VersusThe State of Maharashtra v. H. Dighe
Case Details
2024:BHC-AUG:10190 CriAppln-1657-2024+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1657 OF 2024INCRIMINAL APPEAL NO. 372 OF 2024WITHCRIMINAL APPLICATION NO. 1979 OF 2024INCRIMINAL APPEAL NO. 372 OF 2024Mahesh Baban ZawareAge : 45 years, Occu: Business,R/o. Gargundi, Tq. ParnerDist. Ahmednagar(At present at Nashik CentralPrison, Nashik… Applicant[Accused no.25]VersusThe State of Maharashtra… Respondent…..Mr. Abhijit S. More, Advocate for the Applicant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State.Mr. V. H. Dighe, Advocate for Applicant in Appln/1979/2024...…ANDCRIMINAL APPLICATION NO. 1709 OF 2024INCRIMINAL APPEAL NO. 394 OF 2024WITHCRIMINAL APPLICATION NO. 1978 OF 2024INCRIMINAL APPEAL NO. 394 OF 2024Anup s/o Pravin Parekh,Age : 39 years, Occu.: Service,Original R/o: Khist Galli, Ahmednagar,Taluka and District : Ahmednagar,
Legal Reasoning
CriAppln-1657-2024+-27- Section 420, 465, 467, 471 and 120-B r/w 34 of IPC. His maximumsentence of 5 years and to pay fine.38.Accused nos. 23 and 24, namely, Sudhakar Sumbe andGopinath Sumbe are said to be borrowers of loan without surety,security and are said to be defaulters and both are held guilty foroffence under Section 420, 465, 467, 471 and 120-B r/w 34 of IPCand maximum sentence awarded is 5 years and to pay fine. 39.Accused no. 9 Baban Zaware and accused no. 25 MaheshZaware, father and son were said to be beneficiaries of loan. Accusedno.25 i.e. son of accused no.9 had borrowed loan by circumventingrules and procedure. Accused no. 9 is held guilty for offencepunishable under Sections 177, 406, 409, 420, 465, 467, 471 and120-B r/w 34 of IPC as well as Section 3 of MPID Act and hismaximum sentence is of 10 years. Whereas accused no.25 is heldguilty for offence under Sections 420, 465, 467, 471 and 120-B r/w34 of IPC and his maximum sentence is of 5 years and to pay fine.40.Here, there is no dispute about designation/post held and beingimpleaded to be accused in the capacity of Board of Directors,managing committee members, managerial and administrative staff. CriAppln-1657-2024+-28- CONCLUSION41.On hearing both the learned senior counsel as well as otherrespected counsel representing each of the present applicants, thecommon argument on which thrust is laid is that, firstly, sentenceawarded is of short term and in view of settled law, they are entitledfor both, relief of suspension of sentence as well as grant of bail.Secondly, there are no immediate prospects of hearing the appeal,and thirdly, they all were on bail during trial.42.Here, admittedly, Section 389 of Cr.P.C. being pressed intoservice, before ascertaining the entitlement for suspension of sentenceand grant of bail, it would be profitable to deal with and discuss thesettled law which appellate courts are to bear in mine whileexercising said powers. 43.Above Section 389 Cr.P.C. permits suspension of sentence afterconviction and even permits setting convict at liberty during pendencyof appeal preferred by him. However, it is fairly settled that suchpowers are to be exercised only when it is palpably shown that thereare fair chances of success in appeal and when appellate court issatisfied about existence of apparent and gross error on the face ofrecord. It is equally true that, at this stage, appellate court cannot CriAppln-1657-2024+-29- meticulously re-appreciate evidence but only on prima facieconsideration and satisfaction, if the court feels that conviction maynot be sustained while rejudging the case in future, only in suchcontingency, it is justified to suspend sentence and grant bail.Going by such precedents, certain factors like gravity of offence,nature of crime, circumstances in which offence has taken place, itsimpact on individual or on society, are some of the considerationswhich are expected to be borne in mind while exercising powersunder Section 389 of Cr.P.C. In the case of Anwari Begum v. Sher Mohammad and Another(2005) 7 SCC 326, of which recently recourse was also taken by theHon’ble Apex Court in the case of Shivani Tyagi v. State of U.P. 2024LiveLaw (SC) 333, wherein the court laid down certain factors to belooked into while deciding application under Section 389 Cr.P.C.