Bombay High Court
Dr Advay Prashant Hiray vs The State Of Maharashtra on 12 August, 2024
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2024:BHC-AS:32457
503-BA-1237-2024 (S).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.1237 OF 2024
Advay Prashant Hiray ...Applicant
Versus
The State of Maharashtra ...Respondent
WITH
INTERIM APPLICATION NO.1709 OF 2024
IN
BAIL APPLICATION NO.1237 OF 2024
Gorakh Ramchandra Jadhav ...Applicant
IN THE MATTER BETWEEN
Advay Prashant Hiray ...Applicant
Versus
The State of Maharashtra ...Respondent
_______________________________________________________________
Mr. Aabad Ponda, Senior Advocate a/w Mr. Chetan G. Patil, Mr. Mandar
Bagkar, Mr. Vishwesh Gadage & Mr. Bhushan Jadhav, for the Applicant.
Mr. P. H. Gaikwad, APP, for the Respondent - State.
Mr. N. R. Bubna a/w Ms. Pooja Malik, for Respondent No.2.
Mr. R. G. Magar, P.I., EOW, Nashik Road, present.
Mr. Pawar, Police Constable (B-1112), present.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 12 AUGUST 2024
P.C.:
1. Heard Mr. Ponda, learned Senior Counsel for the Applicant,
Mr. Gaikwad, learned APP for the Respondent−State and Mr. Bubna,
learned Counsel for Respondent No.2 - Intervenor.
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2. This regular Bail Application is preferred under Section 439 of
the Code of Criminal Procedure, 1973 . The relevant details are as
follows:-
1 C.R. No. I-51 of 2023
2 Date of registration of F.I.R. 30/03/2023
3 Name of Police Station Ramjanpura, District − Nashik
4 Section/s invoked in FIR 409, 420, 465, 468, 471 & 34 of
the Indian Penal Code, 1860.
5 Date of incident January, 2013 to April, 2013
6 Date of arrest 15/11/2023
7 Date of filing Charge-sheet 09/02/2024
8 Section/s applied in Charge- 409, 406, 420, 465, 467, 468,
sheet 471, 201, 120B & 34 of the
Indian Penal Code, 1860;
3 & 4 of the Maharashtra
Protection of Interest of
Depositors (In Financial
Establishments) Act, 1999.
3. The Respondent − State of Maharashtra has opposed this Bail
Application by filing detailed Affidavit dated 22nd April 2024 of
Dhanyakumar Changdeo Godse, Superintendent of Police, Economic
Offences Wing, Nashik Rural, District - Nashik. The prosecution case is
set out in Paragraph No.4 of said Affidavit. The said Paragraph No.4
reads as under:
"4. I say that the prosecution case in short is as under:-
(a) That the Orig. Complainant namely, Gorakh
Ramchandra Jadhav, Divisional Officer, Malegaon,N.D.C.C.
Bank Ltd.,Nashik has lodged FIR with Ramjanpura Police
Station,Malegaon,Nashik Rural inter alia stating therin that
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the Nashik District Central Co.Op.Bank Ltd. Nashik is
registered under Maharashtra Co.Op. Society's Act 1960, to
accept the deposits, to pay the interest on it, to supply the
loans on interest to the agricultural and non agricultural
purpose to personal members and members of society doing
the all works relating to the bank.
(b) That the Head Office of the said bank is at Nashik and
there are branches of the bank in towns and villages and one
of the branch is at Malegaon. Shri.Gorakh Ramchandra
Jadhav Divisional Officer, Malegaon has described fully in the
complaint, he has personal information of the said matters in
which the accused have committed the offence as per
resolution passed by Director Board on 20.10.2018 of the
complainant bank delegated the powers to lodge the
complaint.
(c) That the Accused no. 1 "Renuka Devi Yantra Mag
Audyogik Sahakari Sanstha Maryadit, Malegaon, Dist.
Nashik" is a registered organization under Cooperative
Act and accused no. 2 Smita Prashant Hiray is working
as president and accused no. 3 Surekha Dinesh Shirude is
vice president of the organization and accused no. 4)
Shashikala Dilip Kedar, 5) Kamalbai Suresh Thakare, 6)
Shakila Ashraf Mansuri, 7) Hirabai Bhausaheb Shinde,
8) Shobha Sunil Wagh, 9) Mirabai Bhimrao Borse, 10)
Maltibai Ravindra More , 11) Mainabai Vishwanath
Dasnoor, 12) Tulsabai Ananda Aahire, 13) Pramila
Bhagvansingh Bagul, 14) Indubai Rajaram Aahire were
the directors of the said institution during the period of
disbursing the loan. Accused no. 2 to 14 are responsible
for daily affairs of this organization.
(d) That the Accused no. 15 "Shri. Vyankatesh
Sahakari Bank Maryadit, Marketyard Malegaon Dist.
