Bombay High Court
The Savada Merchant Co-Op vs The State Of Maharashtra on 14 October, 2013
Bench: A.M. Thipsay
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO.798 OF 2013
WITH
CRIMINAL APPLICATION NO.799/2013
WITH
CRIMINAL APPLICATION NO.815/2013
WITH
CRIMINAL APPLICATION NO.817/2013
WITH
CRIMINAL APPLICATION NO.818/2013
THE SAVADA MERCHANT CO-OP
CREDIT SOCIETY LTD.
AND OTHERS. ... APPLICANTS.
VERSUS
THE STATE OF MAHARASHTRA
AND ANOHTER. ... RESPONDENTS.
...
Advocate for Applicants : Mr.Deshmukh Bhausaheb S
APP for Respondent No.1: Mr.B.L. Dhas.
Advocate for Respondent No.2 :Mr. Bhokarikar Madhav M
...
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WITH
CRIMINAL APPLICATION NO.799/2013
THE SAVADA MERCHANT CO-OP
CREDIT SOCIETY LTD.
AND OTHERS. ... APPLICANTS.
VERSUS
THE STATE OF MAHARASHTRA
AND ANOHTER.
ig ... RESPONDENTS.
...
Advocate for Applicants : Mr.Deshmukh Bhausaheb S
APP for Respondent No.1: Mr.B.L. Dhas.
...
WITH
CRIMINAL APPLICATION NO.815/2013
THE SAVADA MERCHANT CO-OP
CREDIT SOCIETY LTD.
AND OTHERS. ... APPLICANTS.
VERSUS
THE STATE OF MAHARASHTRA
AND ANOHTER. ... RESPONDENTS.
...
Advocate for Applicants : Mr.Deshmukh Bhausaheb S
APP for Respondent No.1: Mr.B.L. Dhas.
Advocate for Respondent No.2 :Mr. Bhokarikar Madhav M
...
WITH
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CRIMINAL APPLICATION NO.817/2013
THE SAVADA MERCHANT CO-OP
CREDIT SOCIETY LTD.
AND OTHERS. ... APPLICANTS.
VERSUS
THE STATE OF MAHARASHTRA
AND ANOHTER. ... RESPONDENTS.
ig ...
Advocate for Applicants : Mr.Deshmukh Bhausaheb S
APP for Respondent No.1: Mr.B.L. Dhas.
Advocate for Respondent No.2 :Mr. Bhokarikar Madhav M
...
WITH
CRIMINAL APPLICATION NO.818/2013
THE SAVADA MERCHANT CO-OP
CREDIT SOCIETY LTD.
AND OTHERS. ... APPLICANTS.
VERSUS
THE STATE OF MAHARASHTRA
AND ANOHTER. ... RESPONDENTS.
...
Advocate for Applicants : Mr.Deshmukh Bhausaheb S
APP for Respondent No.1: Mr.B.L. Dhas.
Advocate for Respondent No.2 :Mr. Bhokarikar Madhav M
...
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CORAM : ABHAY M. THIPSAY, J.
14th OCTOBER, 2013.
ORAL ORDER:
1. All these applications can be conveniently
disposed of by this common order, as the applicants in
all these applications are the same and though the
respondent No.2 in these applications are different, the
facts are identical and the questions, needing
determination are also the same.
2. The applicants, in all these applications, are the
office bearers and officers of the Savada Merchant Co-
operative Credit Society Ltd., Savada, Tq. Raver, Dist.
Jalgaon (hereinafter referred to as the 'said society').
On separate complaints against them, filed by different
persons, alleging commission of offences punishable
under Section 409 of I.P.C. r.w. section 34 of I.P.C., the
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J.M.F.C., Amalner, has issued process against the
applicants, in all these cases, requiring them to answer
to the charge of an offence punishable under Section
409 of I.P.C. r.w. section 34 of I.P.C.
3. The substance of all these complaints is as
follows. That, the respective complaints were induced
by the applicants to invest the monies in the said
society on the assurance that they would be given good
interest and other facilities. The complainants, in
separate incidents, were assured that after the period
would be over, the entire amount invested by them with
the said society, would be repaid to the respective
complainants, with interest. That, the respective
complainants placed trust in the applicants and kept
various amounts in fixed deposits for different periods
with the said society. However, after the period of the
fixed deposit was over, the society did not pay back the
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amounts, kept by the respective complainants, to them.
