Madhya Pradesh High Court
Brijesh Shukla vs The State Of Madhya Pradesh on 29 July, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
HON'BLE SHRI JUSTICE RAJENDRA KUMAR SRIVASTAVA
M.Cr.C No. 54466/2019
BRIJESH SHUKLA
VS.
STATE OF M.P.
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Shri Manish Datt, learned Senior counsel with Shri Siddharth
Datt learned counsel for the applicant.
Shri Puneet Shroti, learned G.A. for the respondent/State.
Shri Anil Lal and Shri Rahul Deshmukh, learned counsels for
the objector.
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ORDER
(29.07.2020) This is first anticipatory bail application filed on behalf of the applicant under Section 438 of the Cr.P.C. apprehending his arrest in connection with Crime No.817/2019, registered at Police Station Bagsewaniya District Bhopal (MP), for the offence punishable under Sections 420, 406 read with Section 34 of the IPC.
2. As per the case of prosecution, an official letter dated 15.12.2019 was given by Rajeev Jain, Cooperative Inspector, to the SHO, P.S. Bagsevania in respect of registering a First Information Report ("FIR") against Ajay Pathak, Chairman, Board of Directors of Kamdhenu Grih Nirman Sahakari Sanstha Maryadit, Bhopal ("the Society"), Abhay Kumar Ojha, Manager and applicant-Brijesh Kumar Shukla, builders. It was stated in letter dated 15.12.19 that the Society was registered on 07.08.1982 which main objective was to provide 2 developed plots to its members. Further, on 07.05.2012, elections of the Society were concluded and elected board of directors comprised of Ajay Kumar Pathak-Chairman, P.K. Nandy-Vice Chairman and direcorts who are Rahul Singh, Naval Singh, Atul Sareen, Anil Gour, Javed Akhtar, M.Pathak, Satish Prajapati, Girja Bai and Brinda Saini. Abhay Kumar Ojha was appointed as Manager by the Board. Further, the Chief Secretary has issued a letter dated 11.8.17 in accordance with order dated 3.11.16 and 10.01.17 passed by this Court in W.P. No. 8209/16 and W.P. No. 801/16, respectivaly. In the point no. 1 of said letter, it was found that Deputy Commissioner, Cooperatives did not have powers for issuing directions for registry of plots and letter issued by him was only of administrative character. In this regard the Order was required to be issued in accordance with "Madhya Pradesh Co-operative Societies Act, 1960 ("Co-operative Societies Act")"
which was not done by the Deputy Commissioner, Cooperatives. Further, in point no.3 of said letter, it was found that there was no order of competent court for accepting membership and adding 13 persons on the basis of administrative letter dated 28.11.11 is not proper in view of section 19 of the Co-operative Societies Act. From point no. 14 to 16 of the letter dated 11.8.17, by not conducting audit of the Society for the year 2011-12, there is violation of sections 72 and 74 of the Co-operative Societies Act and in view of the same, show cause notice dated 19.6.17 has been issued to the Chairman, Vice-Chairman and Directors of the Society. In point no.22 of the letter, it was found that the price accepted in respect of plots allotted 3 to Yashoda Education and Social Society was not in accordance with guidelines issued by the Collector.
3. It is further the case of the prosecution that letter dated 28.9.17 written by one Arvind Sharma to the Chief Secretary discloses serious financial irregularities in the Society. Information in respect of sale of 61 plots between 07.05.2012 and 02.03.2017 through conspiracy amongst Chairman, Vice-Chairman, Board of Directors and Manager Abhay Kumar Ojha was highlighted in a complaint made by Anil Goud. As per letter dated 28.10.16 written by Deputy Registrar to the Deputy Commissioner, a total of 54 plot sale deeds were registered during period between March, 2012 and March, 2015. Further, aforesaid 61 plots were sold for price less than Collector approved rates by inducting new members and by acting contrary to the principle of seniority and most of the price received was not deposited in the account of the Society. It is further the allegation that it was necessary to deposit such amount in the account of the society and Brijesh Shukla had misappropriated amount by withdrawing those amounts which were deposited in the bank account and those amount, which were not deposited in the bank account, were misappropriated by accepting the same in cash.
