Bombay High Court
Eknath S/O Watuji Madavi vs The State Of Maharashtra on 8 April, 2021
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.339 OF 2020
WITH
CRIMINAL APPLICATION NO.1472/2020.
Vikram s/o Laxmanrao Rachure = APPLICANT
VERSUS
The State of Maharashtra = RESPONDENT/S
...
Mr.RS Deshmukh, Sr.Counsel i/by DR Deshmukh,
Advocate for Applicant;
Mr.SB Narwade,APP for Respondent-State.
WITH
BAIL APPLICATION NO.1311/2020
Eknath s/o Watuji Madavi = APPLICANT
VERSUS
The State of Maharashtra = RESPONDENT/S
-----
Mr.RN Dhorde, Sr.Counsel i/by DK Rajput, Advocate
for Applicant;
Mr.SB Narwade,APP for Respondent-State.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
RESERVED ON : 01/02/2021
PRONOUNCED ON : 08/04/2021
PER COURT :-
1. Both the aforesaid Bail Applications have
been filed by accused persons in connection with CR
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No.109/2019 dated 19.07.2019, registered with
Ramteerth police station District Nanded, for the
offences punishable under Sections 420, 409, 465,
466, 468, 470, 471, 474, 477-A, 109, 120-B, 166,
read with 34 of IPC. Both the applicants have
filed these applications under Section 439 of
Cr.P.C. for bail.
2. Heard learned Sr.Counsel S/Shri RS
Deshmukh and RN Dhorde, instructed by respective
Advocates for the applicants in respective Bail
Applications and learned APP Shri SB Narwade
appearing for Respondent-State.
3. At the outset, it can be said that Charge
sheet has been filed in the matter and as regards
the applicant - Eknath Madavi is concerned, it was
initially filed under Section 299 of Cr.P.C. and
thereafter a supplementary charge sheet has also
been produced.
4. It has been vehemently submitted on
behalf of the both the applicants by the learned
Sr.Counsel that now the investigation is over and
charge sheet is filed, therefore, physical custody
of the applicants is not required for the purpose
of investigation. The contents of the FIR as well
as the statements and other documents with charge
sheet would show that the Investigating Officer has
seized all the necessary documents and, therefore,
even for the purpose of seizure, the physical
custody of the applicants is not required.
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5. The learned Sr.Counsel, representing
applicant - Vikram Rachure, has stated that the
applicant was initially appointed as an Assistant
Teacher and thereafter he was promoted to the post
of Head Master of the school, viz. Ashok Primary
School, Kundalwadi. He was also working as
Secretary of Lok Shikshan Prasarak Mandal, Bijur
Tq. Biloli, District Nanded (for short, the said
society/Trust). Informant - Prashant Digraskar,
was the Education Officer, attached to Zilla
Parishad, Nanded. He submits that after receipt of
various complaints from the teachers, working with
the schools run by the said society, the Education
Department had initiated an enquiry. After Enquiry
Report was received, the FIR has been lodged. It
has been reported in the Enquiry Report that the
Society had never obtained prior permission from
the Governmental for filling up the vacancies in
the schools. The Society never followed the norms
as per the Government Resolution dated 6.2.2012 in
respect of issuance of an advertisement for filling
up the vacancies. The Society never got sanction
regarding Point Roll (Bindu Namawali) from the
Assistant Commissioner. Requisite documents were
never supplied by the Society regarding eligibility
of the candidates while submitting the proposal for
approval to the appointments. Two of the teachers
were appointed without fulfilling the requisite
educational qualifications. While obtaining
individual approval to the appointment of the
teachers, the Society has not verified their
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Degrees and Certificates. If all these short-
comings and lacunae, those were pointed out in the
Enquiry Report, are considered, then, at the most,
that would give rise to some action under relevant
law, especially M.E.P.S. Act or other Civil laws
and not criminal action. But, then, it has been
contended further that as regards the four schools
are concerned, they got their total intake
sanction since 2012. But, then it was shown that it
is running with full strength since prior to that
and the appointments made prior to 2012, have been
approved individually by forging the documents. It
was also alleged that the amounts have been
misappropriated by the present applicant and it is
stated that certain amounts have not been given to
the teachers though that amounts were received from
the Government.
6. By way of Criminal Application No.
1472/2020, which was filed for production of
additional documents, Bank receipts have been
produced, showing that certain amounts have been
paid to the concerned teachers. It was pointed out
that prior permission was obtained from the
Education department by letter dated 2.7.2019 for
depositing the amounts, which was deducted from the
salaries of the teachers. Further, another letter
was given on 26.10.2017, which was also in respect
of depositing the amount, deducted from the salary
of the teachers, to be deposited in their accounts.
