Bombay High Court
Hambirrao Manikrao Pawar And Ors vs Babasaheb Mahadeo Patil And Anr on 7 March, 2016
Bench: Dr. Shalini Phansalkar-Joshi
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2623 OF 2014
Narayan Ramchandra Patil ]
Age - 65 years, Occ.: CEO, ]
Sangli District Primary Teachers ]
Co-operative Bank Ltd., Sangli. ] .... Petitioner
Versus
1. Babasaheb Mahadeo Patil ]
Aged - 66 years, Occu.: Retired, ]
R/of Dr. Pattabardhan Building, ]
North Shivaji Nagar, Sangli. ]
ig ]
2. State of Maharashtra ] .... Respondents
ALONG WITH
CRIMINAL WRIT PETITION NO.3236 OF 2014
1. Hambirrao Manikrao Pawar ]
Age 35 years, Occu. Service ]
]
2. Suryakant Yashwant Patil ]
Age Major, Occu. Service ]
]
3. Ramchandra Bapu Khot ]
Age Major, Occu. Service ]
]
4. Dagadu Lala Yevale ]
Age Major, Occu. Service ]
]
5. Tanaji Baburao Jadhav ]
Age Major, Occu. Service ]
]
6. Rajkumar Chintu Patil ]
Age Major, Occu. Service ]
]
7. Jagdish Sakharam Nalawade ]
Age Major, Occu. Service ]
1/12
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8. Tanaji Tukaram Jedage ]
Age Major, Occu. Service ]
]
9. Vikas Lalaso Shinde ]
Age Major, Occu. Service ]
]
10. Mahadeo Bhagwan Tavdar ]
Age Major, Occu. Retired ]
]
All Office bearers of c/o. Sangli District ]
Primary Teachers Co-operative Bank Ltd., ]
Sangli, Mahavir Nagar, Sangli. ] .... Petitioners
Versus
1. Babasaheb Mahadeo Patil ]
Aged - 66 years, Occu.: Retired, ]
R/of Dr. Pattabardhan Building,
ig ]
North Shivaji Nagar, Sangli. ]
]
2. State of Maharashtra ] .... Respondents
AND
CRIMINAL WRIT PETITION NO.3235 OF 2014
1. Shrikant Sitaram Mali ]
Age 42 years, Occu. Service ]
R/of Madgyal, Tal. Jath, Dist. Sangli. ]
]
2. Prataprao Parsharam Pawar ]
Age 55 years, Occu. Service ]
R/at Post Vita, Tal. Khanapur, Dist. Sangli. ]
]
3. Kisanrao Shankarrao Patil ]
Age 52 years, Occu. Service ]
R/of At Post Kapuskhed ]
Tal. Walva, Dist. Sangli. ]
]
4. Sayajirao Raghunath Patil ]
Age 42 years, Occu. Service ]
R/of At Post Shigaon, Tal. Walva, Dist. Sangli. ]
]
5. Prakash Krishan Vibhute ]
Age 41 years, Occu. Service ]
2/12
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R/of At Post Kavathe-Mahankal, ]
Tal. Kavathe Mahankal, Dist. Sangli. ]
]
6. Dyandeo Sukhdeo Bhosle ]
At Post Mahuli, Tal. Khanapure, Dist.Sangli. ] .... Petitioners
Versus
1. Babasaheb Mahadeo Patil ]
Aged - 66 years, Occu.: Retired, ]
R/of Dr. Pattabardhan Building, ]
North Shivaji Nagar, Sangli. ]
]
2. State of Maharashtra ] .... Respondents
Mr. Umesh Mankapure for the Petitioners.
Mr. Anilkumar K. Patil for Respondent No.1.
Mrs. A.S. Pai, A.P.P., for Respondent No.2-State.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
RESERVED ON : 22ND FEBRUARY 2016.
PRONOUNCED ON : 7TH MARCH 2016.
JUDGMENT :
1. Rule. Rule is made returnable forthwith, by consent. Heard learned
counsel for the parties.
