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2013 DIGILAW 157 (BOM)

Vimal Narayan Kabre v. State of Maharashtra

2013-01-21

M.T.JOSHI

body2013
Judgment : 1. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, the application is heard finally. 2. By the present application, the legal representatives of deceased Narayan Motilal Kabre seek the relaxation of the conditions imposed by this Court vide order dated 8th February, 2011 passed in Criminal Application No. 491/2011. 3. Deceased Narayan, at the relevant period, was the Chairman of Dadasaheb N.M. Kabre Nagari Sahakari Bank Limited, Erandol, District Dhule. He alongwith the various directors and other persons was involved in Crime No. 90/2010 registered with Erandol Police Station for the offences punishable under section 406, 408, 409, 465, 467, 468, 471 and 477 of the I.P. Code read with section 34 of the I.P. Code. Present applicant No. 2 Vinay Kabre is also an accused in the same criminal case and was already released on bail by the trial court. The application of deceased Narayan Motilal Kabre for bail, however, was dismissed by the learned Additional Sessions Judge, Jalgaon. Therefore, he filed Criminal Application No. 491/2011 in this Court. The application came up for hearing before the learned Single Judge of this Court on 7th February, 2011. The order dated 7th February, 2011 would show the relevant finding of the learned Single Judge, as are found from paragraph No. 7 of the order are as under:- “7) Having analyzed the documentary evidence, I find the accused/applicant though at 80 years of his age facilitated by atrocious activities in the capacity as Chairman, disbursal of loan to the tune of Rs. 24,66,000/-to two persons, who were not eligible to receive such loans as they were defaulters and declared as bad-debtors, to facilitate disbursal to these persons, circuit type entries were created upon the instructions of the applicant/accused as Chairman. 8) The investigation papers also reveal that fraudulently, all the fixed deposits in the name of family members of the accused/applicant, were routed and diverted. The investigation is with C.I.D. Police and charge sheet is yet to be filed. 9) Though ailment is principal ground and other accused having been released on bail is subsidiary, however, at this stage, the role attributed to the applicant/accused being of severe nature, which tends to squeeze entire activities of the bank. The faith reposed by the depositors has been exposed to nullity and they have been left with an impression of being duped/cheated by the Bank. The faith reposed by the depositors has been exposed to nullity and they have been left with an impression of being duped/cheated by the Bank. 10) Mr. Shah also points to RBI report at point No. 9.6.2, claiming “no fraud was detected and reported during the period under review.”. Learned Sr. Counsel submits, the period under review expired on 31.3.2009. 11) It may be that RBI’s Auditor did not reveal it, but in-depth audit carried by the Auditor declared certain irregularities and illegalities at the behest of the accused/applicant. 12) At this stage, learned Sr. Counsel, on instructions, desires to make further submissions, incorporating willingness of the applicant/accused to deposit the amounts, which are subject of criticism against him. He desires to give a proposal in writing so that learned APP will be able to traverse the same. 13) S.O. to 8th February, 2011 at 2.30 p.m.” 4. In pursuance of the above order, a proposal was submitted under the signature of the present applicants No. 2 and 3 as deceased Narayan Kabre was allegedly in Intensive Care Unit (I.C.U.) of Ghati Hospital at Aurangabad. The proposal showed that savings and fixed deposits amount of Rs. 31,74,673/-was in the very same bank in the name of the family members of deceased Narayan Kabre, including the present applicants and some others. The applicant therein undertook not to withdraw these deposits till the loan amount advanced to one Mujahid Ali Sayyed and Jahid Ali Sayyed amounting to Rs.24,66,000 is completely recovered. Apart from this, the applicant also undertook not to alienate or create third party interest in the house property, described in the proposal, the market value of which, as claimed, comes to Rs. 25 lacs, till the loan is recovered. 