Bombay High Court
Chhagan Shamrao Zalte vs The State Of Maharashtra And Anr on 28 October, 2021
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI 1-APL-757-2021.odt
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2021.10.28
15:16:03
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.757 OF 2021
Prem R. Kogta ... Applicant
Vs
The State of Maharashtra ... Respondents
WITH
CRIMINAL APL NO.187 OF 2021
Santosh Rajan Nair ...Applicant
Vs
Smitha S. Nair and Anr. ...Respondents
WITH
CRIMINAL APPLICATION NO.192 OF 2021
Preeti D. Musavi ..Applicant
Vs
Mohammed Mahmood
Musavi and Ors. ..Respondents
WITH
WRIT PETITION NO.3304 OF 2021
Jitendra Ramesh Patil ...Petitioner
Vs
The State of Maharashtra and Anr. ...Respondents
WITH
WRIT PETITION NO.3306 OF 2021
Chhagan S. Zalte ...Petitioner
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Vs
The State of Maharashtra & Anr. ..Respondents
WITH
WRIT PETITION NO.3824 OF 2021
Mr. Pritesh Champalal Jain ...Petitioner
Vs
State of Maharashtra & Anr. ...Respondents.
WITH
CRIMINAL APL NO.759 OF 2021
Sanjay B. Totala ..Applicant
Vs
The State of Maharashtra ..Respondent
WITH
CRIMINAL APL NO.803 OF 2021
Asif Munna Teli ..Applicant
Vs
The State of Maharashtra ..Respondent
WITH
CRIMINAL APL NO.883 OF 2021
Rajesh S. Lodha ...Applicant
Vs
The State of Maharashtra ..Respondent
...
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Mr. Rajiv Chavan, Senior Advocate with Mr. Amit Icham
i/by Mr. Aashish Pawar for the Applicant in APL 757/21
and APL 759/21.
Mr. S.R.Mithare for applicant in APPLN 192/2021.
Mr. Akshay Naik with Mr. Pralhad Paranjape with Ms.
Druti Datar i/by Mr. Manish Kelkar in WP 3304/2021 and
WP 3306/21.
Mr. Piyush Toshnival i/by Mr. Aashish Satpute for
applicant in APL 803/21 and APL 883/21.
Mr. Ranvir Shekhawat with Mr. Jagdish Choudhary i/by
M/s Raj Legal for petitioner in WP 3824/21.
Mr. Pravin Chavan, Spl.P.P. with Mr. Y.M.Nakhawa, APP
for the State.
CORAM : SANDEEP K. SHINDE J.
DATE : OCTOBER 28, 2021.
ORDER:
These petitions under Article 227 of the
Constitution of India and Criminal Applications under
the Code of Criminal Procedure, 1973 challenge Clause
(iii) and (iv), being conditions imposed by the
Additional Sessions Judge, Pune, while granting interim
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bail to the petitioners and applicants. Conditions were;
"iii] The applicants shall make reconciliation of
their amount of loan account from new liquidator.
They shall produce evidence including copies of
Income Tax Return before liquidator to show
exactly how much amount was actually paid by
them to each deposit holder while doing matching
of deposits against their loan account.
iv] After reconciliation of their loan account in
view of evidence of payment to the depositors
produced by them if it is observed that they have
not paid or partially paid the amount of deposit of
fixed deposit holders the amount deposited as per
this order shall be adjusted against that payment.
Thereafter they have to deposit remaining amount
payable to the depositors ( if any ) in the Court
within a period of three months after reconciliation
of loan account will be completed. The liquidator is
directed to take help of C.A. Smt. Neha Phadake-
forensic auditor of this case for that calculation.
2 Briefly stated, it is petitioners-applicants case,
that they were directed, to be released on temporary bail
till 14th October, 2021 in Crime No.673 of 2020, registered
with Deccan Police Station for the offences punishable
under Sections 406, 409, 420, 464, 465, 467, 468, 471,
474, 477(A), 225 and 120(B) read with Section 34 of the
Indian Penal Code, 1860 and under Section 3 of the
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Maharashtra Protection of Interest of Depositors (in
Financial Establishments) Act, 1999.
3 Background facts, in brief, are that the, Central
Registrar of Co-operative Societies in exercise of the powers
under Section 85 of the Maharashtra Co-operative Societies
Act, 1960 vide order dated 27th October, 2015 appointed
Jitendra Kandare, District Deputy Registrar Co-operative
Societies, as a liquidator for the Bhaichand Hirachand
Raisoni Multi-State Co-operative Society Ltd., Jalgaon ('Said
Society' for short). Petitioners and the applicants herein had
borrowed huge loan amount from the said society, which
remain unpaid till the society went into the liquidation and
the liquidator was appointed. Applicants and the liquidator
with ulterior motive deliberately projected gloomy financial
position of the said society and spread rumors amongst the
depositors/investors that they would not get back their
deposits/investments amount due to weak financial position
of the said society. Whereafter as a part of the conspiracy,
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applicants allured and convinced depositors personally or
through agents to accept 30% to 40% of their investments
against affidavit stating to have received full amount of
deposits/investment. Many agents were appointed by the
applicants, who collected large number of fixed deposit
receipts from the depositors and secured affidavit from
them stating that they had received full amount of
investment. Whereafter applicants in connivance with the
liquidator matched/adjusted fixed deposit amount against
their outstanding loan. For example, one of the
applicants/borrowers, Bhagwat Bhangale, had collected 60
deposit receipts from depositors amounting to
Rs.1,05,39,896/- and adjusted it against his outstanding
loan of Rs.1,28,40,396; Sanjay Totala another
applicant/borrower had adjusted/matched twenty-one fixed
deposit receipts amounting to Rs.91,41,172/- against
outstanding loan of Rs.1,02,93,672/-. Likewise, petitioners-
applicants had collected 1306 fixed deposits receipts, from
the depositors and adjusted/matched against their
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outstanding loan. When this fact was revealed, First
Information Report was lodged by Smt. Ranjana Ghorpade,
one of the investors/depositors. Whereafter crime in
question was registered against the applicants and the
liquidator. They were arrested on 17th June, 2019.