Nashik" is being a registered society under the
Maharashtra Co-operative Society Act, the accused no.
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16) Shri.Prashant Dada Venkatarao Hiray, is working as
the founder chairman of this organization and accused
no. 17) Shri. Ravindra Gorakh Patil, 18) Mrs. Smitatai
Prashant Here, 19) Shri. Prabhakar Supdu Pawar, 20)
Shri. Ashok Muralidhar Bachao, 21) Shri. Dharma
Ganpat Shirole, 22) Shri. Apoorva Prashant Hire, 23)
Shri. Advaya Prashant Hire, 24) Shri. Ramesh Somesingh
Patil, 25) Shri Ramesh Ratan Desale, 26) Sampada
Prashant Hire, 27) Shri. Sanjay Jagannath Marathe, 28)
Shri. Bunker Lasha Gavit, 29) Mrs. Yogita Apoorva Hire,
were working as the director of this organization,
accused, no. 30 Mr. Bhausaheb Shravan Thackeray was
working as the Chief Executive Officer. Accused no. 16 to
30 were jointly and personally responsible for the daily
affairs of the organization.
(e) That the Accused No.1 "Renuka Devi Yantra Mag
Audyogik Sahakari Sanstha Maryadit, Malegaon, Dist.
Nashik" had decided to start the powerloom project, for
the said project and the machinery for the said project,
furniture and working capital submitted the application
to the complainant bank along with project report by
accused No.1 to 14 in which the accused wants to
purchase the various machineries or how much
construction will be built, the detail information was
submitted and also ready to follow the terms and
conditions for loan and ready to mortgage the immovable
properties of accused No.1 and trend to sanction the loan
matter to accused No.1. The description of the loan was
taken in the name of accused No.1 by accused No.1 to 14.
Date of Demand of loan Date of Sanctioned Period
demand of amount sanction of loan amount of loan
loan loan
30/10/2012 3,40,16,000/- 05/01/2013 2,80,00,000/- 06 Yrs
08/03/2012 2,75,00,000/- 16/03/2013 2,20,00,000/- 06 Yrs
05/04/2013 3,30,00,000/- 16/04/2013 2,46,00,000/- 06 Yrs
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Total Amount of Loan Sanctioned :- 7,46,00,000/-
(f) That the As per the application for loan submitted
by accused No.1 to 14, the directors of complainant bank
after thinking the above mentioned loan amount of
Rs.7,46,00,000/- was sanctioned on different dates and
the said loan amount was / is taken by accused No.1 to 4
and mortgaged the properties Div. Zilha Nashik, Sub Div.
Taluka Malegaon, within the limits of Malegaon
Municipal Corporation situated at Dyane bearing Plot
No.24, adm. Area 240 sq. mtrs, Plot No.25 adm. Area 440
sq. mtrs. and Plot No.26 adm. Area 535 sq. mtrs. out of
S.No.104/1B/104/1/C along with construction thereon,
machinery, electric connection, furniture, raw mater,
ready material etc. immovable properties on 30.01.2013,
05.04.2012 and 26.04.2013 bearing documents
No.1030/2013, 3380/2013 and 3968/2013 was / is
registered the said properties with Sub Registrar Office,
Malegaon with complainant bank.
(g) That the as per the application of demand of loan
submitted by accused No.1 to 14, the Directors of
complainant bank, it is agreed to comply and binding on
the directors was and is to repay the bank loan. Then
also the accused No.1 to 14 did not repay the loan
amount, there is amount of Rs.31,40,76,000/- (Rs. Thirty
One Crores, Forty lacs, six thousands) only is due against
the accused.
(h) That the accused No.1 to 14 did not repay the loan
amount of the complainant bank, the complainant bank
came to know that, the accused No.1 to 14 avoid to repay
the loan amount. The accused No.1 to 14 after taking the
sanctioned loan, the most of the loan amount was
transferred to accused No.15, as complainant bank
shocked when the said fact came to know.
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(i) That Really the accused No.1 and 15 institutions
came under the control of Hiray family, accused No.1 to
30 conspiracy with each other shown to start the
powerloom and prepared project report submitted to
bank and told that, the immovable properties were
mortgaged for loan and huge amounts were taken by way
of loan and not used the said amount for purpose of loan
and the said amounts misappropriated and used for self
benefit and not repay the loan amount with interest
forever and deceived to the bank, it is decided from
started. It is the thinking of the complainant bank.
(j) That the The accused No.1 to 14 did not repay the
loan amount with interest of the complainant bank, the
bank started legal action against the accused No.1 to 14
to recover the due loan amount, the bank taken the
possession of the mortgaged property, the accused
persons did not made construction and there was no
machinery as described in project report, the machineries
which were there that were inferior quality installed, the
said facts came to the knowledge of officers of the bank,
so the bank prepared report. The complainant bank
published notice in news paper on dtd. 23.12.2022 for
auction of the machineries and the Govt. price of the said
machinery was fixed for Rs.1,23,00,000/- and so the
auction was carried on 06.01.2023 and the auction was
carried and sale the said machineries for
Rs.1,78,00,000/- ( including GST). The said amount is
credited in the account of accused No.1.
