Hemand S/O Kantilal Rake vs Sharad S/O Ravan Naik And Anr
2016 Latest Caselaw 6525 Bom

                                                                             criap584.16
                                            (1)

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                             BENCH AT AURANGABAD

                         CRIMINAL APPLICATION NO.584 OF 2016




                                                      
     Hemand s/o Kantilal Rake,
     Age: 55 years, Occu: Service,
     working as Regional Manager,




                                                     
     Vasantrao Naik Vimukta Jati and
     Nomedic Tribe Development
     Corporation, Latur                               ..APPLICANT
                                                        (Orig. Complainant)
              VERSUS




                                         
     1.       Sharad s/o Ravan Naik,
                             
              Age: 54 years, Occu: Service,
              R/o Sidhartha Housing Society,
              June Ausa Road, Latur,
              District Latur                            (Orig. accused)
                            
     2.       The State of Maharashtra                ..RESPONDENTS
      

     Mr U. S. Malte, Advocate for applicant;
     Mr R. S. Deshmukh, Advocate h/f Mr T. M. Venjane, Advocate for
     respondent No.1;
   



     Mr V. M. Kagne, Addl. Public Prosecutor for respondent No. 2


                                            CORAM : A.S. CHANDURKAR, J.

                                             DATE     : 18th November, 2016

     ORAL ORDER :

By the present application, the applicant who is the informant, on the

basis of which F.I.R. No.384 of 2015, for offences punishable under

sections 406, 409, 420, 467, 468 and 471 of the Indian Penal Code, seeks

cancellation of the anticipatory bail granted in favour of respondent no.1.

2. The respondent no.1 has been accused of preparing and

sanctioning eight loan cases with regard to non-existent persons, so as to

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enable such persons to get benefit under the NBCFDL scheme conducted

by the Vasantrao Naik Vimukta Jati and Bhatkya Jamati Development

Corporation, Latur. After aforesaid offence was registered, the applicant

applied under section 438 of the Code of Criminal Procedure, which

application came to be allowed by the Sessions Court by order dated 9 th

December, 2015. This order is sought to be cancelled by the applicant.

3. Mr Malte, the learned Counsel for the applicant submitted that the

learned Judge of the Sessions Court was not justified in granting

anticipatory bail to the respondent no.1. He referred to the reports dated

21st September, 2015 and 5th October, 2015, to submit that on bare reading

of said reports it was clear that the respondent no.1 had sanctioned the

loan cases with a view to defraud the corporation. He submitted that the

learned Sessions Judge, without considering the documents filed on record

and by treating the annual report to be the audit report, proceeded to grant

anticipatory bail. According to him, such relief ought to have been refused

and interrogation of the respondent no.1 was necessary. He termed the

order passed by the learned Sessions Judge to be perverse and on that

ground sought its cancellation. In support of his submissions, the learned

Counsel placed reliance upon the judgment of the Honourable Supreme

Court in the case of Sudhir vs. State of Maharashtra & anr., 2016 (1)

SCC 146 and judgments of learned Single Judge in the case of Yogesh

Duryodhan Murkut (Dr.) vs. State of Mah. & ors., 2013 (4) Bom. C.R.

(Cri.) 758 and Ramesh Manik Patil vs. State of Mah. & anr., 2015 (4)

Bom. C.R. (Cri.) 190. He also sought to rely upon certain other

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documents that were not placed on record to substantiate is prayer for

cancellation of the aforesaid order.

4. The application was opposed by Mr Deshmukh, the learned Counsel

for the respondent no.1. According to him, the parameters for cancellation

of anticipatory bail are well settled and the present application did not

satisfy any such ingredients. He submitted that the present applicant had

no locus to challenge the order granting anticipatory bail and that the

prosecution had not sought any such relief of cancellation of anticipatory

bail. According to him, the report in question had been lodged merely

because of internal disputes relating to service matter between the

applicant and the respondent No.1. According to him, the respondent No.1

was entitled for promotion on the post of Managing Director and with a

view to prejudice said claim, the aforesaid complaint had been filed. He

then submitted that the learned Judge of the Sessions Court after

considering all relevant aspects of the matter, had granted anticipatory bail

on 9th December, 2015, which was almost a year ago. The respondent

No.1 had co-operated in the investigation by complying with all the

conditions. He, therefore, submitted that the application was liable to be

rejected. In support of his submission, the learned Counsel placed reliance

upon the judgment of the Honourable Supreme Court in State of U.P.

