1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH : NAGPUR Criminal Application No. 1886 of 2010 [Jawaharlal Shrilal Dubey Vs. State of Mah.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. R.M. Daga, Adv., for the applicant. Mr. Shyam Ahirkar, APP for respondent. ---- CORAM : A.H. JOSHI, J. DATE : 28th April, 2011. 1. This application for bail is listed before this Court [Special Bench] in view of order in earlier Criminal Application No. 636 of 2010, which was passed by this Court. 2. Record shows that Criminal Application No. 636 of 2010 filed by present applicant was decided with following order:- “Heard. Seeing that this Court is rejecting bail petition, learned Advocate for the applicant prays for permission for withdrawal of this application. Application is therefore, dismissed as withdrawn.” 3. Heard learned Adv. Mr. R.M. Daga for the applicant and learned APP Mr. Shyam Ahirkar 2 for respondent. 4. Learned Adv. Mr. Daga has tendered affidavit of the applicant's son explaining difficulties, and undertaking to deposit amount of Rs.1,00,000-00 as a condition for bail. 5. Perused the application and Affidavit- in-Reply. 6. On earlier date, learned Adv. Mr. Daga had urged for bail by emphasizing the averments contained in para 8 of the application. For ready reference, para 8 of the application is quoted below:- “8. That as per prosecution case Chief Accounts Officer by name Deorao Kothadkar is alleged to have misappropriated amount of Rs.3,11,92,587/-, Executive Engineer by name Bhaurao Dudhey who is alleged to have misappropriated amount of Rs. 7,63,26,383/- and Assistant Accounts Officer Parshuram Nandeshwar alleged to have misappropriated amount of Rs. 9,13,16,808/- are released on Anticipatory Bail by this Hon'ble Court, in order passed in Criminal Application Nos. 2438/2006, 2365/2006 and 2478/2006 respectively, by order dated 22.08.2006. In the said order this Hon'ble Court observed “Considering the fact that the alleged offence took place six years ago and that most of the evidence which the investigating officers seek to collect would be in the form of documents, custodial investigation of these three retired officers may not be necessary.” It is submitted that case of 3 present applicant cannot be distinguished with aforesaid accused.” 7. This Court had noticed that the averments in para 8 of the application were not replied by the State while replying the bail application. 8. Learned APP had sought time to file additional reply, which was granted. 9. Now, State has filed reply on 26th April, 2011. Para 4 of the reply refers to averments contained in para 8 of bail application. Relevant averments read as follows:- “4. It is submitted that the averments made in para 8 of the application that Deorao Kothalkar misappropriated amount of Rs.3,11,92,587/-, another accused Bhaurao Dudhe, Executive Engineer misappropriated amount of Rs.7,63,26,383/- and Assistant Accounts Officer Purushottam Nandeshwar misappropriated amount of Rs.9,13,16,808/- and these persons were released on anticipatory bail by this Hon'ble Court. In this respect, it is submitted that at the time of filing of First Information Report the amount of misappropriation was given in First Information Report was only Rs.4,43,30,512/-. At that time audit report of Special Auditor was not available.” 10. Case proceeds in the background that applicant and various other persons had forged and fabricated record in order to show purchases 4 and expenditure, and have withdrawn from Govt. treasury huge amounts and have misappropriated the same. 11. In so far as applicant is concerned, the act of cheating and misappropriation done by him is shown to be to the tune of Rs. 4.43 crores. 12. This bail application is pressed on the ground of parity with the persons, namely [1] Deorao Kothalkar, [2] Bhaurao Dhudhe, and [3] Purushottam Nandeshwar, some were on the higher position and some on different positions in the Accounts Department, who are facing charge arising out of the same FIR. 13. It is seen from the reply filed by the State that the prayer for bail is opposed on the ground that while there is parity in the charge and order of bail, there is no parity in the amount of misappropriation. 14. According to learned APP, when the anticipatory bail was granted to the accused persons named in para 4, the magnitude of misappropriation disclosed in FIR was only to the tune of Rs.4.43 crores, while, during the investigation and by the time charge-sheet is filed, the amount of misappropriation by these accused persons has surfaced to be the tune of Rs. 7 crores and Rs.9 crores. 15. Learned Adv. Mr. Daga has urged that 5 the subsequent developments are that the State had moved this Court by making an application for cancellation of bail of accused who were already released on bail. Two Criminal Application Nos. 784 and 785 both of 2010 were filed for that purpose. He points out by tendering copies of orders that both the applications for cancellation of bail were rejected. 16. According to learned Adv. Mr. Daga, the point involved and the FIR is the same. 17. Learned APP Mr. Ahirkar does not dispute the position that all accused referred in para 8, namely those in Criminal Application Nos. 784 and 785 both of 2010, and present applicant, are the accused in one and the same FIR in which present application for bail is filed. 18. While this Court is seriously concerned and shocked about the crime, subject-matter, this Court considers itself left with no option than to follow the suit by granting bail on the ground of parity as done to the other accused persons. 19. In the result, this application is allowed. 20. The applicant be released on bail on following conditions that applicant shall:- 6 [a] Furnish a Personal Bond and a Solvent Surety in a sum of Rs.50,000-00 [rupees fifty thousand only]. [b] Deposit in the Trial Court within ten days an amount of Rs. 1,00,000/- [rupees one lakh only]. [c] Abide by such orders as may be passed by the Trial Court in the event the Court considers it necessary. [d] Appear before the Trial Court, and shall continue to appear by signing appropriate bond for being bound over for attendance. [e] The accused person shall not leave Amravati district without express written permission from the Court trying the case. 21. Application is disposed of accordingly. Judge |Hedau|