(k) That the It is came to the knowledge of the Nashik
District Central Co.Op. Banb Ltd. that, accused No.1 to 30
conspiring with each other, it is shown that, the
powerloom project is start on Plot No.24, adm. Area 240
sq. mtrs, Plot No.25 adm. Area 440 sq. mtrs. and Plot
No.26 adm. Area 535 sq. mtrs. out of
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S.No.104/1B/104/1/C situated at Dyane, within the
limits of Malegaon Municipal Corporation, Malegaon,
Dist. Nashik prepared false and concocted documents and
it is known to them, they are real and true and submitted
to complainant, submitting the matter to the complainant
bank for sanction of loan and lure to mortgage the
immovable properties and taken the huge amount of
Rs.7,46,00,000/- (Rs. Seven Crores forty six lacs ) only
for unlawful gain and from 05.01.2013 to till today not
repay the loan amount with interest and decided to
deceive and betrayal and it is the one part the accused
No.1 to 14 taken the loan transferred to the directors of
accused No.15 conspire with the accused No.16 to 30, the
misappropriated the amount for unlawful gain and
deceived for Rs.31,40,76,000/- (Rs. Thirty One Crores
Forty Lacs Seventy six thousands ) of the bank.
(l) On the basis of the complaint lodged by the Orig.
Complainant/Informant, offence vide CR No.51/2023
u/sections 409, 420, 465, 468, 471 r.w. 34 of the Indian
Penal Code was registered at Ramjanpura Police Station,
Malegaon on 29.03.2023 against 1) Renukadevi
Machinery Industrial Co-operative Society Limited Smt.
Smita Prashant Hire, Address Madhuramurli, Mahabir
Nagar, Malegaon Camp, Dist. Nashik, 2) Mrs. Smita
Prashant Hire, President Renukadevi Yantramag
Industrial Cooperative Society Limited, 3) Smt. Surekha
Dinesh Shirude Vice President, Renukadevi Yantramag
Industrial Cooperative Society Limited,4) Mrs. Sasikala
Dilip Kedar, Director Renukadevi Yantramag Industrial
Cooperative Society Limited, 5) Mrs. Kamalbai Suresh
Thackeray, Director, Renuka Devi Yantramag, Industrial
Cooperative Society Limited, 6) Shakila Ashraf Mansuri,
Director, Renukadevi Yantramag Industrial Co-operative
Society Limited, 7) Mrs. Hirabai Bhausaheb Shinde,
Director, Renukadevi Yantramag Industrial Co-operative
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Society Limited, 8) Mrs. Shobha Sunil Wagh, Director
Renukadevi Yantramag Industrial Cooperative Society
Limited, 9) Mrs. Bhimabai Bhimrao Borse, Director,
Renukadevi Yantramag Industrial Co-operative Society
Limited, 10) Mrs. Maltibai Ravindra More Director,
Renukadevi Yantramag Industrial Cooperative Society
Limited, 11) Sau. Mainabai Vishwanath Dasnoor,
Director, Renukadevi Yantramag Industrial Cooperative
Society Limited, 12) Mrs. Tulsabai Ananda Ahire,
Director, Renukadevi Yantramag Industrial Cooperative
Society Limited 13) Mrs. Pramila Bhagwan Singh Bagul,
Director, Renukadevi Yantramag Industrial Cooperative
Society Limited, 14) Mrs. Indubai Rajaram Ahire,
Director, Renukadevi Yantramag Industrial Co-operative
Society Limited Accused Nos.2 to 14 Residing at :
Madhurmurli, Mahaveer Nagar, Malegaon Camp, Tt.
Malegaon, Dist. Nashik 15) For Shri. Venkatesh Co-op.
Bank Ltd. Malegaon, the founder and Chairman Dr.
Prashantdada Venkatrao Hire Address Market Yard,
Malegaon Dist. Nashik, 16) Shri. Prashantdada Venkatrao
Hire, Founder and Chairman of Shri. Venkatesh Co-op.
Bank Ltd. Malegaon 17) Shri. Ravindra Gorakh Patil, Vice
Chairman Venkatesh Co-op. Bank Ltd. Malegaon 18) Mrs.
Smitai Prashant Diamonds, Director Venkatesh Co-Op
Bank Ltd. Malegaon 19) Shri. Prabhakar Supadu Pawar,
Director Venkatesh Co-op. Bank Ltd. Malegaon 20) Shri.
Ashok Muralidhar Bachhaw, Director Venkatesh Co-op.
Bank Ltd. Malegaon 21) Shri. Dharma Ganpat Shirole,
Director Venkatesh Co-op. Bank Ltd. Malegaon 22) Shri.
