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CR.MA/11643/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11643 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
PRITANGBHAI
KESHARIPRASAD DESAI - Respondent(s)
=========================================================
Appearance
:
MR
UA TRIVEDI Ld.APP for Applicant(s) : 1,
MR PR ABICHANDANI for
Respondent(s) : 1,
MR NV GANDHI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 26/08/2010
ORAL
ORDER
1. The
State has filed this application to cancel the regular bail granted
vide order dated 2.6.2009 passed by the learned Addl. Sessions Judge,
Court No. 15, Ahmedabad in Criminal Misc. Application No. 1444/2009
in connection with the offence registered before the Gandhinagar Zone
Police Station, being CR No. I-4/2009 for the offence punishable
under sec. 406, 420, 409, 114 and 120-B of IPC and also under sec.
467 468 and 471 of IPC.
2. Heard
Mr. UA Trivedi Ld. APP for the applicant State and Mr PR
Abichandani learned advocate appearing for respondent.
3. Mr
Trivedi learned APP appearing for the State has submitted that the
Managing Director of the Bank had wrongly granted loan to the already
existing defaulters and by manipulating accounts have withdrawn as
many as Rs. 29 crores and more amount. He further submitted that the
Bank was put in such a situation that the Reserve Bank of India have
put the impugned bank under control. However, on coming to know about
the same, since all the main persons running the bank were involved,
no complaint was filed by the Bank Manager of either of the Branch.
The present applicant, thus being President of the Union, had lodged
the impugned complaint, whereupon the present respondent came to be
arrested on 18.5.2009.
4. Mr.
Trivedi ld. APP further submitted that the respondent has filed a
bail application before the learned Addl. Sessions Judge, Court No.
15, Ahmedabad being Criminal Misc. Application No. 1444/2009,
wherein, the learned Addl. Sessions Judge has granted regular bail to
the present respondent, which is under challenge in this application.
5. Mr.
Trivedi learned APP has contended that the order passed by the
learned Judge is bad in law and against the facts and circumstances
of the case and thus the same deserves to be quashed and set aside.
6. Mr.
Trivedi submitted that the present respondent was holding the key
post of the Manager of the Bank when the entire scam has occurred. It
is further submitted that the bank is a co-operative bank and
therefore when any dealing running into crores of ruppees is
undergoing with any of the customer of the bank, the same is made
under the direct observation and/or confirmation of the General
Manager. Thus, holding such a key post, the respondent was found to
be vigilant, more particularly, in light of the fact that the money
which were advanced, were of general public including of the persons
who belong to lower income group persons and persons who are saving
money for their hard earned money.
7. Mr
Trivedi further contended that the loan advanced was without
following the due process of law and against the rules and
regulations that are required to be followed by the Co-operative
Banks including the one of which the present respondent was
Manager. The worst part of it is that the loan advanced to the tune
of more than Rs. 29 crores are advanced without taking proper
security against the loan advanced. He further contended that the
learned Judge ought to have appreciated the fact that the Bank is not
in a position to recover
the amount of the loan advanced, more particularly because proper and
adequate security was not taken before advancing the loan amount.
Thus, respondent being the General Manager of the Bank, was bound to
take proper and due care of the amount advanced. He further contended
that the property given under security are either not existing
and/or not owned by the borrower. He has contended that the actual
scenario came into light when the Bank officers went to seal the
property given
under the security and found that the property are in fact not owned
by the borrower and the same are owned and occupied by some other
person. The said situation has not only occurred with the flats and
other property given as security situated near Prerna Tirth Derasar
but the same scenario is with the other properties given including
the land given near Nalsarovar lake. In other words, all the
properties given under security are bogus and non-existing.
8. Mr
Trivedi learned APP for the State has further contended that the loan
which was advanced against the deposit with the bank, was also not
accordance with the rules and regulations framed by the RBI. As per
the norms, the Banks are permitted to release an amount equivalent to
60 to 80% of the amount of fixed deposit, with a clear calculation
that in the event of default, the amount will be safe and recovered
from the Fixed Deposit on the day of its maturity. The present
respondent has in fact, flouted this guidelines as well and have
advanced 100% loan against the F.Ds., which is otherwise not
permissible by law. That the respondent was duty bound to follow the
rules and regulations framed, which he has not done and so also the
bail granted to him deserves to be cancelled.
9. Mr.
Sumit Shah learned advocate appearing for Mr. Gohil learned advocate
for the original complainant has relied upon the decisions reported
in 2006(2)
GLH 307, 2005 Cri. L.J. 1721, (2007)2 SCC 475
and (2008) 13 SCC 584
and argued that this is a very serious offence committed by
respondent and looking to the amount involved in the case, the bail
which was granted by the learned Addl. Sessions Judge is required to
be cancelled. He has also contended that the learned Judge has not
considered the facts and circumstances of the case and therefore,
has committed a serious error while passing the impugned order of
granting bail to the respondent.
10. As
against this, learned Senior Counsel Mr PR Abichandani has contended
that the date of the order is required to be considered because
after such a long time, the complainant has challenged the said order
of bail. Even the State has not challenged the said order. Mr
Abichandani has vehemently argued that on 2.6.2009, the bail was
granted and 13 months already been passed and after such a long
time, the impugned order is challenged. Mr Abichandani has also
relied upon the decision reported in 2006(1)
GLH 758.
Mr Abichandani has further submitted that it is not a case of the
present applicant that the respondent no. 2 has committed any breach
of the conditions imposed by the learned Judge while granting bail to
the respondent no. 2.
11. I
have perused the papers and considered the submissions made by the
learned counsels appearing for the parties and also perused the
decisions reported in 2000
SCC (Cri.) 1508, 2003 SCC (Cri.) 312, 2005 SCC (Cri.) 1159 and 2004
SCC (Cri.) 2034
and also perused the impugned order passed by the learned
Judge and
the papers. So far as the allegations levelled against the present
respondent no. 2 is concerned, in view of the reasons given by the
learned Addl. Sessions Judge, I am of the opinion that after such a
long period, the impugned order of bail is challenged by the present
applicant which cannot be entertained at a belated stage. In these
facts and circumstances of the case, this application deserves to be
dismissed.
12. In
view of above, this application is dismissed. Rule is discharged.
(Z.K.
SAIYED, J)
mandora/
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