5. The learned Single Judge on 8th February, 2011 accepted this proposal cum undertaking. Besides this, Mr. P.M. Shah, learned Senior Counsel for the deceased applicant-Narayan Kabre, further informed that the accused/applicant therein would endeavour to deposit an amount of Rs.15 Lacs directly with the Bank which would be without prejudice to the rights and entitlement of the applicant therein to recover or get it reimbursed, if the loan allegedly availed by Mujahid Ali Sayyed and Jahid Ali Sayyed is cleared by those borrowers. In the circumstances, accepting the proposal, the deceased applicant-Narayan Kabre was directed to be released on bail on his furnishing P.R. bond and surety in the sum of Rs.50,000/-. It was further directed that the deceased accused/applicant or his relatives, whose undertaking is given, will not prematurely withdraw the fix deposits and that the lien of the bank shall be recorded as regards the property. It was further observed that it would be needless to indicate that the deceased accused/applicant or any of his family member/s shall not create third party interest or alienate the house No.1840 till disposal of the criminal case against the deceased applicant/accused. Certain other conditions were also put which are not relevant for the purpose of deciding the present controversy. 6. The deceased accused/applicant died on 21st March, 2012. In the circumstances, the present application is filed. 7. The applicants in the present application have made the following submissions:. That in view of death of Narayan Kabre, the prosecution against him is abated. In the circumstances, the conditions imposed upon him vide the order dated 8th February, 2011 cannot be kept in force. The conditions were imposed by this Court in view of the proposal only for the purpose of granting bail to the deceased. The order now ceases to be in force. Under the criminal law, there is no provision to bind the legal heirs by conditions passed in the criminal application for a limited purpose of securing presence of the accused. No criminal liability can ever be passed upon a legal heir or legal representative under any circumstances. The legal heirs cannot be penalized. The criminal machinery cannot be used with a vindictive approach. The deposits are in the name of the family members and not in the name of late Narayan Kabre alone. The investigation is practically over. The applicants cannot be made to bind by the orders for indefinite period. The life-time savings of the applicants are blocked for no fault on their part. The son of applicant No. 2, namely, Pratik is taking education in second year of M.B.B.S. in a private medical college. Namita, the daughter of applicant No. 2 requires money for her support. The applicants are required to borrow the money from their well-wishers. Further, while the alleged loan that was granted to Mujahid Ali Sayyed and Jahid Ali Sayyed is only Rs. Namita, the daughter of applicant No. 2 requires money for her support. The applicants are required to borrow the money from their well-wishers. Further, while the alleged loan that was granted to Mujahid Ali Sayyed and Jahid Ali Sayyed is only Rs. 24,66,000/-, the value of the house property itself is more than the same. Besides this, the deposits are made subject to the order of the Court and in the circumstances, it was submitted that the condition imposed, be relaxed and it be declared that the order itself is not in force and is not binding on the present applicants. 8. The learned counsel for the applicants, Mr. K.C. Sant vehemently submitted before me as under:- That only to test the bonafide of applicant in Cri. Application No. 491/2011 i.e. late deceased Narayan Kabre, the conditions were imposed. The applicants No. 2 and 3 who are his sons had submitted the proposal as the deceased was in I.C.U. of the Ghati hospital during the relevant period. The said proposal was purely for the purposes of grant of the bail and as the order has come to an end with the death of deceased Narayan Kabre – accused/applicant, the effect of the order cannot be continued. The meaning of word ’bail’ in Webster’s Dictionary is given as under:- “Power, Custody, money, bond, etc. deposited with the Court to obtain the temporary release of an arrested person on the assurance that the person will obey the Court’s orders, as by appearing for trial.” He submitted that the meaning of word ’bail’ as is given in Blacks Law Dictionary (VIth Edition) is thus:- “to procure release of one charge with an offence by ensuring his future attendance in Court and compelling him to remain within the jurisdiction of the Court. To deliver the defence of persons, who, in the manner prescribed by law, become security for his appearing in the Court. To set at liberty of person arrested or imprisoned on security being taken for his appearance on a date and place certain, which security is called Bail.” In the circumstances, learned counsel further submitted that thus, the existence and life of the bail order is only for the purpose of securing attendance of a person in future for making himself available for trial. Not only the offence as against the accused is abated but even the order of releasing him on bail on certain conditions has also become infructuous. 