1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4154 OF 2009 Meena W/o.Suresh Purkar, Age-46 years, Occu-Household, R/o.Brahme Galli, Amalner, Tal.Amalner, Dist. Jalgaon APPLICANT VERSUS 1. The State of Maharashtra, Through : The Secretary, Home Department, Mantralaya, Mumbai-32 2. The Superintendent of Police, Jalgaon. RESPONDENTS Mr.R.R.Mantri, learned counsel for applicant. Mr.B.J.Sonwane, learned APP for respondents. WITH CRIMINAL APPLICATION NO.4158 OF 2009 Lata W/o.Subhash Somani, Age-56 years, Occu-Household, R/o.New Plot, Amalner, Tal. Amalner, Dist. Jalgaon APPLICANT VERSUS 1. The State of Maharashtra, Through : The Secretary, Home Department, Mantralaya, Mumbai-32 2 2. The Superintendent of Police, Jalgaon. RESPONDENTS Mr.R.R.Mantri, learned counsel for applicant. Mr.B.J.Sonwane, learned APP for respondents. WITH CRIMINAL APPLICATION NO.4207 OF 2009 1. Khaserao Prakashrao Pawar, Age-29 years, Occu-Agriculturist, R/o.37, Bhagatsing Society, Deopur, Dhule, Tal. And Dist.Dhule 2. Prakashrao Panditrao Pawar, Age-60 years, Occu-Nil, R/o. As above. APPLICANTS VERSUS The State of Maharashtra, Through Police Inspector, Amalner Police Station, Tal.Amalner, Dist. Jalgaon RESPONDENT Mr.A.V.Patil, learned counsel for applicants. Mr.B.J.Sonwane, learned APP for respondent State WITH CRIMINAL APPLICATION NO.4253 OF 2009 1. Prabhakar S/o.Garbad Ghodke, Age-54 years, Occu-Business, 2. Nirmala W/o.Prabhakar Ghodke, Age-50 years, Occu-Household, 3 Both are R/o.R.K.Nagar, Amalner, Dist. Jalgaon APPLICANTS VERSUS The State of Maharashtra, Through Police Inspector, Amalner Police Station, Tal.Amalner, Dist. Jalgaon RESPONDENT Mr.S.S.Agrawal h/f. Mr.B.R.Warma, learned counsel for applicants. Mr.B.J.Sonwane, learned APP for respondent State WITH CRIMINAL APPLICATION NO.4402 OF 2009 1. Shamkant S/o.Bhanudas Bhadhane, Age-51 years, Occu-Service, R/o.Gajanan Nagar, Amalner, Tq.Amalner, Dist. Jalgaon 2. Prakash S/o.Ramchandra Shidhid, Age-63 years, Occu-Pensioner, R/o.New Plot, Amalner, Tq. Amalner, Dist. Jalgaon APPLICANTS VERSUS 1. The State of Maharashtra, 2. The Police Inspector, Amalner Police Station, Tal.Amalner, Dist. Jalgaon RESPONDENTS Mr.V.D.Hon, learned counsel for applicants. Mr.B.J.Sonwane, learned APP for respondent State 4 WITH CRIMINAL APPLICATION NO.4403 OF 2009 Arun S/o.Ramprasad Bhavsar, Age-59 years, Occu-Business, R/o.Bhavsar Galli, Amalner, Tq.Amalner, Dist. Jalgaon APPLICANT VERSUS 1. The State of Maharashtra, 2. The Police Inspector, Amalner Police Station, Tal.Amalner, Dist. Jalgaon RESPONDENTS Mr.V.D.Hon, learned counsel for applicants. Mr.B.J.Sonwane, learned APP for respondent State (CORAM : A.V.POTDAR, J.) DATE : 10/02/2010 PER COURT : 1. All these applications are filed by the respective applicants for their release on anticipatory bail in the event of their arrest in connection with CR No.188/2009, registered in Amalner Police Station. 2. In Cri.Appl. No.4154/2009 and 4158/2009, the interim protection was granted on 27/11/2009, in Cri.Appl.No.4207/2009, interim protection was granted on 02/12/2009, in Cri.Appl.No. 5 4253/2009 interim protection was granted on 05/12/2009 and in Cri.Appl.No.4402/09 and 4403/09, interim protection was granted on 15/12/2009. 3. As all these applications arises from the same crime and based on the same set of facts, they require to be disposed of by one common order. 4. Heard respective counsels for the applicants in these applications followed by the submissions of learned APP appearing for the State. 5. From the submissions across the bar, it appears that the applicants in Cri.Appl.No.4154/2009 and 4158/2009 are the Ex- Directors of the Co-operative Society during the period 01/04/2007 to 31/03/2008. The applicants in Cri.Appl.No. 4207/09 is of two applicants out of which first applicant is the borrower while 2nd applicant is the Ex.Director during the period 31/07/1992 to 10/01/2001. The applicants in Cri.Appl.No.4402/2009 and 4403/2009 were the member of the Managing Committee during the audit period as well as prior to that period. But it is alleged that they have not executed or furnished the bond as require to be furnished u/s. 73(1)(AB) of The Maharashtra Co-operative Societies Act. So far as the applicant in Cri.Appl.No.4403/2009 is concerned, he was the Chairman during the period 16/08/1999 to 01/10/2001. So far as the applicant in Cri.Appl.No.4253/2009 is concerned, he is Ex- 6 Director of the Company for the period 31/07/1992 to 19/12/1995 and 12/12/1995 to 10/01/2001. This application is also moved by the two applicants. 