Criminal Application No.256 of 2009

5th February, 2009

Petitioner Counsel: Shri. V. J. DIXIT,Shri. L. V. SANGIT
Respondent Counsel: Shri. N. H. BORADE,Shri. P. P. CHAVAN

Cases Cited:
Adri Dharan Das Vs. State of West Bengal, 2005 ALL MR (Cri) 1097 (S.C.)=2005 AIR SCW 1013 [Para 5]
Balachand Jain Vs. State of Madhya Pradesh, AIR 1977 SC 366 [Para 5]
Narinderjit Singh Sahni Vs. Union of India, 2002 ALL MR (Cri) 430 (S.C.)=AIR 2001 SC 3810 [Para 6]
Ram Narain Poply Vs. Central Bureau of Investigation, AIR 2003 SC 2748 [Para 7]
Himanshu Chandravadan Desai Vs. State of Gujarat, 2006 ALL MR (Cri) 233 (S.C.)=2006 Cri.L.J. 136 [Para 8]
Bihar Legal Support Society Vs. Chief Justice of India, 1986(4) SCC 767 [Para 8]

JUDGMENT

JUDGMENT:- Rule, returnable forthwith.

This application is filed for anticipatory bail in connection with Crime No.254/2008 registered at Chalisgaon Police Station, Dist. Jalgaon for the offences punishable under Sections 406, 408, 409, 420, 465, 468, 471, 120-B, 34 of I.P.C. on 19th October, 2008.

2. Apprehending arrest, the present applicant filed application for anticipatory bail before the Sessions Court, Jalgaon being Criminal Bail Application No.1288 of 2008 which came to be rejected on 16.1.2009. Hence, this application.

3. The learned Senior Counsel for the applicant invited my attention to the contents in the complaint and submitted that the only allegation against applicant is that he has borrowed money to the extent of Rs.4,00,000/-. He further invited my attention to page 35 and 36 to state that the applicant is a sportsman and he has received award from State. He invited my attention to page no.37 of the compilation to show that the present applicant is working as a Manager in Bharat Petroleum Corporation Ltd. since 1987 and a false complaint is filed. Though another complaint is filed against one Ajit Ghate, a separate complaint is filed against the present applicant. According to the learned Counsel for the applicant, the complaint is filed just to harass the applicant. It is further submitted that the Directors and Managing Director of the Bank are responsible for the financial irregularities and disbursement of loan to various persons for which crime is registered. Present applicant is only a borrower of the Bank. He cannot be held responsible for the acts of the Directors and Managing Director. Therefore, he deserves to be released on bail since he is working as Manager in Bharat Petroleum Corporation.

4. The learned A.P.P. appearing for the State invited my attention to the contents of the complaint and submitted that so far the offence registered against the present applicant is under various sections of I.P.C. including section 120-B of I.P.C. He further submitted that the present applicant has taken loan of Rs.4,00,000/- from the said Bank and even a single pai is not repaid by the applicant. He submitted that not only the applicant is involved in the present crime but, he is also involved in two other Crimes namely Crime No.216/2008 and 259/2008. It is further submitted that though bail was granted by the Sessions Court to the present applicant on condition to attend the police station, the present applicant has violated the condition and he did not attend the police station. Therefore, since the applicant is involved in various crimes and cheated the Bank, this Court may not grant anticipatory bail to the applicant.

5. While considering the scope of anticipatory bail under section 438 of Criminal Procedure Code in case of Adri Dharan Das Vs. State of West Bengal reported in 2005 AIR SCW 1013 : [2005 ALL MR (Cri) 1097 (S.C.)], relying on the earlier Constitutional Bench judgment in case of Balachand Jain Vs. State of Madhya Pradesh reported in AIR 1977 SC 366, the Supreme Court in para 7 has observed thus:-

The power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.

6. It would also be relevant to refer to the observations of the Supreme Court in the case of Narinderjit Singh Sahni and another Vs. Union of India and others, reported in AIR 2001 Supreme Court 3810 : [2002 ALL MR (Cri) 430 (S.C.)], wherein the Supreme Court has observed that if accused facing a charge under sections 406, 409, 420 and 120-B is ordinarily not entitled to invoke the provisions of section 438 of the Criminal Procedure Code unless it is established that such criminal accusation is not a bona fide one.

7. In the case of Ram Narain Poply Vs. Central Bureau of Investigation with Pramod Kumar Manocha Vs. Central Bureau of Investigation with Vinayak Narayan Deosthali, reported in AIR 2003 SC 2748 in para 382 the Supreme Court has observed thus:

382. The cause of the community deserves better treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non granta whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offences is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national Economy and National Interest, as was aptly stated in State of Gujarat Vs. Mohanlal Jitamalji Porwal and another, (AIR 1987 SC 1321).