9. Learned counsel Mr. Sant submitted that alternatively, the order would show that it speaks effect of conditions only till disposal of the criminal case against the applicant/accused and as such, it was submitted that the necessary order be passed. He further submitted that the said undertaking was given while the deceased was in I.C.U. in order to secure his release on bail. While giving the undertaking, there was no question of considering further complications. The release of the deceased applicant lying in such a state of ill-health in the hospital at the age of 80 was of paramount importance. In the circumstances, if it is argued that the undertaking is still in force, the same will have to be seen from the above angle and not from the angle that it was a voluntary undertaking given in a criminal proceeding. In any event, the undertaking was solely for the purpose of bail and can not be considered to be in existence as on today. Lastly, it was submitted that no criminal court has control over this amount or house property. The criminal courts are not for the recovery of the amount. Further, an interesting question would arise as to whether the person can be deprived of his right over the amount for an allegation that someone has committed some offence. There are no allegations that the amount of fixed deposit receipts was earned by the deceased applicant by committing fraud. It was further pointed out that till this date, no chargesheet is filed and therefore on this count, the learned counsel submitted that the order, as prayed, may be passed. 10. In support of his submissions, learned counsel Mr. Sant relied on the ratio laid down in GovindPrasad Vs. The State of West Bengal, 1975 Cri.L.J. 1249 wherein the meaning of word ‘bail’ has been explained. 11. As against this, the learned A.P.P. Mr. P.P. More submitted as under:- That the order dated 7th February, 2011 would clearly indicate that the court was not inclined to release the deceased applicant on bail, though he was an old aged person and was allegedly in intensive care unit. 11. As against this, the learned A.P.P. Mr. P.P. More submitted as under:- That the order dated 7th February, 2011 would clearly indicate that the court was not inclined to release the deceased applicant on bail, though he was an old aged person and was allegedly in intensive care unit. However, amidst the dictation of the order dated 7th February, 2011, the learned Senior counsel for the deceased applicant made certain submissions for filing proposal on the next day. The proposal cum undertaking signed by the present applicant nos.2 and 3 was not only for the deceased applicant but also on their own behalf, they being the family members of the deceased applicant/accused. . The same came to be accepted by the Hon’ble Court and the deceased applicant was released on bail. While the undertaking of the deceased and the present applicant nos. 2 and 3 was accepted, additional conditions were put by the Court as detailed supra. The F.I.R. and the case papers would show that the loan granted to Sayyed brothers was not only subject of registration of the crime but the F.I.R. filed by Jayesh P. Doshi, Chartered Accountant, after carrying the detail inspection on the directions of the competent authority, prima facie revealed the following facts:- a) Loan to Sayyed Ali brothers amounting to Rs.24,66,000/-was granted though they were already defaulters of the bank and the proceedings for recovery of the said loan had already started. b) Illegal concession in recovery of Rs.94,00,000/-was given. c) A branch of the bank was opened brazenly at Kasoda and Paldhi without obtaining necessary license from Reserve Bank of India. d) In many cases, the loan against pledging of gold and silver was sanctioned on the basis of the certificate of the debtor himself regarding purity of the metal and no authorized examiner in this regard was ever appointed in Erandol branch of the bank. e) Certain evasion of payment of stamp duty was also there. f) There were interpolations and erasures in the proceedings of the bank. Certain resolutions were ante-dated by deceased applicant Narayan and the Manager of the branch namely Purushottam Kashinath Kulkarni. g) Total loss is calculated at Rupees 24 to 25 crores. 12. e) Certain evasion of payment of stamp duty was also there. f) There were interpolations and erasures in the proceedings of the bank. Certain resolutions were ante-dated by deceased applicant Narayan and the Manager of the branch namely Purushottam Kashinath Kulkarni. g) Total loss is calculated at Rupees 24 to 25 crores. 