1 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.399 OF 2011 Ravindra Manoharlal Agrawal & anr. ... APPLICANTS VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Mrs. S.S. Jadhav, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondents ..... W I T H CRIMINAL APPLICATION NO.310 OF 2011 Dr. Suresh s/o Pandit Borole & anr. ... APPLICANTS VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri V.D. Hon, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondents assisted by Shri S.S. Patil, Advocate for original complainant ..... W I T H CRIMINAL APPLICATION NO.417 OF 2011 2 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, Sharad s/o Punju Attarde & anr. ... APPLICANTS VERSUS Police Inspector, Chopda City Police Station, Chopda ... RESPONDENT ..... Shri D.B. Thoke, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondent ..... W I T H CRIMINAL APPLICATION NO.420 OF 2011 Vishwanath Wasudeo Yadnik ... APPLICANT VERSUS The State of Maharashtra & ors. ... RESPONDENTS ..... Shri V.D. Hon, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondents 1 & 2 Shri N.N. Desale, Advocate for respondent No.3. ..... W I T H CRIMINAL APPLICATION NO.421 OF 2011 Sau. Jyoti Shekhar Warke & ors. ... APPLICANTS VERSUS 3 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, The State of Maharashtra & ors ... RESPONDENTS ..... Shri V.D. Hon, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondents 1 & 2 Shri N.N. Desale, Advocate for respondent No.3. ..... W I T H CRIMINAL APPLICATION NO.422 OF 2011 Dr. Suresh s/o Pandit Borole & anr. ... APPLICANTS VERSUS The State of Maharashtra & ors. ... RESPONDENTS ..... Shri V.D. Hon, Advocate for applicants Shri K.M. Suryawanshi, A.P.P. for respondents, assisted by S/Shri S.S. Patil, B.R. Kedar and R.R. Mantri, Advocates for original complainant ..... W I T H CRIMINAL APPLICATION NO.571 OF 2011 Ramesh Dashrath Patil & ors. ... APPLICANTS VERSUS The State of Maharashtra & ors. ... RESPONDENTS ..... Shri V.D. Hon, Advocate for applicants Shri V.H. Dighe, A.P.P. for respondents 1 & 2 Shri N.N. Desale, Advocate for respondent No.3. 4 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, ..... CORAM : K.U. CHANDIWAL, J. DATE : 29th April, 2011 O R D E R: 1. Heard finally. These applications, seeking anticipatory bail in Crime No.2/2011, registered at Chopda Police Station and Crime No.1/2011, registered with Jilha Peth Police Station, Jalgaon are heard together as they involve to the Chairman, Directors, few borrowers and also staff of the respective branches. Due to intermittent hearings extended time to time, an amount of Rs.3 Crores is deposited by the borrowers/ applicants with the Society. Still hoppingly huge liability is looming, for which undertaking is flashed by few of the borrowers to clear the same within periodical schedule of 3/6 months, if approved. 2. Tapi Credit Cooperative Society (hereinafter referred as said Society) has its Head Office at Chopda with branches at several places. It is a State level Cooperative Society. There were 68527 depositors at total 98 branches as on 31.3.2007. However, the branches are reduced on 31.3.2009 to 58. Out of deposits of 5 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, 103,18,14,000/-, the matured fixed deposits are of Rs. 67,39,93,000/-. The depositors felt foul play at the behest of Chairman/ Directors and Manager of the said Society. 3. The Commissioner for Cooperation and Registrar, Cooperative Societies, after verifying the record, granted permission to the auditor to lodge a report by his order dated 18.12.2010 and communication dated 20.12.2010. Based on such permission, F.I.R. referred above came to be lodged. The Chairman and his family members including few of the borrowers have grabbed loan to the tune of Rs.71,80,66,000/-, in a transaction of 32-33 loans, the auditor has informed that all the loans are overdue. 4. A statement is flashed by the intervenors and also A.P.P., showing that from the branch of Chairman and his family members, six such sticky loans are disbursed. The liability is staggering to Rs. Nearly 44 Crores. Mr. Mantri and Mr. Patil, the learned counsel for one of the intervenor, has pointed by reading F.I.R. as to how loans to the son, nephew, daughter and other relations of Chairman are released illegally, without proper documentation, exceeding limits, even overlooking the directions of 6 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, Commissioner, Cooperation. Instances are quoted, that deliberate deficit loan papers are prepared, no proper mortgages are created. This was with calculated motive to ensure the contemplated action and recovery if initiated by Society to be deflated and the Society’s claims are terminated. These documentation, is the meticulous preparation demonstrate vivid, misplaced intelligence to dupe the Bank, misappropriate the money and utilise the same for personal gains. This has fractured the faith of the depositors in Banking system and brought them to streets. It was the dishonest and fraudulent removal of property by virtue of not creating proper lien and mortgage to prevent its future distribution amongst creditors if the Society ultimately succeeds. 5. The F.I.R. disclose, loans to Utkarsha Shelter, Rs. 12,74,00,000/-, Pankaj Real Estate Rs. 3,38,89,057/- Pankaj Infrastructures Pvt. Ltd. Rs.5,46,72,967/-, Tapi Developers & Builders Pvt. Ltd, Rs.3,17,83,903/-, Tapi Software Infotech Pvt. Ltd. Rs.5,96,33,396/-, and Banai Hospital & Research Centre, who are relations of the Chairman, are released. The borrowers are accused, seeking protection from arrest. The loan proposal of Utkarsha Shelter is signed by Ravindra Agrawal, the demand was 7 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, for Rs.15 Crores, however, showing stamp receipt dated 17.12.2005 of receiving Rs.15 Crores. This was without mortgage of the property. The details of worth of guarantors are not collected. The guarantor’s properties are subsequently released from charge. 