Allowed

Krushnachandra Shyamsundar @ K C Pandey v. the State of Mah and Anr.

Bombay HC28 Aug 2012APPLN/2313/2012

Case brief

AI extract

What is this about?

The High Court of Bombay, Bench at Aurangabad, disposed of four criminal applications for anticipatory bail filed by trustees of Shri Saibaba Sansthan, Shirdi, accused of misappropriation of trust funds. The court converted earlier ad interim protection into absolute bail.

What did the court decide?

The ad interim protection granted to the applicants was made absolute on the same terms and conditions.

Krushnachandra Shyamsundar @ K C Pandey Vs the State of Mah… — Bail and Remand | Bombay HC (2012)

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Cri.Appln.No.2298 of 2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.2298 OF 2012

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Sau.Urmila w/o Pradeep Jadhav ..Applicant Versus

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The State of Maharashtra and ors. ..Respondents

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WITH -

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CRIMINAL APPLICATION NO.2297 OF 2012

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Ramakant Ganesh Karnik ..Applicant

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Versus The State of Maharashtra and anr. ..Respondents

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WITH -

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CRIMINAL APPLICATION NO.2333 OF 2012

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Captain Suresh Vasudev s/o Late Shri R.K.Vasudeva ..Applicant

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Versus

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The State of Maharashtra and anr. ..Respondents

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Mr V.D.Hon, Advocate for applicants Mr P.P.More, A.P.P. for respondent – State Mr S.B.Talekar, Advocate allowed to assistant A.P.P.

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WITH -

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CRIMINAL APPLICATION NO.2313 OF 2012

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Shri Krushnachandra Shyamsundar @ K.C.Pandey

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..Applicant

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Versus

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Cri.Appln.No.2298 of 2012

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State of Maharashtra and anr.

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..Respondents

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Mr A.R.Kale, Advocate for applicant Mr P.P.More, A.P.P. for respondent – State Mr S.B.Talekar, Advocate allowed to assist A.P.P.

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CORAM : M.T. JOSHI, J.

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DATE : 28^th August 2012

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PER COURT

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Heard.

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All the present applications for grant of anticipatory bail have arisen out of the same Crime bearing No.6/2012, registered with Shirdi Police Station, District Ahmednagar, for offences punishable under Section 405, 406, 403, 409, 415, 416, 418, 420, 463, 465, 467, 468, 477-A, read with sec. 34 of Indian Penal Code.

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From the record, it appears that a private complaint was filed by Sanjiv Bhaskarrao Kale with learned Judicial Magistrate, First Class, Rahata, alleging therein that the present applicants, while they were the Trustees of Shri Saibaba Sansthan, Shirdi have either used the official vehicle of the Trust for private purposes or got reimbursed the bills of the travelling allowance by showing fictitious vehicles used by them. The said complaint was filed on the basis of the information received under the Right to Information Act from the Trust. In some of the cases, it was revealed that the private vehicle number shown for travelling from Mumbai to Shirdi for the purposes of Trust meeting by Captain Suresh

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Cri.Appln.No.2298 of 2012

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Vasudev in Criminal Application No.2333 of 2012, in fact, was a goods truck. In short, alleging that the misappropriation has been committed by perjury, the complaint came to be filed.

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The learned Judicial Magistrate, First Class forwarded a complaint for investigation as per the provisions of Section 156 (3) of the Code of Criminal Procedure. In the circumstances, apprehending arrest, all the present applicants had earlier filed similar applications in the Sessions Court at Kopargaon. Ad interim protection was granted to them on 23.3.2012. Thereafter, however, the applications were rejected on merit. Therefore, the present applications came to be filed in this Court. Ad interim protection is continued till this date.

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The main thrust of the complainant and the learned Assistant Public Prosecutor is that one of the vehicle shown to have been used by Captain Suresh Vasudev, upon investigation proved to be a goods truck. Further, there are allegations that the vehicle of the Trust was used for private purposes and no charges were paid.

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All the present applicants tried to show that while some of the applicants did not at all use the Trust vehicle, the applicant who has used the vehicle i.e. Smt.Urmila Jadhav had paid the charges and when there was some miscalculation, after filing of the present complaint, the

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Cri.Appln.No.2298 of 2012

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difference of Rs.1,040/- is also refunded by the said lady to the Trust.

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The learned Counsel for the applicants Mr V.D.Hon and Mr Atul Kale submitted that this Court had called for a report of the present Managing Committee, which is appointed by the High Court after removing the Board of Trustees, including the present applicants. This Committee consists of learned Sessions Judge, Ahmednagar, District Collector, Ahmednagar and the former Chief Executive Officer. The separate reports received to this Court would show that there is no misappropriation as such of any amount, either in claiming the reimbursement of the travelling or in making payment towards the use of the vehicle of the Trust for the private purpose.