That, the matter was taken by the respective
complainants to the Consumer Forum where also the
complainants have succeeded; but, still the applicants
have not given their amounts back.
4.
In my opinion, no offence is, prima facie, disclosed
from any of the complaints.
5. The whole basis of the complaints is that trusting
the office bearers of the said society, the respective
complainants invested their monies with the society, by
keeping them in fixed deposits for certain terms. That,
after the term was over, monies were not repaid to the
complainants. It is on the basis of that specific
averment, the applicants, who are said to be
responsible for the act of the said credit society, are
alleged to have committed criminal breach of trust.
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6. It is well settled, that money deposited by the
customer in a Bank or Credit Society does not amount
to 'entrustment' of the money with the Bank/Credit
Society. It is well settled that the relationship between
such person and the Banker would be of debtor and
creditor. The money so deposited, even if it is termed
as a 'fixed deposit', does not remain property of the
person who deposits the money; but, it becomes part of
the funds of the Bank/Credit Society. The Bank/Credit
Society is supposed to and, in fact, authorized to, use it
for their own business. Thus, the concept of
'entrustment' cannot be introduced at all, when such
money is kept in the Bank/Credit Society with the
understanding that the same would be repaid after
certain term with a certain rate of interest.
7. As a matter of fact, the person depositing such
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such amounts with a Bank/Credit Society and hoping
to get interest, is always well aware that the
Bank/Credit Society would be investing the money for
their business i.e. for disbursing loans to others or any
other business, which such Bank/Credit Society would
be interested in carrying on. Otherwise, such person
would never expect to get interest from the Bank over
the amounts invested by him. It is, therefore, more
than clear that the concept of 'entrustment' of money
cannot be brought into, with reference to the monies
deposited with the Bank/Credit Society which are, as
per the contract between such person and the
Bank/Credit Society, required to be repaid after a
certain period along with a certain rate of interest.
8. The learned Counsel for the complainants
submitted before this Court that there is an allegation
of the applicants of having deceived the complainants
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also. He drew my attention to some assertions in the
complaints wherein, some vague suggestions of the
applicants having cheated the complainant, have been
given. In this context, it may be observed that there is
no allegation of the applicants having committed an
offence under Section 420 of I.P.C. Moreover, process
has also not been issued with reference to that offence.
There is a categorical assertion of the applicants having
committed criminal breach of trust, which is not
consistent with the allegation of cheating, as is
suggested to have been made, at this stage. The only
reference to the applicants having 'deceived' the
respective complainants, is in the context of 'not
returning of the amounts' and that the 'deceiving' is
said to be only by 'committing criminal breach of trust'
in respect of these amounts. As a matter of fact, the
complaints themselves indicate that, on behalf of the
society, the complainants were being told that 'their
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monies would be paid when the monies advanced by the
society to various persons, as loans would be recovered'.
Thus, apart from whatever has been said above, the
complaints also fail to make out an element of
dishonesty with sufficient clarity. Therefore, the feeble
attempt to suggest that 'if not criminal breach of trust,
the applicants have committed cheating', does not
succeed.
9. The learned Counsel for the respective
complainants then made certain submissions, seeking
sympathy of this Court towards the complainants.
Some of the complainants are old and apparently, they
are in difficulty because of the inability to get the
amounts back. Indeed, though one may feel
sympathetic about such complainants, it would not be
proper to permit the machinery of criminal law to be
used for helping such complainants to recover their
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amounts. Such complainants can take recourse to a
civil remedy.
It also appears that a committee, termed as
District Level Action Committee, has been constituted
to ensure equitable distribution of the amounts to
various creditors of the said credit society, who are
similarly not paid the amounts.
10. Since the Committee is already taking steps to
ensure redressal of the grievances of different creditors,
including the present complainants, there would be no
question of passing any further orders, in the present
applications, as suggested by the learned Counsel for
the complainants. The complainants can very well
approach the said Committee and it is expected that
such committee will consider their cases,
sympathetically.
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11. The fact however, remains that no case of an
offence punishable under Section 409 of I.P.C. is
disclosed against any of the applicants. To permit
continuance of such proceedings would be abuse of the
process of criminal law. The proceedings, in all these
applications, therefore, are required to be quashed.
12. The applications are allowed. The impugned
orders are quashed.
The complaints shall stand dismissed.
The applications are disposed of in the above
terms.
(ABHAY M. THIPSAY, J.)
PLK/*