6. The applicant in Criminal Application No.420/2011 Vishwanath s/o Wasudeo Yadnik was the Loan and Recovery Officer in the Society. He is also accused in Crime No.1/2011 referred above. 7. The applicants in Criminal Application No.571/2011 are employees, subject in Crime No.1/2011. The statement tendered by Mr. Desale, representing the Society illustrate that almost all the applicants (employees) though had availed loan, have cleared the same in the year 2008. So, there remains nothing against them. Common allegations are made against these applicants by the auditor that they have, in concert with the Chairman and other Directors, have misappropriated total sum of Rs.5,31,30,504/-. Reading the papers, it does not appear that these employees, barring Recovery Officer and Loan Superintendent Vishwanath Yadnik have played any vital role in manipulation of the documents. 8 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, Consequently, except applicant No.2, all other employees deserve pre-arrest bail. 8. In Criminal Application No.420/2011 of Crime No. 2/2011, role of the accused applicant Vishwanath Yadnik is basically pointed. He did not collect proper documentation, did not insist for proper resolutions, signatures on the proceedings are meekly co- ordinated with the Chairman in siphoning Bank’s money for personal gains. Therefore, he does not deserve protection. 9. The applicant No.2 Dr. Padmanath Natthu Wani of Crime No.1/2011 in Criminal Application No.310/2011, was Deputy Chairman at the material time. He had availed loan, however, same is cleared in the year 2008. As per earlier directions, he has deposited Rs.1,00,000/- in the Society and a statement was made by Mr. Hon that he will deposit Rs.3,00,000/- within a month. So far as applicant No.1 Chairman Dr. Suresh Pandit Borole is concerned, as stated above, he is the mastermind in affairs of the Society, he ensured loans to all his family members, siphoned moneys of the Society, transferred the same to purchase properties at Pune and Boriwali. There were no documents prepared. The properties which 9 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, were purchased in thousands of rupees surreptitiously were shown to be worth lakhs of rupees, and charge of the Society was created on such properties which was knowingly inadequate to meet the requirements of the Society or the liability. The role of accused/ applicant Suresh in the mismanagement, creating may-hem in the Society and creating unrest among the depositors being primarily established, he does not deserve bail in Criminal Application Nos. 310/2011 and 422/2011. 10. Applicants in Criminal Application No.421/2011 are Directors. Applicant No.1, 2 and 3 did not avail loans. The outstanding against applicant No.4 as on today is Rs.19,82,000/-. An undertaking is given by him to repay the amount within three months. The applicant No.5 Pankaj is son of the Chairman. Though he claims having cleared the loan, however, this is simply window dressing. His firms did not execute proper documents being widely demonstrated, does not deserve protection. Applicant Nos.6, 7, 8, 9 have, though obtained loan, cleared, even the directions of this Court of deposits is rigidly adhered by them. The directions did not object the Chairman in illegal disbursement of loan for himself and his family members. They would be vicariously liable in view of 10 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, Section 73-AB of the Maharashtra Cooperative Societies Act. Consequently, to ensure resolving the urgent need of depositors, these Directors need to deposit amount. 11. The applicants in Criminal Application No.417/2011 are borrowers and also Directors in private firms. They are indeed the shadows of the Chairman, being close relations and associates. The liability against them is occiliating Rs. 6 Crores to 7 Crores. The Bank supporting blatantly for bail to these borrowers is not in good taste as the mortgage deeds allegedly executed by these borrowers is short to meet the requirement of the liability existing and/or availed by them. The Society should not have created a protective umbrella against its interest favouring these influential persons/ relations of the Chairman. This shows, the clout generated by the Chairman to the Society. The manner in which the loan application was moved, loan was disbursed, deficient papers are prepared, speaks volume, their case does not call for exercise of discretion. All decisions are influenced by Chairman to explore self interest than to keep assertiveness in developing Society. Criminal Application No. 417/2011 would, therefore, require rejection. 11 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, 12. The learned counsel representing applicants criticised the auditor, that he was looking the matter with tainted eyes as he desired extraneous consideration from the Chairman or the Directors. The report of the auditor is based on assumptive perception and the purpose behind F.I.R. is to humiliate the respectable personalities. 13. It was pointed, that there is a well drawn system under the Maharashtra Cooperative Societies Act (M.C.S. Act for short), as to how audit is to be carried. There are checks and balances. The audit under Section 81(6) does not become final and conclusive. Re-audit was requested. It was not considered by the Commissioner. It is informed, even after a writ before this Court, the petitioners could not get redressal. The counsel questioned fraud, as according to him, none of the borrower has disputed the liability. It is only the time schedule that they could not manage and make the repayment in given frame. 