Apoorva Prashant Diamonds, Director, Venkatesh Co-op
Bank Ltd. Malegaon 23) Shri. Advaya Prashant
Diamonds, Director, Venkatesh Co-op Bank Ltd. Malegaon
24) Shri. Ramesh Somsingh Patil, Director, Venkatesh Co-
op. Bank Ltd. Malegaon 25) Shri Ramesh Ratan Desle,
Director, Venkatesh Co-op Bank Ltd. Malegaon 26) Smt.
Sampada Prashant Hire, Director, Venkatesh Co-op. Bank
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Ltd. Malegaon 27) Shri. Sanjay Jagannath Marathe,
Director, Venkatesh Co-op. Bank Ltd. Malegaon 28) Shri.
Vankar Lasha Gavit, Director, Venkatesh Co-op. Bank Ltd.
Malegaon 29) Smt. Yogita Apurva Diamonds, District
Bank Representative, Venkatesh Co-op. Bank Ltd.
Malegaon 30) Shri. Bhausahev Shravan Thakre, Chief
Executive Officer, Venkatesh Co-op. Bank Ltd. Malegaon.
Thereafter the investigation was assigned to Mr.Ashish
Rohi, Assistant Police Inspector, attached to Ramjanpura
Police Station, Malegaon, Nashik Rural, Dist.: Nashik and
he conducted investigation from 29.03.2023 to
07.04.2023."
4. Mr. Ponda, learned Senior Counsel for the Applicant raised the
following contentions:-
(i) Although, there are 31 Accused persons mentioned in the
F.I.R., the Charge-sheet was filed only against 3 Accused persons
namely (1) Advay Prashant Hiray i.e. present Applicant, at the
relevant time he was the Chairman of the Nashik District Central
Co-operative Bank ("NDCC Bank"), (2) Smita Prashant Hiray, the
mother of the present Applicant, who was the Chairman of the
Renukadevi Sahakari Soot Girni Ltd., District - Nashik ("Textile
Mill"), and (3) Prashant Hiray, the father of the present
Applicant, who was the Chairman of Shree Vyankatesh Co-
Operative Bank Ltd., Malegaon. He submitted that the other co-
Accused i.e. the father and mother of the Applicant have been
granted anticipatory bail by the learned Sessions Court.
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(ii) He submitted that the gist of the prosecution case is that
the present Applicant was the Chairman of the NDCC Bank in the
year 2013 and during that time Textile Mill applied for loan to set
up a Textile Plant. Accused No.2 - Smita Prashant Hiray, the
mother of the present Applicant was the Chairman of the said
Textile Mill. Loan was given in three tranches totally amounting
to Rs.7,46,00,000/- to said Textile Mill by NDCC Bank. Loan of
Rs.2,80,00,000/- was sanctioned on 5th January 2013, loan of
Rs.2,20,00,000/- was sanctioned on 16th March 2013, loan of
Rs.2,46,00,000/- was sanctioned on 16th April 2013. For said
three loans which were given, three separate Mortgage Deeds
were executed as a security against the three loans. At the time
when the loan was sanctioned, the Textile Mill was headed by
Smita Hiray, mother of the present Applicant. While disbursing
the loan amount, the same was deposited in the account of the
Textile Mill with Vyankatesh Co-operative Bank Limited. The said
Bank was headed by Prashant Hiray, father of the present
Applicant.
(iii) There are three basic allegations made in the Complaint
viz. (1) loan was given on insufficient security; (2) the loan
amount was not utilized for the purpose for which it was granted
and (3) the loan has not been repaid.
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(iv) To bring the case under the provisions of the Maharashtra
Protection of Interest of Depositors (In Financial Establishments)
Act, 1999 ("MPID Act"), the Investigating Authorities have
recorded statements of some persons who have deposited their
money in the NDCC Bank and it is there case that as the loan
amount has not been recovered, it has eventually resulted in they
not being able to withdraw their deposits.
(v) In the year 2018 the same complaint was made by one of
the Officers of the NDCC Bank in respect of the very same loan
account, however, the Police on investigation, submitted a Report
to the effect that the issue pertains to the provisions of the
Maharashtra Co-operative Societies Act, 1960 ("MCS Act") and
therefore no F.I.R. was lodged.
(vi) The F.I.R. was registered on 30th March 2023 at 1:31 a.m.
due to the political rivalry. The Applicant is supporting the
political parties who are forming opposition group and the F.I.R.
was lodged at the insistence of a local MLA who is also the
Minister and in fact also the Guardian Minister of Nashik district.
(vii) Malafides can be seen from the fact that, although F.I.R.
was lodged against 31 Accused, Charge-sheet is filed only against
3 Accused persons i.e. present Applicant and his father and
mother. He submitted that the other co-Accused i.e. Applicant's
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parents have been granted anticipatory bail by the learned
Sessions Court, Nashik.
