, he found that huge amount of depositors was siphoned illegally by the office bearers and employees of the Society by creating some false record. He has mentioned the modus operandi used by the office bearers and employees. He has contended that some concerns were created in the names of friends and relatives of the office bearers and loan was sanctioned to those concerns. There was deposit of more than Rs. 189 Crore and only the amount of Rs. 86 Crore was recovered as there was aforesaid modus operandi. In the report, the names of concerns, office bearers who created false record in the name of friends are mentioned. It appears that subsequently some more transactions of similar nature Cri. Apln. Nos. 2432 & 2483/2011 3 were detected. The Special Auditor then gave supplementary statement in present matter on 26.5.2011. He has made allegations that applicant No. 1 from the first proceedings is a business friend of Chairman of the Society and by joining hands with the office bearers of the society, the loan of Rs. 20 Crore was got sanctioned. There are allegations that when Banai Hospital and Research Center was not in existence and when such concern owned no immovable property, the loan was sanctioned. In the supplementary statement, some record is referred. Allegations are made that even the partnership documents of the said concern was created by mentioning previous date when the stamp was purchased on subsequent date. Allegations are made that some properties shown to be mortgaged by the deposit of title deeds, were not vesting in the applicant No. 1 from the first proceedings. The applicant No. 2 from the first proceedings and the applicant from the second proceedings have signed on the document as guarantors. Though the loan of Rs. 20 Crore was sanctioned, the amount of Rs. 7.75 Crore was disbursed and according to the auditor with the interest the amount due is now more than Rs. 12 Crore. 3. The advocate for the applicants submitted that the amount of Rs. 4 Crore is already deposited and the certificate is given to him that the amount of Rs. 11 Crore is due from him. He also produced a document like certificate issued under section 101 of the Maharashtra Co-operative Cri. Apln. Nos. 2432 & 2483/2011 4 Societies Act in this regard. The certificate is for the amount of Rs. 11,94,84,927/-. 4. In view of the aforesaid contentions, the advocate of the applicants from first proceedings was directed to produce the record and to show that the property which is shown to be mortgaged by way of deposit of title deed was really owned by the applicant No. 1 or any interest was vested in the application at the relevant time in those properties. In the report given by the auditor, it is mentioned that some agreements of sale were produced. Today the advocate for the applicant referred to one such registered agreement executed by one Rama Ragho Kalan in respect of one of the land. The advocate referred the clause No. 5 of the agreement under which the applicant No. 1 from first proceedings shown as Chairman of concern Saraswati Medical And Research Foundation Research Foundation was allowed to mortgage the property. Though the things are required to be considered for prima facie purpose, it needs to be observed that only agreement of sale does not create any interest in favour of the person who obtains such agreement. Admittedly, the owners have not signed on mortgage document. Compilation of the copies of loan transactions are produced by the advocate of the applicants and it shows that the owners have not signed on the mortgaged document. In the application itself the applicant has contended that his project could not materialize. All these Cri. Apln. Nos. 2432 & 2483/2011 5 circumstances show that on the day on which the loan was sanctioned, applicant No. 1 from the first proceedings had no interest in immovable properties, which could have been mortgaged by him to the Society. In spite of that, some record of mortgage came to be created and the loan came to be sanctioned. The advocate of the applicants submitted that now the certificate is issued under section 101 of the Maharashtra Co- operative Societies Act and so the dispute can be handled in that way. He also relied on order made by the Supreme Court in Criminal Application No. 10460-10461 of 2011. He submitted that in that case the Hon'ble Apex Court fixed the installments of the amount due and granted the relief. The facts of the case are not available. The advocate for the applicant submitted that the applicant who is granted bail was borrower in that case. That circumstances is not sufficient as allegations against the present applicants are totally different. He also relied on the case which is reported as AIR (SCW) 698 (State of Maharashtra Vs. Laljit Rajesh Shah). In this case the Apex Court has discussed section 21 of the Indian Penal Code in relation to section 161 of IPC and also the provisions of Maharashtra Co-operative Societies Act. It is observed that for some purposes some employees of the Society or the persons who make inquiry or inspection can be treated as public servants, but for the purpose of IPC, this interpretation cannot be extended and so there cannot be prosecution under section 161 of IPC of such persons. In the present case, there is intention to prosecute the employees and office Cri. Apln. Nos. 2432 & 2483/2011 6 bearers under section 161 and the prosecution would be totally under different sections. Thus, the case cited for applicants is of no help to them. On the other hand for the State one case reported as (2011) 5 SCC 296 (Central Bureau of Investigation, Hyderabad Vs. Subramani Gopalakrishnan and Anr.) was cited. This case is on provisions of section 437, 439 and also for the cancellation of bail. The APP submitted that in such cases the custodial interrogation is must. 5. The facts and circumstances of the present case are sufficient to make out prima facie case for offences for which crime is registered. It is not only the case of misuse of power by office bearers of the Co- operative Society, it is the case of deceiving the depositors. Due to use of similar modus operandi many such institutions are going in liquidation. In the present case when the applicant No. 1 from the first proceedings, who is a doctor submitted the proposal, he knew that he had no interest as such in the property which he was shown to the Society for security for the loan transaction. In the supplementary statement, it is mentioned that when Society has power to sanction the loan of Rs. 50 lacs only, the loan of Rs. 20 Crore was sanctioned. Though the total amount was not disbursed, the actual amount disbursed was certainly more than this limit. These circumstances are sufficient to make out prima facie case against the applicants from both proceedings. In view of these circumstances, this Court holds that no relief can be granted in Cri. Apln. Nos. 2432 & 2483/2011 7 favour of the applicants. In such cases custodial interrogation needs to be made. So applications stand rejected. [ T. V. NALAWADE, J.] ssc/criapln2432 & 2483/11