“i. The nature of the accusations and the severity ofpunishment in the case of conviction and the nature ofsupporting evidence.ii.Reasonable apprehension of tampering witnesses orapprehension of threat to complainant. CriAppln-1657-2024+-30- iii. Prima facie sanctification of the court in support of thecharge.There are also series of judicial pronouncements on abovepropositions and the same could be listed as Rama Narang v. RameshNarang and others (1995) 2 SCC 513 ; Rajesh Rajan Yadav aliasPappu Yadav v. CBI (2007) 1 SCC 70 and Sidhartha Vashisht aliasManu Sharma v. State (NCT of Delhi) (2008) 5 SCC 230 whereinscope, object and purport of Section 389 of Cr.P.C. has been distinctlyand lucidly discussed.44.Very recently, the Hon’ble Apex Court in the case of OmprakashSahni v. Jai Shankar Chaudhary and another (2023) LiveLaw SC 389has elaborately dealt with the precedent on above provision andreferred cases of Ash Mohammad v. Shiv Raj Singh alias Lalla Babuand another (2012) 9 SCC 446; Bhagwan Rama Shinde Gosai andOthers v. State of Gujarat (1999) 4 SCC 421; Hasmat [(2004) 6 SCC175]; Vijay Kumar v. Narendra and Others [(2002) 9 SCC 364]; AtulTripathi v. State of Uttar Pradesh and Others (2014) 9 SCC 177;Kishori Lal v. Rupa and Others (2004) 7 SCC 638; Ramji Prasad v.Rattan Kumar Jaiswal and Another (2002) 9 SCC 366; VasantTukaram Pawar v. State of Maharashtra (2005) 5 SCC 281 and Gomtiv. Thakurdas and Others (2007) 11 SCC 160. CriAppln-1657-2024+-31- 45.Resultantly, the legal proposition that is settled is that, thoughappellate court has power to suspend sentence and grant bail, suchpowers are expected to be exercised judiciously and in only such casesin which circumstances and reasons exist to grant such relief.Ultimately, it all depends on the facts and circumstances of each caseand there is no straightjacket formula or absolute rule for grant orrefusal. 46.Keeping above legal position and essentials in sight, and onanxiously considering the above submissions, admittedly, here, afinance expert PW20, a Chartered Accountant appointed by Societyseems to have been entrusted with the inquiry and on gatheringevidence and upon authorization by higher authority of Co-operativeDepartment, offence has been detected and registered which isfurther investigated and all persons involved are duly chargesheeted.It emerges that scam/fraud is detected in a financial institutionregistered under the Maharashtra Co-operative Societies Act. It is tobe borne in mind that such financial institutions are authorized toraise shares and deposits from common people with the sole purposeof extending loans of various kinds to various needy people. CriAppln-1657-2024+-32- 47.Here, some applicants are, no doubt, Board of Directors, someare managing committee members and some are shown to beborrowers. Irregularities, misappropriations are unearthed to the tuneof Rs.13,28,55,667/-. Obviously, the funds are raised from commonpeople who have invested their hard earned money with a feeling oftrust and faith. At this stage, it can be for sure observed that it is caseof misappropriation and fraud by utter disregard to the rules,regulations and procedures. Huge amounts are said to be siphonedwithout following procedure. Deposits and shares of various people,which are said to be the backbone of such institution are detected tobe misutilized by deviating, circumventing rules and procedure foreither personal benefits or for benefits of near and dear ones. Thereare allegations of mortgaging fake metal, posing it to be real gold.Such allegations are established on thorough trial. Needless to saythat the very object and purpose of co-operative movement isattempted to be frustrated by chosen few. Such financial irregularitiesand financial misconduct consequently brings financial strain on thevery institution. It has potential to destabilized the functioning of ainstitution which stands on the earnings and deposits of commonpopulace. CriAppln-1657-2024+-33- 48.As expected, this Court has to objectively assess the case toascertain entitlement of relief. Section 389 Cr.P.C., further asexpected, is to be exercised judiciously. As stated above, deeds of fewhave had reflections on the economic status of the registered co-operative financial institution. Hard earned money and investments ofdepositors has come in jeopardy. In a way, societal interest is at stake.Keeping such crucial aspects in mind, though some applicants areseeking benefit on the ground of short term sentence, in theconsidered opinion of this Court, it is not a fit case to extend suchrelief. Ascertaining the relief in the backdrop of above legalrequirements, mere applicants to be on bail during trial is itself not agood ground to continue or grant such relief at appellate stage also. 49.On overall view of submissions of both sides, applicants as wellas State, this Court, taking into account the magnanimity andenormity of the fraud, is not inclined to either suspend the sentenceor grant bail as prayed. Hence the following order:ORDERAll the applications for suspension of sentence and grant of bailare hereby rejected. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppln-1657-2024+-2- Presently residing at Survey No.25/5,Flat No.1, ‘Apurva Residency’,Hingane (Khurd), Opposite NityanandHall, Sinhagad Road, Pune City, Pune,Taluka and District : Pune… Applicant [Orig. Accused No.17]VersusThe State of Maharashtrathrough the Officer Incharge,Kotwali Police Station, Ahmednagar,Taluka and District : Ahmednagar.