(viii) The decision to grant loan to the Textile Mill was taken by
all the Members of the Managing Committee of the NDCC Bank
and only the Applicant was made an accused for the non-
repayment of loan by the Textile Mill. He submitted that, apart
from the non-payment of loan by the Textile Mill, loan to the
extent of over Rs.300/- Crores has seen classified as NPA by the
NDCC Bank. However, no criminal complaint was lodged on
behalf of NDCC Bank in respect of said loans.
(ix) The Applicant's liability is fixed at Rs.35,00,000/- under the
provisions of the MCS Act. The Applicant has deposited an
amount of Rs.25,00,000/- pursuant to order passed in the
Anticipatory Bail Application in this Court and it has now been
kept in a fixed deposit with a nationalised bank.
(x) Insofar as the Mortgage Deeds and allegation regarding
insufficient security is concerned, Mr. Ponda, learned Senior
Counsel submitted the Applicant alone cannot be held
responsible, and the Managing Committee of the NDCC Bank
have to be held responsible.
(xi) He submitted that the Charge-sheet shows that the loan
amount sanctioned by the NDCC Bank was paid to the suppliers
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of the Textile Mill and therefore it cannot be said that the said
amount was not utilised for the purpose for which it was
obtainted.
(xii) As far as the allegation that the Textile Mill has not paid the
loan amount, he submitted that the dispute under Section 91 of
the MCS Act is filed by the NDCC Bank against the Textile Mill for
recocvery of the loan amount and the said dispute is pending till
date.
(xiii) Mr. Ponda, learned Senior Counsel relied on the Affidavit of
the Applicant dated 12th July 2024. In said Affidavit, it is
submitted that certain property of the said Textile Mill was
attached and subsequently sold and accordingly, amount of
Rs.1,78,26,922/- has been recovered by the NDCC Bank. He
submitted that remaining movable and immovable property of
the Textile Mill has also been attached by the NDCC Bank and the
valuation made by the NDCC Bank is to the extent of
Rs.2,23,00,000/-. He submitted that the Applicant and his
relatives are ready to furnish security in the form of different
immovable properties to the NDCC Bank to the tune of
Rs.7,43,41,533/-.
5. When this matter was placed before this Court on 5th August
2024, Mr. Ponda, learned Senior Counsel submitted that Mortgaged
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Deeds will be executed within a period of 1 week of the immovable
properties which are proposed to be given as security to the NDCC Bank
by the Applicant and his relatives as more particularly set out in the
Affidavit dated 1st July 2024. Today, Mr. Ponda, learned Senior Counsel
for the Applicant states that accordingly 9 Mortgage Deeds were
executed concerning 9 immovable properties by the Applicant and his
relatives mortgaging the said properties in favour of the NDCC Bank.
Mr. Bubna, learned Counsel for the Intervenor confirms the said
position.
6. Mr. Ponda, learned Senior Counsel submitted that the Affidavit
dated 12th July 2024 has been executed by the Applicant and the
aforesaid 9 Mortgage Deeds were executed by the Applicant and his
relatives, in terms of the observations of the Supreme Court in the
decision of Ramesh Kumar v. State of NCT of Delhi1.
7. Mr. Ponda, learned Senior Counsel submitted that due to political
rivalry, in the year 2023, six offences have been registered against the
Applicant. He submitted that it has been done to ensure that the
Applicant is not released on bail. He submitted that as far as four such
offences are concerned, the same are under investigation and the
Anticipatory Bail Applications are pending in this Court. He submitted
that as far as one case is concerned, the Applicant has been granted
interim bail by the learned Sessions Court. He submitted that all these
1 (2023) 7 SCC 461
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offences are registered in the year 2023 due to political rivalry.
8. On the other hand, Mr. Gaikwad, learned APP strongly opposed
the Bail Application. He pointed out detailed Affidavit dated 22nd April
2024 of Dhanyakumar Changdeo Godse, Superintendent of Police,
Economic Offences Wing, Nashik Rural, District - Nashik. He submitted
that the Applicant had played a significant role in the offence in
question. He pointed out Paragraph No.25(c) of the Affidavit-in-Reply,
which reads as under:-
" c. That the main role of the present
Applicant/Accused is that he alongwith co-accused
cheated the orig. complainant/informant i.e. Bank by
hatching criminal conspiracy. I say that prima facie it
revealed the involvement of the present
Applicant/Accused in commission of the aforesaid
offence. I say that the mother of the applicant was the
Chairperson of the spinning mill, whereas his father
was the Chairman of Vyanketesh Co-operative Bank. I
say that the present Applicant/Accused was its Director.
