1 jg.apl 337.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Application (APL) No. 337 of 2017
(1) Uttamrao Jaggannathrao Warkad
Aged about 70 years,
President of Akshya Nagri Sahakari
Pat Sanstha Maryadit, Lakhani.
Having registration No. 1132
R/o : Lakhani, District : Bhandara.
(2) Umrao Motiramji Bawankule
Aged about 65 years,
Vice President of Akshya Nagri Sahakari
Pat Sanstha Maryadit, Lakhani.
R/o : Lakhani, District : Bhandara.
(3) Dewaji Tukaramji Padole
Aged about 64 years,
Secretary of Akshya Nagri Sahakari
Pat Sanstha Maryadit, Lakhani.
R/o : Lakhani, District : Bhandara.
(4) Deorao Vithobaji Chachere
Aged about 65 years,
Assistant Secretary of Akshya
Nagri Sahakari Pat Sanstha
Maryadit, Lakhani.
R/o : Lakhani, District : Bhandara. .... Applicants
// Versus //
(1) State of Maharashtra
Through its Police Station Officer,
Police Station, Lakhani,
District : Bhandara.
(2) Shri Shrikant S. Supe
District Special Auditor Class I
Cooperative Societies, Bhandara.
Office at Rajgopalchari Ward,
Targhar, Near Motghare Fataka
Center, Bhandara.
District : Bhandara. .... Respondents
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Ms. Rucha Pande, Advocate h/f Shri S. S. Ghate, Advocate for the
applicants
Shri A. M. Joshi, Additional Public Prosecutor for the respondents
CORAM : SMT. VASANTI A NAIK AND
M. G. GIRATKAR, JJ.
DATE : 25-9-2017.
ORAL JUDGMENT (Per : SMT. VASANTI A NAIK, J.) The criminal application is admitted and heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. By this criminal application, the four applicants i.e. Uttamrao Warkad, Umrao Bawankule, Dewaji Padole and Deorao Chachere have sought for the quashing and setting aside of the First Information Report registered against them for the offences punishable under Sections 408, 409, 477-A and 420 read with Section 34 of the Penal Code.
3. The applicants are the President, Vice President, Secretary and Assistant Secretary of Akshya Nagri Sahakari Pat Sanstha Maryadit, Lakhani. The object of the said society is to advance loans to its members and also to receive deposits. The accused nos. 5, 6 and 7 in the First Information Report are the pigmy agents. The accused no. 8 is a software engineer working on computer maintenance. During the years 2014-15 and 2015-16, an amount of Rs. 33,99,370/- was not reflected in the books of account though the same was received by the society. On .....3/-
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3 jg.apl 337.17.odt realising the said flaw, the applicants decided to secure a fresh audit report from the official forensic auditor. A report was lodged by the auditor of the society Shri Motwani and in respect of the allegation of defalcation of the amount, an enquiry was conducted under the provisions of the Maharashtra Co-operative Societies Act. As per the enquiry report, some of the other accused whose names are mentioned in the first information report were involved in the misappropriation of the funds of the society. As per the enquiry report, the applicants had no role to play except that at the relevant time they were the President, Vice President, Secretary and Assistant Secretary of the society. On the basis of the said enquiry report, a written complaint was made by Shri Shrikant Supe, District Special Auditor and the first information report was registered against the applicants along with the other accused, for the offences punishable under Section 408, 409, 477-A, 420 read with Section 34 of the Penal Code.
4. Ms. Pande, the learned counsel for the applicants submitted that even if, the allegations in the FIR and the findings in the enquiry report are accepted at their face value in the entirety, the offences under Sections 408, 409, 477-A and 420 of the Penal Code cannot be prima facie made out against the applicants. It is submitted that there are no allegations against the applicants either in the first information report or .....4/-
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4 jg.apl 337.17.odt the enquiry report prepared under the provisions of the Maharashtra Co-operative Societies Act. It is submitted that in any case, offences could not have been registered against the applicants for cheating, criminal breach of trust etc. as no allegations are levelled against the applicants either in the first information report or the enquiry report, in respect of the said offences.
5. Shri Joshi, the learned Additional Public Prosecutor appearing for the respondents has submitted that in the enquiry report, there is an observation that the applicant no. 3 Shri Dewaji Padole is the relative of the Manager and as he had not kept any control over the pigmy agents, the funds of the society have been misappropriated. It is submitted that since at the relevant time, the applicants were the office bearers and certain funds of the society are misappropriated, the first information report was registered against the applicants.
6. We have perused the provisions of Sections 405, 408, 409, 415, 420 and 477 of the Penal Code. On a reading of the said provisions, it is clear that the offences could not have been registered against the applicants under Section 408, 409, 420 and 477-A of the Penal Code. Section 408 of the Penal Code provides the punishment for the offence of criminal breach of trust by a clerk or servant. The applicants are not .....5/-
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5 jg.apl 337.17.odt clerks or servants of the society. They are the office bearers of the
society. Section 409 of the Penal Code provides the punishment for the offence of criminal breach of trust by a public servant, banker, merchant or agent. Section 405 of the Penal Code defines criminal breach of trust. For committing an offence of criminal breach of trust, it would be necessary for a person who is entrusted with the property or who has a dominion over the property to dishonestly misappropriate the property or convert the property as their own or dispose of the property in violation of any law. There is no allegation against the applicants in the FIR or in the enquiry report that they have in any manner dishonestly misappropriated or converted the property entrusted to them, as their own or disposed of the property in violation of the law. Similarly, the offence of cheating could not have been registered against the applicant. For the commission of the offence of cheating, it would be necessary for a person to dishonestly induce the person deceived to deliver any property to him or to make, alter or destroy the whole or any part of a valuable security. There is no allegation either in the FIR or the enquiry report that the applicants were involved in the offence of cheating. Similar would be our finding in respect of the registration of the offence under Section 477-A of the Penal Code. The offence under Section 477-A could be committed by a clerk, officer or servant, if he wilfully and with an intent to defraud, destroys, alters, mutilates or falsifies any valuable .....6/-
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6 jg.apl 337.17.odt security or account which belongs to, or is in the possession of his employer. The said provision could not have been applied to the applicants. In fact, the applicants had noticed some irregularities in the maintenance of the accounts of the society and Shri Motwani, the auditor of the society had lodged the report. On the basis of the report, an enquiry was made in the affairs of the society. The enquiry report, however, does not record a finding that any of the applicants were in any manner whatsoever, responsible for the defalcation of the society's fund. There is no allegation in the first information report or the enquiry report that could have resulted in the registration of the first information report against the applicants under Sections 408, 409, 420 and 477-A of the Penal code. While registering the FIR against the persons against whom certain findings were recorded in the enquiry report, the FIR was wrongfully registered against the applicants.
7. Hence, for the reasons aforesaid, the criminal application is allowed. The First Information Report registered against the applicants for the offences punishable under Sections 408, 409, 420, 477-A read with Section 34 of the Penal Code is hereby quashed and set aside. Order accordingly.
JUDGE JUDGE
wasnik
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