Madhya Pradesh High Court

Kalu Singh vs The State Of Madhya Pradesh on 16 September, 2021

Author: Vivek Rusia

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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
       (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
                   M.Cr.C. No. 32340/2021
Kalu Singh S/o Shri Datiya Ninama, aged about 48 years, Occupation -
Agriculturist, R/o Bartoli, Rajgarh, District Dhar.
                                                           ---Applicant.
                                    Versus
State of M.P. through Police Station- Rajod, Distt-Dhar.
                                                           ---Respondent.
                                    --
       Shri Naman Nagrath, Senior Advocate assisted by Shri Kushal Goyal,
learned counsel for the applicant.
       Shri Mukesh Sharma, learned Panel Lawyer for the respondent/State.
       Shri Pourush Ranka, learned counsel for the Respondent [OBJ].

                        M.Cr.C. No. 31820/2021
Azad Bhandari S/o Shri Ratanlal Bhandari, aged about 63 years, R/o Tilak
Nagar, Rajgadh, District Dhar, M.P.
                                                              ---Applicant.
                                   Versus
State of M.P. through Police Station- Rajod, Distt-Dhar.
                                                              ---Respondent.
                                   --
       Shri Alok Vagrecha, learned counsel for the applicant.
       Shri Mukesh Sharma, learned Panel Lawyer for the respondent/State.
                                ORDER

Date: 16.09.2021:

Since both M.Cr.C.s are arising out of the common crime number thus they are being disposed of by common order. (2). This is first bail application filed on behalf of applicant- Kalu, who is in custody since 21.03.2020.

(3). This is First bail application filed on behalf of the applicant- Azad Bhandari, who is custody since 17.12.2020.

(4). Both the applicants are seeking bail in connection with Crime No.289/2019 registered at Police Station- Rajod, District Dhar for offences punishable under Sections 420, 409/34 of I.P.C. ( Section 406 of I.P.C. wrongly mentioned in M.Cr.C.No.32340/2021) (5). As per the prosecution story, 37 depositors/ account holders of Shri Rajendra Suri Sahkari Sanstha Maryadit, Branch: Ringnod have lodged an FIR at Police Station- Rajod District Dhar on 16.12.2019 alleging that they had deposited the amount in the branch in the form of

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Fixed Deposit under various deposits scheme but after maturity when they approached the branch to get back amount, it was found closed. Police registered an FIR against President Suresh Tated, Kanhna Patel,Branch Manager, Neeta Balsada under section 420, 409/34 of I.P.C. The police collected deposit certificates and recorded their statement under section 161 of Cr.P.C. and formally arrested these applicants. (6). Before registration of this FIR, Rajesh Victor, Audit Officer and his team conducted the inspection of the society under section 60 of M.P. Cooperative Societies Act, 1960. The team examined the cash books, account registers of the head office as well as 9 branches of the society and found the violation of clause 33 (1) (7) and clause 27 (14) of the by- laws. According to the report, the society running through nine branches, without obtaining a banking license has flouted various deposit schemes and collected the crores of rupees. The office bearers and managers have disbursed the crores of rupees by way of loan to the various accounts holder without verification of the documents and most of them are their close relatives. On the basis of the aforesaid report, he has lodged an FIR against the directors and officers (28 in numbers) at police station Rajgarh which is registered at crime No.391/2019. The applicants approached before this Court by way of an application under section 439 of Cr.P.C. Vide order dated 03.06.2021, a coordinate bench of this court has granted bail to them considering the subsequent report dated 13.07.2020 prepared by Deputy Commissioner Shri Amrish Vaidhya and reply submitted by the State Government in Writ Petition No. 12546/2020 (PIL) filed before this court . Some of the depositors have lodged FIRs at police Station Kukshi, District Dhar at crime No.13/2020, Bagh, District Dhar at crime No.229/2020, Rajod, District Dhar at crime No.289/2019, Amjhera, District Dhar at crime No.424/2019 and Kanwan, District Dhar at crime No.30/2020. In crimes No.391/2019, 13/2020, 229/2020 and 30/2020, a coordinate bench of this court has granted bail to the applicants or other similarly placed accused. Thereafter, First Additional Sessions Judge has also granted bail in crime No. 13/2020 registered at Police Station Kukshi, District Dhar.