I say that the present Applicant/Accused was the
Chairman of the N.D.C.C. Bank. I say that the
informant bank recommended Rs.2,35,00,000/- only,
whereas Rs.2,80,00,000/- were sanctioned as the first
loan. I say that there was no sanction from the
informant Bank for the second and the third loans. I say
that there was no sanction from the Competent Officers
of the N.D.C.C. Bank, which was necessary. I say that
the valuation of the property, purchased out of the loan
amounts and mortgaged, was Rs.1,51,74,650/- only. I
say that the same property was mortgaged to the bank
repeatedly. I say that the total amount of loans
sanctioned was Rs.7,46,00,000/-. I say that the amount
of Rs.6,24,00,000/- was diverted to Vyanketeshwar Co-
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operative Bank. I say that the investigation in respect of
misappropriation of the amount is still going on. I say
that not a single installment is repaid to the informant
bank. The informant bank has been duped, due to
which, depositors are unable to get back their deposits.
I say that the fraudulent intention existed, since the
inception. I further say that it is an economic offence. I
say that apart from that there are six criminal
antecedents against the present Applicant/Accused. I
say that the applicant was the chairman of Nashik
District Central Co-operative Bank, the officer whereof
is the first informant. I say that the mother of the
applicant was the Chairperson of the society, namely
Renuka Devi Yantra Mag Audyogik Sahakari Sanstha. I
say that the said society raised a total sum of
Rs.7,46,00,000/- as a loan from the informant bank in
the year 2013. I say that the same properties were
mortgaged, although loans were applied for thrice and
got sanctioned accordingly. I say that no repayment of
the loan amounts was made at any point of time by the
society. Certain movable properties of the society came
to be sold out, from out of which, the informant bank
could be successful in recovering a sum of
Rs.1,78,26,922/-. I say that the valuation of the
remaining property of the society is shown to be
Rs.2,23,00,000/-. I say that thus, even if the remaining
property is sold out, the entire recoverable amount
would come to the tune of Rs.4,01,26,922/-. I say that
there are six crimes registered against the applicant in
the year 2023 itself. The said total amount is said to be
Rs.31,40,76,000/-, which includes the interest accrued
thereon. I say that indisputedly, a loan of
Rs.2,80,00,000/- was initially raised by the society, on
the basis of mortgage of three immovable properties
with the bank, although there was a recommendation
for Rs.2,35,00,000/- only, from the bank. Thereafter,
additional loans of Rs.2,20,00,000/- and 2,46,00,000/-
were raised, by mortgaging the same properties. There
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was no recommendation from the bank for the said
additional loans, and yet, the Board of Directors
sanctioned the additional loans. Undisputedly, the
applicant was the chairman. The total valuation of the
mortgaged properties was less than the amount of the
first loan itself, as sanctioned. I say that the above
factual scenario prima facie reflects that the applicant
misused his position as the Chairman of the informant
bank, and got the first loan amount sanctioned, to the
tune of the amount, exceeding the market value of the
mortgaged property. The factum of sanction of two
more loan amounts, without seeking for any new
properties for being mortgaged per se reflects an
intention to abstain from securing the loan amounts,
stricto sunsui. The want of any recommendation from
the bank for the said two additional loans and the
sanction thereof, de hors the same, ipso facto speaks in
volumes, qua the mala fide intention of the applicant
herein. The abstention from the repayment of the loan
amount renders the said intention crystal clear, if one is
called upon to lift the veil, inter se the applicant and his
real mother, who was the chairperson of the society,
which had raised the loan amounts. Indisputedly, the
applicant, being the chairman of the informant bank,
was, either entrusted with the funds of the bank or was
having sufficient dominion over those funds, which
prima facie appear to have been misappropriated by the
applicant, by abusing his position as the Chairman of
the informant bank. It is an economic offence, whereby
a huge sum of money, belonging to the public at large,
has been misappropriated, by duping the informant
bank, de hors any political intervention in the
registration of the crime or the investigation into the
crime. The applicability or otherwise of the other
various provisions of law need not be addressed to
herein, at this stage. It cannot also be lost sight of, that
the investigation is in progress. The possibility of
tampering with the evidence or influencing the
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witnesses cannot be ruled out, altogether."
He therefore submitted that as the Applicant is involved in a serious
crime, the Bail Application be rejected.
9. Mr. Bubna, learned Counsel for the Intervenor submitted that the
Informant is the Officer of the NDCC Bank. He submitted that the F.I.R.
has been lodged on the basis of the decision taken by the NDCC Bank.
He submited that the F.I.R. was lodged on 30th March 2023 pursuant to
the decision taken by the NDCC Bank on 20th October 2018. He
submitted that from 2018 to 2023, F.I.R. had not been lodged as the
Applicant is a very influential person. He submitted that a huge amount
of money is involved in the offence in question. He pointed out the
contentions raised from Paragraph No.2 to Paragraph No.7 of the
Intervention Application. He submitted that the amount exceeding
Rs.31 Crores was due and payable on the date of filing of the F.I.R. He
submitted that the F.I.R., investigation papers and various documents
contained in Charge-sheet, clearly show that the Applicant is involved in
a very serious offence. He submitted that as a huge amount of public
money is involved in the offence in question, the Bail Application be
rejected.
