Bombay High Court

Rajesh S/O Vasantrao Chavan vs The State Of Maharashtra Thr Pso Ps ... on 1 August, 2025

2025:BHC-NAG:7456

                                                                                       451 ba496.25
                                                      1

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

                    CRIMINAL APPLICATION (BA) NO.496/2025
                            Rajesh s/o Vasantrao Chavan
                                        ..vs..
          State of Maharashtra, thr.PSO PS Malkapur City, District Buldhana
                                       and anr
        ...............................................................................................
        Office Notes, Office Memoranda of Coram,
        appearances, Court orders or directions                          Court's or Judge's Order
        and Registrar's orders
        ...............................................................................................

                     Shri Akshay Naik, Senior Counsel assisted by Shri P.R.Agrawal, Counsel
                     for the Applicant.
                     Shri N.B.Jawade, Additional Public Prosecutor for the State.
                     Shri Ashish Chaware, Counsel assist to the Prosecution.


                                  CORAM                     : URMILA JOSHI-PHALKE, J.

                                  CLOSED ON                 : 28/07/2025
                                  PRONOUNCED ON             : 01/08/2025

1. By this application under Section 483 of the

BNSS, the applicant seeks regular bail in connection with

Crime No.375/2024 registered with the

non-applicant/police station for offences under Sections

120-B, 406, 409, 418, and 420 read with 34 of the IPC

and 146 of the Maharashtra Cooperative Societies Act,

1960 together with Section 3 of the Maharashtra Protection

of Interest of Depositors (Financial Establishment) Act, .....2/-

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1999 (the MPID Act).

2. The applicant came to be arrested on 1.4.2025

and since then he is in jail.

3. The crime is registered on the basis of a report

lodged by Auditor Arun Manoj Vyavahare (the informant)

on an allegation that the applicant was an employee serving

as Manager of "Unnati Mahila Nagrik Sahakari Credit

Society Limited" (the said Society). By order dated

9.1.2023, passed by the District Deputy Registrar,

Cooperative Societies, Buldhana, one V.P.Rathod was

appointed as Special Auditor for conducting audit by an

order for the Financial Year 1.4.2021 to 31.3.2022.

Accordingly, the Special Auditor has undertaken an Audit

of the said Society and submitted its Audit Report dated

27.6.2023. Subsequently, the informant as a Special

Accounts Auditor (Class-II), Cooperative Societies also

conducted an Audit for the period of 1.4.2022 to 31.3.2023

and she found final defalcation and noted that there is no

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control of the Board of Directors. Many financial

irregularities and illegalities have been committed by the

employees of the said Society. The applicant working as

Manager, by making alterations in the computer software,

has committed misappropriation of funds. On the basis of

such report, the police registered the crime. During

investigation, it further revealed that serious financial as

well as procedural lapses were noted by the informant and

the applicant including the General Manager, Accountant,

and Cashiers were responsible for the financial

misappropriation.

4. Heard learned Senior Counsel Shri Akshay Naik

for the applicant, learned Additional Public Prosecutor Shri

N.B.Jawade for the State, and learned counsel Shri Ashish

Chaware assisting the prosecution.

5. Learned Senior Counsel for the applicant

submitted that prior to the registration of the above said

crime, one crime bearing No.368/2023 was registered

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against the Chairman and other Board of Directors of the

said Society on an allegation that Chairman Mrs.Anjali Pant

and Accountant Ramesh Tandule of the said Society availed

loan by misusing their positions and several loan proposals

were sanctioned in the name of relatives of the said

Chairman. Misappropriation of the amount was alleged

against the Chairman and in the said crime, the Chairman

was also arrested. He submitted that period of

misappropriation shown in the earlier crime is from

1.4.2021 to 31.3.2022. In the present crime, period shown

is 1.4.2022 to 31.3.2023. For every year, illegalities or

irregularities and for alleged misappropriation, no separate

FIR can be filed. At the most, it is subsequent transaction

to the earlier crime registered. He submitted that test of

"sameness" is to be applied and second FIR is not

permissible for the same transaction. The applicant is

already released on bail in Crime No.368/2023 and,

therefore, the applicant cannot be arrested in the crime in

question as second FIR itself is not maintainable.

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Therefore, the applicant be released on bail. He further

submitted that even accepting the allegations as it is, at the

most, it is not illegality, but it is irregularity. Further

incarceration of the applicant is not required.

6. In support of his contentions, learned Senior

Counsel for the applicant placed reliance on following

decisions:

1. Anju Chaudhary vs. State of Uttar Pradesh and anr, reported in (2013)6 SCC 384, and

2. Amitbhai Anilchandra Shah vs. CBI and anr, reported in (2013)6 SCC 348.

7. Per contra, learned Additional Public Prosecutor

for the State submitted that the Audit for the period of

2021-2022 was conducted and the similar financial

misappropriation was found for which Crime No.368/2023

is already registered. The report pertaining to the period

2021-2022 makes it clear that the Chairman and the

Accountant of the said Society have closed the LPS

Accounts of Debtors. The Audit was held and the

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Chairman and the Accountant of the Society are found

responsible for the loss of Rs.6,31,82,152/-. On the basis of

the complaint, lodged by the Auditor, the crime was

registered. Subsequently, the Special Accounts Auditor was

appointed for conducting audit for the year 2022-2023.

While conducting the Audit, the Auditor has not only found

financial misappropriation but also alterations in the record

as well as some record was found burnt. Thus, an

attempt was made to screen the offender from the legal

punishment. In earlier crime, there was no allegation as to

the fabrication of the document or alterations in the record.

