1. Appln.Nos.998/11 & 999/11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.998/2011 AND CRIMINAL APPLICATION NO.999/2011 Kondiram s/o Babaji Dhavale - APPLICANT VERSUS The State of Maharashtra - RESPONDENT ***** Mr.VD Salunke, Advocate for Applicant; Mr.KM Suryawanshi & Mr.VH Dighe respective APPs for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 24th March, 2011. PER COURT : 1) Both the Criminal Applications are taken up together and heard. First arose out of Crime No.171/2010 of Georai police station, whereas later is registered at Chaklamba police station, District Beed vide Crime No.79/2010. Both The applications involve infractions of Sections 420, 467, 468, 471 r/w 34 of Indian Penal Code. 2) In Crime No.171/2010, the accused/applicant is in custody from 4.1.2011. In Crime No.79/2010, he is in custody from 21.12.2010; and charge sheet is filed on 18.3.2011. 2. Appln.Nos.998/11 & 999/11 3) The applicant has retired in 2007 as a Special Auditor or Inspector. It is alleged, by taking advantage of stolen documents/advices, he used the same for fictitious transfer entries from one account to another and ultimately withdrew amounts under his signatures, either from his account, his wife’s account, his son’s account or from his relation Mr. Dhas’s account. 4) Learned Counsel for the accused/applicant submits that documents are concocted, he has no access to browse the documents; there is no reason for a retired employee to cause theft of the documents and no complaint as yet is lodged by the bank about such mishap. Government auditor is not yet appointed. It is not clear as to when these documents are stolen and after three years, the accused/applicant has been prosecuted. The Counsel also castigates the approach of the Manager of the Branch In charge as to how he could permit disbursal of the amount and as yet there is no complaint against any of the bank employees. The Counsel submits, there is no basis to form an opinion of misappropriation. 5) The accused/applicant knew the system of the bank as he was holding a responsible position of Inspector and also Senior Auditor. In-depth 3. Appln.Nos.998/11 & 999/11 inquiry has been caused by visiting different branches of the bank, where the accused/applicant, his wife, his son, his relation Mr. DV Dhas and Mr.Asud had accounts. The modus operandi of misappropriation was meticulous and simple. To illustrate, a bogus advice of Georai branch dated 18.4.2009 for an amount of Rs.2,89,360/- was drawn on Umapur branch on dated 28.4.2009, thereby ensuring deposit in the account of his wife – Mrs. Kusumbai in her SB account No.19217 and after such deposition, which is apparently fictitious, the accused/applicant, under his signatures on withdrawal slip, withdrew the amount during the period from 30th June, 2009 to 29.9.2009, totalling Rs.2,91,500/-. When original record of Georai branch was checked, there was no cash deposits in the account or any transfer of amount to transmit the same to the account of Smt. Kusumbai wife of the applicant/accused. There are identical ten instances and the total defalcation/misappropriation is amounting to Rs. 45,21,941/-. True it is even if a big figure is indicated, that will not either mitigate the responsibility or minimize the guilt. Volume of the amount shows the mindset of the applicant/accused. At this stage of the matter, I am not adverting to the letters written by the applicant to the Bank, accepting his guilt and 4. Appln.Nos.998/11 & 999/11 imploring to remit the amount in installments. The accused/applicant may have suitable defence at appropriate place. 6) The contention, that no complaint is filed regarding theft of the documents could not be so coined, as it is not bulk of the documents which have been taken away, few slips/vouchers are taken by a responsible officer like the applicant/accused. Non-appointment of a Government Auditor by itself will not dilute the offence as on internal checking and cross checking the miseries are unearthed. F.I.R. is filed by the employee and with competence to do so. After the inquiry by the officer, indeed misappropriation in the bank is revealed hence period of three years does not matter. Even if it is ten years, the applicant/accused is bound to answer. He may have retired in 2007, but his activities to dupe the bank continued thereafter even in 2009. It is correct, no complaint as yet is lodged against any of the bank employees, the Investigator and the superior Bank Officers will take appropriate steps in respect of dereliction noticed in operation of the accounts or favour shown by any of the superiors to the accused for easy passage/access to withdrawal of the amount. The contention that on what basis it is said that there is misappropriation, is primarily 5. Appln.Nos.998/11 & 999/11 illustrated by fake and unauthorized vouchers. Specimen signatures of the applicant/accused are yet to be tallied and Hand-writing expert’s opinion is wanted. 7) In the result, both the Criminal Applications lack merit dismissed. The observations are prima facie in nature. ( K.U.CHANDIWAL ) JUDGE bdv/