Gaddam Sudershan Yadav v. The State Of Telangana

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL PETITION NO.317 OF 2017 ORDER:

This criminal petition is filed under Section 438 of Criminal Procedure Code to enlarge the petitioner on bail, apprehending his arrest in Crime No.260 of 2016 on the file of Central Crime Police Station, Hyderabad, for the offences punishable under Sections 409 & 417 I.P.C in connection with the above crime. The case of the prosecution in brief is that, on 06.12.2016 the defacto complainant submitted a representation against the petitioner and 14 others. A-1 is Chairman, A-16 is CEO and A-2 to A-15 are Directors of Gokul Cooperative Urban Bank Limited situated at Monda Market, Secunderabad and according to the complaint, the bank has to pay Rs.3,46,24,676/- to ESD which was credited in the bank and bank authorities have not cleared such amounts.

According to the complaint, the petitioners along with others misappropriated the funds and not paid the same to the customers. Now, the petitioner is apprehending his arrest in connection with the above crime and he is not concerned with the above offences, since the crime was committed recently. That apart, on 03.04.2016 a letter was submitted to the Deputy Registrar/Divisional Cooperative Officer, Secunderabad Division by the Gokul Cooperative Urban Bank Limited undertaking to discharge the amount covered by current account, overdraft is to the tune of Rs.50,16,854/- and Saving account overdraft to the tune of Rs.79,76,857/- in 151 accounts.

is not responsible for the alleged misappropriation in view of the undertaking given by the CEO, he also further contended that the proceedings were taken up by Sri M. Veerabrahmaiah, IAS, Commissioner & Registrar of Cooperative Societies, Telangana, Hyderabad and after conducting necessary enquiry, superseded the committee of Gokul Cooperative Urban Bank Limited under Section 34 of Telangana Cooperative Societies Act, 1964 and appointed Smt. D. Vijaya Lakshmi, Deputy Registrar/Audit Officer, Medchal as Special Officer to manage the affairs of Gokul Cooperative Urban Bank Limited for a period of six months.

The Special Officer was further directed to work under the Directions of the Registrar of Cooperative Societies and exercise all or any of the functions of the Committee or any Officer of the Society and report the facts from time to time. There is an observation in the order regarding liability of some of the parties, in addition to it, it is contended that the petitioner is no way responsible. It is also contended that A-3 & A-13 obtained an anticipatory bail in Crl.M.P.No.17090 of 2016 and this petitioner is on better footing than other two accused and thereby, he is also entitled to be enlarged on bail.

Learned Public Prosecutor for the State of Telangana would contend that the amount involved in the crime is Rs.3,46,24,676/, which is a serious offence of misappropriation of e-seva amount and the petitioner is one of the Directors of the bank during 2015. The incident of misappropriation covered the period from 18.10.2013 to 05.10.2015. Therefore, the petitioner is also responsible.

No doubt, the allegations made in the complaint show that the petitioner and others allegedly misappropriated Rs.3,46,24,676/-. But, the contention of the learned counsel for the petitioner that he is no way concerned that the amount deposited in Gokul Cooperative Urban Bank Limited is untenable, because he was the Director of the bank during the year 2015. Therefore, on this ground, the petitioner cannot be enlarged on pre-arrest bail.

The other contention is that, in the order dated 09.11.2016 Sri M. Veerabrahmaiah, Commissioner & Registrar passed serious remarks. But, those remarks if any made in the order is only for the purpose of superseding the Committee of Gokul Cooperative Urban Bank Limited under Section 34 of the Telangana Cooperative Societies Act, 1964. Those observations will have no bearing on the alleged misappropriation at this stage and on the basis of such proceedings, it is difficult to accept the contention that the petitioner is not responsible for the said misappropriation of huge amount. Consequently, it would not form a ground to enlarge the petitioner on pre-arrest bail.

The last contention urged before this Court is that A-3 & A-13 were already enlarged on pre-arrest bail, and whereas the petitioner is on better footing than them. But, granting pre-arrest bail to A-3 and A-13 by this Court is not a ground to grant prearrest bail to the petitioner, who allegedly misappropriated huge amount belonging to e-seva to a tune of Rs.3,46,24,676/-. Even if the undertaking given by the CEO is taken into consideration, the total amount undertook to pay by the CEO is around Rs.9 crores

but, no explanation was offered for repayment of the balance amount of around Rs.2 crores and thereby the said undertaking is of no consequence.

As seen from the material on record, the petitioner along with others prima facie committed a serious offence in failing to repay the funds belonging to e-seva and when there is material against the petitioner prima facie, he is not entitled to claim a prearrest bail and that apart, investigation is not totally completed as on today. In case, the petitioner is enlarged on bail, there is every possibility of tampering the records, because it is based on records maintained in the bank. Therefore, I find no ground to enlarge the petitioner on bail and consequently, the criminal petition is liable to be dismissed.

Grant of pre-arrest bail is not a matter of course and it is exceptional. But, such discretion has to be exercised judiciously as stated by the Supreme Court in Siddharam Satlingappa Mhetre vs State Of Maharashtra1. The Supreme Court has laid down 10 guidelines for grant of pre-arrest bail, which are as follows: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. 1 AIR 2011 SC 312

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

In view of the guidelines laid down by the Supreme Court in the above judgment, the Court has to record its satisfaction that there is no possibility of tampering the records and possibility of the accused fleeing from justice and also reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant.

But, in the present case, the entire investigation is based on the documents in the Gokul Cooperative Urban Bank Limited and in such case, if the petitioner is granted pre-arrest bail, there is every likelihood of tampering the records and investigation. Hence, I find no ground to grant anticipatory bail to the petitioner. In the result, the criminal petition is dismissed. Consequently, miscellaneous applications pending if any shall stand dismissed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:25.01.2017 SP