Thereafter, the Education Officer has given
permission by letter dated 2.11.2017. Perusal of
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the letter dated 26.10.2017 given by the present
applicant to the Education Officer (Primary) would
show that it was, in fact, decided by the
trust/society and the teachers that for various
developmental activities of the school, certain
amount should be deducted from the salary of the
teachers. Though they had initially agreed to
this, but later on, it appears that they had, with
some ill-intention, made complaints and, therefore,
by letter dated 26.10.2017, permission was sought
to deposit the amount, which was deducted from the
salaries of the teachers, to their accounts in
installments. Certain installments have been paid
and now the teachers have also given in writing
that they have received the amounts and they have
no objection to dispose of their complaints
applications. When the main grievance of the
teachers was about deduction of their salary and
now they have got their amounts, the further
physical custody of the applicant need not be
continued with the jail authorities.
7. Reliance has been placed by the learned
Sr.Counsel on the decision in the case of
P.Chadambaram Vs. Directorate of Enforcement -
2019 DGSL (S) 1555, wherein it has been observed
thus, -
"21. Thus from cumulative perusal of the
judgments cited on either side including
the one rendered by the Constitution Bench
of this Court, it could be deduced that
the basic jurisprudence relating to bail
remains the same inasmuch as the grant of
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bail is the rule and refusal is the
exception so as to ensure that the accused
has the opportunity of securing fair
trial. However, while considering the same
the gravity of the offence is an aspect
which is required to be kept in view by
the Court. The gravity for the said
purpose will have to be gathered from the
facts and circumstances arising in each
case. Keeping in view the consequences
that would befall on the society in cases
of financial irregularities, it has been
held that even economic offences would
fall under the category of "grave offence"
and in such circumstance while considering
the application for bail in such matters,
the Court will have to deal with the same,
being sensitive to the nature of
allegation made against the accused. One
of the circumstances to consider the
gravity of the offence is also the term of
sentence that is prescribed for the
offence the accused is alleged to have
committed. Such consideration with regard
to the gravity of offence is a factor
which is in addition to the triple test or
the tripod test that would be normally
applied. In that regard what is also to be
kept in perspective is that even if the
allegation is one of grave economic
offence, it is not a rule that bail should
be denied in every case since there is no
such bar created in the relevant enactment
passed by the legislature nor does the
bail jurisprudence provides so. Therefore,
the underlining conclusion is that
irrespective of the nature and gravity of
charge, the precedent of another case
alone will not be the basis for either
grant or refusal of bail though it may
have a bearing on principle. But
ultimately the consideration will have to
be on case to case basis on the facts
involved therein and securing the presence
of the accused to stand trial."
8. Learned Sr.Counsel, representing the
applicant in Bail Application No.1311/2020,
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submitted that the applicant as serving as
Education Officer. He was transferred to Nanded on
31.10.2011 and was working there till 10.12.2014.
Thereafter, he was transferred to Bhandara. He
retired on 30.11.2017. He is not the party to any
of the mis-deeds those were committed by the
Society. In the Enquiry Report, certain
allegations have been made against him, which may
amount to dereliction of duties, if at all.
However, it will not give rise to any criminal
action against him. Now, when it is stated by the
Investigating Officer that certain documents are
not available, charges have been levelled that this
applicant has destroyed those documents. This is
unimaginable. It can be seen that Right to
Education Act came into force in 2009 and made it
obligatory on the part of the Government. The four
schools, which were run and managed by the said
Society, were granted recognition by the State
Government on 30.5.2012. By following due
procedure, the School at Bijur was also recognized
and thereafter another school, viz. Satya Saibaba
Primary School, Biloli Dist. Nanded was opened and
recognition was granted to it. The entire
procedure, as contemplated under the Act, has been
followed and complied with. Grant of recognition
is by the higher authorities and not by this
applicant. After considering the necessary
documents, i.e. Attendance Register of the students
and facilities available, directions were given to
open the school. The applicant has discharged his
duties. The applicant is presently 61 and not
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keeping his good health. He suffered COVID-19 in
jail itself and, therefore, when his further
custody is not required for the purpose of
investigation and the trial would take a long time
to conclude, this applicant deserves to be released
on bail.