14. Mr. Hon also informs that the Circular dated 6.5.2010 of restrain in Criminal action against Credit Society are put to shelves. In terms of Section 79 M.C.S. Act, the Commissioner of Cooperation 12 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, has given directions not to release the deposits as there was heavy rush of depositors to withdraw the deposits, bringing the Society virtually to bankruptcy. 15. These submissions are far from ground realities. Section 79 of the M.C.S. Act does not authorise the Commissioner to restrict release of deposits of any credit society and that too a State level Society with wide range of branches. The directions dated 7.11.2007 itself was uncalled for and its genuineness needs to be investigated. 16. It cannot be said that there are mistakes in the audit carried by the complainant/ auditor and on rectification, situation, would be changed. The record of huge balance, creating forged fixed deposit receipts, withholding genuine depositors’ money, releasing the deposits to the persons of individual favours, releasing deposits lesser than the amount deposited for full value, by itself speaks the mindset of the Chairman in handling the Society. 17. The custodial interrogation to the Chairman, few borrowers is imperative as from the availed loans, properties are 13 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, purchased benami at Pune and Boriwali. Its details are to be collected. Sources are to be named. The applicants have alluded the arrest to unravel the modus operandi and the manner in which huge financial embezzlement have been committed. 18. The grant of pre-arrest bail in terms of Section 438 of the Criminal Procedure Code is indicated by the Apex Court in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & ors. (2010 ALL SCR 2725) and particularly paras 122 thereof, which reads as under : “122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail. i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused’s likelihood to repeat similar or the other offences; 14 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 15 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, 19. I quite see that the arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. No straitjacket formula can be provided for entertaining the petition in terms of Section 438 of the Criminal Procedure Code. It should be only a careful exercise of discretion. 20. In the matter of Himanshu Chandravadan Desai & ors. Vs. State of Gujarat (AIR 2006 SC 179), the Apex Court held that, having regard to the huge amounts involved the abscondance of the accused was the danger, if released on bail, or attempting to tamper with the evidence by pressurizing the witnesses and as such regular bail application was rejected. 21. Revisiting the facts of F.I.R., and submissions including undertaking furnished by applicants, the Society being a State level society, having large scale ramifications, the deposits of around 68000 depositors is hanging its realisation. The depositors’ lifetime saving being invested with allurement of getting 1% more, warrants care. The custody of the Chairman and other defaulter borrowers, 16 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, the Loan Superintendent would unearth the massive misappropriation to check monitoring the properties of these applicants to realise the dues. Hence order : O R D E R (i) Criminal Application No.420/2011 of Vishwanath Wasudeo Yadnik rejected. (ii) Criminal Application Nos.310/2011 and 422/2011 of applicant No.1 Dr. Suresh Pandit Borole rejected. However, applicant No.2 Dr. Padmanath Natthu Wani granted pre-arrest bail as per order. (iii) Criminal Application No.421/2011 of Directors Sau Jyoti Shekhar Warke, Vijaya Bhagwat Bharambe, Dattatraya Namdeo Patil, Dr. Surendra Vyankatrao Desale, Dhanraj Popat Patil, Pandharinath Soma Koli, Dilip Abajirao Pawar, Ashok Namdeo Borole is allowed. Application of Pankaj Suresh Borole rejected. (iv) Criminal Application No.571/2011 of the applicants 17 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, allowed except applicant No.2 Vishwanath Vasudev Yadnik. (v) Criminal Application No.417/2011 is rejected. (vi) Criminal Application No.399/2011 is rejected. (vii) The applicants whose applications are allowed referred above, in the event of their arrest, be released on furnishing bail bonds in the sum of Rs.25,000/- each, on condition that they shall attend the concerned police station on every Sunday between 10.00 a.m. to 6.00 p.m. till 31st August 2011. (viii) The applicant Dr. Surendra Vyankatrao Desale to deposit Rs.20,00,000/- (Rupees twenty lakhs) with one surety in like amount each up to 31st July 2011 directly with Society. His undertaking is accepted. Failure, to face consequences of action including cancellation of bail. (ix) The applicant Deputy Chairman Dr. Padmanath Natthu Wani to deposit an amount of Rs.3,00,000/- (Rupees three lakhs) with the Society up to 31st May 2011. Failure, to face cancellation of 18 Criminal Application Nos.399/2011, 310/2011, 417/2011, 420/2011, 421/2011, 422/2011, 571/2011, protection. (x) The Directors/ accused/ applicants in Crime No.2/2011 (in Criminal Application No.421/2011) referred above, shall deposit with the Society an amount of Rs.1,00,000/- (Rupees one lakh) each up to 31st May 2011. Such deposits will earn interest if the applicants are ultimately exonerated / acquitted in the proceedings. 22. Heard. The interim protection granted to the applicants whose applications are rejected, is extended up to 8th May 2011. 23. All applications are finally disposed of. 24. Authenticated copy permitted. K.U. CHANDIWAL JUDGE fmp/cri3992011