8. The Supreme Court in the case of Himanshu Chandravadan Desai & ors. Vs. State of Gujarat reported in 2006 Cri.L.J. 136 : [2006 ALL MR (Cri) 233 (S.C.)] in para 7 referring to another judgment of Constitution Bench of the Supreme Court in case of Bihar Legal Support Society Vs. Chief Justice of India and another (1986(4) SCC 767) observed:

"The crime in which the petitioners are involved is very serious involving a conspiracy to cheat and defraud public institutions in a systematic manner and the punishment is likely to be severe in the event of conviction. High Court has recorded a finding that the material shows that the petitioners are prima facie involved in the offence. Large portion of the amount advanced to Bhavika Creations (about Rs.7.5 crores) has allegedly been diverted by appellant No.1 for acquiring shares in Nedungadi Bank Ltd. As a result of the scam, the Bank is under liquidation from 31-7-2003. On account of the fraudulent activities of the then Managing Director and Appellant No.1 (the then Director) and Appellants Nos.2 and 3, nearly Rs.23 crores is due from Bhavika Creations alone."

On the facts of that case, the Supreme Court came to the conclusion that the High Court was justified in rejecting the bail application of the applicant therein.

9. In the present case, Crime No.254/2008 has been registered for offences punishable under Sections 406, 408, 409, 420, 465, 468, 471, 120-B, 34 of I.P.C. I proceed to decide this application in the light of the pronouncements of the Supreme Court in the afore mentioned judgments. The allegation against the present applicant in the complaint is that on 30th March, 2002 by Resolution No.1 the Director Board has shown the amount of Rs.4,00,000/- sanctioned to the applicant. In the case of the applicant, there is violation of regulation while granting loan. It is further stated in the complaint that the loan is borrowed by the applicant for the business purposes in conspiracy with four directors and the amount is systematically diverted. The guarantors of the present applicant namely, Ajit Ghate and Dattatraya Pardeshi have also cheated the Bank while taking loan. Though the present applicant is residing at Mumbai, the bogus address of Chalisgaon is given while obtaining loan. Bogus documents are prepared while obtaining loan. The said loan is borrowed without any mortgage. There is no stock statement in the record of the Bank or income tax, sales tax or insurance policy submitted by the applicant while borrowing loan. The project report and viability report are also not on record. There is no document on the record to show that the committee of directors has scrutinised the proposal. The complaint further discloses that basically the present applicant is serving at Chalisgaon in Uma Agency, run by Mr. Ghate. It is further stated in the complaint that in the application for borrowing loan, there is no mention as to the purpose for which the loan amount is required and for which business. In spite of this, to cause loss to the Bank with conspiracy with the Directors, the amount has been taken by the present applicant and same has been misappropriated. It is further stated in the complaint that on 30.11.2008 the amount of Rs.4,00,000/- which was taken by the applicant, now calculated with interest comes to Rs.7,23,482/-. The applicant has not paid a single pai in return. According to the contents of the complaint, the applicant in a systematic manner with an intention to cheat the Bank with the help of Directors has taken amount of Rs.4,00,000/- as loan.

10. The allegations in the complaint against the present applicant are very specific. There is no answer with the applicant as to for what purpose the said amount was taken. There was no any security given while taking loan. Two guarantors namely Ajit Ghate and Dattatraya Pardeshi are also involved in the crime. The Bank has suffered loss of Rs.27 crores roughly, as is stated in the complaint, due to illegal disbursement of loans to various persons by the Bank. Some borrowers have systematically borrowed the loan with the help of Directors of the Bank without providing security and in violation of various Banking Regulations including Bye-laws of the Chalisgaon Peoples Co-operative Society, the directions issued by the Reserve Bank of India from time to time and other banking Regulations. As it reveals from the complaint itself, the total depositors in the Bank are 23,504 and the Bank is supposed to pay them Rs.37 Crores 35 Lacs. The total loan amount which is to be recovered from the various directors and borrowers is Rs.27 Crores 16 lacs. Many irregularities and illegal disbursements have been disclosed in the complaint.

11. The learned A.P.P. is absolutely correct in his contention that the present applicant is not only involved in the present crime but he is also involved in Crime Nos.216/2008 and 259/2008. It is further relevant to mention that the present applicant though was granted bail by the Sessions Court in one of the crimes, he never attended the police station. Merely somebody is manager in some company stationed at Mumbai, that by itself cannot be a ground in not attending the police station as directed by the Sessions Court. If the complaint is taken as it is, prima facie, I am of the view that there was systematic plan by some of the Directors, the then Bank Manager and borrowers to cause heavy loss to the Bank by borrowing huge amount without any security, without mentioning any purpose for which the loan is necessary.

12. In my considered view, it appears from the record that the applicant is a wilful defaulter. There is diversion and siphoning of funds. The applicant has not repaid a single pai of the loan amount which was taken from the Bank. The loan was not utilised for the specific purpose for which it was availed of but, the applicant has diverted the funds for other purposes. It cannot be forgotten that due to deep involvement of the applicant in the crime, three different crimes are registered against him and there is every possibility that the applicant may abscond.

13. In my considered view if the judgments of the Apex Court referred hereinabove are considered in the light of facts of this case, the present application deserves to be rejected.

14. For all the aforesaid reasons, the applicant does not deserve to be released on bail. The application is rejected. Rule is discharged.

Application dismissed.