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It was further submitted that all the applicants are reputed citizens of India. Some of them are old aged. One of the applicants is the former Captain, who has served in Indian Army and only due to some clerical mistakes, either in giving the registration number of the vehicle and/or in reducing it into writing by concerned, he could not be said to have furnished false material. Under the circumstances, the learned Counsel submits that ad interim protection granted to the applicants be made absolute.

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Cri.Appln.No.2298 of 2012

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On the other hand, the learned Assistant Public Prosecutor and learned Counsel for the complainant vehemently submitted that as presently, the concerned record is with the Investigating Officer, the present Committee is not aware of the factual aspects and as such, the Committee’s report has no value. It was further submitted that the documents clearly proved that bogus claims were made by giving false registration number of the vehicle, which ultimately proved to be a goods truck. One of the vehicle also proved to be a motorcycle, while the claim was towards the reimbursement of the charges of four wheeler motor vehicle.

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Mr S.B.Talekar, the learned Counsel for the complainant further relied on the judgments of Supreme Court in Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 Supreme Court Cases 40 and in Dipak Subhashchandra Mehta Vs. Central Bureau of Investigation, reported in (2012) 4 Supreme Court Cases, 134.

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Considering the rival arguments from both sides, it is undoubtedly clear that all the applicants are reputed citizens and are well placed. There are no criminal antecedents. The applicant Ramakant Karnik is 80 years old person. Smt.Urmila Jadhav is a lady having her own vehicle. The investigation is almost completed.

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Cri.Appln.No.2298 of 2012

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Whether the allegations made in the complaint are genuine or as to whether the reports of the Committee submitted to this Court are to be believed is a matter of merit, which does not require any detailed scrutiny at this stage and it would be the job of the learned Judicial Magistrate, First Class, who would ultimately take decision according to due process of law.

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In the case of Sanjay Chandra (supra) what is found in 2G Spectrum Scam case, Sanjay Chandra claimed his release on anticipatory bail. The order came to be passed by the Supreme Court on 23.11.2011, wherein inter alia the principles which should be in the mind of the Court while granting or rejecting an application of the bail were culled out in para 37 and 38, as under :

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“37. The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in Prahlad Singh Bhati v. NCT, Delhi thus : (SCC pp 284-85, para 8)

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“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in any arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of [the] evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour,

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Cri.Appln.No.2298 of 2012

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means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing’ instead of the evidence’ which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

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In State of U.P. v. Amarmani Tripathi this Court held as under : (SCC pp.31 & 32, paras 18 & 22)

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“18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature4 and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of

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Cri.Appln.No.2298 of 2012

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course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.) ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character this mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan (SCC pp. 535-36 para 11)

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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(a) The nature of accusation and the severity of

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Cri.Appln.No.2298 of 2012

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punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas) .

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While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary.”

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In the case of Dipak Subhashchandra Mehta Vs. Central Bureau of Investigation, reported in (2012) 4 Supreme Court Cases, 134, in para 32, it was cautioned that while granting bail, the Court should exercise its discretion in a judicious manner and not as a matter of course.

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If we consider all the material on record, what we find is that the applicants have no criminal antecedents. They were members of the Board of Trustees of Shri Sai Sansthan, Shirdi for a considerable period. There appears to be two factors, which have raised suspicion, one is about vehicle number, which ultimately proved to be a goods truck, while

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Cri.Appln.No.2298 of 2012

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another is a motorcycle. The investigation as well as the report of the present Committee, however, points that number of vouchers were placed for six years, wherein the claims regarding various travelling allowance were made or certain amount was deposited towards the use of Trust’s vehicle for private purposes.

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Considering all these facts on record, without making any observation or merit of the case, it would be sufficient to note that when since March 2012, the applicants are granted protection with a direction to attend the Investigating Officer and when there is no complaint that the present applicants did not co-operate in investigation and that their custodial interrogation is not necessary, in my view, these are the fit cases wherein the ad interim protection granted to the applicants deserves to be made absolute, on the same terms and conditions and accordingly, the same is made absolute on the same terms and conditions. The applications are, therefore, disposed of.

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( M.T. JOSHI, J. )

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(vvr/2298.12criappln)

Krushnachandra Shyamsundar @ K C Pandey v. the State of Mah and Anr.

Case brief

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Krushnachandra Shyamsundar @ K C Pandey v. the State of Mah and Anr.

Case brief

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