1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 110 of 2011 Sudhakar and ors v. State of Maharashtra -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr R.L. Khapre, Advocate for applicants Mr S.S. Doifode, APP and Mr A.M. Ghare, Advocate to assist him for respdt-State Coram: A. P. Bhangale, J Dated: 19th July 2011 1. Heard learned counsel for the parties. By this application, applicants are praying for grant of anticipatory bail in Crime No. M1/11 registered with Police Station, Akot for the offences punishable under Sections 406, 468, 477-A read with Section 34 of the Indian Penal Code. 2. Complainant Pradeep filed complaint against the applicants and one Mahadeo Bodkhe before the Judicial Magistrate, First Class, Akot and invoking the powers of the learned Magistrate under Section 156 (3) Cr. P. C., prayed for direction to the Police Station Officer, Akot Police Station to register offences punishable under Sections 406, 468, 477 read with Section 34 of the Indian Penal Code inter-alia against the present applicants; take up the investigation into the same and submit final report before the Court. 3. Complainant averred that he is share-holder of Akot 2 Taluka Sahakari Sut Girni Maryadeet, Akot; present applicants no. 1 and 2 were President and Vice-President while other applicants were Directors of the said Society upto 3.6.1995. It is stated in the complaint that the audit of the Sut Girni for the period from 1.4.1994 to 31.3.1997 was done by the Special Auditor (Class-I), Amravati. However, the Special Auditor filed FIR only against the members on Board of Administrators for the period from 4.6.1995 to 31.3.1997 and did not launch prosecution against the present applicants even though during the audit it was found that applicants in their tenure were party to defaulcation of crores of rupees and exonerated them since they are political bigwicks. Defaulcation and misappropriation done by the respective applicants during their tenure have been set out in detail in the memo of complaint along with corresponding entries in the audit report. 4. Learned Magistrate, after hearing both the sides, allowed the application and directed the PSO, Akot Police Station to register the crime and take it up for investigation and file final report as early as possible. In pursuance to that order FIR No. 1/11 has been registered against the applicants and since they apprehended arrest, they moved application for grant of anticipatory bail before the Sessions Judge, Akot who rejected the same vide order dated 29.3.2011 and that is how the applicants are before this Court. 5. Learned counsel for the applicants strenuously contended that FIR was lodged against the administrators and 3 charge-sheet is also filed against the culprits after detailed investigation. He submitted that undoubtedly, applicants were office bearers of the Sut Girni till 1995 and if any defalcation was observed in audit, auditor grants opportunity to the concerned office bearers to remove the audit objections and if the office bearers concerned fail to remove audit objections, proceedings under Section 88 of the Maharashtra Cooperative Societies Act can be initiated against them. He contends that the applicants have already submitted compliance report and that has been accepted by the Authorities while, according to the learned counsel for applicants, since administrators could not remove irregularities and comply with audit objections, they have been booked to crime. 6. Learned Additional Public Prosecutor while opposing submissions made on behalf of the applicants, contended that during search, records and proceeding books of the relevant period pertaining to the applicants were not found and in order to secure the same, custodial interrogation of the applicants is necessary. He submitted that application deserves to be rejected. 7. Mr A.M. Ghare, learned counsel assisting the prosecution took me through various entries and apprised me of the audit objections in thorough detail. He contends that since the applicants have indulged into huge corruption, financial irregularities and defalcations, no sympathy should be shown to them and application for pre-arrest bail may be rejected. He 4 pressed into service judgment of this Court in Surendra Potey v. State of Maharashtra reported in 2002 All MR (Cri) 801. 8. If the contention on behalf of the applicants that they have already removed audit objections and the Authorities are satisfied, is not opposed by learned APP and the advocate assisting him and, therefore, the same will have to be prima facie accepted. Moreover, applicants undertake through their lawyer that they will produce whatever record is demanded by the investigating officer and which is available with them. Considering this contention, in my opinion, custodial interrogation of the applicants is not necessary in this case. From the cause title of application, it is revealed that each of the applicants is 60 years old and above. They were granted interim protection during the pendency of their application before the Sessions Court and that was extended by this Court also vide order dated 1st April 2011. Applicants were directed to attend Investigating Officer every day between 11.00 am and 01.00 pm. That condition was relaxed on their application by this Court by order dated 5.4.2011 upto 9.4.2011. However, that relaxation was continued from time to time. 9. In Surendra Potey v. State of Maharashtra (supra), this Court observed that there was a very thin line between mismanagement and criminality. Taking into consideration the magnitude and the nature of transactions in that case, this Court had rejected application for anticipatory bail as the allegations against Surendra Potey were serious. The prosecution could 5 have sought permission long back under Section 173 (8) Cr. P. C. if further investigation into offences was considered necessary in proceedings initiated pursuant to FIR No. 118/2001 and, therefore, the ratio laid down in the above ruling is not applicable to the present case. 10. In the light of the above discussion, application deserves to be allowed. It is accordingly allowed. In the event of their arrest in connection with FIR No. M1/11 registered with Police Station, Akot for the offences punishable under Sections 406, 468, 477A read with Section 34 of the Indian Penal Code, applicants be released on PR Bond in the sum of Rs. 50,000/- each. Applicants are directed to cooperate with the investigation and attend Investigating Officer as and when directed and shall produce relevant records available with them before the Investigating Officer. They will not communicate with any witness relating to the crime in question. Applicants shall leave their permanent address with the Investigating Officer along with telephone/cell-phone number (if any) and shall communicate the change therein, if any, in future to the I.O. Application stands disposed of accordingly. JUDGE joshi