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CR.MA/9451/2008 15/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9451 of 2008
WITH
CRIMINAL
MISC.APPLICATION No. 9452 of 2008
TO
CRIMINAL
MISC.APPLICATION No. 9486 of 2008
WITH
CRIMINAL
MISC.APPLICATION No. 9488 of 2008
TO
CRIMINAL
MISC.APPLICATION No. 9509 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DEVENDRAPRASAD
BHAGWANJI PANDYA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
IH SYED for
Applicant(s) : 1,
MR RC KODEKAR ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/09/2008
ORAL
JUDGMENT
Rule.
Mr.RC Kodekar, learned Additional
Public Prosecutor waives the service of notice of rule on
behalf of the respondent State.
At
the request of the learned advocates appearing on behalf of the
respective parties, all these matters are taken up for final hearing
today.
As
all these applications are preferred by common petitioner – accused
with respect to different similar criminal complaint/cases filed
against him, they are being heard together and disposed of by this
common order.
All
these applications are filed by the petitioner original accused
named Devendraprasad Bhagwanji Pandya – the then Managing Director
and Chief Executive officer ( CEO for convenience) of
Madhavpura Mercantile Co-operative Bank Limited, under sec.439 of
the Code of Criminal Procedure for releasing him on bail in
connection with the complaints/cases being M.Case Nos.5/02, 6/02,
7/02, 8/02, 9/02, 10/02, 11/02, 12/02, 14/02, 15/02, 16/02, 17/02,
8/03, 24/04, 31/04, 32/04, 33/04, 34/04, 38/04, 41/04, 207/04,
321/04, 363/04, 364/04 366/04, 372/04, 375/04, 376/04, 377/04,
379/04, 394/04, 397/04, 414/04, 1/05, 2/05 9/05, 29/05, 44/05,
108/05, 115/05, 148/05, 187/05, 198/05, 202/05, 203/05, 207/05,
210/05, 212/05, 213/05, 214/05, 219/05, 220/05, 257/05, 535/05,
536/05, 107/06, 121/06 and 104/07 for the offences punishable under
secs.406, 408, 409, 420, 465, 467, 468, 471 and 120B of Indian
Penal Code.
The
case of the prosecution is that the petitioner being the Managing
Director and C.E.O. of Madhavpura Mercantile Cooperative Bank
Limited, in connivance with the other accused indulged in large
scale irregularities in sanctioning loans of crores of rupees
leaving aside the norms and guidelines prescribed by the Reserve
Bank of India and creating forged documents and consequently the
aforesaid bank failed and gone into liquidation affecting large
number of small depositors and other small co-operative banks and
thereby committed offences as alleged, for which different
complaints came to be lodged with CID Crime, Gandhinagar, Zone
Police Station, Prevention of Economic Offences, Gandhinagar,
Madhupura Police Station and Ellisbridge Police Station, for the
offences punishable under secs.406, 408, 409, 420, 465, 467, 468,
471 and 120B of Indian Penal Code
of Indian Penal Code. The
petitioner has been arrested in connection with the aforesaid
criminal cases/complaints and is in judicial custody and therefore,
the petitioner submitted various applications before the Additional
Sessions Judge, Court No.10, Ahmedabad u/s.439 of the Code of
Criminal Procedure, for releasing him on bail in connection with the
aforesaid Criminal Cases/complaints. Vide order dtd.17/1/2007, the
learned Additional sessions Judge, Court No.10, Ahmedabad rejected
all the applications submitted by the petitioner for bail and hence
the petitioner has preferred all these petitions u/s.439 of the Code
of Criminal Procedure for releasing him on bail.
Mr.I.A.
