TMI Blog2022 (2) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... is revealed in the investigation that a huge sum of cash was withdrawn on vouchers and for a corresponding period, substantial deposits have been made in the personal Accounts of those, who were in charge of the Trust, i.e. Applicant Ashok Gandole and others, the matter requires investigation as during investigation, the source of Rs.7,00,00,000/- would be traced and, therefore, at this stage, it cannot be said that there is nothing to investigate because the Auditor has made a statement before the Enforcement Directorate. As regards the contention that the Respondent No.2 is on the run and is avoiding investigation by the Enforcement Directorate, the learned Senior Advocate for Respondent No.2 submitted that Respondent No.2 has taken exemption from the Enforcement Directorate and thereafter, no summons have been issued by the Enforcement Directorate, and it is entirely incorrect to state that the Respondent No.2 is on the run. Except asserting this orally, nothing further is pointed out to us by the Applicants that Respondent No.2 is avoiding investigating by the Enforcement Directorate. The Enforcement Directorate in the complaint itself has stated that it has not drawn any co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of the affairs of Janshikshan Sanstha, Washim and Mahila Utkarsh Pratisthan, Risod of which the Respondent no.2- Complainant is the chairperson, which runs various educational institutions. 3) Applicant Vinod Pandhare in Criminal Application No.599/2020 was working as an Office Superintendent in a D-Pharma College. 4) Applicant Santosh Somani in Criminal Application No.600/2020 was working as an Accountant in the Ayurved College, Hospital and Research Centre run by the Mahila Utkarsh Pratishthan, which runs B.A.M.S. Courses. 5) Applicant Bharat Deogire in Criminal Application No.601/2020 is related to Ashok Gandole Applicant in Criminal Application No.602/2020 and is the brother of the wife of Ashok Gandole. This Applicant was also a Director in Mahila Utkarsh Pratishthan. 6) The Applicants in Criminal Application No.602/2020 are connected with each other. Applicant No.1 Ashok Gandole worked as a Secretary in Mahila Utkarsha Pratishthan from 11 October 2003 to June 2019. Applicant No.2 Varsha Helaskar is his wife, who was Vice President. Applicant No.3 Ganesh Dhole is the brother of Applicant No.2 Varsha and Joint Secretary. Applicant No.4 Aruna Halge is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh, i.e. total Rs.9,48,51,067/-, Varsha Helaskar misappropriated amount of Rs.37,00,000/- and Dinesh Dorsetwar misappropriated amount of Rs.6,50,000/-. The Complainant further stated that these persons misused the important documents of the Trust and misappropriated the amounts. It was stated that their activities substantially impacted the financial health of the Trust and, therefore, Respondent No.2- Complainant, who is President of the Trust, established an Enquiry Committee, which called for all the details from Ashok Gandole, but he did not give satisfactory answers. It was further stated that Ashok Gandole, Upendra Mule, Varsha Helaskar and Dinesh Dorsetwar threatened the Office Bearers of the Trust that they would be implicated in a false case if the information was given to the Police or any other person. Respondent No.2- Complainant also made allegations against Vinod Pandhare, Accountant of the Trust. On these allegations, the First Information Report was lodged against 12 persons. 9) The Applicants, by filing these applications under Section 482 of the Code of Criminal Procedure, are seeking to quash this FIR No.389/2020 lodged at Police Station, Risod, District Washi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged cognizable crime. Therefore, if a cognizable offence is disclosed from the FIR, the Court will normally not interfere with the investigation and will permit investigation into the offence to be completed. Further, the Court will have to keep in mind that the FIR is not an encyclopedia, and when the investigation is in progress, the Court should not look into the merits of the allegations in the FIR. The Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others [2021 SCC Online SC 315] , has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an FIR/complaint, quashing of which is sought, the court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the FIR/complaint. The power under Section 482 Cr. P. C. is very wide, but conferment of wide power requires the court to be cautious. The Supreme Court has emphasised that though the court has the power to quash the FIR in suitable cases, the court, when it exercises power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Respondent No.2 makes the incident highly improbable. Secondly, it was contended that the call detail records would show that the Applicants were not at Risod when the incident took place and, therefore, the Court should peruse the call detail records. 