State of Maharashtra, through Supdt. of Police, CID (Crimes), Amravati v. Mutansir Hamazali Hussain

10/03/2002 and from 18/3/2002 to 31/3/2002, when one Mr. Kothalkar was on leave. A report was lodged in respect of defalcation in the Zilla Parishad, Amravati. Initially the Revenue Commissioner directed to conduct an audit for the period from 1999 to 2000 and it was found 2 that there is defalcation of an amount of Rs.4,48,00,000/-. This fact was brought to the notice of State Government by the Revenue Commissioner. The State Government directed a special audit through a special auditor for the period from 1994-95 to 2001-02. The Special Auditor and his team conducted the audit in respect of the transactions in Minor Irrigation Division, Zilla Parishad, Amravati for the period from 994-95 to 2001-02 and in the preliminary audit for the year 1999 to 2000, a large sum defalcation was found. Accordingly, one Ramesh Nandanwar, the then Executive Engineer, Irrigation Department, Zilla Parishad, Amravati, lodged a report on 26/6/2006 with Gadge Nagar Police Station, Amravati. On the said report, Crime No. 278/2006 was registered for the offences under section 166, 167, 420, 409, 467, 468,471, 120-B r/w Section 34 of IPC and under Section 7, 13 (a) (d) (i) (ii) (iii) of Prevention of Corruption Act. Initially in the said First Information Report, four accused namely Jawahar Dube, Bhaurao Dudhe, Parshuram Nandeshwar and Devrao Kothalkar were involved. It was alleged in the FIR that these 4 accused, who were holding the responsible post in the Zilla Parishad misappropriated the government money to the tune of Rs.4,43,30,512/-. Initially the investigation was carried out by the local police and thereafter the same was transferred to the C.I.D. (Crimes), Amravati. In the subsequent investigation, the compass of enquiry was expanded and it was found by the investigating agency that there were as many as 62 accused involved including 29 government officials working in the various divisions like irrigation division and Accountant of accounts division of Zilla Parishad, Amravati, whereas other 33 accused persons are the proprietors of bogus companies. As per the investigating agency, one Jawahar Dubey is the mastermind of the whole scam and the main allegations are against him only. He floated various bogus companies and with 3 the help of these companies caused loss to the public exchequer. As per enquiry report, there is major withdrawal of money for water pumping, vehicle repairing and maintenance and for fuel and this amount comes to the tune of Rs.20,17,65,203/- . The non-applicant was posted as CAFO for the period from 11/2/2002 to 10/3/2002 and from 18/3/2002 to 31/3/2002 and during his tenure, the non-applicant with ulterior motive, without scrutinizing and complying with the formalities passed the bills for Rs. 98,00,000/-. It is the case of the prosecution agency that though the bills were prepared and passed towards supply of goods, but actually no goods were supplied to the Zilla Parishad. The non-applicant apprehending his arrest by the police, presented Criminal Application No. 765/2009 for pre-arrest bail. The learned Additional Sessions Judge, Amravati, by order dated 02/3/2010 allowed the application on certain conditions. The State Government being aggrieved by the said order has approached this Court by present application for cancellation of the bail. Learned APP Mr. Parihar, has vehemently argued that the impugned order dated 02/3/2010 is erroneous and requires to be quashed and set aside by this Court. Learned APP has raised the following grounds to challenge the impugned order. 1] The offence is serious as huge government money is defalcated. 2] The non-applicant was holding responsible post as CAFO and it was his duty to supervise and check the financial affairs of Zilla Parishad, but the non-applicant has utterly failed to discharge his duty and the act of the non-applicant is not mere an irregularity, but an illegality. 3] While allowing the application, the court below has not considered the record. 4 4] The non-applicant has sanctioned the bills without verifying whether there is actual supply of the material to the Zilla Parishad. Learned APP submitted that the non-applicant, who was holding the post of CAFO was duty bound to check and verify the financial matters. He further submitted that if the non-applicant would have objected for sanctioning the bills, there would not have been such defalcation. Learned APP submitted that the non-applicant is in possession of certain bills and in furtherance of the investigation the said bills are necessary for which the custodial interrogation of the non-applicant is must. Learned APP submitted that as per his instructions, the non-applicant is not cooperating with the investigating officer. To support his arguments, learned APP has placed reliance on the following judgments.