Mr Nagwaram Venkatachar ... vs State Of Mah., Thr. Department Of ...
2021 Latest Caselaw 3347 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                   NAGPUR BENCH, NAGPUR



           CRIMINAL WRIT PETITION NO.993 OF 2019




1.Nagwaram Venkatachar Shrinivas,
  Aged 67 years, r/o. A-1,
  Wasudeo Nagar, Hingna Road,
  Near SBI Colony, Nagpur-440036.

2.Mrs.Aruna wd/o. Ashok Desai,
  Aged about 70 years, Occ. Retired
  Teacher, r/o. 302, Tower 3, Supreme
  Enclave, Mayur Vihar, Phase-1,
  New Delhi - 91.

3.Mrs.Naumani w/o. Mukesh Tirpude,
  Aged about 62 years, Occ. Retd.
  Teacher, r/o. Plot No.724, Darpan
  Villa, off Chhindwara Road,
  Byramji Town, Nagpur-13.

4.Sunil s/o. Madhuklar Balbudhe,
  Aged 56 years, Occ. Business,
  r/o. 184, Nandanwan Colony,
  Near Nandanwan Police Station,
  Nagpur-440009.
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5.Ashok s/o. Ninu Narkhede,
  Aged 71 years, r/o. 32, Cosmos
  Town, Jaitala Road, Nagpur.

6.Ms Poonam d/o. Late Arvind Bondre,
  Aged about 43 years, Occ. Service.

7.Mrs.Prabha wd/o. Late Arvind Bondre,
  Aged about 65 years, Occ.Household.

8.Neeraj s/o. Late Arvind Bondre,
  Aged about 38 years, Occ. Service.

  Petitioner Nos. 6 to 8 all r/o.
  17/18, Manav Seva Layout,
   Seminary Hills, Nagpur-440 006. ..........       PETITIONERS



     // VERSUS //



1.State of Maharashtra,
  Through Department of Home,
   Second Floor, Mantralaya, Madam
   Cama Road, Mumbai 400 032.

2.Samata Sahakari Bank,
  having it's registered Office at
  Bhagwagar Layout, Dharampeth,
  Nagpur, through its Liquidator.      ..........    RESPONDENTS


____________________________________________________________
Mr.Sunil Manohar, Senior Advocate assisted by Mr.Shantanu
Khedkar, Advocate for the petitioner.
Mr.S.M.Ghodeswar, A.P.P. for respondent no.1.
____________________________________________________________
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                       CORAM      : SUNIL B. SHUKRE &
                                    AVINASH G. GHAROTE, JJ.

DATE : 23.2.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J) :

1. Rule. Rule made returnable forthwith. Heard finally by

consent.

2. Mr.Sunil Manohar, learned Senior Advocate for the

petitioners does not press that part of the first prayer which seeks

declaration that the provisions of the Maharashtra Protection of

Interest of Depositors (In Financial Establishment) Act, 1999

(hereinafter referred to as "the MPID Act") are not applicable to the

respondent no.2/bank. He submits that separate petition seeking this

relief will be filed by the petitioners/aggrieved persons. He also does

not press prayer clause (iii) of the petition questioning constitutional

validity of Section 4 of the MPID Act. Thus, learned Senior Advocate

has confined his challenge in the present petition only to the legality

and correctness of the order dated 2.8.2019 attaching properties of

the petitioners under Section 4 of the MPID Act.

3. Learned Senior Advocate invited our attention to the

relevant fact of filing of an affidavit by the Investigating Officer

before the Supreme Court in Criminal S.L.P. No.4798 of 2008 which

was for cancellation of anticipatory bail granted to various accused

persons in this crime which included a lot of 14 accused persons, 4 of

which are the present petitioners. He submits that, in this affidavit,

two lists were submitted by the Investigating Officer to the Supreme

Court and in one list, names of the accused persons were included,

against whom there was existence of material showing their prima

facie involvement and in the second list, the names of 14 accused

persons were included, against whom there was not in existence any

material showing their direct involvement in commission of the

offences registered in the present crime. As regards the other two

petitioners namely Sunil s/o. Madhukar Balbudhe (petitioner no.4)

and Ashok s/o. Nanu Narkhede (petitioner no.5), the learned Senior

Advocate submits that there is no material in existence showing their

involvement in commission of the offences registered against them.

