Bombay High Court

Gajanan S/O Raghunath Nandanwar vs The State Of Maharashtra, Thr. Pso ... on 10 June, 2021

Bench: Manish Pitale

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH AT NAGPUR

            CRIMINAL APPLICATION (BA) NO. 485 OF 2021


 Gajanan s/o Raghunath Nandanwar
 Aged about 70 years, Occ. Retired,
 R/o. 169, Empress mill Society,
 Shrinagar, Ring Road, Nagpur
 (Presently lodged in Central Prison, Nagpur)                             .. Applicant

                               ...V E R S U S...

 State of Maharashtra
 through Police Station Officer,
 Hudkeshwar Police Station, Nagpur                                       .. Respondent

 ---------------------------------------------------------------------------------------
 Mr. D. V. Chavan, Advocate for applicant.
 Ms. T. H. Khan, A.P.P. for respondent.
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                              CORAM :- MANISH PITALE J.
                      RESERVED ON :- 08th June, 2021
               PRONOUNCED ON :- 10th June, 2021

 JUDGMENT

Hearing was conducted through Video

Conferencing and the learned counsel agreed that the audio

and visual quality was proper.

(2) The applicant has approached this Court seeking bail

in connection with First Information Report No.0551 dated

28/12/2020, registered at Police Station, Hudkeshwar, filed

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against him and co-accused persons under Sections 406, 409, 420

r/w 120-B of the Indian Penal Code (IPC) and Section 3 of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999 (MPID Act).

(3) The applicant is behind bars from 28th December,

2020. The applicant had approached this Court earlier by filing a

bail application, but the same was withdrawn in the light of filing

of charge-sheet with liberty to approach the Special Court.

Pursuant thereto, the applicant moved a fresh bail application

before the Special Court under the MPID Act, which stood rejected

by order dated 05th May, 2021.

(4) The informant in the present case is an Auditor who

had prepared an Audit Report in respect of Anand Sai Urban

Credit Co-operative Society Limited (hereinafter referred to as the

Society) for the period 2017-18. During the relevant period, the

applicant was working as General Manager of the said Society and

it was recorded in the Audit Report that the Society through its

office bearers and the alleged involvement of the applicant, had

misappropriated amount to the extent of Rs.4,08,00,000 (Rupees

Four Crores and eight Lakhs). On this basis, the aforesaid FIR

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dated 28th December, 2020, stood registered against the office

bearers of the Society as well as the applicant. The allegations in

the FIR against the applicant are to the effect that he was party to

illegal advancement of amounts by the Society to one Dakshayani

Group. It was alleged that various amounts in cash totalling Rs.4

Crores were illegally advanced to the said Dakshayani Group

during the said period and that further amount of Rs.8 Lakhs was

advanced, by a cheque which was signed by the applicant along

with co-accused person. It was alleged that the said huge amount

was misappropriated, thereby causing grave loss to the depositors

of the said Society. On this basis, aforesaid offences were

registered. The Special Court rejected the bail application of the

applicant after filing of charge-sheet, on the basis that sufficient

material was placed on record to indicate prima facie direct

involvement of the applicant in the misappropriation of the

aforesaid amount.

(5) Mr. D. V. Chavan, learned counsel appearing for the

applicant submitted that the applicant had worked with the Bank

of Maharashtra and he had retired from the post of Assistant

General Manager of the said Bank in the year 2011. It was

submitted that the applicant had an absolutely clean and

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unblemished record during his entire period of service with the

aforesaid Bank and that after his retirement, on 14 th May, 2016,

the applicant had joined service of the said Society as the General

Manager. According to the learned counsel for the applicant, the

material on record would show that the applicant himself had sent

communications to the office bearers of the Society, including the

co-accused persons, regarding the inappropriate procedures being

followed in the functioning of the Society. It was the applicant

who had specifically stated in written communications that

relevant documents including vouchers pertaining to cash

amounts given to the Dakshayani Group were not properly

maintained in the record of the Society, which was illegal. It was

further submitted that even the Audit Report submitted by the

informant did not show the involvement of the applicant, insofar

as cash amounts being advanced to the Dakshayani Group were

concerned. As regards the cheque of Rs.8 Lakhs given to the said

Group, it was submitted that blank cheques signed by the

applicant were kept with the accountant for disbursing amounts to

depositors and that one such cheque may have been misused, for

which the applicant could not be held criminally liable.