4. It is further the case of the prosecution that by order dated 25.4.18 of the Deputy Registrar, Co-operative Societies, offences were found to be proved under section 76(2) of the Co- operative Societies Act against the members of the Society. Further, despite best efforts of the department, audit of the Society is pending for the year 2011-12. It is further the allegation that record in respect 4 of registries done during the tenure of the Board of Directors, membership register, proceedings register, cash book and other documents have either been hidden or have been destroyed so that irregularities and misappropriation done during its tenure cannot be brought forward. It is further the allegation that from perusal of the statements of bank account of the Society reveals that amounts have been transferred to different persons on different dates and no proper record has been maintained in this respect. In accordance with chart presented by Anil Goud, an amount of Rs. 1,92,24,199was found to have been transferred to different persons and in the absence of verification, the same is illegal and amounts to misappropriation. Further, despite the stay order of Joint Registrar, Co-operative Societies, an amount has been transferred to bank a/c no. 651005042012 belonging to Yashoda Builders (proprietor Brijesh Shukla) on different dates and the same amount has been misappropriated through conspiracy.
5. It is further the case of the prosecution that Chairman Shri Ajay Pathak, Shri Abhay Ojha and Shri Brijesh Shukla misappropriated amount by illegally selling 61 plots and not depositing amount in respect of the same with the Society. Further, amount deposited by 115 members have been returned and they have also been denied benefit of plot allotment. It is further the allegation that fact regarding illegal selling of plots was hidden by not uploading information, including membership list, seniority list, financial condition etc. on E-cooperative portal. On the basis of 5 above allegations, FIR in respect of Crime No. 817/2019 was registered against the accused persons.
6. Learned Counsel for the applicant submits that he is an innocent person and has been made as an accused in the case on the basis of incorrect facts. The allegations made against him are baseless. It is further contended that on the basis of same facts and allegations, another FIR has already been registered on 29.9.15 as Crime No. 32/15 in respect of offences under Sections 409, 420, 468, 471 and 120-B of the IPC and under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 against the accused persons by the EOW. It is submitted that in relation to aforesaid irregularity, one Arvnid Sharma had filed petition bearing W.P. 8209/16 before this Court. The said writ petition was disposed off by this court vide order dated 3.11.16 with direction to the Principal Secretary to the state of M.P. to pass speaking order on the representations submitted by the petitioner. In compliance of the said order, the Principal Secretary passed order dated 11.8.2017 and representation dated 20.3.2017 was disposed off. On the basis of letter dated 15.12.2019, sent by the Complainant Rajeev Jain, P.S. Bagsevania District Bhopal has wrongly registered the offence against the applicant/accused and other co-accused persons without any preliminary inquiry whereas fact of registration of offence by EOW, Bhopal ought to have been taken into consideration before lodging the FIR.
7. The applicant/accused is a businessman and engaged in building and development work. He was neither the member nor director of aforesaid society. He is not related with any of the affairs 6 of the society. He further submits that the society entered into a contract with the firm of the applicant i.e. M/s Yashoda Builders on 05.06.2003 for development of 14.35 acre of the land but due to some reason, the work was not completed. Thereafter, in the year 2006, the applicant's firms was again called to complete the balance work and the firm entered into an agreement with the society on 06.09.2006. Thereafter, the development work was done by the applicant's firm and presented a bill of Rs. 1,31,84,385/- for payment before the president of society. After checking the same by the engineer of society, the amount Rs. 1,27,35,759/- was finalized to pay to applicant's firm. But the society violated the terms and condition of contract and no payment was made by the society. On raising the demand, the applicant was threatened by the son of the then president namely Anil Gaur for which the applicant got an FIR registered against him. Thereafter the applicant entered into compromise and according to compromise the society is agreed to provide the plots to the present applicant in lieu of balance amount but the society neither pay the amount nor executed the sale deed of plots. Being aggrieved by the same the applicant approach the Sub Registrar of Cooperative Society, Bhopal and the authority decided that the society will pay an amount of Rs. 48,29,033/- to the applicant's firm along with interest. Therefore, it clearly shows that there was enmity between the applicant and ex-president of society and due to with the mala fide intention, on the instance of him, the police has registered the FIR. He further submits that there is no cogent evidence against the applicant. He also submits that the applicant did not commit any 7 cheating whereas the society had committed same by violating the terms and condition of contract. There is no need for the applicant to be arrested in the said crime as nothing is to be seized from the possession of the present applicant. The applicant is a senior citizen and he should not be prosecuted for the offence of any other person. The entire material of the case do not make any offence against the applicant. It is further contended that before Madhya Pradesh Rajya Sahakari Adhikaran, Bhopal, dispute relating to the present fact is pending . He also submits several notices were issued to Objector Ajana Bhatt seeking information regarding her plot allotment and her membership of the society; but she failed to produce relevant documents in this regard. It is further contended that there is no financial irregularity or misappropriation which has been done by the Applicant/accused. there is no requirement of custodial interrogation.