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(7). Shri Naman Nagrath, learned Senior counsel appearing on behalf of applicant Kalu Singh (M.Cr.C. No.32340/2021) submits that on the same set of charges, he has been granted bail by the Coordinate Bench of this case. In the present case, the investigation is complete, charge sheet has been filed on 10.03.2021. No further custodial interrogation is required. Hence, no useful purpose is going to be served by keeping this application in the custody. Learned senior counsel further submits that after registration of the FIR, the State Government has appointed an Administrator, who is regularly returning the amount to the depositors. The list of depositors, who have received their money, has been filed along with list of documents. The orders passed by the Coordinate Bench granting bail to this application in other FIR have attained finality as no SLP has been filed.

(8). Shri Alok Vagrecha appearing on behalf of Azad Bhandari (M.Cr.C.No.31820/2021) submits that he is having parity with Kalu Singh. Nothing has been seized from the possession of the applicant. He is in custody for more than one and a half years, no further custodial interrogation is required.

(9). Learned Panel Lawyer for the respondent fairly admits that no SLP has been filed against the order passed by the Coordinate Bench granting bail to these applicants and other co-accused persons. Learned Panel Lawyer opposed the prayer by submitting that the first FIR was registered by Mr. Rajesh Victor alleging irregularities and illegalities in the society while accepting the deposits from the public and disbursement of the loan to the near relatives of the directors without verification of the documents. Thereafter, the depositors, who have deposited their amounts in various branches have lodged the FIRs at different police stations . These accused persons have illegally collected huge amounts Rs. 83,38,95,139.70/- from 1200 account holders under the various deposit schemes. They have collected an amount of Rs. 36,1141883.62 by registering 93 cases, but no record is available as to where this amount has been kept. The investigation is going on under section 173(8) Cr.P.C. against other accused, who have not been arrested so far. Hence,

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applicants may not be released on bail during pendency of the trial. (10). Shri Pourush Ranka, appearing on behalf of Municipal Council Rajgarh, Dhar/ Objector submits that this society has embezzled the amount of Rs. 17,56,374/- belonging to the municipal council. Some of the accused filed the petition under section 482 of Cr.P.C. seeking quashment of charge-sheet (M.Cr.C.No.41268/2019). Vide order dated 04.02.2020, this Court has dismissed the aforesaid M.Cr.C. Thereafter, they preferred SLP (Criminal) No.2579/2020 before the Apex Court and that too has been dismissed vide order dated 17.06.2020. The Municipal Council has made the number of complaints against these applicants but no FIR has been registered so far. The Municipal Council has raised similar objections in other bail applications but despite that Coordinate bench has granted bail to the accused persons. In support of this contention, he has placed reliance on the judgment passed by Apex Court in the case of Ajmer Singh Vs. state of Haryana, AIR 2010 SC (Supp) 582 in which the principle of parity has been explained.

I have heard the learned counsel for the parties and perused the Final Report ( Chalan) /Police Case Dairy.

(11). At the very outset, in my opinion, the Municipal Council has no locus to oppose the bail applications because the council is neither the complainant nor the witnesses in this case. If the money of the council has not been returned, then the council is free to take action against the applicants in accordance with the law. In the case of Ajmer Singh (supra) the Apex Court has examined the principle of parity between co- accused arrayed in one criminal case but in the present case facts are different, numbers of FIRs have been registered in respect of the same commission of offence at different police stations and in other criminal cases bail has been granted to them hence by way of parity, the applicants are claiming to bail this in this case.

(12). So far as rejection of bail application bearing M.Cr.C.No.31415/2020 of co-accused Vikas by the Coordinate Bench of this Court is concerned, same was filed before filing of the charge sheet and this Court has also rejected the bail of Jagdish because same was

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filed before filing of the charge-sheet.

(15). The applicants are in custody for more than one year. The investigation is complete, charge-sheet has been filed against them. All the documents have been seized by the police. The administrator has been appointed in the society who is making effort for returning the amount to the depositors. Numbers of FIRs have been registered against these applicants at different police stations at the instance of the depositors but allegations are identical in all the cases. In some of the cases, the Coordinate Bench of this Court has granted bail to them. The relevant part of the order dated 03.06.2021 passed in Crime No.391/2019 is produced below:

From the record, it is found that so far as the Inspection Report dated 28.08.2019 is concerned, it is apparent that certain financial irregularities have been imputed against the office bearers of the Society. However, it is also found that on a subsequent order dated 13.07.2020 passed by the Deputy Commissioner Shri Amrish Vaidya, it has been held as under: -