… Respondent…..Mr. Rajendra S. Deshmukh, Senior Advocate i/by Mr. Devang R.Deshmukh, Advocate for the Applicant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State.Mr. V. H. Dighe, Advocate for Applicant in Appln/1978/2024...…ANDCRIMINAL APPLICATION NO. 1729 OF 2024INCRIMINAL APPEAL NO. 397 OF 2024WITHCRIMINAL APPLICATION NO. 1980 OF 2024INCRIMINAL APPEAL NO. 397 OF 2024Lahu Sayaji GhangaleAge : 61 years, Occ. Agri.,R/o : Hiware Korda, Tal. Parner,Dist. Ahmednagar.… Applicant[Orig. Accused no.10]VersusThe State of MaharashtraThrough Police Inspector,Kotwali Police Station,Tal. Ahmednagar, Dist. Ahmednagar.… Respondent CriAppln-1657-2024+-3- …..Mr. V. D. Hon, Senior Advocate i/by Mr. Ashwin V. Hon, Advocate forthe Applicant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State.Mr. V. H. Dighe, Advocate for Applicant in Appln/1980/2024...…ANDCRIMINAL APPLICATION NO. 1731 OF 2024INCRIMINAL APPEAL NO. 398 OF 2024WITHCRIMINAL APPLICATION NO. 1976 OF 2024INCRIMINAL APPEAL NO. 398 OF 20241.Sudhakar Gopinath SumbeAge : 57 years, Occ. Business,R/o: Padali, Tal. Parner,Dist. Ahmednagar.2.Gopinath Shankar SumbeAge : 88 years, Occ. Agri.,R/o: Padali, Tal. Parner,Dist. Ahmednagar… Applicants[Orig. Accused Nos. 23 & 24]VersusThe State of MaharashtraThrough Police Inspector,Kotwali Police Station,Tal. Ahmednagar, Dist. Ahmednagar… Respondent…..Mr. V. D. Hon, Senior Advocate i/by Mr. Ashwin V. Hon, Advocate forthe Applicants.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State.Mr. V. H. Dighe, Advocate for Applicant in Appln/1976/2024...… CriAppln-1657-2024+-4- ANDCRIMINAL APPLICATION NO. 1752 OF 2024INCRIMINAL APPEAL NO. 401 OF 2024Hasan Amir RajeAge : 63 years, Occ: Agri.,R/o. Opposite Anand Hospital,Navi Peth Road Parner,Tq. Parner, Dist. Ahmednagar.… Applicant[Orig. Accused No.8]VersusThe State of MaharashtraThrough Police Station OfficerKotwali Police Station,Dist. Ahmednagar.… Respondents…..Mr. Nitin V. Gaware Patil, Advocate for the Applicant (through videoconference).Mrs. Chaitali Choudhari Kutti, APP for the Respondent State...…ANDCRIMINAL APPLICATION NO. 1866 OF 2024INCRIMINAL APPEAL NO. 437 OF 2024Sudhakar Parshuram Thorat,Age : 63 years, Occ: RetiredR/o. : Pimpri Gavali,Tal. Parner, Dist. Ahmednagar.… Applicant [Accused no.3]VersusThe State of MaharashtraThrough Kotwali Police Station,Tal. Dist. Ahmednagar.… Respondent CriAppln-1657-2024+-5- …..Mr. Ajeet B. Kale, Advocate a/w Ms. Sakshi Kale, Advocate for theApplicant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State...…ANDCRIMINAL APPLICATION NO. 1841 OF 2024INCRIMINAL APPEAL NO. 428 OF 2024Bhausaheb Kushaba ZawareAge : 65 years, Occ.: Agri.R/o. Vasunda, Tal. Parner,Dist. Ahmednagar.… Applicant [Orig. Accused No.4]VersusThe State of MaharashtraThrough Police StationKotwali P.S. Ahmednagar,Tal. Ahmednagar, District Ahmednagar.… Respondent…..Ms. Madhaveshwari S. Mhase, Advocate for the Applicant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State...…ANDCRIMINAL APPLICATION NO. 1942 OF 2024INCRIMINAL APPEAL NO. 451 OF 2024Baban Deoram ZawareAge : 78 years, Occ: Agri.,R/o. Kanhur Pathar, Tq. Parner,Dist. Ahmednagar.… Applicant [Accused No.9]Versus CriAppln-1657-2024+-6- The State of MaharashtraThrough Police Station Officer,Kotwali Police Station,Ahmednagar, Dist. Ahmednagar.… Respondent…..Mr. Abhijit S. More, Advocate for the Applicant.Mrs. Chaitali Choudhari Kutti, APP for the Respondent State...… CORAM :ABHAY S. WAGHWASE, J. Reserved on: 08.05.2024Pronounced on: 10.05.2024ORDER : 1.Heard learned Advocate Shri V. H. Dighe for the applicants inCriminal Application Nos. 1979 of 2024, 1978 of 2024, 1980 of 2024and 1976 of 2024 seeking permission to assist learned APP. For thereasons mentioned in the applications, permission to assist APP isgranted and the applications are disposed of.2.Relief under Section 389 of the Criminal Procedure Code[Cr.P.C.] praying for suspension of substantive sentence and grant ofbail, is pressed into service by all above applicants, who faced trial atthe hands of learned Additional Sessions Judge, Ahmednagar videSessions (MPID) Case No. 323 of 2011 and finally were held guilty foroffence under Sections 177, 409, 417, 420, 465, 467, 468, 471, 120-B CriAppln-1657-2024+-7- of the Indian Penal Code [IPC] r/w Section 3 of the MaharashtraProtection of Interest of Depositors (in Financial Establishments) Act,1999 [MPID Act]. It is during pendency of appeals, instantapplications are taken for consideration. It needs to be noted that all above application are offshoots ofcommon judgment and order of conviction and reliefs sought being ofidentical in nature, are by consent, dealt and decided by way ofcommon judgment.SUBMISSIONS3.Sum and substance of submissions of each of the learnedcounsel appearing for each of the applicants are summarized asunder, followed by submissions made by learned APP, therebyopposing the relief. 