He further submits that petitioner nos. 6 to 8 are not the accused

persons and they are legal heirs of the original accused/deceased

Arvind Bondre. The learned Senior Advocate submits that name of

deceased Arvind Bondre figured in the second list of 14 accused

persons at Sr.No.5, in respect of whom a statement was made that

there was no direct involvement of him and also other accused

persons in the crime registered against them.

4. Mr.S.M.Ghodeswar, learned A.P.P., upon instructions,

submits that a statement was indeed made on affidavit before the

Apex Court that 14 accused persons named in the second list

submitted to the Apex Court did not have any direct involvement in

commission of the offences registered against them. This statement

has been made by him after seeking instructions from the

Investigating Officer, who is present before this Court. Upon a query

made to the Investigating Officer Mr.S.S.Gaja, Deputy

Superintendent of Police, it was informed by the said Investigating

Officer that the statement made in the foot note of second list

submitted to the Apex Court is correct and even till date, there is no

material found showing direct involvement of any of these 14

accused persons, which includes 4 of the petitioners before this

Court. For the sake of convenience, the statement made on affidavit

before the Apex Court is re-produced thus :

" Till this date in the investigation prima facie there is no direct involvement of the aforesaid 1 to 13 accused persons. As far as accused at Sr.No.14 is prima facie involved in the said scam. If any of the aforesaid 1 to 13 accused persons are found to be involved in the further investigation, the police authorities are found to be involved in the further investigation, the police authorities reserve their right to seek cancellation of anticipatory bail/custody of the concerned accused persons for necessary investigation. "

5. If the present position is that there is no material

available on record showing direct involvement of these accused

persons including 4 petitioners namely petitioner nos. 1, 2 and 3 and

deceased Arvind Bondre, the question of acquiring properties which

have been attached in this case by using banks deposit would not

arise. Therefore, so far as these petitioners are concerned, the order

of attachment passed under Section 4 would not be sustainable.

Then, the afore-stated statement has been made subject to

reservation that if any material is found in future, further action as

may be warranted under the law would be taken against these

persons. This position has also been accepted by the Investigating

Officer who is present before this Court. Therefore, we have no

hesitation to declare action taken under Section 4 of the MPID Act as

invalid so far as petitioner nos. 1 to 3 and deceased accused Arvind

Bondre is concerned. If this is so, this order would also have to be

declared to be invalid to the extent it affects petitioner nos. 6 to 8,

against whom also there is no material, as of now, showing their

prima facie involvement and admittedly so.

6. Now the question would remain about validity of the

order to the extent it affects rights of petitioner nos. 4 and 5. As

pointed out earlier by learned Senior Advocate, there is no material

in existence showing direct involvement of the petitioners in

commission of the offences registered against them. We must say

that the statement so made cannot be found to be incorrect when,

the reply filed by the respondents does not bring out any material

whatsoever showing involvement of petitioner nos. 3 and 4 in the

present crime. Learned A.P.P. on being questioned by this Court on

this aspect, has sought instructions from the Investigating Officer

present in the Court and upon instructions, he informs that no

material could be discovered so far showing direct involvement of

petitioner nos. 4 and 5. If this is the position, we do not think that

the impugned order could be sustained even against these petitioners

in the eye of law.

7. So far we have only considered the aspect of direct

involvement of these petitioners in the crime registered against them.

We have not addressed the other aspect of the matter which pertains

to indirect involvement of the petitioners in the crime registered

against them, if any. Even about this aspect, there is no material

forthcoming from the investigation so far made and this is not

disputed by the Investigating Officer present in the Court. Besides,

the right to take action if warranted in future and as aforesaid has

also been kept reserved by the Investigating Officer. There is also no

material showing that all these properties, which are subject matter

of attachment affecting the rights of the petitioners, have been

purchased or acquired by the petitioners by using money of

depositors.

8. In the circumstances, we are of the view that this

petition deserves to be allowed partly for all the petitioners and it is

partly allowed accordingly. The impugned order dated 2.8.2019 is

hereby quashed and set aside insofar as it affects the petitioners.

It is made clear that if any new material is found against

any of these petitioners, the Investigating Officer would be at liberty

to take such action as he may deem appropriate in accordance with

law.

Needless to say that as this petition has been finally

decided, there has occurred merger of interim order passed earlier

with this final order and so the interim order dated 20.12.2019 is

now no longer in force.

                          JUDGE                     JUDGE




[jaiswal]

                                    Digitally
                                    signed by
                          Suraj     Suraj Jaiswal
                                    Date:
                          Jaiswal   2021.02.26
                                    10:20:52
                                    +0530