9. On two occasions, the Investigating
Officer has filed affidavits in reply in Bail
Application No.339/2020 itself by deponent -
Subhash s/o Kondiba Kendre, Police Sub-Inspector
attached to Economic Offences Wing, Nanded. Perusal
of his affidavit would show that the informant has
reported that the Head Master of Ashok Primary
School, Kundalwadi (i.e. applicant Vikram Rajure)
has illegally deducted an amount of Rs.22,32,596/-
from the salaries of the teachers of the School.
When the enquiry was conducted, he deposited an
amount of Rs.15,22,286/- in the Bank accounts of
the teachers. Many complaints were received
against him and as regards mis-appropriation is
concerned, Criminal Writ Petition No.1756/2018 was
filed seeking an enquiry and for taking criminal
action against the erring office-bearers of the
society. As regards the criminal action/case is
concerned, it was allowed to go further and no stay
was granted by this Court. It is stated that Lok
Shikshan Prasarak Mandal, Bijur district Nanded has
a chequered history. The Society was registered in
the year 1981 and at that time it was running four
schools viz. - 1) Satya Sai Baba Primary School,
Biloli, Dist. Nanded; 2) Ashok Primary School,
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Kundalwadi, Tq. Biloli, Dist.Nanded; 3) Primary
School at Bijur, Dist. Nanded; and 4) Trishala Devi
Primary School, Kundalwadi/Dattanagar, Nanded. All
these schools were granted recognition somewhere
during 1988 and 1989. However, these schools came
to be closed down in the year 1991 by the Education
department due to Scholarship scam, which was
stated to have been committed by father of the
applicant - Vikram Rachure. Thereafter, the
Society was taken over by Archana Birajdar as
President and Rajaram Birajdar as Secretary on
22.3.2011; yet applicant - Vikram Rachure,
illegally managed to start and run these four
schools without any legal recognition/permission
from the concerned Education department. He showed
himself to be Secretary and co-accused Vishwas
Rachure as president. They had appointed 32
teachers including the four Head Masters illegally.
In fact, the officials of the Education department
of the Zilla Parishad are also involved in this
scam and they are arrayed as accused. The
Education officer - Eknath Madavi is one of them.
Initially, when the report was lodged, applicant -
Vikram Rachure deposited Rs.15,22,286/- in the bank
accounts of the concerned teachers/officials.
However, the investigation revealed that Vikram
Rachure has misappropriated an amount of
Rs.1,06,03,777/- in his capacity as Head Master of
Ashok Primary School, Kundalwadi. Further, he was
responsible for the misappropriation of Rs.
4,66,63,093/- in respect of the schools run by the
said Society. Several teachers were affected as
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there was illegal deduction from their salaries,
who later on made complaints with the Education
department.
10. In second affidavit in reply filed in
Criminal Application No.1472/2020, the
Investigating Officer states that again he has
taken accounts from the Bank Manager, where the
salaries of the teachers have been credited. It
would reveal that total amount of Rs.58,98,072/-
has been deposited into the respective accounts of
some of the teachers out of list of 58 mentioned in
the Criminal Application. Still huge amount is
outstanding from him. There is vast difference
between the record that was called from the
Education Officer, which states that only an amount
of Rs.26,30,000/- is deposited in the account of
respective teachers. Therefore, taking into
consideration the magnitude of the offence, its
gravity and cheating to the Government itself, the
applicants deserve no sympathy.
11. Learned APP, based on the said affidavits
in reply of the Investigating Officer, referred to
above, submitted that applicant/accused - Eknath
Madavi was absconding till 13.3.2020. After his
anticipatory bail application was rejected by the
Hon'ble Apex Court and directions were given to
this applicant to appear before the police within
two weeks, he has surrendered himself before the
police. Under such circumstance, possibility of he
getting absconding again, after release on bail,
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cannot be ruled out. The charge sheet would show
as to how the bogus appointments were made that too
without seeking any proper sanction therefor from
the Government. There were illegal deductions from
the salaries of the teachers. Both these
applicants-accused were responsible for such
illegalities and fraud and, therefore, both the
Bail Applications filed by the respective
applicants-accused be rejected.
12. At the outset, it can be seen that the
FIR came to be lodged after the enquiry was held.
The Education department was continuously receiving
the complaints about the illegal deductions made by
applicant Vikram Rachure from the salaries of the
teachers. The Enquiry Reports have been made part
of the FIR. So also, along with the FIR, the other
complaints made by the teachers were also annexed.