1. Cri. Appln. No. 1729/2024, Cri. Appln. No. 1731/2024:4.Learned Senior counsel Shri V. D. Hon, pointed out thatapplicant Lahu Ghangale in Criminal Application No. 1729 of 2024 isa teacher by profession. That, he did not contest elections of Societyto become member of the Sampada Nagari Sahakari Pat SansthaLimited (for short, “Society”). Rather, merely because he was CriAppln-1657-2024+-8- belonging to reserved category and there being mandatory rule tocompulsorily induct candidate from reserved category, he was forcedto accept the membership. He further submitted that he was made amanaging committee member also. He pointed out that suchapplicant is arraigned as accused no.10. 5.As regards to applicants in Criminal Application No. 1731 of2024, he pointed out that they were not members of managingcommittee. They were arraigned as accused nos. 23 and 24. However,he emphasized that as regards both these applicants are concerned,only allegations against them are that they stood beneficiaries byvirtue of being relatives of an ex-chairman who already expired. Hepointed out that they have not borrowed any loan. 6.As regards to allegations against accused no.10, learned seniorcounsel pointed out that he being member of committee, was onlyconcerned with policy matters and he never participated in theadministrative functions wherein decisions for sanction of loan weretaken. That, in fact scrutinizing loan applications and granting thesame was the job of managerial staff. CriAppln-1657-2024+-9- 7.Learned senior counsel would strenuously submit that so far asallegations against applicant accused no. 10 are concerned, certainirregularities are claimed to be noticed during audit and he is alsochargesheeted. There are allegations of non-compliance of proceduralformalities and not obtaining security while sanctioning loan.However, he submitted that there is no distinct oral or documentaryevidence in support of above accusations. He pointed out that, there isno record suggesting approval of loan to any borrower, however, stillguilt has been fastened. 8.Learned senior counsel invited attention of this Court to thecharge as well as observations and findings of the trial court. Heinvited attention of the Court to the observations recorded as againstaccused no. 10 in para 1035 of the judgment and would submit thathe purchased house way back in 1991 and as such, he has nothing todo with the loan transaction subsequent to that. He also pointed outthat in fact observations of trial court, more particularly in para 1034are in his favour. That, in fact no dues certificate is also issued by theSociety.9.He next submitted that at no point of time there was anynotice, recovery, dues or any default attributed by Society. According CriAppln-1657-2024+-10- to him, there is apparently improper appreciation of oral as well asdocumentary evidence. All above applicants have a good case onmerits and hence they have consequently challenged the judgmentand order of conviction. He pointed out that during trial, this Courthad granted benefit of anticipatory bail. That, as much more timewould be required to hear and decide the appeal and as applicant isold aged and suffering from various ailments, he seeks relief ofsuspension of substantive sentence as well as grant of bail. 10.As regards to applicants accused nos. 23, 24 are concerned, it ishis submission that they are not members of the managing committee.Merely being relatives of main accused, they are impleaded andfurther held guilty. They had never applied for loan. Even to them,there is no notice or recovery proceedings against them at any pointof time. According to him, even there is no documentary evidence toshow disbursement of loan to them. That, directly allegations areleveled about forgery without sufficient material. According to him,even both above applicants were also on bail during trial and hence,he prays for both, suspension of sentence as well as grant of bail evento such both applicants. CriAppln-1657-2024+-11- In support of above submissions, learned senior counsel seeks relianceon Kiran Kumar v. State of M.P. (2001) 9 SCC 211/2001 AIR SCW5130.2. Criminal Application No. 1709 of 2024:11.Learned Senior counsel Shri R. S. Deshmukh, who appeared onbehalf of original accused no. 17 also pointed out that his client wasnot a member of managing committee. It is pointed out there areallegations of he being a borrower. According to him, unfoundedallegations of obtaining gold loan are also attributed to him.According to him, his client had never applied for any loan. Heinvited attention of the court to his submissions advanced