 (6)              It was further submitted that a perusal of the entire





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charge-sheet along with statements of witnesses and other

material placed on record by the investigating agency, would

show that there was nothing to implicate the applicant. It was

further submitted that the applicant being a 70 years old senior

citizen, suffering from ailments, deserved to be enlarged on bail,

particularly when there was no possibility of the applicant

influencing the witnesses or tampering with the evidence. It was

submitted that appropriate conditions could be imposed on the

applicant for grant of bail. The learned counsel for the applicant

relied upon the judgment of the Hon'ble Supreme Court in the

case of P. Chidambaram vs. Directorate of Enforcement (2020) 13

Supreme Court Cases 791, to contend that even if the applicant

was alleged to have committed economic offences, his prayer for

grant of bail ought to be considered on the well established

principles of bail jurisprudence.

(7) On the other hand, Ms. T. H. Khan, learned APP

appearing for the respondent State submitted that serious offences

were alleged against the applicant and the co-accused persons.

Large amount of money was misappropriated by the office bearers

of the Society in connivance with the applicant herein. It was

further submitted that there was material on record in the form of

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statements of witnesses indicating that certain false entries were

made in registers and record was created by the applicant in his

own handwriting, so as to falsely show that the aforesaid amounts

were advanced to the Dakshayani Group after due approval of the

Executive Body of the Society. In the face of such material, it

could not be said that the applicant was merely an employee and

that he was not actively involved in the illegal activities. It was

further submitted that the applicant failed to take any steps to

prevent illegalities committed on behalf of the Society, which had

resulted in misappropriation of huge amount of the Society,

thereby causing loss to the depositors. On this basis it was

submitted that Special Court was justified in rejecting the bail

application of the applicant and that the present application also

deserved to be dismissed.

(8) Heard learned counsel for the parties. The learned

counsel for the rival parties invited attention of this Court to

statements of witnesses and other material placed on record with

the charge-sheet. There is no dispute about the fact that at the

relevant time, the applicant was working as General Manager of

the said Society. Although he resigned from the post of General

Manager on 15th January, 2018 and he was relieved from the said

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post on 19th April, 2018, since the allegations pertained to the

period when the applicant was the General Manager of the

Society, it becomes necessary to make a prima facie assessment of

the material on record to analyze the extent of responsibility of

the applicant for the offences alleged in the present case.

(9) A perusal of the Audit Report, which is the basis of

the registration of FIR, would show that insofar as cash amounts

to the extent of Rs.4 Crores advanced to Dakshayani Group are

concerned, the illegal actions have been attributed to the co-

accused who claimed to be the office bearers of the said Society.

In the FIR also the involvement of the applicant has been indicated

on the basis that he was the General Manager of the Society and

therefore, he was also responsible for such illegal activities, But, a

perusal of letter dated 29th December, 2017, sent by the applicant

to the co-accused i.e. the President of the Society would show that

he had raised the issue of non-availability of payment vouchers

regarding cash amounts to the extent of Rs.4 Crores advanced to

the Dakshayani group. In fact, the applicant stated that when the

accountant of the Society was asked regarding such payment

vouchers, she stated that the vouchers were with the President of

the Society. In this backdrop, the applicant requested the co-

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accused i.e. the President of the Society to provide the payment

vouchers as the Inspecting Officer was insisting upon the same. It

is also recorded in the said communication that the said President

of the Society claimed that he was not aware about the matter and

that the Inspecting Officer could be sent to his cabin. Since this

communication is dated 29th December, 2017, it prima facie

indicates that the applicant as the General Manager of the Society

had informed the co-accused person that payment vouchers for

cash amounts advanced to Dakshayani Group were not available.