It appears that at the time of initial report,
certain documents were not made available; still it
was found that there were irregularities and it has
been stated in the FIR that in the Enquiry report
of Enquiry Officer Shri GH Nomulwar, it was found
that applicant - Vikram Rachure has illegally
deducted an amount of Rs.34,39,621/- in respect of
the school viz. Primary School at Bijur. Further,
in respect of the School viz. Satya Sai Baba
Primary School at Biloli, Dist. Nanded, the
deduction was to the tune of Rs.44,00,303/-; From
Ashok Primary School, Kundalwadi, Tq.Biloli,
illegal deduction was to the tune of Rs.
22,32,596/-. But, when it was noted by the
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concerned authorities of the Schools, it appears
that applicant - Vikram Rachure has deposited an
amount of Rs.15,22,286/- in the Accounts of the
concerned teachers. Thereafter, the are two
supplementary statements of the Informant and it
appears that as and when those documents could be
revealed and falsity of the same is stated to have
been ascertained, the misappropriation amount has
gone up. The second supplementary statement of the
informant states that taking into consideration the
communication between applicant - Vikram Rachure;
Vishwas Rachure and Member - Balaji Vishwanath
Surnar; though they were not the office-bearers of
the society between 23.3.2011 to 19.11.2015, they
made those communications and prepared the forged
documents; sought sanction of the school on the
basis of those forged documents and thus cheated
the Government to the extent of Rs.3,46,74,502/-.
Now, the applicant - Vikram Rachure wants to use
the deposits made by him or by the Society in the
accounts of the concerned teachers, as a ground to
grant bail in his favour. However, it has to be
co-related to the allegation that he was never
office-bearer of the society; yet it is stated that
he got the sanction of the schools; because it is
stated that these schools were earlier closed by
the Government due to Scholarship scam and keeping
that thing and instance in dark, further
recognition appears to have been obtained on the
basis of the forged documents. Whether the
deposits made in the accounts of the teachers can
be considered as an implied sign of accepting the
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guilt would be considered by the Trial Court. But,
certainly that deposits of amount in the accounts
of the teachers cannot be a ground for granting
bail to him. In other words, applicant - Vikram
Rachure cannot get advantage of the act and action
of he depositing the amounts in the accounts of the
teachers. Further, there is no such document now
produced by him, stating that all the teachers have
received all the amounts in their accounts which
were illegally deducted from their salaries. The
fact remains that there was illegal deductions.
Now he is also coming with a case, as it appears
from the communication dated 26.10.2017, that it
was decided that for various developmental
activities, all the teachers would contribute and
there would be deductions from their salaries. The
applicant has not produced any such document on
record in the form of Resolution or otherwise.
Secondly, why the employees/teachers would agree to
forgo payment of their salary for developmental
activities of the Society. If it is voluntarily,
then also, it could not have been made applicable
each one of them. Further, there appears to be no
such fact nor it is pleaded by him as to for how
many days or months that amount was agreed to be
deducted from their salaries. It cannot be for an
indefinite period. Photo copies of two teachers,
as a sample, were tried to be tendered across the
Bar, in respect of which, it is stated that said
teachers have received the deducted amounts. An
important point to be noted is that, even if we
consider the photo copy; yet there is absolutely no
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date mentioned in the communication. It is also
silent on the points as to how much amount has been
deducted and how much amount has been received by
them. Therefore, whatever documents are tried to
be tendered are very vague and advantage of the
same cannot be given to applicant - Vikram Rachure.
As aforesaid, the Investigating Officer has clearly
stated that after the investigation, now the
misappropriation amount has gone up to
Rs.4,66,63,093/-. When running of the school
itself is on the basis of some illegal acts then
the amount that was received from the Government
towards the grants will have to be added in the
miss-appropriation amount. It is huge economic
offence that is committed.
13. In P.Chidambaram's case (supra), in the
aforesaid paragraph, it is stated that the
precedent of another case alone will not be the
basis for either grant or refusal of bail and
ultimate consideration would depend on the facts of
the case. Therefore, the facts of the present
case, being different and there is huge financial
loss caused to the State exchequer, the
observations in said Judgment, in which a reference
is made to para No.39 in the case of Sanjay
Chandra Vs. CBI - (2012) 1 SCC 40, will have to be
considered. The observations made in para 39 of
Sanjay Chandra's case (supra) read thus, -
"38. Coming back to the facts of the
present case, both the courts have
refused the request for grant of bail on
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two grounds: the primary ground is that
the offence alleged against the accused
persons is very serious involving deep-
rooted planning in which, huge financial
loss is caused to the State exchequer;
the secondary ground is that of the
possibility of the accused persons
tampering with the witnesses. In the
present case, the charge is that of
cheating and dishonestly inducing
delivery of property and forgery for the
purpose of cheating using as genuine a
forged document. The punishment for the
offence is imprisonment for a term which
may extend to seven years. It is, no
doubt, true that the nature of the charge
may be relevant, but at the same time,
the punishment to which the party may be
liable, if convicted, also bears upon the
issue. Therefore, in determining whether
to grant bail, both the seriousness of
the charge and the severity of the
punishment should be taken into
consideration."