in trialcourt which are reflected in para 1183 of the judgment. According tohim, there was no evidence in support of charge of criminalconspiracy as there was no material showing prior meeting of mindsor hatching conspiracy with other accused. That, even findings of trialcourt go to show that there is no concrete evidence to that extent. Butstill, according to him, learned trial court has held his client guilty forcharge of criminal conspiracy and other charges. He invited attentionof this court to the cross of complainant PW20 and the answers given CriAppln-1657-2024+-12- by said witness and submits that case and allegations are not beenproved beyond reasonable doubt.12.He next submitted that documentary evidence before the courtitself shows that whatever amount was borrowed is already depositedin this Court and amount is as such secured by virtue of order of thisCourt i.e. to the extent of the amount of which fraud is allegedlycommitted by him. He further added that even fine amount has beenpaid. That, his client has already given an undertaking as directed bythis very Court. 13.While summing up, he pointed out that there is apparently falseimplication for being mere brother of absconding accused. That, intrial court, complicity of accused has not been proved beyondreasonable doubt. Still conviction being recorded, exception to thesame has been taken by filing appeal. However, according to him, asappeal would take long time to be heard and decided and in view ofsame ruling of the Hon’ble Apex Court in the case of Kiran Kumar(supra), sentence being for short term, he seeks relief of suspension ofsentence and grant of bail. He pointed out that, in that case before theHon’ble Apex Court, sentence imposed was of 7 years, but stillHon’ble Apex Court has granted relief of suspension as well as bail. CriAppln-1657-2024+-13- According him, in the case in hand, his client is sentenced only for 5years and it being a short term sentence, he seeks above relief. 3. Criminal Application No. 1866 of 2024:14.Learned Advocate Mr. A. B. Kale would submit that his clientaccused no. 3 is an unfortunate person. Even when there was nothingconcrete against him, he has been held guilty. He emphasized thatlearned trial court seems to have got itself confused, as there are twoaccused of similar name, i.e. present applicant accused no.3 as well asaccused no.23. According to him, evidence against such accusedno.23 seems to have been wrongly attributed and applied against hisclient. It is pointed out that he has become Director only in 2006,whereas proceedings in question were prior to that and therefore, it ishis submission that it was even improper to implead him and evenmake him face trial. He took exception to the findings reached at bylearned trial court by questioning as to what role prosecution couldsucceed in establishing against him. He pointed out that mainallegations are against the Directors who were officiating during theperiod in question. He pointed out that even grant of gold loan is bypersons holding managerial post. Present applicant was neverManager. Rather, though he became Director in 2006, he had already CriAppln-1657-2024+-14- resigned on 15.12.2009. Thus, he submits that, for deeds of others, heought not to have been held liable and further held guilty. Learned counsel invited attention of the Court to theobservations in para 590 and 1032 of the judgment of the trial courtand he resultantly submits that it is apparent case of mistakenidentity. Learned trial court has erred in applying allegations againstaccused no. 23 to this accused. He also further pointed out that eventhe said audit, on the strength of which crime is registered, has beenquestioned by the authority of the rank of Joint Registrar. That, evenotherwise, only outstanding amount shown against him isRs.28,371/-.Therefore, according to him, as there is improper appreciationat the hands of learned trial court, appeal has been preferred.However, according to him, the same would take sufficiently longtime to be heard and decided. That, applicant is suffering fromvarious heart and kidney related deceases. For all above reasons, healso prays to grant relief of suspension of sentence as well as bail. Hefurther submits that his client was on bail during trial. CriAppln-1657-2024+-15- 4. Criminal Application No. 1752 of 2024:15.Learned counsel Mr. N. V. Gaware, who appeared throughvideo conference on behalf of accused no.8, pointed out that accusedno.8 is a managing committee member. Appraising this Courtregarding the accusations and charges, he would submit that there isno direct evidence about his involvement in either sanctioning ordisbursing loan. That, he has not borrowed any loan. There is noevidence that he had ever applied for loan and same to be granted.Some anonymous persons