10. Perusal of the record shows that the alleged loan was granted in
the year 2013, NDCC Bank decided to lodge the F.I.R in the year 2018,
and a complaint was lodged with the Police in the year 2018. However,
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the Police, on investigation submitted the Report to the effect that the
issue pertains to the provisions of the MCS Act and no further steps
were taken. It further shows that the F.I.R. was again lodged on 30th
March 2023.
11. Although it is the contention of Mr. Ponda, learned Counsel for
the Applicant that the F.I.R. has been lodged due to political rivalry and
some of the factual aspects show that there may be some substance in
the said contention, however, perusal of the F.I.R. as well as various
documents which are part of the Charge-sheet, shows that the Applicant
is involved in a very serious offence. However, it is required to be noted
that the incident in question has taken place during the period January,
2013 to April, 2013, the FIR has been lodged on 30 th March 2023 and
the Applicant was arrested on 15th November 2023. It is also important
to note that the investigation is completed and that the Charge-sheet
has been filed on 9th February 2024. It is also required to be noted that
as per the Charge-sheet there are a total of 33 witnesses proposed to be
examined by the prosecution. There is no further progress in the trial
and even the charge is also not framed yet. Accordingly, the tiral will
take a considerable time to conclude. Speedy trial is one of the facets of
right to life and liberty guaranteed under Article 21 of the Constitution
of India. Speedy trial is an essential ingredient of "reasonable, fair and
just" procedure guaranteed by Article 21 and it is the constitutional
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obligation of the State to device such a procedure as would ensure
speedy trial to the Accused.2
12. It is also required to be noted that although F.I.R. has been lodged
against 31 persons, Charge-sheet was filed only against 3 Accused
persons i.e. present Applicant and his parents.
13. Mr. Ponda, learned Senior Counsel for the Applicant submits that
the dispute has been filed by the NDCC Bank against the said Textile
Mill and others under Section 91 of the MCS Act for the recovery of the
amount from the Textile Mill and the same will be decided in the said
proceedings. However, Mr. Ponda, learned Senior Counsel submitted
that in the light of the observations of the Supreme Court in Paragraph
Nos.25 and 26 of the decision of Ramesh Kumar (supra), the Applicant
has filed above referred Affdiavit dated 12th July 2024, showing
readiness to create security with the NDCC Bank of 9 immovable
properties belonging to the Applicant and his near relatives to the tune
of about Rs. 7,43,41,533/-. The said Paragraph Nos.25 and 26 of said
decision in Ramesh Kumar (Supra) reads as under:-
"25. Law regarding exercise of discretion while granting a
prayer for bail under Section 438CrPC having been
authoritatively laid down by this Court, we cannot but
disapprove the imposition of a condition of the nature under
challenge. Assuming that there is substance in the allegation
of the complainants that the appellant (either in connivance
with the builder or even in the absence of any such
2 Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98
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connivance) has cheated the complainants, the investigation
is yet to result in a charge-sheet being filed under Section
173(2)CrPC, not to speak of the alleged offence being proved
before the competent trial court in accordance with the
settled procedures and the applicable laws. Sub-section (2) of
Section 438CrPC does empower the High Court or the Court
of Session to impose such conditions while making a direction
under sub-section (1) as it may think fit in the light of the
facts of the particular case and such direction may include the
conditions as in clauses (i) to (iv) thereof. However, a reading
of the precedents laid down by this Court referred to above
makes the position of law clear that the conditions to be
imposed must not be onerous or unreasonable or excessive. In
the context of grant of bail, all such conditions that would
facilitate the appearance of the accused before the
investigating officer/court, unhindered completion of
investigation/trial and safety of the community assume
relevance. However, inclusion of a condition for payment of
money by the applicant for bail tends to create an impression
that bail could be secured by depositing money alleged to
have been cheated. That is really not the purpose and intent
of the provisions for grant of bail.
26. We may, however, not be understood to have laid
down the law that in no case should willingness to make
payment/deposit by the accused be considered before grant of
an order for bail. In exceptional cases such as where an
allegation of misappropriation of public money by the accused
is levelled and the accused while seeking indulgence of the
court to have his liberty secured/restored volunteers to
account for the whole or any part of the public money
allegedly misappropriated by him, it would be open to the
court concerned to consider whether in the larger public
interest the money misappropriated should be allowed to be
deposited before the application for anticipatory bail/bail is
taken up for final consideration. After all, no court should be
averse to putting public money back in the system if the
situation is conducive therefor. We are minded to think that
this approach would be in the larger interest of the
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community. However, such an approach would not be
warranted in cases of private disputes where private parties
complain of their money being involved in the offence of
cheating."