2. As all these three Writ Petitions take an exception to the Judgment
and Order dated 28th March 2014 passed by the Sessions Judge, Sangli,
in Criminal Revision Petition No.277 of 2010, Criminal Revision Petition
No.278 of 2010 and Criminal Revision Petition No.2 of 2012, respectively,
they are being decided by this common order. By the impugned Judgment
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and Order, the learned Sessions Judge has confirmed the order passed
by the Chief Judicial Magistrate, Sangli, on 14 th December 2010 of issuing
process against the Petitioners and other co-accused for the various
offences punishable under Sections 406, 409, 463, 465, 468 and 472 r/w.
34 of IPC.
3. Brief facts of the Petitions are as follows :-
Respondent No.1 herein is the Original Complainant, who was
working as Branch Manager at Sangli District Primary Teachers Co-
operative Bank Limited. Some of the Petitioners are the Members of the
Managing Committee, whereas, others are the office bearers of the said
Bank. As per the Petitioners, while Respondent No.1 was working as
Branch Manager at Ramanand Nagar Branch, he has committed
misappropriation of huge amount of Rs.35,00,000/-. Hence, Criminal Case
was filed against him, which is pending. Apart from that, recovery
proceedings are also initiated by the Bank against Respondent No.1,
wherein his movable and immovable properties have been attached.
Arrest warrant has also been issued against Respondent No.1, since the
amount in question has not been paid by him in spite of decrees. In view
of the fraud committed by Respondent No.1, a Departmental Enquiry was
also initiated against him; as a result of which, he stood dismissed from
service.
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4. It is the contention of the Petitioners that, since Bank has initiated
these various proceedings against Respondent No.1 and has also
dismissed him from service, Respondent No.1 has filed several vexatious
litigations against the Bank and Members of its Managing Committee
before various authorities and Courts, only with an intention to ensure that
the Bank cannot prosecute legal remedies available with the Bank against
Respondent No.1.
5.
As per the Petitioners, the present complaint filed by Respondent
No.1 before the Trial Court is one of such complaints. In the said
complaint, which is registered as R.C.C. No.93 of 2008, Respondent No.1
has alleged that the Petitioners have committed misappropriation of the
amount of Provident Fund, which was deducted from his account and
from the accounts of other employees. It was stated in the complaint that,
though the amount was deducted from the salary of Respondent No.1 and
other employees, instead of depositing the said amount with the Provident
Fund Authority, the Petitioners herein had kept the said amount in a
separate account opened in the name of "Sevak Kayam Thev" and it was
done without consent of the employees or of Respondent No.1. It was
further his case that the amount of Rs.28,625/-, which was due to him
towards the amount deducted by the Bank as his Provident Fund dues, is
yet not deposited with the Provident Fund Authority and thus the
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Petitioners herein, who are the Members of the Managing Committee of
the Bank, have committed various offences of cheating and criminal
breach of trust.
6. Respondent No.1 has filed this complaint against, in all, 27 persons
and the Trial Court on the receipt of the complaint, sent it for investigation
under Section 156(3) of Cr.P.C. After carrying out necessary investigation,
P.I. of concerned Police Station filed a Report stating that no offence is
made out against the Petitioners. The Trial Court, however, after recording
the evidence of Respondent No.1, found that, though it was the liability of
the Petitioners herein to deposit the amount of Provident Fund deducted
from the salaries of the employees with the Provident Fund Authority, they
have not done so. Instead, they deposited the said amount in a separate
Bank Account opened in the name of "Sevak Kayam Thev". Therefore,
prima facie, the ingredients of the offences are made out. Accordingly, the
Trial Court issued process against all the 27 Accused, the Petitioners
herein, for the offences alleged against them.
7. Petitioners challenged this order before the Court of Sessions
Judge, Sangli, by preferring Criminal Revision Petition No.277 of 2010,
Criminal Revision Petition No.278 of 2010 and Criminal Revision Petition
No.2 of 2012, which, however, came to be dismissed. Hence, Petitioners
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have approached this Court for setting aside the order of the Trial Court
and the Revisional Court and for quashing of process issued against the
Petitioners.