are shown to be the beneficiaries andmanagerial staff has sanctioned loan. 16.He next submitted that his client has been held guilty foroffence like 120-B IPC, even when admittedly before the trial courtprosecution failed to show distinctly as to how, when and whereconspiracy was hatched. According to him, there was no materialbefore the trial court in support of said charge. He also invitedattention of this Court to the cross faced by PW20 complainant.According to him, general and omnibus allegations are levelledagainst all accused collectively, including his client, and evenaccording to him, learned trial court has not meticulously appreciatedthe evidence to ascertain role of each of the accused. He pointed out CriAppln-1657-2024+-16- that when audit for the period of 2001 to 2006 was to be carried out,he would question how and on what authority PW20 conducted auditbeyond said period. That, said audit was rejected by higherauthorities. He also questioned the observations of the trial Judge asregards the findings reached against him. Lastly, he submitted that hisclient was on bail. He also pointed out that his client is suffering fromheart ailment and therefore, on medical grounds also, applicant isentitled for relief of suspension of sentence and grant of bail. He seeksreliance on Ravindranatha Bajpe v. Mangalore Special Economic ZoneLimited and others (2022) 15 SC 430. 5. Cri. Appln No. 1657/2024 and Cri. Appn. No. 1942/202417.Mr. Abhijit More, learned Advocate for accused nos. 9 and 25also reiterated the above submissions regarding prosecution case andwould submit that his client is not a office bearer. That, there aresimplicitor allegations of borrowing loan. However, according to him,said loan is already repaid. He also invited attention of the Court tothe judgment passed by this Court in Criminal Writ Petition No. 1322of 2015 [Maruti s/o Khandu Rohakale and others v. The State ofMaharashtra]. He pointed to the observations of the learned trialcourt in para 1025 and 1034 and would submit that when learned CriAppln-1657-2024+-17- trial court itself observed that there is no oral and documentaryevidence, contrary views are given holding guilt as proved. Evenaccording to him, as such, there is improper appreciation at the handsof learned trial court and therefore, there is good case in appeal.However, as much more time would be required to hear and decidethe appeal, he too prays for above relief.6. Criminal Application No. 1841 of 2024 :18.Praying for relief as regards accused no.4 is concerned, learnedcounsel Ms. Mhase pointed out that her client was shown as memberof Board of Directors. However, he has already resigned in 2005. Shepointed to the accusations raised by prosecution as regards her clientand the findings of the trial court, more particularly in para 420 to423. According to her, from the very observations, in fact her clienthas been given a clean chit. However, finally, he is held to be guilty.According to her, allegations are about raising gold loan. However,there was no distinct or legally acceptable evidence in support ofaccusations raised against her client. She questions as to how learnedtrial court could apply answers given by co-accused under Section 313Cr.P.C. to implead her client. Even she submits that her client was abeneficiary of anticipatory bail during pendency of the appeal, and CriAppln-1657-2024+-18- moreover, recently he being infected by pneumonia, she prays forboth, suspension of sentence as well as bail.Arguments advanced by learned APP, with assistance of LearnedAdvocate Mr. V. H. Dighe, on all above applications : 19.While opposing above applications, learned APP submitted thatit is a serious economic offence. According to her, such offences areviewed to be more serious than charge of murder. She pointed outthat there is apparently huge fraud and misappropriation ofdepositors’ hard earned earnings. 20.While answering Criminal Application Nos. 1729 and 1731 of2024, learned APP pointed out that Investigating machinery hasgathered sufficient and cogent evidence regarding involvement ofaccused applicants. On thorough investigation, guilt has beenrecorded. Vehemently opposing relief, learned APP pointed out thatas regards to present accused no. 10 is concerned, he is beneficiary ofan unsecured loan. There is also disregard to the procedure of grantof loan. There was no proper verification of entitlement, but hugeloans are granted. She pointed out that after fraud came to light,office bearers, managing directors and persons holding managerialposts are trying to shift blame on each other. According to her, in fact, CriAppln-1657-2024+-19- they are all found to be involved and their roles have been distinctlycrystallized during investigation and only on due satisfaction and onlyon gathering sufficient evidence, they are chargesheeted. 