TaxTMI 
TaxTMI 
2019 (7) TMI 1895
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....minal Application (ABA) No. 476 of 2019 is the husband of the applicant in the accompanying Criminal Application (ABA) No. 475 of 2019. 2. It is alleged that the applicants, in connivance with other accused persons, indulged in activities causing large scale misappropriation of money of innocent depositors and investors allegedly to the tune of about Rs. 38,75,20,641/- only. It is found from the material placed on record that as per a directive of the Reserve Bank of India (RBI) dated 15.12.2016, banking transactions of the aforesaid Cooperative Bank came to a standstill. On 04.01.2017, the aforesaid Special Auditor was appointed for conducting audit for the years 2015-2016 and 2016-2017, in order to ascertain the reasons and the details of such alleged misappropriation. The Special Auditor was appointed by the Director of Cooperative Societies at Pune. On 27.04.2018, the Special Auditor submitted his report recording details of the manner in which the applicants and other accused persons had acted in connivance with each other to cause such large scale misappropriation of money. On 17.05.2018, permission was granted to the Special Auditor to register an FIR in pursuance of the fi....
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.... dates during the course of proceedings, coloured the approach of the Sessions Court due to which the merits of the contentions raised on behalf of the applicants were not considered at all. 5. The learned senior counsel further submitted that if the law laid down by the Hon'ble Supreme Court and followed by this Court on various occasions was to be applied in the correct perspective to the facts of the present case, it would be evident that the Sessions Court had erred in rejecting the application filed by the applicants herein and that so long as the applicants continued to cooperate with the investigation, their custody was not warranted in the present case. The learned senior counsel placed reliance on judgment of the Hon'ble Supreme Court in the case of Siddharara Satlingappa Mhetre vs. State of Maharashtra and others reported in (2011) 1 Supreme Court Cases 694 : [2010 ALL SCR 2725]. 6. On the other hand, Mr. N.B. Jawade, learned Additional Public Prosecutor, strongly opposed the present applications, pointing out that the applicants and the co-accused persons were responsible for large scale misappropriation of money of innocent investors and depositors and that th....
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....fficer of the Bank by exercising influence. It was emphasized that the applicants had misused the ad interim protection granted by the Sessions Court. It was further highlighted that the adverse inference drawn by the Sessions Court against the applicants in the present case was justified because despite specific orders of the Sessions Court to the applicants to remain present before the Court as per Section 438 (4) of the Maharashtra Amendment to the Cr.P.C., the applicants had chosen to remain absent on 29.06.2019, 01.07.2019 and 03.07.2019.. It was submitted that such applicants did not deserve any discretion to be exercised in their favour. The learned APP submitted that the Sessions Court had not merely held against the applicants by drawing the aforesaid adverse inference, but the material on record was taken into consideration while rejecting the application. The learned APP placed reliance on a number of judgments to emphasize that the parameters for custodial interrogation did exist in the present case and that, therefore, the applications deserve to be dismissed. Reference to some of the judgments relied upon by the learned APP shall be made at appropriate place hereinaft....
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....d to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the....
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....gh Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected." 12. In the case of State represented by the C.B.I..vs. Anil Sharma, reported in AIR 1997 S.C. 3806, while considering the said aspect of the matter and the manner in which discretion is expect....
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....witnesses) as one which can be made against all accused person in all cases. The apprehension was quite reasonable when considering the high position which respondent held and in the nature of accusation relating to a period during which he held such office." 13. In the case of Sudhir vs. State of Maharashtra reported in (2016) 1 Supreme Court Cases 146 : [2015 ALL SCR 3428], while considering question of grant of anticipatory bail, in a similar case involving misappropriation of public funds and corruption, the Hon'ble Supreme Court held that anticipatory bail granted by the Sessions Court, was rightly cancelled by the High Court, looking to the gravity of the offences. It was observed by the Hon'ble Supreme Court in the said judgment as follows:- "12. Having considered the submissions made by learned counsel for the parties, and after considering the gravity of the offence, circumstances of the case, particularly, the allegations of corruption and misappropriation of public funds released for rural development, and further considering the conduct of the appellants and the fact that the investigation is held up as the custodial interrogation of the appellants could not ....