6. During the course of submissions across the bar, it is not disputed that this complaint came to be lodged by the Special Auditor who has audited the accounts of Shriraj Nagari Sah.Patsanstha, Amalner for the audit period from 01/04/2007 to 31/03/2008. During the said audit, he has find certain irregularities which were committed at the hands of Ex-Directors, Directors, members of the Director Board, borrowers like siphoning of the amount for which resolutions were passed. The loans were sanctioned, deposits in the institutions were invd with the Institution which are not permissible under the guidelines as well as under the provisions of The Maharashtra Co-operative Societies Act and are responsible for the final crisis of the said Co-operative society. 7. During the course of submissions across the bar, it is urged on behalf of the applicants in Cri.Appl.No.4154/2009 and 4158/2009 that the applicant in Cri.Appl.4154/2009 was not a party, who has sanctioned the loan or was present in any of the meetings of which list is given, which were conducted during the audit period. Apart from it, whether the policy decision is taken in that meeting or any loan proposal was sanctioned as this applicant was not present at all, can not be held responsible. It is also urged on behalf of this applicant that this applicant has invested huge funds in the said 7 Patsanstha and hence her interest is also involved in this Patsanstha. Hence, she can not be held responsible as no specific allegations against her in the entire complaint. So far as applicant in Cri.Appl.No.4158/2009 is concerned, it is brought to the notice of this Court that notice cum intimation was given to this applicant on 31/08/2009 by which it was intimated that the deficiencies which were pointed out to be complied with or the irregularities which were noticed during the audit period to be complied with within the period of 3 months. It is to be noted that such type of notice was given to these applicants wherein 3 months period was given to comply or to rectify or to modify all the irregularities which were noticed by the auditor in his audit report. It is also urged by all the counsels appearing for all the applicants that under Chapter (viii) in Section 82, provision is made that, if any irregularity is noticed for which the notice is served upon the concerned, then those irregularities or the deficiencies which are pointed out to be cured within the period of 3 months and if not cured, then they are liable for the action for the provisions under the Co-operative Societies Act. It is brought to the notice that the period of these 3 months will over by the end of November 2009, but the complaint was lodged before the expiry of these 3 months period. Even though it is urged across the bar by learned APP appearing for the state that the complaint came to be lodged on the instructions of the superior officers to the complainant, who is auditor in this case. The fact require to be considered that the directions given by the superiors can not take the override effect on the legal provisions, as the legal provisions will prevail over and 8 that require to be considered. The fact remains that lodging complaint before the expiry of period of 3 months is in violation of the provisions u/s. 82 of The Maharashtra Co-operative Societies Act. It is also to be noted that no specific allegations against these two directors other than the sweeping allegations against these directors. 