High Court · 2024
Legal Reasoning
(1) BA-1004-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.1004 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.455/2023 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.
Legal Reasoning
(2) BA-1004-2024.odt2.The investigation was set in motion on the basis of complaintgiven by Mr. Sudhakar Karbhari Gaike, Special Auditor, Class-II,alleging that he caused test audit of Adarsh Nagari Sahakari PatSanstha Limited in pursuance to the directions given by DeputyDistrict Registrar, Co-operative Societies, Aurangabad for theperiod from 2018 to 2022. He submitted his audit report on13.06.2023 to the concerned Authorities. During the conduct ofaudit, he found that loan applications and consequentialdisbursements of the loans were not in accordance with theMaharashtra Co-operative Societies Act and bye-laws of theSociety. It is alleged that Board of Directors, Chief Manager,Branch Heads, employees and 24 borrowers and their guarantorshave conspired together and intentionally involved in thedisbursement of unsecured cash credit loans in fraudulent mannerand defrauded the members and depositors of the Credit Society.The Board of Directors have ignored serious irregularities indisbursement of loans and approved the illegal disbursement. The24 borrowers did not utilize loans for the purpose for which it wasobtained. The amount involved in illegal disbursement of loans isRs.99,07,90,579/-. It is further alleged that during 2018-2019 theAuditors failed to perform their duties in terms of Section 81(5)(b)of the Maharashtra Co-operative Societies Act and failed to submittheir audit reports to the Registrar and bring to his noticemisappropriation of the amount.3.In pursuance of aforesaid information Crime No.455/2023has been registered. The applicants have been arrested on28.07.2023. The applicants are alleged to be Directors of CreditSociety and participated in meetings of Board of Directors that wasresponsible for disbursement of huge loans ignoring statutoryprovision and bye-laws. The applicants are alleged to be (3) BA-1004-2024.odtconspirators alongwith main accused. On completion ofinvestigation, charge-sheet and supplementary charge-sheet havebeen filed. 4.Mr. Tope, learned Advocate appearing for the applicantssubmits that the applicants were non-functional Directors of CreditSociety. 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 further submit thatapplicants are behind bar since 15.07.2023. The family members ofthe applicants themselves have invested the amount in the CreditSociety and victims of mismanagement of respondent no.1. Hewould submit that applicant no.2 is aged about 71 years andapplicant no.3 is aged about 65 years. They are behind bar formore than one year. The investigation in the matter is complete.The charge-sheet and supplementary charge-sheet are filed. Thetrial would take its own course. Therefore, he seeks release ofapplicants on bail.5.Per contra, Mrs. Kandharkar, learned Special PP vehementlyopposes prayer for grant of bail. She invites attention of this Courtto the various documents indicating that applicants have attendedvarious meetings of Board of Directors. As such, they activelyparticipated in the business of Credit Society. She would point outthat instances where loans are disbursed even to the persons, whohad never applied and fictitious loans files are created in theirnames and no dues certificates were issued, although loans werenot repaid. She would further point out that in some of theproposals the applicants are shows as proposers and seconders.She would point out that huge loan amounts are not recovered andeven there is no possibility of such recovery in future. The volumeof misappropriated amount is huge. The release of the applicants (4) BA-1004-2024.odton bail may hamper smooth trial. By inviting attention to thestatements of witnesses she points out that they have specificallystated about direct involvement of applicants in the business ofCredit Society.6.I have considered the submissions advanced on behalfof the respective parties. It cannot be disputed that conduct ofbusiness of Adarsh Nagari Sahakari Pat Santha Limited wasdubious. It is discernible from the audit report that large amounthas been disbursed by way of cash credit loans without requisitesecurity, in contravention with the statutory provisions and bye-laws of Society. There are instances of fictitious loan files.Definitely members of Board of Director cannot shirk theirresponsibility for loss caused to the Society and consequential tothe members and depositors of the Society. On pin point query ofthis Court as to whether applicants before this Court are parties toresolution approving loan disbursement, which are subject matterof FIR, no specific material is brought to the notice of this Court.Even, there is nothing on record to show that any of the applicanthas been personally benefited by said loan transactions. Thequestion that what was actual role of applicants in commission ofoffence, how far was their complicity in commission of offence andwhether there is sufficient material to bring home charges as percharge-sheet would be the matter of trial. Apparently, applicantsare behind bar for more than one year. The applicant nos.2 and 3are senior citizens. The applicant no.1 is also 56 years of age. Thetrial is yet to be commenced. The learned Special PP submits thatForensic Audit is yet to be received. Considering the submissionsand voluminous evidence to be laid at trial, it is difficult toestimate the time required for conclusion of trial. In thisbackground, further detention of the applicants need not bepermitted. (5) BA-1004-2024.odt7.So far as interest of the prosecution is concerned, care can betaken by imposing requisite conditions. At this stage reference tothe observations of the Supreme Court in case of Javed GulamNabi Shaikh Vs. State of Maharashtra and Another(Criminal Appeal No.2787/2024) dated 03.07.2024 would benecessary, 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.”8..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.455/2023 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. (6) BA-1004-2024.odtb.The applicants shall attend each and every effective dateof hearing before Sessions Court in Special Case No.420/2023.c.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