17) The learned Special Counsel for the State has placed the extract of the call detail records before us. It is pointed out that Ashok Narayan Gandole used cell phone Nos.9130814441 and 9423173777 between 11 a.m. and 12 noon at Washim. Varsha Ashok Gandole/Helaskar used cell phone No.9822058608 between 11 a.m. and 12 noon at Washim. As regards Samadhan Madhukar Helaskar, he used cell phone No.9881946383, but record is not found. Santosh Uddhav Helaskar used cell phone No.9623191301 between 11 a.m. and 12 noon at Buldhana. Dinesh Dashrath Dorsetwar used cell phone No.9765252131 between 11 a.m. and 12 noon at Washim. As regards Bhagawat Chhagan Pedhe, he used cell phone No.9422939095 between 11 a.m. and 12 noon at Washim and in respect of cell phone No.9130804441 record is not found. As regards Dhananjay Manohar Halge, he used cell phone No.9767316755 between 11 a.m. and 12 noon at Washim. As regards Mahesh alias Vivek Dnya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the time and place where the incident of snatching cash and documents took place. To counter, the learned Senior Advocate for the Applicants submitted that this is an improvement, and it was done after the interim order of this Court. According to us, it is not necessary even to go to the supplementary statement as in the FIR itself, it could be read as the incident has taken place at Washim and, therefore, at this stage, it cannot be said that there is an improvement. Furthermore, the FIR need not contain all the details and it is not an encyclopaedia as stressed by the Apex Court in various decisions. 21) The learned Senior Advocate for the Applicants has relied upon the decision of the Supreme Court in the case of Prashant Bharti vs State (NCT of Delhi) [(2013) 9 SCC 293] to contend that mobile call details can be looked into while considering whether the case is made out for quashing the FIR. Firstly, even assuming that call detail records are to be considered, they do not support the case of the Applicants. Secondly, in Prashant Bharati (supra), the case was whether the complainant was sexually assaulted. The Supreme Court considered eleven circumstances, and not only c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an abuse of the position of trust by Ashok Gandole and others in misappropriation of funds of the Trust and the Educational Institutes, which are receiving public funds. The FIR is a composite FIR, and this is not the case of stand-alone theft, but part of the design as alleged to misappropriate the amounts. Therefore, the Applicants' contention to sever the incident of 7 July 2019 and read it differently from other allegations in the FIR cannot be considered even assuming that case is made out by the Applicants qua the incident of 7 July 2019. 25) In respect of the allegations in the FIR of misappropriation, the learned Special Counsel for the State has placed before us a chart indicating vouchers, which have been collected during the investigation and which show that a large number of cash amounts have been withdrawn by the Applicants/ Accused. Even Chartered Account has received Rs.1,00,00,000/-. 26) The allegations of cash amounts withdrawn on simple vouchers are : Ashok Gandole withdrew amount of Rs.19,76,400/- from B.P.S., Rs.5,14,59,400/- from B.A.M.S., Rs.1,69,04,000/- from B.Pharm, Rs.1,45,86,086/- from D.Pharm (total Rs.8,49,25,886/-). Varsha Gandole/Helaskar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that during the investigation, Applicant No.7 Haribhau Deogire was apprehended on 9 July 2019, and he was found in possession of gold ornaments worth Rs.48,20,728/- and cash of Rs.15,00,284/-. It is pertinent to note that incident of 7 July 2019 of taking away the cash of Rs.7,00,00,000/- and of 9 July 2019 are in proximity. During the investigation, it is also revealed that Applicant Ashok Gandole deposited Rs.1,56,18,000/- in his personal Account. He has also obtained a gold loan worth Rs.57,75,000/-. He has also purchased immovable properties for valuable consideration of Rs.2,32,94,455/-. The Investigating Agencies have stated that Applicant Varsha Helaskar has obtained a gold loan of Rs.51,28,000/- from a Cooperative Bank, and Applicant Upendra Muley has purchased a bungalow for valuable consideration of Rs.1,33,00,000/-. During the investigation, it is further revealed that Ashok Gandole has formed a Company named Bhavana Agro Products and Services Pvt. Ltd., in which amounts to the tune of Rs.11,66,91,400/- have been deposited. An amount of Rs.2,25,60,000/- has been transferred to the Account of this Company. According to Investigating Agency, the amount is transferred fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statements made in this complaint of the Enforcement Director on the case for quashing this FIR, submitted that the statements made in the complaint would make the present FIR suspicious. 