Saiyed, learned advocate appearing on behalf of the petitioner has
vehemently submitted that initially only one complaint being CR
No.67 of 2001 was registered and the petitioner was arrested in
connection with the said offence on 26/4/2001 and thereafter the
said complaint was sent to CBI for investigation and the CBI
registered the same as RC4E and thereafter the petitioner was
released in connection with the said offence on 7/12/2001. It is
submitted that thereafter aforesaid various complaints came to be
filed and again the petitioner came to be arrested in connection
with the said complaints. It is submitted that during the
aforesaid period on bail, the petitioner has not misused the liberty
granted to him and there are no allegation of tampering against the
petitioner. It is also further submitted by Mr.Saiyed, learned
advocate appearing on behalf of the petitioner that so far as other
accused, who are loanees/guarantors are concerned, they are released
on bail and therefore, on the ground of parity, the petitioner is
required to be released on bail. It is also further submitted by
Mr.Saiyed that in fact, being Managing Director and Managing
Director and Chief Executive Officer ( CEO for short), the
petitioner had a very limited role in sanctioning the loan and as
such he was paid employee and the petitioner had no authority to
sanction/disburse the loan and therefore, the petitioner is required
to be released on bail.
Relying
upon the communication dtd.31/5/2005 addressed by the Chief
Executive Officer of the Bank to the Chief General Manager of the
RBI, it is submitted that the bank had field the aforesaid criminal
cases/complaints as the management could not recover the dues and
even as per the Bank the defaults on the part of the borrowers can
be deemed to be on the border of criminality. It is submitted that
the aforesaid was the reason to file different complaints.
Mr.Saiyed,
learned advocate appearing on behalf of the petitioner has further
submitted that even sons and relatives of the petitioner had repaid
the loan taken by them. It is also further submitted that even the
application submitted by the bank to join the Managing Director as
party in the Lavad Suit, is also came to be rejected and therefore
also the petitioner is required to be released on bail.
It
is also further submitted by Mr.Saiyed, learned advocate appearing
on behalf of the petitioner that the petitioner is in jail since
last more than five years and since more than three months form the
date of framing of the charge against the petitioner and there is no
possibility to conclude the trial in near future and therefore, it
is requested to release the petitioner on bail. It is also further
submitted that at the most it can be said that the petitioner, as a
Managing Director, has misused his position, however, it cannot be
said that the petitioner has committed any offence much less the
alleged offence.
It
is also further submitted that in one another case being Criminal
Case No.5319 of 2003 in which the allegations were made against the
petitioner similar to the allegations made in the present
complaints, the petitioner has been acquitted by the learned Chief
Judicial Magistrate, Ahmedabad Rural vide judgement and order
dtd.8/4/2008 and therefore, it is requested to release the
petitioner on bail, as according to the learned advocate appearing
on behalf of the petitioner, there is no possibility of conviction
in the aforesaid criminal complaints/cases in question. By making
above submissions it is requested to release the petitioner on bail.
All
these applications are opposed by Mr.R.C. Kodekar, learned
Additional Public Prosecutor
for the State. It is submitted by him that the petitioner at the
relevant time was holding the key post of Managing Director and CEO
and he, along with the Chairman and other Directors and office
bearers of the Bank, indulged into large scale irregularities in
sanctioning loans running into crores of rupees, leaving aside the
norms and guidelines prescribed by the Reserve Bank of India and
even the allegations are that the securities/documents were got up
and forged, as a result of which the aforesaid bank failed and gone
into liquidation affecting large number of small depositors and
other small co-operative banks and therefore, it is submitted that
looking to the role attributed to the petitioner, the petitioner is
not required to be released on bail. It is further submitted by him
that some of the loanees and/or guarantors are released on bail on
condition to deposit the entire loan amount. It is submitted that
the case of the petitioner is distinguishable than that of the
loanees and/or guarantors who are released on bail. It is submitted
that the petitioner and the Chairman of the Bank are prime accused
and their case cannot be compared with other accused persons. It is
further submitted that merely because the petitioner was earlier
released on bail prior to filing of the present complaints and while
on bail in that offence, he did not misuse the liberty, the same is
no the ground for releasing the petitioner on bail in the present
complaints which are filed subsequently and which are grave and
serious in nature. It is further submitted that looking to the
seriousness and gravity of the offences alleged against the
petitioner, the petitioner is not required to be released on bail.
