High Court · 2024
Facts
(1) BA-1001-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.1001 OF 20241.Ashok Narayan Kakde,Age: 56 Years, Occ: Agri, R/o: Wadkha, Post: Warzadi, Tq: and Dist: Ch. Sambhajinagar.2.Kakasaheb Limbaji KakdeAge: 71 Years, Occ: Agri, R/o: Wadkha, Post: Warzadi, Tq; and Dist: Ch. Sambhajinagar.3.Trimbak Shesherao PathadeAge: 65 Years, Occ: Agri, R/o: Warzadi, Tq; and Dist: Ch. Sambhajinagar...ApplicantsVersusThe State of Maharashtra,Through Police Inspector CIDCO Police Station Cha. Sambhajinagar,Tq. & Dist. Cha. Sambhajinagar...Respondent …Mr. S. S. Tope, Advocate for the Applicants.Mrs. Komal Kandharkar, Special PP for Respondent-State. … CORAM : S. G. CHAPALGAONKAR, J. DATED : 23rd AUGUST 2024.ORDER:-1.The applicants seek regular bail in connection with CrimeNo.454/2023 registered with CIDCO Police Station, Dist.Aurangabad dated 11.07.2023 for the offences punishable underSections 406, 409, 420, 465, 467, 468, 471, 120-B, 217 r/w 34 of theIndian Penal Code, Sections 3 and 4 of the M.P.I.D. Act andSections 21 and 23 of the Banning of Unregulated Deposit SchemeOrdinance, 2019.2.The investigation was set in motion on the basis of complaintgiven by Mr. Dhananjay Hiralal Chavan, Special, Auditor, allegingthat he is discharging his duties as Special Auditor, Class-II, Co-
Legal Reasoning
(3) BA-1001-2024.odtSociety. The entire business was handled by accused no.1. Theapplicants were not aware about the decisions taken as regards tothe disbursement of loans. He would submit that applicant no.2 isaged about 71 years and applicant no.3 is aged about 65 years.They are behind bar for more than one year. The investigation inthe matter is complete. The charge-sheet and supplementarycharge-sheet are filed. The trial would take its own course.Therefore, he seeks release of applicants on bail.5.Mrs. Kandharkar, learned Special PP vehemently opposesprayer for grant of bail. She would submit that applicants wereactive participants in meetings of Board of Directors, whereinillegal loans are ratified. She would further point out thatapplicant nos.1 and 2 are also Directors of Jai Kisan Ginning andPressing Society, which was illegally sanctioned cash credit worthRs.9,94,13,227/-. However, actual amount disbursed is more thanRs.16,00,00,000/-. She would submit that applicant nos.1 and 2are, therefore, directly responsible for disbursement of loans andalso beneficiaries in capacity of Directors of Jai Kisan Ginning andPressing Society. She would point out that till this date loanamount could not recover. By inviting attention of this Court tothe audit report, she would submit that applicants were regularlyparticipating in meetings of the Board of Directors and they wereparty to the decision in disbursement of loans. She would,therefore, submit that the applicants cannot disown their liabilityfor the charges leveled against them.6.Having considered submissions advanced, it is apparent thatthere are serious illegalities in conduct of business of AdarshNagari Sahakari Pat Sanstha Limited as pointed out in auditreport. It is also not in dispute that applicants were Directors ofCredit Society. As rightly pointed out by the learned Special PP, (4) BA-1001-2024.odtthe applicants are signatories to various decisions of ManagingCommittee. It is also matter of record that applicant nos.1 and 2are Directors of Jai Kisan Ginning and Pressing Society, who isbeneficiary of loan of Rs.9,94,13,227/-. The said loan is still notrecovered.7.On specific query from this Court as to whether applicantswere party to the Resolution regarding disbursement of loans to JaiKisan Ginning and Pressing, no specific material is brought to thenotice of this Court. The various Resolutions wherein applicantsare shown to be party does not pertain to the disbursement of loanto Jai Kisan Ginning and Pressing. Further, there is nothing onrecord to demonstrate that applicants have personally gainedbenefit out of such transaction. Although it cannot be disputedthat applicants being Directors of Credit Society and also Directorsof Jai Kisan Ginning and Pressing, cannot shirk the responsibility.What was actual role of the applicants in commission of offence andwhether there is sufficient material to bring home charge againstthem would be the matter of trial. The learned Special PPsubmitted during the course of argument that