(10) Apart from this, the applicant had earlier i.e. on 2nd

September, 2016, sent communication to the co-accused stating

that there were instances of mismanagement in the working of the

Society and that if remedial measures were not taken, the Society

would suffer loss and that ultimately it may collapse. This would

prima face indicate that after joining the post of General Manager

of the said Society, the applicant did take steps to inform the co-

accused persons about mismanagement in the affairs of the

Society.

(11) Insofar as the amount of Rs.8 Lakhs advanced to

Dakshayani Group by way of cheque bearing the signature of the

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applicant is concerned, it is sought to be explained that blank

signed cheques were kept with the accountant for payment to

depositors and that this could be an instance of misuse of such

cheque. Whether this explanation can be accepted or not is a

matter for trial and equally it is matter for trial as to whether the

applicant as the General Manager was acting on the directions of

the co-accused persons who were the office bearers of the said

Society. Even if the signature of the applicant is said to be affixed

on the cheques in question, the amount of money advanced to

Dakshayani Group by way of aforesaid cheque was only Rs.8

Lakhs. Therefore, at this stage, it prima facie appears that direct

material to show involvement of the applicant in advancing

amount to the said Dakshayani Group is only to the extent of Rs.8

Lakhs. Even for this, the applicant has sought to give a plausible

explanation.

(12) As regards the record allegedly created in the

handwriting of the applicant pertaining to meetings of the

Executive Body of the Society, admittedly, report of the

handwriting expert is awaited. Apart from this, a perusal of the

statement of witnesses relied upon by the learned APP would

show that it is stated that the applicant had allegedly recorded

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holding of meetings of the Executive Body of the Society and

passing of resolutions in the registers on the direction of co-

accused No.1. Whether such creation of record was in the

handwriting of the applicant and whether he was directly involved

in creation of false and fabricated record would also be a matter

for trial.

(13) There is no dispute about the fact that the applicant is

a senior citizen aged 70 years. It is also not disputed that he was

arrested on 28th December, 2020, thereby showing that he has

been behind bars for the past about six months. The investigation

is completed and charge-sheet is already filed. There is material

placed on record to show that the applicant suffers from

diminished vision and that he suffers from other ailments

prevalent in senior citizens. The applicant is a retired Assistant

General Manager of Bank of Maharashtra and there is nothing on

record to show that he has any criminal antecedents. Considering

the nature of statements of witnesses and the other material

placed on record along with the charge-sheet, it appears that the

applicant has made out a case for grant of bail. If appropriate

conditions are imposed, while granting bail, it would serve the

ends of justice, as no purpose would be served by keeping the

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applicant in custody, who is a 70 years old person suffering from

diminished vision and other ailments.

(14) The emphasis placed by the learned APP upon the

seriousness of the alleged offences and that these are economic

offences, cannot be the basis for rejection of bail. In the aforesaid

judgment in the case of P. Chidambaram vs. Directorate of

Enforcement (supra), the Hon'ble Supreme Court has reiterated

the position that although economic offences are indeed serious

offences, bail jurisprudence would require that each case is

considered on its own facts, with the cardinal principle being kept

in mind that grant of bail is the Rule and refusal is an exception.

The Hon'ble Supreme Court has further reiterated in the said

judgement that appropriate conditions can be imposed to secure

the presence of the accused at the time of trial and that the past

record as well as character and behavior of the accused are

circumstances to be taken into consideration while considering the

prayer for bail.

(15) Applying the said principles to the facts of the present

case, in the light of the observations made above, this Court is

inclined to allow the present application.

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 (16)             Hence, the application is allowed in the following

 terms: -

(a)The applicant shall be released on bail on furnishing PR

Bond of Rs.50000/- (Rupees Fifty Thousand only) and a

surety in the like amount in respect of the aforesaid FIR

dated 28th December, 2020.

(b) The applicant shall attend proceedings before the

Special Court in the trial proceedings on each and every

date, unless specifically exempted by the said Court.

tamper with the evidence or influence prosecution

witnesses.

(d) The applicant shall fully co-operate in the proceedings

before the Special Court for expeditious conclusion of

the trial.