(Emphasis added)
14. Mr. Ponda, learned Senior Counsel submitted that in furtherence
of the statements made in the said Affidavit dated 12th July 2024, the
Applicant and his relatives have executed 9 registered mortgage deeds
mortgaging 9 immovable propeties having aggregate value to the tune
of Rs. 7,43,41,553/- in favour of the NDCC Bank.
15. The Supreme Court in the decision of Manish Sisodia v.
Directorate of Enforcement3, in Paragraph Nos.51 and 52 held has
follows:
"51. Recently, this Court had an occasion to consider an
application for bail in the case of Javed Gulam Nabi Shaikh v.
State of Maharashtra and Another wherein the accused was
prosecuted under the provisions of the Unlawful Activities
(Prevention) Act, 1967. This Court surveyed the entire law
right from the judgment of this Court in the cases of
Gudikanti Narasimhulu v. Public Prosecutor, High Court of
Andhra Pradesh Shri Gurbaksh Singh Sibbia and Others v.
State of Punjab,, Hussainara Khatoon and Others (I) v. Home
Secretary, State of Bihar, Union of India v. K.A. Najeeb and
Satender Kumar Antil v. Central Bureau of Investigation and
Another. The Court observed thus:
"19. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or
protect the fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting
3 2024 SCC OnLine SC 1920
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agency should not oppose the plea for bail on the ground
that the crime committed is serious. Article 21 of the
Constitution applies irrespective of the nature of the
crime."
52. The Court also reproduced the observations made in
Gudikanti Narasimhulu (supra), which read thus:
"10. In the aforesaid context, we may remind the trial
courts and the High Courts of what came to be observed
by this Court in Gudikanti Narasimhulu v. Public
Prosecutor, High Court reported in (1978) 1 SCC 240.
We quote:
"What is often forgotten, and therefore warrants
reminder, is the object to keep a person in judicial
custody pending trial or disposal of an appeal. Lord
Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
"I observe that in this case bail was refused for
the prisoner. It cannot be too strongly
impressed on the, magistracy of the country
that bail is not to be withheld as a punishment,
but that the requirements as to bail are merely
to secure the attendance of the prisoner at
trial."""
(Emphasis added)
Thus, the Applicant is entitled to be released on bail in the light of law
laid down by the Supreme Court in Manish Sisodia(Supra).
16. Insofar as an apprehension of Mr. Gaikwad, learned APP that
there is a possibility of tampering the evidence, it is required to be
noted the observations in Paragraph No.57 of the decision of Manish
Sisodia (supra). The said paragraph reads as under:
"57. Insofar as the apprehension given by the learned
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ASG regarding the possibility of tampering the evidence is
concerned, it is to be noted that the case largely depends
on documentary evidence which is already seized by the
prosecution. As such, there is no possibility of tampering
with the evidence. Insofar as the concern with regard to
influencing the witnesses is concerned, the said concern
can be addressed by imposing stringent conditions upon
the appellant."
(Emphasis added)
The observations in said Paragraph No.57, also apply to the present
case. The present case also largely depends on the documentary
evidence which is already seized by the prosecution. Insofar as the
concern with regard to influencing the witnesses, stringent conditions
can be imposed upon the Applicant while granting bail.
17. Although there are six antecedents, all offences are registered in
the year 2023. It is the submission of Mr. Ponda, learned Senior Counsel
that all the offences are registered as a result of political rivalry to
ensure that the Applicant is not released on bail. In any case, as far as
the facts of the present case are concerned and in view of the law laid
down by the Supreme Court, the Applicant is entitled to be released on
bail in the present case.
18. The Applicant does not appear to be at risk of flight.
19. Accordingly, the Applicant can be enlarged on bail by imposing
conditions.
20. In view thereof, the following order:-
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ORDER
(a) The Applicant−Advay Prashant Hiray be released on bail in connection with C.R. No.I- 51 of 2023 registered with the Ramjanpura Police Station, District - Nashik on his furnishing P.R. Bond of Rs.5,00,000/- with one or two local solvent sureties in the like amount.
(b) On being released on bail, the Applicant shall furnish his cell phone number and residential address to the Investigating Officer and shall keep the same updated, in case of any change thereto.
(c) The Applicant shall report to the Ramjanpura Police Station, District - Nashik once in a week i.e. on every Monday between 11.00 a.m. and 2.00 p.m. until the conclusion of the trial.
(d) The Applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case, so as to dissuade such a person from disclosing the facts to the Court or to any Police personnel.
(e) The Applicant shall not tamper with the prosecution evidence and shall not contact or influence the Complainant or any witness in any manner.
(f) The Applicant shall attend the trial regularly. The Applicant shall co-operate with the Trial Court and shall not seek unnecessary adjournments thereat.
(g) The Applicant shall surrender his passport, if any, to the Investigating Officer.
21. The Bail Application is disposed of accordingly.
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23. It is clarified that the Trial Court shall decide the case on its merits, uninfluenced by the prima facie observations made in this Order.
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