34) The complaint filed by the Assistant Director of the Enforcement Directorate refers to the present FIR as the predicate offence. It states that Respondent No.2, who is Chairperson of the Mahila Utkarsh Pratisthan, has filed the present FIR against the Applicants herein for misappropriation. Reference is also made to the incident of 7 July 2019. The learned Senior Advocate for the Applicants contended that the Enforcement Directorate had recorded the statements of various persons, and our attention was drawn to the statement of Mohammad Athar, who is accused in the complaint filed by the Enforcement Directorate. The learned Senior Advocate submitted that it is stated in the complaint that the cash was withdrawn at the behest of Respondent No.2, and the attempt is that the blame of the fraud committed is shifted on Ashok Gandole and others when Saeed Khan was diverting funds. The learned Senior Advocate also submitted that there is a statement about cash theft of Rs.7,00,00,000/- in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led offences, which are referred to as predicate offences and, therefore, observations made in the complaint filed by the Enforcement Directorate are entirely irrelevant. It is submitted that even Enforcement Directorate is continuing further investigation, and the statements made in the complaint of the Enforcement Directorate cannot form the basis for quashing the present FIR. According to the Applicants, the Enforcement Directorate can investigate even the predicate offences. It was also pointed out that the accused in the complaint and the present FIR are different. 36) Firstly, as stated earlier, the scope of enquiry in these Applications is whether investigation in the allegations made in the present FIR is necessary or not and whether cognizable offence is made out. Even assuming there are certain statements in the complaint filed by the Enforcement Directorate, the complaint of the Enforcement Directorate itself records that investigation as regards the role of Respondent no.2 in misappropriation of funds of a Cooperative Society is still undergoing. Secondly, it is still a complaint to be adjudicated upon by the Court. It cannot be considered as a final word and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Applicants, and they have purchased properties, and it is likely that it is the balance amount of Rs.7,00,00,000/- which was lying in the cupboard of the office of Trust and it is precisely for this reason that investigation is necessary. The learned Senior Advocate for Respondent No.2 also submitted that it is the case of Respondent No.2 that misappropriation was over a substantial period of time and the amount of Rs.7,00,00,000/- was proceeds of this misappropriation. 39) According to us, once it is revealed in the investigation that a huge sum of cash was withdrawn on vouchers and for a corresponding period, substantial deposits have been made in the personal Accounts of those, who were in charge of the Trust, i.e. Applicant Ashok Gandole and others, the matter requires investigation as during investigation, the source of Rs.7,00,00,000/- would be traced and, therefore, at this stage, it cannot be said that there is nothing to investigate because the Auditor has made a statement before the Enforcement Directorate. 40) As regards the contention that the Respondent No.2 is on the run and is avoiding investigation by the Enforcement Directorate, the learned Senior Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at money was siphoned off from the Accounts of the Trust on cash withdrawal. Applicant Ashok Gandole and others are alleged to have deposits in their personal Accounts and have substantial properties. Therefore, at this stage, when the investigation is in progress, and all facts are not before the Court, the Court will have to allow the Police Authorities to carry on the investigation as cognizable offences stand disclosed. 43) The learned Senior Advocate for the Applicants has made an alternate submission that the interim order passed by the Division Bench of this Court that no coercive steps be taken and no charge-sheet be filed be continued and the present investigation be kept in abeyance till proceedings in Enforcement Directorate are complete. The learned Special Counsel for the State and learned Senior Advocate for the Respondent No.2 opposed the submission and relied upon the decision in Neeharika Infrastructure Pvt. Ltd. (supra) to contend that such order of no coercive steps and not to file charge-sheet being contrary to the law laid down by the Supreme Court, cannot be continued. It was also contended that there is no need to restrain the Investigating Authority in an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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