It is submitted that having a prima facie case found against the
petitioner, chargesheet has been filed against the petitioner. It is
further submitted that the Chairman of the Bank, who was also one of
the accused, has expired and therefore, now the petitioner is the
only prime accused who has survived. It is also further submitted
that the petitioner cannot be released on bail looking to the
serious and grave charge against him solely on the ground that there
might be delay in trial.
It
is submitted by Mr.Kodekar, learned Additional
Public Prosecutor for the State that so far as the reliance
placed by the learned advocate for the petitioner, upon the
judgement of the learned Chief Judicial Magistrate, Ahmedabad Rural
in Criminal Case No.5319 of 2003 acquitting the petitioner, is
concerned, every case is required to be considered and decided on
the basis of the appreciation of the evidence on record and merely
because learned trial court has acquitted the petitioner in one
offence, the same is no ground to release the petitioner on bail in
all these offences, as the facts and evidence of the present
complaints are different and it cannot be presumed that in these
cases also the petitioner would be acquitted.
Mr.Kodekar,
learned Additional Public
Prosecutor for the State relying upon the decisions in the
case of (i) Kalyan Chandra
Sarkar v/s. Rajesh Ranjan @ Pappu Yadav and Anr. reported
in (2004) 7 SCC 528
and (ii) in the case of State
through C.B.I. V/s. Amarmani Tripati reported in (2005) 8 SCC
21,
it is submitted that while considering the application for bail
court is required to consider nature of accusation and severity of
punishment in case of conviction and nature of supporting evidence.
Submitting accordingly, it is requested to dismiss all these
applications.
Heard
the learned advocates appearing on behalf of the respective
parties.
Having
heard the learned advocates appearing on behalf of the respective
parties and considering the material on record, it is required to
be noted that the petitioner is involved in multi crores scam, as a
result of which one Bank had gone into liquidation and thousands of
small depositors, small co-operative banks and the entire
cooperative sectors in the State of Gujarat are adversely affected.
At the relevant time the petitioner was CEO of the Madhavpura
Mercantile Co-operative Bank Limited. The allegations against the
petitioner, Chairman and others are with respect of sanctioning and
disbursing the loan of crores of rupees by indulging into
illegalities, irregularities and thereby they have committed
malpractices, the loans came to be sanctioned either without proper
verification and/or deliberately ignoring the norms and guidelines
of the RBI and even the documents / securities were not obtained
and/or if the same were obtained, the same were concocted and/or
fabricated. Considering overall aspects of the matter, it cannot be
said that there was only negligence on the part of the Managing
Director. The post of Managing Director and CEO in the Bank is the
very important and key post so far as transaction of sanctioning of
loan in favour of loanees is concerned. The involvement of the
petitioner as Managing Director and CEO is prima facie established.
The allegation and accusation against the petitioner are very
serious and grave. Number of complaints are filed against the
petitioner and the petitioner is arrested in each of the
complaints. The learned Additional
Public Prosecutor for the State has relied upon the decision
of the Hon’ble Supreme Court in the case of Kalyan
Chandra Sarkar v/s. Rajesh Ranjan @ Pappu Yadav and Anr.
(Supra) and it is submitted that while considering the bail
application the court is required to consider the nature of
accusation and seriousness of the offence alleged against the
accused person and the punishment prescribed for such offence in
case of conviction and the involvement of the accused as high
ranking officer as Managing Director and CEO of the Bank and
against whom serious and grave allegations are made, is not
required to be released on bail.
In
the case of State through
C.B.I. V/s. Amarmani Tripati (supra), the Hon’ble
Supreme Court has held that while granting or refusing the bail,
the court is required to consider that (i)
Whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence (ii) nature 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 fleeing, if released on bail (vi) likelihood of the offence
being repeated (vii) reasonable apprehension of the witnesses being
tampered with and (viii) danger, of course, of justice being
thwarted by grant of bail.