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....l and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 15. In the case of Sunil Gulabchand Jain vs. State of Maharashtra reported in 2009 (2) Mh.L.J. (Cri) 495, concerning an application for anticipatory bail moved by a Director of a Bank accused of cheating and committing financial irregularities in the Bank, this Court applied the position of law enunciated in the Constitution Bench judgment in the case of Gurbaksh Singh Sibhia vs. State of Punjab [2010 ALL SCR (O.C.C.) 316] (supra) and observed as follows:- "28. Though the applicant has not borrowed the loan for himself or for his relatives, still the applicant cannot escape from his responsibility/liability for huge loss sustained to the bank due to nonpayment of loan amounts by the borrowers. The present applicant has not opposed any of the bogus loan cases during the meetings in which he attended and signed the proceedings. The other two Directors namely Durgaprasad Kaluram Daima and one other Director have consistently opposed sanctioning of loan proposals contrary to the by-laws of the Bank or guidelines of the R....
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....ss and misappropriation of crores of rupees. This prima facie finding can be rendered on the basis of the material presently on record, only limited to deciding the question as to whether the present application of the Chairman of the Bank can be granted. There is no doubt about the fact that offences alleged against the applicants are of an extremely serious nature because there has been large scale misappropriation of funds of the Bank, which has ultimately caused serious financial loss to innocent depositors and investors. Such scams have been spread like cancer in our society and persons responsible for such scams have multiplied by the dozen in the recent past. 19. The material on record indicates that apart from loss caused to the Bank by the loans being advanced without proper verification to co-accused persons, cash amounts were withdrawn to the tune of about Rs. 3.5 crores at the behest of the applicant/Chairman of the Bank, through the means of debit vouchers ostensibly towards bank expenses. Such expenses could have been withdrawn only by employees of the Bank strictly for bank expenses and that too only after proper sanctions were obtained from the Branch Manager, Chie....
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....well as computer data entries at the behest of accused like the applicant/Chairman of the Bank herein. 22. The other important consideration in such cases is the likelihood of an applicant influencing witnesses during the course of investigation, thereby resulting in crucial leads being lost. It is also to be analysed as to whether there is clear possibility of the applicant interfering with the course of free and full investigation by influencing witnesses, while enjoying protection of pre-arrest bail order from the Court. In this regard, the conduct of the applicant becomes important and if there is any material to indicate that such behaviour of the applicant is a distinct possibility, the application for anticipatory bail has to be rejected. 23. In the present case, the applicants were granted ad-interim protection by the Sessions Court by order dated 01.06.2019, wherein they were directed to remain present before the concerned Police Station twice a week. The applicants were also directed to cooperate with the investigating officer. It is pointed out by the learned APP that during the period when such ad-interim protection was operating in favour of the applicants, it came t....
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.... final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. In the present case, there is no dispute about the fact that the Sessions Court had directed the applicants to remain present before the Court on a specific application moved by the prosecution. Yet, they chose to remain absent and hence there was nothing wrong in the Sessions Court drawing an adverse inference against them. In any case, the final decision of the Sessions Court in the present case was not coloured by merely the aforesaid adverse inference and in the context of the material on record, the Sessions Court came to a considered conclusion that the applicants did not deserve to be granted anticipatory bail. 26. Since the investigation in the present case is still underway and the FIR itself was registered only on 15.05.2019, the material presently on record does indicate that insofar as the applicant in Criminal Application (ABA) No. 476 of 2019 i.e. the Chairman of the Bank is concerned, the prayer for grant of anticipatory bail cannot be accepted. On the touchstone o....