Dismissed

Mahesh S/O Balaram Neharotra v. the State of Mah. Thr. Its P.S.O.

Bombay HC28 Aug 2012ABA/188/2012

Case brief

AI extract

What is this about?

The High Court dismissed two anticipatory bail applications relating to defalcation of over Rs.26 lacs from an Agricultural Produce Market Committee. Considering the gravity of the matter and the need for custodial interrogation, the Court held there was nothing to entertain the applications and vacated ad-interim reliefs.

What did the court decide?

Both criminal applications dismissed; ad-interim order vacated; request for extension of ad-interim relief denied.

Mahesh S/O Balaram Neharotra Vs the State of Mah. Thr. Its P.S.O. — Corruption | Bombay HC (2012)

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28.8.aba188.12.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR

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Criminal Application [ABA] No.188 of 2012

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[Mahesh s/o Balaram Neharotra .vs. State of Maharashtra]

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with

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Criminal Application [ABA] No.228 of 2012

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[Sunil s/o Gulabraoji Chafle .vs. State of Maharashtra]

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Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders.

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Mr. A.M. Jaltare, Advocate for Applicant in ABA 188/2012, Mrs. M.H. Deshmukh, APP for Respondent-State in ABA 188/2012, Mr. A.S. Manohar, Advocate for Applicant in ABA 228/2012, Mr. S.S. Doifode, APP for Respondent-State in ABA 228/2012.

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CORAM : A.R. JOSHI, J. DATED : AUGUST 28, 2012.

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1] Both these anticipatory bail applications are being disposed of by this common order as common allegations are against both the applicants and rather similar role is assigned to them in the matter of defalcation in the Agricultural Produce Market Committee, Samudrapur to the extent of more than Rs.26 Lacs and odd.

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2] Heard rival submissions at length. Earlier on lodging of the anticipatory bail applications before the High Court, ad-interim reliefs were granted in favour of both the

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applicants by another bench. Today the applications are finally heard and hence disposed of.

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3] During the Audit for the year 2009-2010 of Agricultural Produce Market Committee, Samudrapur, it was found out that there was defalcation of amount of more than Rs.26 Lakhs. Detailed audit report was already prepared. Three main points were raised showing the involvements of the present applicants and other co-accused. Said three points are as follows :

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(i) as per allegations mentioned in page 11 to 19 of the audit report, present applicants in ABA No.228/2012 and another applicant in ABA No.188/2012 were responsible for defalcation of amount of Rs.10 lacks & odd;

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(ii) these applicants are also responsible for defalcation of amount of Rs.15 Lacks and odd and;

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(iii) for the miscellaneous expenses and outgoings Rs.77,000/- and odd, another co-accused one Rajesh Narayan Gadve and Dilip Tulsiram Chaudhari were responsible.

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4] In short, it is alleged that audit report for total defalcated amount of Rs.26 Lacks and odd, present applicants

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and also other two persons-clerks are responsible. On the said audit report, first information report came to be lodged on 14.5.2012 for offences punishable under Sections 420, 406, 408 r/w 34 of the Indian Penal Code. Reportedly, the investigation is still in progress as it requires inspection and analysis of the voluminous documents and to ascertain the role of present applicants and co-accused and also regarding the alleged conspiracy between them.

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5] At this moment, in the first information report, only offence under Section 34 of the Indian Penal Code is mentioned, however, the investigating agency will be at liberty to add Section 120-B of the Indian Penal Code during the continuous of the investigation and before filing of the final charge sheet or otherwise also it is for the competent court to decide as to which penal sections are required to be applied in the present matter.

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6] Main thrust of the arguments in Anticipatory Bail Application No.228/2012 is that the co-accused i.e. Shri Gadve and one Mr. Chaudhari were already released on anticipatory bail by another bench. Said order dated 10th July, 2012 and it is strongly submitted that on the basis of parity both the present applications are required to be allowed granting

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anticipatory bail to the present applicants.