8. It is urged on behalf of the applicants in Cri.Appl.No. 4402/2009 and 4403/2009 that even though the applicants are the members of the managing committee during the audit period as well as prior to the audit period, as stated earlier, they have not executed any bond for which they are liable for the action under the provisions of the Co-operative Societies Act. On reading the entire complaint, there are no allegations against these applicants that at their instance any loan is sanctioned which is in-secured as well as the annexure annexed with the application Cri.Appl.No.4403/2009 indicate that this applicant has raised the objection on various occasions when he was not agreed with the expenditure, of which the expenses incurred by the said society and copies of a letter of protest are annexed with the applications. Perusal of the complaint do not find any reference of letter of protest filed by these applicants alongwith their reply submitted to the intimation-cum-notice served upon them. It is urged on behalf of the applicants in Cri.Appl.No. 4207/2009 that even though the first applicant is the borrower and he admitted the liability and against whom recovery proceeding is initiated and the 2nd applicant has obtained certain loan, which is repaid by them. According to them, recovery proceeding was initiated 9 against them about the recovery of loan, to obtain the recovery certificate u/s. 101 of The Co-operative Societies Act. By the order of the Assistant Director, this request for issuance of recovery certificate u/s. 101 was turned down by the Assistant Registrar of the Society on the ground that no documents are coming forth to show that any loan was advanced to these applicants, and hence they are not liable or no recovery certificate to be issued against them for the recovery of alleged loan amount. On perusal of the complaint, even though these orders passed by the Assistant Registrar of The Co-operative Societies are intimated to the auditor before lodging the complaint, it appears that it did not find any reference or either why it was accepted or not accepted, find no reference or explanation to that effect in the complaint or otherwise. It is urged on behalf of the applicants that applicants in Cri.Appl.No.4253/2009 which application is filed by 2 persons that they are not the office bearers during the audit period, even though applicant no.1 is Ex-Director during the period 31/07/1992 to 19/12/1995 and then from December 1995 to January 2001, they are not the defaulter borrowers of the society. On the contrary, the due amount shown against their name was in the sum of Rs.3,310/- and 5,000/-, these amounts were already repaid by them and no dues certificate are issued by the competent authority to that effect. 9. According to learned APP, these grounds urged on behalf of these applicants do not find any support anywhere. 10 10. Considering the rival submissions across the bar, the Court has to take the note about the allegations made against these applicants in the complaint. Even though deficiencies were pointed out under 6 different heads in the complaint for which the complaint was lodged against the Ex-Directors, the members of the Managing Board, the various Chairmans from time to time, various vice chairmans from time to time, and the borrowers as well as the employees of the bank. So far as these applications are concerned, these applications are segregated from total 8 applications. No specific allegations find against these applicants and how they can be held responsible for the offences under the Penal Code for which there are allegations about siphoning of the funds of the society. In absence of specific role played by these applicants, they can not be held responsible and at least, can not be called for the custodial interrogation. Considering this aspect, and the vague allegations against these persons as well as the specific role of the applicants in Cri.Appl. No.4154/2009, 4158/2009, 4402/2009 and 4403/2009, it is to be considered that so far as these applicants are concerned, as they are available for the interrogation, no specific role is attributed against them, they are entitled for the exercise of discretion of this Court u/s. 438 of The Cr.P.C. In the premise, following is the order : O R D E R 1. All these 6 applications are hereby allowed. 2. The interim protection granted to them from 27/11/2009, 02/12/2009, 05/12/2009, and 15/12/2009 is hereby confirmed till filing of the charge sheet. 11 3. Applicants are at liberty to apply for regular bail after filing of the charge sheet. 4. The applicants to attend the concerned police station whenever required on written requisition of the Investigation Officer for interrogation and investigation purpose. (A.V.POTDAR, J.) khs/FEB 2010/cri.appl.4154-09