Maruti S/O Khandu Rohakale And Ors vs The State Of Maharashtra
2016 Latest Caselaw 1524 Bom

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                                          (1)




                                                                               
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD




                                                       
                      CRIMINAL WRIT PETITION NO. 1322 OF 2015

     1.       Maruti s/o Khandu Rohakale,
              Age: 50 years, Occu: Agri. & Business,
              R/o. Bhalwani, Tq. Parner,




                                                      
              Dist. Ahmednagar

     2.       Chimaji s/o Khandu Rohakale,
              Age: 40 years, Occu: Agri. & Business,
              R/o. Bhalwani, Tq. Parner,




                                        
              Dist. Ahmednagar

     3.
                             
              Balwant s/o Khandu Rohakale,
              Age: , Occu: Agri. & Business,
              R/o. Bhalwani, Tq. Parner,
              Dist. Ahmednagar                         ..PETITIONERS
                            
              VERSUS

     The State of Maharashtra,
      

     Through Police Station Officer,
     Kotwali Police Station,
     Dist. Ahmednagar                                  ..RESPONDENT
   



     Mr N. V. Gaware, Advocate for petitioners;
     Mr R. V. Dasalkar, Addl. Public Prosecutor for respondent





                                           CORAM : N.W. SAMBRE, J.

                                            DATE       : 15th April, 2016





     ORAL JUDGMENT :

Heard Mr Gaware, learned Counsel appearing on behalf of the

petitioners and learned Addl. Public Prosecutor on behalf of the

respondent.

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2. Rule. With consent of the parties, the matter is heard finally.

3. By way of present petition, the petitioners are seeking discharge

from proceedings, by quashing order dated 11 th September, 2015, passed

by Additional Sessions Judge & Designated Court, Ahmednagar, below

Exh.84, in Sessions Case No.323 of 2011, thereby refusing to discharge

the petitioners.

4.

The prosecution case against the petitioners is that, they were the

co-brother of the Chairman of Sampada Nagari Co-operative Credit

Society. It is then claimed that, without any collateral security, they have

obtained loan of Rs.5 Lacs and Rs.10 Lacs, respectively, some time in

2002 and 2009. In the first information report, it is claimed that the details

of amounts outstanding against them, are as under :-

   



      Sr.     Name of Director/Relative   Post/Relation   Amount     Date         Outstanding
      No.                                                 sanctioned              amount





      1       Rohokale Maruti Khandu      Brother-in-law 500000       12/01/02    1894775
      2       Rohokale Chimaji Khandu     Brother-in-law 1000000      14/04/09    1072009
      3       Rohokale Balwant Khandu Brother-in-law 1000000          14/04/09    1691241

5. The statutory auditor, namely, Deorao Baraskar had conducted

audit of the said co-operative credit society and had noticed the above

referred short-fall, which resulted into registration of C.R. No.I-266 of 2011

on 1st August, 2011, with police station, Kotwali, Ahmednagar, for offences

punishable under sections 177, 417, 420, 465, 468, 471 and 120 (B) of the

Indian Penal Code and section 3 of the Maharashtra Protection of Small

Depositors Interest Act, 1999.

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6. After carrying out necessary investigation, charge-sheet came to be

submitted against the petitioners.

7. Before framing of the charge in the criminal case, the petitioners

moved an application (Exh.84) seeking discharge, on the ground that

before registration of the crime in question they had already repaid the

entire loan amount outstanding against them and there was no intention

whatsoever on their part to commit the crime in question. The said

application came to be rejected by the learned Sessions Judge on 11 th

September, 2015. Thus, present writ petition for discharge.

8. Mr Gaware would submit that the co-operative credit society from

which the present petitioners had taken loan had already certified that they

have repaid the respective loan amounts outstanding against them much

prior to lodging of the first information report. So as to substantiate his

contention, learned Counsel has invited my attention to the 'no dues

certificate' issued by the said society. He would then also rely upon the

extracts of the loan accounts, so as to depict that the amount as is

mentioned to be outstanding against the respective loan accounts of the

petitioners was paid much prior to filing of the first information report.

9. Per contra, learned Addl. Public Prosecutor submits that the

petitioners are brothers-in-law of the original Chairman, namely, Dnyandeo

who was instrumental in sanctioning loan to them without any collateral

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security. According to him, even if the amount is repaid by the petitioners,

still the fact remains that the prosecution needs to be continued, as the

loan was obtained by them by playing fraud on the society. He would then

submit that at this stage of the matter, it is unfair to infer that there is no

involvement of the petitioners in commission of the crime in question. He

submits that the present petition as such be dismissed.

10. Upon perusal of the first information report lodged by statutory

auditor, pursuant to the provisions of sections 82 and 83 of the

Maharashtra Co-operative Societies Act, it is required to be noted that

there are specific attributions against the petitioners as regards obtaining

loan, their relation with the Chairman and outstanding amount as on the

date of the audit. Upon perusal of no certificates which are issued by the

co-operative credit society, of which the petitioners were members and had

obtained loan, it could be inferred that the petitioners have already paid

the entire loan amount and there is 'no dues certificate' issued in their

favour by the said society. The extracts of loan accounts of the petitioners

depict specific entries as regards repayment of the amount as is alleged to

have been outstanding against their loan accounts, as stated in the first

information report, much prior to the date of lodging of the first information

report.

11. What is required to be assessed in the above referred background is

whether there was any criminal intention on the part of the petitioners to

commit the crime in question, particularly of defrauding or committing any

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default in repayment of loan by practicing fraud on the co-operative credit

society.

12. Upon perusal of the charge-sheet, but for the statement of Assistant

Auditor, which is on the same line of that of complainant auditor, it appears

that there is hardly any material on record which depicts involvement of the

petitioners in the crime in question.

13.

Apart from above, in response to a query raised by this Court as to

dis-entitlement of relatives of the office bearers of getting loan from the co-

operative credit society in question, nothing is brought to my notice, from

which it could be inferred that the petitioners - accused have committed

the crime in question.

14. In the light of above, criminal writ petition stands allowed.

Rule made absolute in terms of prayer clause (B).

(N.W. SAMBRE, J.)

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