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7] Counter to this argument, it is submitted by the learned APP that when the court heard both these applications, the present applications of the applicants were before the earlier bench. Presumably, the applications were kept back for obtaining further details from the investigating agency and other two applications of said co-accused were finally heard and disposed of. As such, there cannot be a question of granting the present applications on parity. This argument on behalf of the State is relevant and acceptable, more so when the individual allegation against the accused persons are to be dealt with while dealing with the individual application of anticipatory bail and there cannot be a straight jacket formula as to granting such relief to all the accused persons though involved in the same offence. This is more so considering the role probably played by the said accused persons, in that event, the grant of parity cannot sustain. 8] During arguments, learned counsel for applicant in ABA No.228/2012 submitted that though during the relevant period said applicant Shri Chafle was Secretary, his initial appointment was on probation in the year 2002 and he was removed just in January 2003. However, subsequently he

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was reinstated and there was lot of litigations even reached to the High Court and as such there was no power for the said applicant to sign the cheques and all the powers were delegated to one Mr. Neharotra. Incidently said Neharotra is another applicant in ABA No.188/2012. It is further argued on behalf of applicant Chafle that much earlier in April 2011 he has resigned from the post. However, there is no significance to such resignation or otherwise of the said applicant considering the allegations against him and mainly regarding the transaction for the year 2009-2010 and he was apparently working as Secretary. It is also an admitted position that the said applicant Chafle was handling cash book and making entries and as such it was his responsibility to make necessary entries prior to passing any vouchers/bills, for it was his responsibility that the entries in the cash book and ledger were required to be matched. So far as applicant Mahesh in ABA No.188/2012 is concerned, it is submitted that he was Assistant Secretary and not at all involved in the present transaction of defalcation of amount of Rs.26 Lacs. It is strongly contended on his behalf by learned counsel Mr. A.M. Jaltare that he was only co-signatory to the cheques and that the main signatory to the cheques for payment of any of the

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bills for miscellaneous expenses was the Chairman and till the directions of this court, said Chairman was not made as an accused.

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9] On this, it is submitted by learned APP for the State that said Chairman was already arrested and presently in custody. Otherwise also for not taking any action against the Chairman of the Agriculture Produce Market Committee, Samudrapur is not of much relevance so far as involvement of the present applicant is concerned. Moreover, he being cosignatory with the Chairman is also equally responsible for the outgoings from the corpus of the Agricultural Produce Market Committee. It is apparent that being an Assistant Secretary of said Agricultural Produce Market Committee, he has to issue cheques after getting the vouchers and then to make payments and after verification only he has to get the cheque signed by the Chairman. Moreover, he was supposed to give the relevant vouchers and other supporting documents to the another applicant Chafle and the said Chafle was to make entry in the account books. Apparently, without there being any vouchers, the payments were made and as such there was defalcation of the amount more than Rs.26 Lacs during the relevant period 2009-2010. Apparently, it is a case of

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conspiracy and probably involving more persons than who are presently mentioned by the investigating agency. This is more so when earlier Chairman was not arraigned as an accused earlier, however, subsequently he was arrested and presently in custody. Under these circumstances, though it is the strong arguments on behalf of both the applicants that the entire documents are in the custody of the investigating agency, custodial interrogation is not warranted, considering the gravity of the matter and considering the amount involved and the role of the present applicants, custodial interrogation of the present applicants is required, more so when learned APP for State had stated that though the applicants were attending the investigating agency, after having ad-interim orders in their favour, they had not assisted the investigating agency. In the result, under these circumstances, there is nothing to entertain both the applications and the same are accordingly dismissed. Ad-interim orders shall stand vacated.

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10] Oral request is made on behalf of the applicant by learned Advocate Mr. A.M. Jaltare for extension of ad-interim relief. However, considering the nature of the matter, said request is not granted.

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JUDGE

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GULANDE

Mahesh S/O Balaram Neharotra v. the State of Mah. Thr. Its P.S.O.

Case brief

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Mahesh S/O Balaram Neharotra v. the State of Mah. Thr. Its P.S.O.

Case brief

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What did the court decide?

What the court decided

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