12. It was further submitted by learned A.P.P that though all these allegations supported by documentary evidence were there, the deceased applicant was released on bail by accepting the limited undertaking to the extent of securing the recovery of loan of Rs. 24,66,000/-only granted to Sayyed brothers only. The undertaking given to the Court was not for a period of conclusion of the trial or any specific period but till the loan granted to Sayyed brothers is recovered. It is an undertaking given under the signatures of the present applicant nos.2 and 3 for the deceased applicant. It is a promise given to the Court for the purpose of securing release of the deceased applicant on bail. In the circumstances, the life of the said promise is not till the conclusion of the trial or abatement of the same as against the deceased applicant but till the recovery of the loan disbursed to Sayyed brothers. The limited promise regarding limited part of the liability of the deceased applicant, irrespective of his other alleged liabilities, as is detailed supra, now cannot be said to have been abated only because of the death of the deceased applicant/accused. The life of the undertaking is till the recovery of the loan and therefore, it cannot be said that the order has become infructuous. 13. In the circumstances, submitting that it was not the conditional order, but the order passed on the basis of an undertaking given by the deceased applicant as well as present applicant nos. 2 and 3, being in nature of a promise to the Court, learned A.P.P. submitted that the said undertaking would come to an end only when the loan granted and disbursed to Sayyed brothers is fully recovered. The learned A.P.P. therefore wanted that the present application be dismissed. 14. The law of ‘bail’ has been evolved in order to secure balance between the fundamental right of freedom and the need of effective administration of criminal justice. The learned A.P.P. therefore wanted that the present application be dismissed. 14. The law of ‘bail’ has been evolved in order to secure balance between the fundamental right of freedom and the need of effective administration of criminal justice. In a given situation, the Court may or may not release the accused on bail by considering the various factors before it. In the present case, what we find is that the Court did not release the deceased applicant/accused on the conditions imposed by itself regarding the fixed deposits or the house property but on the basis of the undertaking given by the deceased applicant as well as the present applicant nos. 2 and 3. The undertaking showed more specifically that it was for a period not till the conclusion of the trial but till the loan amount advanced to Sayyed brothers is completely recovered. 15. The fact that as the deceased applicant was allegedly in I.C.U., at that time, could not make the undertaking a compulsive undertaking as has been sought to be canvassed before the Court. Further, it would not lie in the mouth of anybody to say that the Court compelled anybody to give an undertaking as dictated by it. On the other hand, the undertaking was limited only to the recovery of the loan disbursed to Sayyed brothers and not as regards any other alleged misappropriation, etc. 16. In view of this fact, though agreeing in law with the learned counsel for the applicants that the order for releasing the accused on bail would end on the death of the accused, the undertaking given by the deceased applicant/accused and the present applicant nos.2 and 3 would not come to an end in view of the clear undertaking that it would end only on the complete recovery of the loan amount disbursed to Sayyed brothers. 17. The word ‘undertaking’ has been equated with a guarantee or promise to a court to act in certain manner. The breach of the undertaking as far as personal action is concerned, may entail into an action for contempt and if related to property, then execution as against the property. 17. The word ‘undertaking’ has been equated with a guarantee or promise to a court to act in certain manner. The breach of the undertaking as far as personal action is concerned, may entail into an action for contempt and if related to property, then execution as against the property. The illustration (e) of section 74 of the Indian Contract Act, 1872, which provides for compensation for breach of contract, where the penalty is stipulated for, reads as under:- “(e) A, who owes money to B, a money lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty and B is only entitled to reasonable compensation in case of breach.” 18. It is thus a formal promise or pledge entered into by a person and if the undertaking is given to the Court, then additionally it is a promise to act in a particular manner upon acceptance of an undertaking by the Court. It is necessary to bear in mind that while deceased accused/applicant and the present applicant nos.2 and 3 gave the undertaking as detailed supra, the Court, additionally imposed certain conditions for release of the deceased applicant/accused on bail. The undertaking, therefore, was not a ‘condition’ as has been sought to be canvassed by the learned counsel for the applicants, but is an undertaking given to the Court which would expire in accepted contingency i.e. the recovery of the loan amount disbursed to Sayyed brothers. 19. In this view of the matter, therefore, the application is liable to be dismissed and the same is accordingly dismissed, without any order as to costs.