1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 2964 of 2009 Praful Shridhar Vaidya 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 S.P. Dharmadhikari, Sr. Advocate for applicant Ms Bharti Dangre, Addl. Public Prosecutor for State Coram : A.P. Bhangale, J Dated : 9th September 2009 1. Heard Mr S.P. Dharmadhikari, learned Senior Advocate for applicant and Ms Bharti Dangre, learned Addl. Public Prosecutor for State. Applicant is seeking anticipatory in Crime No. 338/07 registered with Police Station, Sitabuldi, Nagpur under Sections 406, 408, 409, 467, 468, 471, 420 read with Section 34 of the Indian Penal Code. 2 2. First Information Report was lodged by District Special Audit Officer, Cooperative Societies, Nagpur alleging misappropriation by the managing committee members and officials of the Samata Sahakari Bank Limited to the tune of Rs. 145,60,46,332/-, defrauding the account holders of the Bank. Report was lodged on the basis of report of flying squad of the Special Audit Class-I, Cooperative Societies (Head Quarters), Pune. Offences came to be registered against members of managing committee and concerned officials of the Bank. Audit Report revealed that the amount of Rs. 1.95 crore was allotted to applicant in the name of borrowers named as Rajat Steel Corporation and Key Enterprises. Loan of Rs. 60 lacs was granted to Rajat Steel Corporation without approval of the Board of Directors. Enhancement in the Cash Credit Limit was granted without such approval as also the renewal. Loan of Rs. 65 lacs was granted to M/s Key Enterprises to which loan case, applicant was guarantor. That loan was also not sanctioned by the Board of Directors. It was found that amounts were diverted from the accounts belonging to applicant and shown as against the accounts which were held by present applicant. Applicant 3 made a show that he is guarantor, but in fact, loan amount disbursed to the borrowers was transferred to the acounts belonging to the applicant and applicant has not been able to demonstrate as to how said amount is shown in his account. It is alleged that loan sanctioned fraudulently deprived the genuine borrowers and investors. 3. Learned Senior Advocate contended that applicant was one of the guarantors to the loans sanctioned in favour of M/s Rajat Steel Corporation and and M/s Key Enterprises. According to him, applicant is absolutely not concerned with any of the irregularities in Samata Bank, its functioning and administration. In response to the summons, applicant has cooperated with the investigating agency. He submits that Kiran Salodkar, partner of M/s Key Enterprises was arrested and later on released on baiol by the Sessions Judge, Nagpur vide order dated 15.7.2009. Learned Senior Advocate contended that it is only on account of exorbitant charging of interest in excess of the RBI norms that the dispute has arisen between the Bank and the aforesaid two borrowers and the dispute is 4 pending before the Cooperative Court at Nagpur. He further submits that loan granted to both of the above borrowers is fully secured and the allegations levelled against applicant are absolutely false, baseless, absurd and without any head or tail and the same do not constitute any offence alleged to have been committed by applicant. 5. Learned Senior Advocate in support of his contentions, has relied upon Jagannath Ramchandra Biyani v. State of Maharashtra reported in 1981 Mh.L.J. 791; State of Maharashtra v. Ketan Parekh (Criminal Application No. 1996 of 2002); Savitri Agrawal and ors v. State of Maharashtra and anr reported in (2009) 5 SCALE 514 and Shri Gurbaksh Singh Sibba & ors v. State of Punjab reported in (1980) 2 SCC 565. 6. Ms Bharti Dangre, learned Additional Public Prosecutor, on the other hand, opposed the bail application tooth and nail. She contended that applicant is an accused in a huge bank scame involving approximately amount of Rs. 145.00 5 crores. Investigation is required to be done in respect of applicant’s benami transactions and modus operandi adopted by applicant in connivance with the Directors and certain officials of the Bank and the said link is required to be traced out. She further submits that applicant is required to be confronted with the voluminous record which cannot be done without police custody. She further contends that advantage in custodial interrogation of eliciting more useful information and material should be kept in view. She lastly submitted that the investigating agency would be subjected to great handicap in interrogating with applicant in case of grant of pre-arrest bail to him. She prayed for dismissal of application. In support of her contention, Ms Dangre relied upon judgment of the Supreme Court in State rep. by the CBI v. Anil Sharma reported in (1997) 7 SCC 187. 7. In pursuance to the undertaking given by learned Additional Public Prosecutor as reflected in order dated 4th August 2009, applicant has not been arrested so far. 6 8. It is no doubt well settled that ambit of power conferred by Section 438 Cr.P.C. is limited. The power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him or there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail that such power may be exercised. However, it cannot be forgotten that though the power conferred under Section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. The discretion has to be exercised with due care and circumspection depending on circumstances justifying its exercise. 9. In the instant case, it has no where been complained by learned Additional Public Prosecutor that the applicant is avoiding interrogation or is not attending Investigating Officer 7 as and when called. Since the first information report is based on audit report, entire records and papers are in the custody of respondent. The first information report was lodged on 15.11.2006 and it is stated on oath by applicant that he attended Investigating Officer in response to summons. However, concession of anticipatory bail cannot be allowed for an indefinite period. 10. In Salauddin Abdulsamad Shaikh v. State of Maharashtra reported in (1996) 1 SCC 667, the Supreme Court has held - “Anticipatory bail is granted in anticipation of arrest in non- bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, 8 necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.” The said view is followed by the Apex Court in K.L. Verma v. State reported in (1998) 9 SCC 348 where it is reiterated that anticipatory bail orders should be of a limited duration only and limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. In other words, the Apex Court has held that till the bail application is disposed of one way or the other the court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. The ratio laid 9 down by the Apex Court in the aforesaid two cases is again reiterated in Vaman Narain Ghiya v. State of Rajasthan reported in (2009) 2 SCC 281. 11. In view of what has been discussed above, in my opinion, following order would subserve the ends of justice. 12. In the event of his arrest in Crime No. 338/07 registered with Police Station, Sitabuldi, Nagpur under Sections 406, 408, 409, 467, 468, 471, 420 read with Section 34 of the Indian Penal Code, applicant be released on anticipatory bail for a limited period upto 22nd September 2009 upon executing PR Bond in the sum of Rs. 25,000/- with two or more sureties in the like amount. Applicant is directed to extend full cooperation to the investigating agency and he shall attend Investigating Officer as and when called. Applicant shall not try to tamper with prosecution evidence and shall not communicate with any of the prosecution witnesses in any manner and try to influence them. Applicant shall surrender his passport with Investigating Officer and he shall not leave the city of Nagpur without prior 10 permission from the Investigating Officer or the Court concerned. Applicant shall leave his permanent address with telephone/cell phone number with Investigating Officer and Court concerned and shall communicate change, if any therein, in future. Order granting temporary anticipatory bail shall automatically expire at the end of 22nd September 2009. Applicant may surrender to the Court below and apply for grant of regular bail. In case such application is made, the Court concerned shall decide the same on its own merit and in accordance with law. The Court concerned may consider grant of interim bail and may allow the applicant to remain on interim bail pending final disposal of application made before it. Application stands disposed of accordingly. Hamdast. Judge. hsj