In the present FIR, there is a specific allegation that the

applicant by misusing his position made some alterations

and thereby committed the offence. Therefore, the test of

sameness is not applicable to the present case. He

submitted that the ambit of two FIRs is completely different

though they may arise from the same set of circumstances.

The involvement of the applicant reveals in economic

offence which is committed with due deliberations and with

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thoughtful consideration. The public money is

misappropriated and considering magnitude of the amount

involved, the application deserves to be rejected.

8. In support of his contentions, learned Additional

Public Prosecutor for the State placed reliance on the

decision in the case of State of Rajasthan vs. Surendra

Singh Rathore, reported in 2025 SCC OnLine SC 358.

9. On hearing both the sides and perusing the

investigation papers, it reveals that the applicant was

serving as a Manager with the said Society. The

complainant was directed as per the order passed by

Deputy Registrar of the Cooperative Societies to carry out

the Audit and during the Audit, certain financial

defalcations were found. During the Audit for the period

from 1.4.2022 to 31.3.2023, financial irregularities

revealed. It further revealed that the applicant, while

serving as Manager, made alterations in the computer

software in order to commit misappropriation of funds.

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The statements of the witnesses recorded during the

investigation reveal that it was the applicant who has made

alterations in the software and obtained pecuniary gain by

committing the misappropriation, he has purchased the

properties.

10. The Specimen Handwriting Panchanama

discloses that the applicant has not only made alterations in

the software but also he has made alterations in the

proceeding book.

11. Thus, involvement of the applicant not only

revealed in the defalcation but also in committing the

forgery.

12. Statements of the employees of the said Society

discloses that the proceedings' book was written by the

applicant. The applicant also attempted to destroy the

evidence which is incriminating in the present case. In the

statement of Rupali Chimte, it is specifically stated that it

was the applicant who has made alterations in

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the proceedings book and in the software. All the

documents were in his custody and involvement of the

applicant was there in destroying the evidence also.

13. Thus, as far as involvement of the applicant in

the alleged offence is concerned, there is sufficient material

to connect him with the alleged offence.

14. Learned Senior Counsel for the applicant raised

an issue of test of "sameness" and placed reliance on the

case of Anju Chaudhary supra wherein it is held that it is

settled principles of law that there cannot be two FIRs for

the same offence. The inbuilt safeguards provided by the

legislature in the very language of Section 154 of the Code

can be safely deduced from the principle akin to double

jeopardy, rule of fair investigation and further to prevent

abuse of power by the investigating authority of the police.

Therefore, second FIR for the same incident cannot be

registered. Of course, the Investigating Agency has no

determinative right. It is only a right to investigate in

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accordance with the provisions of the Code. The filing of

report upon completion of investigation, either for

cancellation or alleging commission of an offence, is a

matter which once filed before the court of competent

jurisdiction attains a kind of finality as far as police is

concerned, may be in a given case, subject to the right of

further investigation but wherever the investigation has

been completed and a person is found to be prima facie

guilty of committing an offence or otherwise, re-

examination by the investigating agency on its own should

not be permitted merely by registering another FIR with

regard to the same offence. If such protection is not given

to a suspect, then possibility of abuse of investigating

powers by the Police cannot be ruled out. It is with this

intention in mind that such interpretation should be given

to Section 154 of the Code, as it would not only further the

object of law but even that of just and fair investigation.

More so, in the backdrop of the settled canons of criminal

jurisprudence, re-investigation or de novo investigation is

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beyond the competence of not only the investigating agency

but even that of the learned Magistrate. The courts shall

taken this view primarily for the reason that it would be

opposed to the scheme of the Code and more particularly

Section 167(2) of the Code.

It is further held that the First Information

Report is a very important document, besides that it sets

the machinery of criminal law in motion. It is a very

material document on which the entire case of the

prosecution is built. Upon registration of FIR, beginning of

investigation in a case, collection of evidence during

investigation and formation of the final opinion is the

sequence which results in filing of a report under Section

173 of the Code. The possibility that more than one piece

of information is given to the police officer in charge of a

police station, in respect of the same incident involving one

or more than one cognizable offences, cannot be ruled out.

Other materials and information given to or received

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otherwise by the investigating officer would be statements

covered under Section 162 of the Code. The Court in order

to examine the impact of one or more FIRs has to

rationalise the facts and circumstances of each case and

then apply the test of 'sameness' to find out whether both

FIRs relate to the same incident and to the same

occurrence, are in regard to incidents which are two or

more parts of the same transaction or relate completely to

two distinct occurrences. If the answer falls in the first

category, the second FIR may be liable to be quashed.

However, in case the contrary is proved, whether the

version of the second FIR is different and they are in respect

of two different incidents/crimes, the second FIR is

permissible. This is the view expressed by this Court in the

case of Babu Babubhai vs. State of Gujarat and ors,

reported in . (2010)12 SCC 254. This judgment clearly

spells out the distinction between two FIRs relating to the

same incident and two FIRs relating to different incident or

occurrences of the same incident.

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15. Thus, to apply the test of sameness, the

information requires to be given regarding the same

incident involving one or more than one cognizable offence.

16. For applying the test of "sameness", the

observations of the Hon'ble Apex Court in the case of State

of Rajasthan vs. Surendra Singh Rathore supra are

relevant. By referring the judgments in the cases of Babu

Babubhai supra and Nirmal Singh Kahlon vs. State of

Punjab, reported in AIR 2009 SC 984, the Hon'ble Apex

Court laid down following principles regarding

permissibility of the registration of the second FIR:

1. When the second FIR is counter-complaint or presents a rival version of a set of facts, in reference to which an earlier FIR already stands registered;