8. Learned Government Advocate for the State opposes the present bail application. He contends that the present crime is of serious nature and involves misappropriation of a large amount of money. He further submits that the Applicant/accused is mastermind of the present case and his bail application may be rejected.
9. Learned Counsels for the Objector opposes the present application mainly on the ground that the present case is an example of organized crime against society. The Applicant/accused is actively involved in the present crime with other co-accused persons and they have misappropriated crores of rupees of the Society by selling plots to non-members of society depriving the old members from benefit. 8
10. Learned Counsel for the Objector (Anjana Bhatt) further submits that since the FIR registered by EOW is different and name of the Applicant/accused is not present in it and as such, the Applicant/accused cannot take benefit of the said fact. He further submits that pursuant to the directions of this Hon'ble in writ petition filed by one of the members of the Society, Chief Secretary has conducted detailed inquiry and came to conclusion that the Applicant/accused and other persons committed financial irregularities. He further submits that the Objector was one of the eligible members but no plot was allotted to her despite the fact that she had deposited the amount. He further submits that perusal of the FIR clearly indicates active role of the Applicant/accused. The applicant connivance with the office of registrar has got conducted the election of society and had got the person elected who were not the member of the society. The present elected in the said election was his real nephew. Against the order dated 12.07.2012 passed by Deputy Registrar, the society filed a first appeal before the Joint Registrar and vide order dated 17.10.2012, the operation of order dated 12.07.2012 was stayed even then the newly elected member of society made the payment of Rs. 56,62,000/- to the applicant which shows grave irregularity of the case. In compliance of order passed by this High Court, the Chief Secretary conducted a detailed inquiry and came to the conclusion that the applicant is involved in the aforesaid embezzlement. The interrogation is required in the case and amount is yet to be recovered from the present applicant as he got the same 9 through his account. With the aforesaid they pray for dismissal of this bail application.
11. Considering the contentions of all the parties and perused the record.
12. On perusal of the case diary, it is reflected that the present applicant was neither the member of society nor director of it, he is proprietor of building development firm namely "Yashoda Builders Bhopal". It is not disputed that the applicant entered into an agreement with the society for development of land and there was dispute arose between them regarding payment which is still pending before the appellate authority i.e. Joint Registrar Cooperative Society Bhopal. On further perusal of case, it is also found that on the petition filed by one Arvind Sharma, the bench of this High Court has directed the EOW to complete the investigation in the matter within a period of one year and in compliance of it, the EOW has registered the FIR. The Court has also directed the Chief Secretary to decide the representation regarding other grievances of the petitioner-Arvind Sharma and in compliance of that, the Chief Secretary has conducted a detailed inquiry and found that some land was allotted to Educational Society namely "Yashoda Shiksha Sanskriti Samiti"
which allegedly belong to applicant. The allegation also leveled the applicant that some amount has also been deposited in his account even after the stay granted by Joint Registrar, Co-operative Societies, Bhopal. Dispute in respect of facts to the present case is also pending before "Madhya Pradesh Rajya Sahakari Adhikaran, Bhopal". Further, it is alleged by the prosecution that the price accepted in 10 respect of plots allotted to Yashoda Education and Social Society was not in accordance with guidelines issued by the Collector, further more the 61 plots were sold for price less than Collector approved rate by inducting new member and by acting contrary to the principle of seniority and most of the price received was not deposited in the account of society. It is alleged that the applicant had misappropriated amount by withdrawing the same under conspiracy. Therefore, at this stage, it can not be said that the applicant is not concerned with the aforesaid embezzlement. The custodial interrogation of applicant is required in the case. In the rejection order of bail passed by learned Lower Court, the Court has mentioned some previous criminal past of the applicant.
13. Therefore, considering the aforesaid circumstances as well as seriousness of crime, I am of the opinion that this anticipatory bail application deserves to be dismissed.
14. Accordingly, this bail application is hereby dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.07.29 16:55:36 +05'30'