";g Li"V vkSj izekf.kr fu"d"kZ gS fd /kkjk 60 ds fujh{k.k ds mijkar izko/kkfud /kkjk 61 dh vfuok;Z oS/kkfud dk;Zokgh ugha dh xbZ ftlesa ;g O;oLFkk funsZf'kr gS fd lkslkVh dks ,DV dh /kkjk 60¼2½ ds izko/kku vuqlkj ^^fujh{k.k dh dfe;ksa vkSj =qfV;ksa dks lq/kkjus o leqfpr fujkdj.k dk ,d volj fn;k tkrkA mlds i'pkr~ ,DV dh vU; /kkjkvksa esa izFke% cM+s cdk;knkjksa ls olwyh dh izfØ;k lapkfyr dh tkrhA bl izdkj /kkjk 60 ds fujh{k.k dh izfØ;k iw.kZr% voS/kkfud izekf.kr gSA /kkjk 60 ds fujh{k.k ds iqu% ijh{k.k ds izkIr funsZ'kksa ds ifjikyu esa ;g izfrosnu mfpr fdUrq izHkko'kkyh dk;Zokgh dk i;kZIr vk/kkj gSA"

This report is dated 13.07.2020 and in another report prepared by the same Deputy Commissioner Shri Amrish Vaidya dated 08.09.2020, it has been held as under: -

/kkjk 60 ds fujh{k.k ds fjiksVZ dk f}rh; Hkkx vkifRr;ksa ds fujkdj.k gsrq laLFkk ds lapkyu eaMy dks /kkjk 61 ds ck/;dkjh izko/kku vuqlkj volj iznku djus ls lacaf/kr gSA ;g izfØ;k gh tk¡p dh iw.kZrk ekuh tkrh gSA bl izdkj viw.kZ tk¡p izfØ;k ,oa mlesa fdlh Hkh izdkj ds vkfFkZd vijk/k dk mYys[k ugha gksus ij Hkh vkijkf/kd izdj.k ntZ djk nsus esa rRdkyhu mik;qDr lgdkfjrk Jherh Hkkjrh 'ks[kkor ds fo:/k ^^,DV ds okW;ys'ku^^ lfgr vU; izko/kkuksa esa oS/kkfud dk;Zokgh dh tkuk pkfg, rFkk lgdkfjrk foHkkx ds varxZr lapkfyr mDr jktsUnz lwfj lgdkjh laLFkk ds vkjksih fu:fir dj fn, x, inkf/kdkfj;ksa o deZpkfj;ksa dks foHkkxh; U;k;iw.kZ laj{k.k iznku fd;k tkrk pkfg,A"

So far as the reply filed by the State Government in Writ Petition No.12546/2020 (PIL) is concerned, in paras 8.2 and 8.4 following averments have been made by the State: -

"8.2 & 8.4 That, enquiry report does not reflect commission of any financial irregularity or scam. The report even does not recommend to lodge a FIR. The provisions of Section 58, 59, 60 & 61 are very clear and, therefore, same needs to be strictly followed. As inspection was conducted under Section 60 of the Act, therefore, compliance of Section 61 of the Act was must.

8.4 The report Annexure R/4 does not reflect the misappropriation of

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funds of 100 crores, the report only reveals that there is financial imbalance of the society, for which section 61 was needs to be followed instead of registering the FIR in hasty manner. The Report Annexure R/8 also recommends to initiate departmental proceedings against the erring officers."

From the perusal of the aforesaid documents on record, this Court has no hesitation to come to a conclusion that the higher authorities of the Cooperative Societies Department as also the State Government have already taken a stand that the FIR has been lodged in a haphazard manner and in fact, the then Deputy Commissioner Smt. Bharti Shekhawat is also held responsible for lodging the FIR and against Smt. Shekhawat a Departmental Enquiry is also recommended.

In view of the aforesaid, this Court is of the considered opinion that there is no reason for this Court to keep the applicant (s) behind the bars any more and the bail applications deserve to be allowed.

(16). Considering the facts and circumstances of the case, I have no reason to take a different view hence without commenting on the merit of the case, all the M.Cr.C.s are allowed and the applicants Kalu Singh and Azad Bhandari are directed to be released on bail upon their furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand) each with one solvent surety in the like amount to the satisfaction of the trial Court for their regular appearance before the trial Court during the trial with a condition that they shall remain present before the court concerned during the trial and shall also abide by the conditions enumerated under Section 437(3) Cr.P.C. (17). It is made clear that the applicants shall not leave India without the permission of the Court. They shall not create any hindrance in the work of the Administrator who is returning the amount to the depositors.