Forensic Audit of theSociety is still awaiting, as such, trial could not commence. In thatscenario, possibility of commencement of trial in recent future isnot discernible. Further, charge-sheet depicts that voluminousevidence and large number of witnesses to be examined at the trial.Therefore, trial is not likely to be finished in near future.8.The applicant no.2 is aged about 71 years. The applicantno.3 is aged about 65 years and he is not Director of Jai KisanGinning and Pressing. In that view of the matter, furtherdetention of the applicants would serve no purpose. At this stagereference to the observations of the Supreme Court in case ofJaved Gulam Nabi Shaikh Vs. State of Maharashtra and (5) BA-1001-2024.odtAnother (Criminal Appeal No.2787/2024) dated 03.07.2024would be necessary, which states as under:“19.If the State or any prosecuting agency including thecourt concerned has no wherewithal to provide or protect thefundamental right of an accused to have a speedy trial asenshrined under Article 21 of the Constitution then the Stateor any other prosecuting agency should not oppose the plea forbail on the ground that the crime committed is serious. Article21 of the Constitution applies irrespective of the nature of thecrime.”9.Applying aforesaid principles of law in the fact of the presentcase, further detention of the applicants need not be permitted.Hence, case is made out for grant of bail subject to certainconditions. Hence, the following order:ORDER(i)Bail Application is allowed.(ii)The applicants, (1) Ashok Narayan Kakde, (2) KakasahebLimbaji Kakde and (3) Trimbak Shesherao Pathade be released onbail in No.454/2023 registered with CIDCO Police Station, Dist.Aurangabad dated 11.07.2023 for the offences punishable underSections 406, 409, 420, 465, 467, 468, 471, 120-B, 217 r/w 34 of theIndian Penal Code, Sections 3 and 4 of the M.P.I.D. Act andSections 21 and 23 of the Banning of Unregulated Deposit SchemeOrdinance, 2019 on furnishing P.B. and S.B. of Rs.50,000/-(Rs.Fifty Thousand only) each on following condition:a.The applicants shall not tamper with the prosecutionevidence in any manner or pressurize witnesses.b.The applicants shall attend each and every effective dateof hearing before Sessions Court in Special Case No.386/2023. (6) BA-1001-2024.odtc.The applicants shall not leave State of Maharashtrawithout prior intimation and submission of itinerary with theSessions Court.(iii)Application is disposed of. (S. G. CHAPALGAONKAR)JUDGEDevendra/July-2024
Arguments
(2) BA-1001-2024.odtoperative Societies at Aurangabad. In pursuance of directionsgiven by Deputy District Registrar, Co-operative Societies,Aurangabad he carried audit of Adarsh Nagari Sahakari PatSanstha Limited for the period from 2016 to 2019 and submittedhis report dated 13.06.2023. It is alleged that on scrutiny ofvarious loan transactions of Credit Society, it was found that loansare disbursed in contravention to the provisions of Co-operativeSocieties Act, sub Rules and bye-laws. It is alleged that in all 23borrowers and their guarantors in collusion with the Directors andemployees of the Bank got disbursement of unsecured cash creditloans by adopting fraudulent means and defrauded depositors. Itis further alleged that in March 2019, the documents relating to 23loan applications were incomplete or without requisite security.The Board of Directors approved such loans on 30.04.2019, therebyintentionally ignoring aforesaid deficiencies. As such, there ismisappropriation of huge amount of Rs.91,79,44,064/-. Such loanscould not be recovered or no steps were taken for recovery of suchloans. Even there is no possibility of recovery of such loans.Consequently, Crime No.454/2023 came to be registered againstDirectors of Credit Society, Chief Manager and borrowers.3.The applicants who are Directors of Credit Society have beenarrested on 15.07.2023 in pursuance of aforesaid crime. After dueinvestigation, charge-sheet came to be filed on 11.09.2023. Theapplicants moved application for regular bail before the AdditionalSessions Judge at Aurangabad in Special Case No.386/2023 belowExhibit-54. However, said application came to be rejected videorder dated 24.05.2024. Hence, present application for grant ofbail.4.Mr. Tope, learned Advocate appearing for the applicantssubmits that applicants were non-functional Directors of Credit