21.She pointed out that present accused no.10 as well as accusednos. 23 and 24 are managing committee members as well asbeneficiaries of loans. The fraud was detected on audit beingconducted for the period of 2001 to 2006, and during 2004 to 2006there are gold loans obtained. Learned APP invited attention of thisCourt to the observations of learned trial Judge in the judgment, moreparticularly para 552 and would submit that there is analysis of thematerial emerging against applicants and on only due satisfactionabout availability of reliable material, they are held guilty andaccording to her, serious economic offence has been committed andaccording to her, none of the above applicants deserve relief asprayed.22.While opposing application of accused no.17 (CriminalApplication No. 1709 of 2024), learned APP would point to theobservations and findings of the trial court, more particularly para322 and 323 of the judgment. She pointed out that duringinvestigation as many as 48 gold loan cases are detected against his CriAppln-1657-2024+-20- real brother. She pointed out that accused nos. 15, 16 and 17 are allrelated to him and therefore, charge of Section 120-B IPC has beencategorically substantiated. She pointed out that fake yellow metalwas pledged to raise huge loans. Investigation revealed above acts.She pointed out that in fact, present applicant, namely Anup, has alsopaid first installment of the loan and as such, according to her, hehimself has admitted borrowing of loan and so, now it is not open forhim to disown or deny loan or borrowings.23.While answering Criminal Application No. 1866 of 2024 filedby accused no. 3, learned APP pointed out that he was Director since2001. That, he has put up resignation but it is post-fraud andtherefore, he cannot now claim impunity. According to her, thoroughaudit revealed applicant’s involvement. There is no denial of loan andtherefore, learned trial court also, on correct appreciation, heldcharges proved against him. That, he is also a party to the joint fraudand therefore, she prays to refuse relief. 24.Resisting the application of accused no.8 (Criminal ApplicationNo. 1752 of 2024), learned APP pointed out that he was also aDirector. Though he resigned, it is post-fraud i.e. in 2009. She invitedattention of the Court to the findings of the learned trial court, more CriAppln-1657-2024+-21- particularly in para 487 and 489 of the judgment and resisted therelief.25.While answering applications of accused nos. 9 and 25, learnedAPP pointed out that accused no.25 is son of accused no.9 and he isbeneficiary of a loan which was sanctioned by showing utterdisregard to the procedure and after committing several irregularities,and son has been apparently favoured. There is sufficient evidenceabout his involvement also and according to her, he is also thereforerightly held guilty, by learned trial Judge. Hence, she prays to refuserelief.26.While resisting relief to accused no.4, learned APP pointed outthat he was also a Director. The period of audit in question was of2001 to 2006. He has put resignation in 2005. Even his involvementwas unearthed during investigation. According to her, there is ampleevidence about his involvement also. He is also, like other accused,responsible for commission of fraud and misappropriation of hugeloans. That, he is also found guilty only on meticulous analysis ofevidence. According to learned APP, he is also not entitled for anyrelief as prayed. CriAppln-1657-2024+-22- GIST OF THE PROSECUTION CASE IN TRIAL COURT27.Sampada Nagari Sahakari Pat Sanstha Limited, Ahmednagar, isa financial institution which got itself registered with Government/Co-operative Department in 2001. Record reveals that there are over1047 members who are having shares. Around 25,820 depositorsdeposited amount worth Rs.15,37,79,188.17/- That apart,prosecution claims that the said Society (financial institution) hadaccumulated deposits worth Rs.39,34,24,441.64/-. The main businessof the society was to lend loans to the needy. The functioning of theSociety was under control and supervision of Board of Directors i.e. atfirst layer, at second layer there was control of Managing Committeeand third layer comprised of managerial and other staff. 28.PW20, a Chartered Accountant, undertook audit, re-audit andnoticed discrepancies in the books maintained by the Society and onhis further in-depth study, he noticed various irregularities,procedures being violated while granting and sanctioning loans ofboth the types, i.e. money loan as well as gold loan. PW20 noticedthat as many as 32 persons had committed misappropriation in thefinancial institution to the tune of Rs.13,28,55,667/-. Co-operativedepartment authorized PW20 to lodge complaint and thus crime CriAppln-1657-2024+-23- seems to have been registered for commission of offence underSections 177, 409, 417, 420, 465, 467, 468, 471, 120-B of IPC as wellas under Section 3 of MPID Act and finally on conclusion ofinvestigation, it seems that as many as 28 were named andchargesheeted for above offences. 