4 Applicants-Petitioners moved bail applications
contending that they had paid the entire amount to the
depositors in cash or by other mode and only thereafter,
respective investor executed affidavit. As such they had not
cheated them. Pending bail applications, accused
represented the Court that ;
(I) they were willing to deposit certain amount
in the Court.
(ii) they would meet liquidator to find out,
amount they owe to the Society - reconcile their
account and repay accordingly.
(iii) they were willing to clear dues within
certain period of time.
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Thus, one of the accused persons, Sanjay Totala filed
pursis in the aforesaid terms, (i) (ii) and (iii) and co-accused
adopted the same in verbatim. This pursis/application reads
as under;
"..... The present applicant in order to show his
bonafide intention is ready and willing to deposit
certain amount before this Hon'ble Court in order
to secure his bail. The applicant without admitting
the prosecution case is ready to meet the bank
liquidator/administrator in order to find out the
exact amount, so that he can reconcile his
account with the credit society and repay
accordingly. As the bank had added interest,
penalties, hence the applicant needs to discuss
and negotiate the same with the liquidator.
In the circumstances mentioned above the
applicant may be released on bail by allowing him
to deposit certain money before this Hon'ble Court
without admitting the prosecution case. Further
the Applicant may be permitted to sit with the
bank liquidator/administrator in order to clear his
dues within certain period of time.
It is, therefore, prayed that the applicant
may be released on bail by allowing him to
deposit certain money before this Hon'ble Court
without admitting the prosecution case in the
interest of justice."
5 Thus, on the representation by the applicants as
re-produced above, the learned Court granted temporary
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bail to the applicants by imposing the conditions; two of
which are impugned before this Court. Accused first availed
bail. Whereafter they challenged two afore-stated
conditions.
6 The learned counsel for the applicants
vehemently submitted that conditions impugned were self-
incriminatory, unworkable and could not have been
imposed while exercising the jurisdiction under Section 439
of the Cr.P.C. and, therefore, in supervisory jurisdiction,
interference is called for. Further argued that since bail
applications of the accused are pending before the learned
Judge and until decision in the bail applications, impugned
conditions may be kept in abeyance.
7 Two Writ Petition Nos.3304 and 3306 of 2021
were heard on 23rd September, 2021 and notices were
directed to the respondent no.2 (Complainant) and pending
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petitions, operation of the conditions (iii) and (iv) of the
order dated 14th July, 2021 were directed to be stayed qua
petitioners. It may be noted that on 23 rd September, 2021,
pursis filed by Sanjay Bhagwandas Totala on 6 th July, 2021
(part of which I have re-produced above) was not brought to
my notice, meaning thereby this Court was not informed
either by petitioners or by the prosecution that, impugned
conditions were imposed, as suggested by them.
8 Be that as it may, in consideration of the facts of
the case, nature of allegations, impugned conditions were
outlined in furtherance to the submissions of the applicants-
accused, which in no uncertain terms suggest that they
themselves were willing to match and re-concile their
account with the assistance of the liquidator/administrator
of the said society and pay balance dues. Thus, to facilitate
the accused, to ascertain dues payable to
depositors/society, the learned Judge devised, modality by
drawing the conditions, to strike the balance, between the
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rights of accused and victims. It was a mechanism evolved
by the learned Judge, as then suggested by accused. How
can they now say conditions were burdensome, self-
incriminating, onerous, drawn and imposed in excess of the
jurisdiction, after availing 'bail'.
9 The learned counsel for the prosecution correctly
submitted that relying on the, representation made by the
accused, the learned Court sanctioned course of action and,
therefore, it cannot be faulted with. Reliance was placed on
the judgment of this Court in the case of Jamnaben wife
of Harakchand Shah and Others v. Smt. Manjulaben
and Others 1997(4) Bom. C.R. 65. In the cited case
Undertaking to hand over vacant possession by particular
date was breached. It was held that the conduct of the
contemnor who had given the Undertaking showed they did
not intend to comply with the Undertaking and had put up
other relatives to protract the proceedings in the name of
the minor. Thus, in context of these facts in paragraph 8, it
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was observed that
"8. An undertaking is a solemn promise made
by a party to the Court and once such promise has
been made to the Court and on the faith of such
solemn promise the Court sanctions a particular
course of action or inaction, such party is bound to
observe and comply with such undertaking. When a
person volunteers to give an undertaking knowing
all the facts and consequences and thereunder
derives the entire advantage he cannot wriggle out
of the undertaking. The person giving an
undertaking is bound to discharge the undertaking
and so long as the undertaking subsists the person
giving undertaking has not been released from the
undertaking he is duty bound for its observance."
10 In the case in hand, the accused Sanjay
Bhagwandas Totala and co-accused, represented the Court,
as stated above and believing the same, the learned Court
sanctioned particular course of action in terms of Clauses
(i), (ii), (iii), (iv), (v) and (vi) of the order dated 14 th July,
2021 and released the applicants on temporary bail.
Therefore, now applicants cannot wriggle out of their
representation and circumvent the order, which binds them
and they are bound to discharge the same. In view of these
facts, no case is made out by the
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petitioners/applicants either seeking relaxation of the
impugned conditions or its quashment. Petitions and the
applications are dismissed.
(SANDEEP K. SHINDE, J.)
Shivgan