Through CBI Vs. Amarmani Tripathi reported in (2005) 8 Supreme

Court Cases 21.

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5. I have heard the learned Counsel for the parties at length and have

perused the material placed on record. At the outset, it may be stated, the

contention raised on behalf of the respondent No.1 that it was not open for

the applicant, who was the complainant, to seek cancellation of

anticipatory bail cannot be accepted in view of the decision of the

Honourable Supreme Court in Bhadresh Bipinbhai Sheth vs. State of

Gujarat and anr., 2015 (9) SCALE 40, wherein it is held that such

application could be moved either by the Public Prosecutor or by the

complainant. Hence, present application can be considered on merits.

6. According to the applicant, the respondent No.1 was enlarged by

granting anticipatory bail by passing a perverse order. Perusal of the order

dated 9th December, 2015, passed by the learned Jude of the Sessions

Court indicates that there is reference to the audit report of the relevant

period, which indicated absence of any irregularity and flaw during said

period. Though it was urged on behalf of the applicant that what was

considered was the annual report for the year 2011-12, perusal of said

annual report indicates that the report of the Principal Accountant General

carrying out audit for the year ending on 31 st March, 2012, is part of the

same annual report. Thus, in effect, the learned Judge of the Sessions

Court has considered the audit report itself. Hence, said contention that

only the annual report was considered cannot be accepted.

7. In paragraph 10 of the said order, the Sessions Court has recorded

a prima facie satisfaction after considering the entire material, that the first

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information report was lodged after 1 ½ years after the said audit report

was prepared. This observation appears to be justified in view of the

material placed on record. It is to be further noted that as per the order

dated 9th December, 2015, certain conditions including attending the police

station were imposed on the respondent No.1. There is no grievance by

the investigating agency that these conditions have been violated.

8. In Sudhir (supra), the Honourable Supreme Court found that from

the gravity of the offence, allegations of corruption and misappropriation

along with conduct of the applicants therein, the order cancelling

anticipatory bail was justified. In the present facts, it can be seen that the

initial report given by one Smt. S.P. Kale is dated 29 th September, 2015,

while the subsequent report dated 5 th October, 2015, is given by the

present applicant. In paragraph 11 of the affidavit filed on behalf of the

respondent No.1, it has been stated that the respondent No.1 had

submitted an adverse enquiry report against said Smt. S.P. Kale in the

year 2015. Similarly, the applicant herein is Regional Manager of the

Corporation, which equivalent post is also held by the respondent No.1.

The likelihood of further promotion to the post of Managing Director of

either the applicant or the respondent No.1 is an aspect which cannot be

given a go-bye.

9. Thus, in the facts of the present case, I do not find that the

observations made in the judgment of learned Single Judge in the case of

Yogesh Duryodhan Murkut and Ramesh Manik Patil (supra), can assist

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the case of the applicant. I do not find that the present is a case which

warrants cancellation of grant of anticipatory bail. Though it was urged on

behalf of the applicant that the present application had been moved

immediately on 25th January, 2016, at this point of time when the

respondent No.1 has co-operated with the investigation, I do not find it

justified to quash the order granting anticipatory bail. Similarly, the

Counsel for the applicant sought to rely upon certain other reports after

filing of the present application, but as they were not made part of the

record, I have not taken those documents into consideration.

10. As a result of aforesaid discussion, I do not find any merit

whatsoever in the prayer made by the applicant. The application,

therefore, stands rejected with no order as to costs.

(A.S. CHANDURKAR, J.)

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