29.Prosecution has categorized accused as per their designationsi.e. Board of Directors, Managing Committee Members, managerialand administrative staff. On studying the chargesheet, learned trialcourt noted that amongst above 28 accused, accused nos.5, 7, 18, 27and 28 have expired and as such, proceedings stood abetted againstthem.Accused no. 15, 16 and 19 were declared as absconding by theinvestigating machinery, whereas accused nos. 20, 21 and 22 weredischarged. 30.On conducting trial, i.e. on appreciating oral and documentaryevidence, and on hearing each of the accused to their satisfaction,learned trial judge, vide its judgment dated 10.04.2024, convictedaccused as per details given below : CriAppln-1657-2024+-24- AccusedNo.NameConvicted underSectionsSentence1Dnyandeo Sabaji Wafare177 r/w 34 of IPC,406 r/w 34 of IPC,409 r/w 34 of IPC420 r/w 34 of IPC3 of MPID ActRI 2 years and fineRs.25,000/- eachRI 3 years and fineRs.25,000/- eachRI 10 years and fineRs.50,000/- eachRI 7 years and fineRs.25,000/- eachRI 6 years and fineRs.1,00,000/- each2Sujata Dnyandeo Wafare3Sudhakar Parshuram Thorat4Bhausaheb Kushaba Zaware6Dinkar Babaji Thube8Raje Hasan Amir9Baban Deoram Zaware10Lahu Sayaji Ghangale11Harishchandra Savleram Londhe12Ravindra Vishwanath Shinde13Sahebrao Ramchandra@Balasaheb Bhalekar14Sanjay Champalal Bora420 r/w 34 of IPCRI 7 years and fineRs.25,000/- each17Anup Parekh420 r/w 34 of IPC465, 467 r/w 471r/w 34 of IPC120B of IPCRI 3 years and fineRs.5,000/- eachRI 5 years and fineRs.5,000/- eachRI 5 years and fineRs.5,000/- each23Sudhakar Gopinath Sumbe24Gopinath Shankar Sumbe25Mahesh Baban Zaware26Sangeeta Harishchandra Londhe1Dnyandeo Sabaji Wafare465, 467 r/w 471r/w 34 of IPC120B of IPCLife Imprisonment andfine Rs.1,00,000/- eachLife Imprisonment andfine Rs.1,00,000/- each2Sujata Dnyandeo Wafare12Ravindra Vishwanath Shinde13Sahebrao Ramchandra@Balasaheb Bhalekar14Sanjay Champalal Bora3Sudhakar Parshuram Thorat465, 467 r/w 471r/w 34 of IPC120B of IPCRI 10 years and fineRs.50,000/- eachRI 10 Years and fineRs.50,000/- each4Bhausaheb Kushaba Zaware6Dinkar Babaji Thube8Raje Hasan Amir9Baban Deoram Zaware10Lahu Sayaji Ghangale11Harishchandra Savleram Londhe CriAppln-1657-2024+-25- 31.Here, now, in the instant proceedings, convicts i.e. originalaccused nos. 3, 4, 8, 9, 10, 17, 23, 24, 25 have approached this courtfor relief under Section 389 Cr.P.C. 32.Learned APP very eagerly, with the aid of Advocate on behalf ofcomplainant, placed before this court, a chart which was also suppliedto each of the learned counsel appearing before this court,enumerating therein quantum of sentence, amount of fine awarded bylearned trial Judge and as such, there is no dispute to that extent.QUANTUM OF SENTENCE AND FINE AWARDED BY TRIAL COURT33.On visiting the papers, as regards to applicant SudhakarParshuram Thorat is concerned, prosecution found him to bearraigned as accused no.3. He was said to be a member of Board ofDirectors of the Society. According to prosecution, he had committedand indulged in several illegalities, irregularities andmisappropriation of huge amounts. He is held guilty for offence underSections 177, 406, 409, 420, 465, 467, 471 r/w 34 and 120-B of IPCand as well as Section 3 of the MPID Act. The maximum sentenceawarded to him is shown to be 10 years along with other sentencesand also to pay fine. CriAppln-1657-2024+-26- 34.Applicant Bhausaheb Kushaba Zaware arraigned as accusedno.4 was also shown as member of Board of Directors and oninvestigation and trial, revealed to be guilty of offence under Sections177, 406, 409, 420, 465, 467, 471 and 120-B r/w 34 of IPC as well asSection 3 of the MPID Act and maximum sentence awarded to him isimprisonment for 10 years and to pay fine.35.Accused no. 8 Raje Amir also was said to be member of Boardof Directors and is revealed to be a party to the illegalities,irregularities and misappropriation and is held guilt for offence underSections 177, 406, 409, 420, 465, 467, 471 and 120-B of IPC as wellas Section 3 of the MPID Act and maximum sentence awarded to himis imprisonment for 10 years and to pay fine. 36.Accused no.10 Lahuji Sayaji Ghangale was said to be memberof Board of Directors and he is also held guilt for offence underSections 177, 406, 409, 420, 465, 467, 471 and 120-B of IPC as wellas Section 3 of the MPID Act and maximum sentence awarded to himis imprisonment for 10 years and to pay fine.37.Accused no. 17 Anup Parekh is shown to be a borrower of goldloan by pledging fake metal and he is held guilty for offence under