DAYANAND B NAYAK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD the learned Counsel appearing on behalf of each of the applicants and the learned Chief Public Prosecutor for the State.

(2.) ALL these three applications can be disposed of by a common order since the facts in all the three cases are interlinked and secondly the arguments have been advanced by the learned Counsel for the applicants in these three applications one after another and the learned Chief Public Prosecutor has given reply to all the three applications which have been filed. Essentially, the relief which is claimed in all these three applications is that the applicants are seeking an order of anticipatory bail in the event of their arrest in connection with the FIR which is filed on 20/1/2006 in which it is inter alia alleged that the applicant Shri Dayanand Nayak has misused his position as a public servant and other two applicants viz. Smt. Komal Dayanand Nayak - the wife of the public servant and Shri Padte - the applicant in the third application, had abetted the public servant in amassing wealth which was disproportionate to the known sources of his income and, therefore, the public servant has committed an offence punishable under section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter called "the said Act") and the other two applicants viz. the wife of the public servant and his alleged friend Shri Padte had abetted him in the commission of the said offence and were, therefore, liable to be prosecuted under the provisions of section 13(1)(e) of the said Act read with section 109 of the Indian Penal Code.

(3.) SHRI Mundargi, learned Counsel appearing on behalf of Smt. Komal Dayanand Nayak - wife of Shri Dayanand Nayak, submitted that so far as the said applicant is concerned, she was employed since 1989 and had worked initially at Chennai with one P. Rajaratnam and, thereafter, she was transferred to Mumbai and was working with the Company known as Ojus Housing Finance Pvt. Ltd. He submitted that the FIR discloses that the income of the said applicant prior to 2000-2001had not been taken into consideration though she had worked since 1989. He further submitted that all the entries in the accounts of the said Company "Ojus Housing Finance Pvt. Ltd. were the entries where monies were deposited by cheques. He submitted that though Ojus Housing Finance Pvt. Ltd. was purchased by the wife of the applicant" Dayanand Nayak in the year 2002, subsequently, she had resigned from the said Company and an intimation to that effect had been given to the Registrar of Companies. He pointed out from the various allegations which were made in the FIR against his client that the said transactions were in no way concerned with the public servant and that they were transactions where the other persons viz. P. Rajaratnam, Manivelan and Naidu were involved who had made representations to various persons in Punjab and other places and who had deposited the said amount in the accounts of the said Company. Some cheques were dishonoured. Some cheques were honoured and theamounts were withdrawn by her in cash and payments had been made. He submitted that in respect of the amounts which were received from the persons from Punjab are concerned, a complaint had been registered against various persons and the investigation had been carried out separately in respect of the assurances which were given by Shri Naidu, Manivelan and others and the applicant Mrs. Komal Dayanand Nayak had not met the complainant in the said complaint and she neither had any concern with the said transaction nor had her husband any connection with the said transaction as his name also had not figured anywhere in the complaint which was filed by the people in Punjab. He submitted that it was not a case of Benami transactions as the persons who had deposited the amount from Punjab were not fictitious persons but their existence was beyond doubt and they had prosecuted the persons who were responsible for perpetrating the fraud. He immediately invited my attention to the other entries which were made in the FIR and strenuously submitted that all those entries indicated, at the highest, that certain cheques were deposited in the Bank Accounts of the Company which cheques, though the amounts involved were huge, had been dishonoured. He submitted that all these transactions did not in any way establish any link with the public servant - Dayanand Nayak and, therefore, it could not be said that Smt. Komal Nayak- the applicant had abetted her husband in acquiring and amassing the wealth. He invited my attention to the judgment of the Supreme Court in the case of D.S. Chennai Vs. K. Inbasagaran reported in 2006 All M.R. (Cri) 304 (S.C.) wherein the Supreme Court had held that if the wife of the public servant had taken responsibility towards the unaccounted money which was found in the house which was raided by the party of the Income-tax Department, that was sufficient explanation, though the wife, in her statement, had admitted that she had committed a breach of the provisions of the Income-tax Act or had committed breach of other provisions of law by selling machinery of the Company. He invited my attention to the observations made by the Supreme Court in the said case. He further submitted that so far as the three flats which were said to have been acquired by the wife of the applicant, he submitted that the documentary evidence indicated that one was taken on lease, the other flat was purchased for a consideration of Rs.10 lakhs which was, in fact, the value which was arrived at on the basis of 300 times rent of the said flat and lastly the third flat had been purchased by her by obtaining a loan from the Bank and part of the amount was paid in cash and the said amount of loan had not been repaid. He submitted that, therefore, so far as these three properties are concerned, there is sufficient material to indicate that the allegations made by the Investigating Officer in the FIR was prima facie not correct and that a fishing and roving inquiry was being made in respect of the affairs of the Company where the applicant-Smt. Komal Nayak had interest along with some other persons who were unconnected with the public servant Shri Dayanand Nayak. He submitted that the custodial interrogation of the applicant who is the wife of the public servant was not essential and, therefore, she was entitled to be released on bail in the event of her arrest in connection with the said case.