Looking
to the allegations and material on record, it appears that there is
prima facie case against the petitioner and allegations are serious
of grave offence. In the case of Anwari
Begum v/s. Sher Mohammad and Anr . reported in
(2005) 7 SCC 326, the Hon’ble Supreme Court has
observed that though detailed examination of the evidence and
elaborate taking into consideration the merits of the case is to be
avoided by the Court while passing orders on bail application yet
the court dealing with the bail application have to satisfy as to
whether there is a prima facie case, but exploration of the merits
of the case is not necessary. The court dealing with the application
for bail is required to be exercised its discretion in a judicious
manner and not as a matter of course.
Now
so far as the contention on behalf of the petitioner that he is in
custody since long and more than 3 months are passed after framing
of the charge and the trial is not concluded and there is no
possibility in the near future to conclude the trial and therefore,
he should be released on bail, is concerned, in the case of Rajesh
Ranjan Vs. Pappu Yadav, it is held by the Hon’ble Supreme Court
that merely because the accused has undergone certain period of
custody by itself would not entitle the accused being enlarged on
bail nor the fact that the trial court is not likely to be concluded
in near future by itself or the
period of incarceration would not be sufficient for enlarging the
appellant on bail when the gravity of the offence alleged is severe.
Now,
so far as the contention on behalf of the petitioner that when
earlier the petitioner was released on bail, there was no allegation
of tampering and/or misusing the liberty by the petitioner and
therefore, he is required to be released on bail, is concerned, it
is required to be noted that earlier when the petitioner was
released on bail, present complaints were not filed and the present
complaints are filed subsequently, and thereafter, the petitioner
has been arrested in connection with the aforesaid complaints in
question. What is required to be considered while deciding the bail
application is the nature of the accusation in the present
complaints and merely because when earlier the petitioner was
released on bail in another case and the petitioner has not misused
the liberty, the same is no ground to release the petitioner on bail
in the present complaints which are filed subsequently and the
present complaints are required to be considered independently and
therefore on the said ground, the petitioner is not required to be
released on bail.
Now,
the contention on behalf of the petitioner that other co-accused
are released on bail and therefore, he should be released on bail is
concerned, it is required to be noted that all other accused who are
released on bail by this Court are, either loanees or guarantor and
they are released on bail on condition to deposit the entire loan
amount and so far as the present petitioner is concerned he was
Managing Director and CEO of the Bank and has indulged into large
scale irregularities, illegalities and muti-crores scam in different
transactions and cases and therefore, his case cannot be compared
with other accused persons who were loanees/guarantors. The
petitioner is one of the prime accused and on account of the acts of
the petitioner, the bank has gone into liquidation and even other
small co-operative banks are also adversely affected. Under the
circumstances, merely because some other accused persons, who are
loanees or guarantors, are released on bail, the petitioner cannot
be released on bail.
Now,
so far as the contention on behalf of the learned advocate appearing
on behalf of the petitioner that in one similar case the petitioner
has been acquitted and therefore, the petitioner should be released
on bail is concerned, considering the judgement and order of
acquittal in another case, it appears that on appreciation of
evidence of that case, the learned trial court has acquitted the
accused inclusive of the petitioner. Each complaint and criminal
case are required to be considered independently on the basis of
evidence on record and merely because the petitioner is acquitted in
another case, it cannot be presumed that there is no evidence in the
present complaints and the petitioner will be acquitted in all the
the aforesaid complaints/criminal cases in question. Therefore, on
that ground also, the petitioner cannot be released on bail.
Under
the circumstances, looking to the accusation and gravity of the
offence and considering the charges levelled against the petitioner
and the fact that the petitioner being Managing Director and CEO of
the Bank, in connivance with the Chairman and others indulged into
large scale irregularities and illegalities in sanctioning the loans
and most of the loanees are his sons, near relatives and family
members, the petitioner cannot be released on bail.
For
the reasons stated above, as there is strong prima facie case
against the petitioner, the trial court has rightly refused to
release the petitioner on bail. Under the circumstances, all these
applications fail and are required to be rejected and are
accordingly rejected. Rule is discharged.
[M.R.
SHAH, J.]
rafik
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