Further, in the said paragraph in the case of
P.Chidambaram (supra), the Hon'ble Apex Court
observed thus, -
". The said case (i.e. Subhash Chandra's
case) was a case of financial
irregularities and in the said
circumstance this Court in addition to
taking note of the deep-rooted planning
in causing huge financial loss, the scope
of consideration relating to bail has
been taken into consideration in the
background of the term of sentence being
seven years if convicted and in that
regard it has been held that in
determining the grant or otherwise of
bail, the seriousness of the charge and
severity of the punishment should be
taken into consideration."
Therefore, when it appears that the present
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applicant - Vikram Rachure, is the main person, who
in his duel capacity as Head Master of the School
as well as Secretary of the Society, has committed
all those acts of taking sanction to the schools on
the basis of the forged documents; running the said
schools since many years, thereby playing with the
future of the students, who would be taking
education therein; recruiting several persons as
teachers without fulfilling the requisite criterion
and the relevant Rules Regulations and laws;
receiving grants from the Government; effecting
illegal deductions from the salaries of the
teachers, no sympathy can be shown to him. No case
is made out to grant bail to applicant - Vikram
Rachure.
14. Now, turning towards Bail Application
filed by applicant - Eknath Madavi, the
aforementioned legal position in the case of
Sanjay Chandra and P.Chidambaram (cites supra) ,
would be applicable. Further as regards the
position of this applicant is concerned, he was, in
fact, Education Officer, who should know as to what
are the criterion to accord sanction to the school.
He was a Government Officer and was responsible to
protect the Government funds. Though the documents
were forged and were placed before him, it cannot
be said that his entire office could not have
verified, ascertained or known as to whether those
documents are forged or not. Mere apparent
documents, those were produced by the said school
are not required to be perused and scrutinized.
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But, they should be cross-checked minutely with due
diligence with his own office records. It appears
that such cross-checking has not been done. Another
fact, that is brought to the notice of this Court
is, there is one more offence registered against
this applicant - Eknath Madavi, bearing CR
No.80/2019 registered with Vazirabad Police
Station, Nanded for the offences punishable under
Sections 420, 409, 120-B, 201, 176 read with 34 of
IPC and Section 8 of the Maharashtra Ordinance
No.8/2004. It also appears that individual
sanction/approval to the appointments of many
teachers of Satya Sai Baba Primary School; Biloli,
have been granted by him on 30.4.2014; 23.5.2014
and 26.5.2014, which was in his tenure. Further,
as regards the school at Kundalwadi, run by the
same society of which applicant - Vikram Rachure is
Secretary, had been granted recognition by this
applicant between 26.5.2014 to 25.11.2014.
Similarly for the school being Primary School at
Bijur, it is between 29.3.2014 to 13.5.2014. All
these acts have been done without there being any
proper and legal sanction. It has been further
stated by the Investigating Officer that in the
Writ Petition filed by one RK Mudholkar before this
Court being WP No.5981/2013, it was prayed for an
enquiry in respect of 129 sanctions which were
accorded illegally (i.e. individual sanction to
teachers by the present applicant) and in view of
that, three-members committee was appointed and its
report was given wherein this applicant has been
held to have been responsible/guilty by the said
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Committee. Another point to be noted is about
conduct of this applicant. It is stated that he
was absconding till his anticipatory bail
application came to be rejected by the Hon'ble Apex
Court and he was directed to surrender before the
police within two weeks. Possibility of he getting
absconding once again cannot be ruled out. Merely
because now he is 61 years old and has retired will
not give him any advantage. He has also not made
out any case to grant bail in his favour on merits.
Hence, following order, -
ORDER
i. Bail Application No.339/2020 and Bail Application No.1311/2020 are rejected;
ii. Criminal Application No. 1472/2020 moved for production of documents stands allowed.
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