8. It is urged by learned counsel for the Petitioners that Respondent
No.1 has absolutely no locus standi to file the complaint, since the
Provident Fund Authority can only take action against the Petitioners, if
there is any violation or breach of rules. Secondly, it is submitted that,
since the Bank in question has now deposited the entire amount with the
Provident Fund Authority along with fine, there is no misappropriation, as
alleged. Thirdly, it is submitted that, none of the Petitioners was the
Member of the Managing Committee or taken any part in the passing of
resolutions, when, at the relevant time, the amount was kept in the
separate account in the Bank opened in the name of "Sevak Kayam
Thev". Moreover, not a single pai from the said amount is either
misappropriated or siphoned off. In such situation, according to learned
counsel for the Petitioners, there was absolutely no material before the
Trial Court for issuance of process against them. In his opinion, both the
Courts have missed the point that the complaint was filed by Respondent
No.1, only as a counter-blast to various proceedings have been initiated
against him by the Bank, with an intention to harass the Petitioners and
hence the Trial Court should not have taken cognizance of such
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complaint. According to learned counsel for the Petitioners, this is a fit
case where process issued against the Petitioners is required to be
quashed, as it is an abuse of the process of the Court.
9. Per contra, learned counsel for Respondent No.1 has supported the
order of issue process by pointing out to the admitted fact that the
amount, which was deducted from the salaries of the employees towards
their dues of Provident Fund, was not deposited with the Provident Fund
Authority and hence, according to him, the Managing Committee of the
Bank has committed criminal breach of the trust. The Bank is already held
liable to pay the fine imposed by the Provident Fund Authority, which
proves the fact that the Bank and its Managing Committee has committed
the offence of criminal breach of trust and the breach of legal provisions.
Therefore, according to learned counsel for Respondent No.1, at the
threshold itself, when the rowing inquiry or mini-trial is not warranted and
the ingredients of the offence are prima facie made out, the process
issued against the Petitioners cannot be quashed.
10. As per the undisputed facts on record in this case, the Managing
Committee of the Bank has deducted the dues of the employees towards
their Provident Fund. However, instead of depositing the same with the
Provident Fund Authority, these dues were kept in a separate Bank
Account opened in the name of "Sevak Provident Fund". Subsequent
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thereto, the amount was withdrawn from the Account of the "Sevak
Provident Fund" and kept in another Account in the name of "Sevak
Kayam Thev". Admittedly, it was not done with the permission or consent
of the employees. Thus, as, admittedly, the amount was towards the dues
of the Provident Fund of the employees, it should have been deposited
directly with the Provident Fund Authority and at-least it should not have
been withdrawn from the Account of "Sevak Provident Fund" and
transferred to the "Sevak Kayam Thev", without the consent or permission
of the employees. It may be true that the Managing Committee of the
Bank has not misappropriated the said amount in the strict sense of the
term, but the fact remains that they have, prima facie, committed the
criminal breach of the trust, as the amount which was deducted from the
salaries of the employees for a particular purpose towards the dues of
their Provident Fund was not used for the said purpose, but it was kept in
a different account.
11. It is pertinent to note that, when this fact was brought to the notice
of the Provident Fund Authority, they have conducted the inquiry. The
Report of the Auditor to that effect is also filed on record and in view of the
findings arrived at in the said inquiry, the Bank was directed to not only
deposit the entire amount with the Provident Fund Authority, but a fine of
Rs.23,92,864/- was also imposed on the Bank. Hence, prima facie, a case
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is made out against the Petitioners on perusal of averments made in the
complaint. As per learned counsel for the Petitioners, the Petitioners had
acted on the advise of the Chartered Accountant and there was no
intention either to commit the breach of the trust or even to misappropriate
the amount. They have also deposited the fine amount and the entire
dues recovered from the employees with the Provident Fund Authority.
Thus, according to learned counsel for the Petitioners, whatever
irregularities happened in the instant case, they were on the bonafide
belief and without any criminal intent or mens rea. That is why the
Provident Fund Authority has not initiated any criminal action against the
Petitioners or the Bank, except for imposing the fine amount of
Rs.23,92,864/-, which is already paid. In the opinion of learned counsel for
the Petitioners, therefore, the ingredients of the offence of either cheating
or criminal breach of the trust are not made out.
12. In the considered opinion of this Court, prima facie, in view of the
concurrent findings of the Trial Court and the Revisional Court, this Court
cannot enter into the aspect as to what was the intention of the
Petitioners?, whether the acts committed by the Petitioners were only in
the nature of irregularities or illegalities?, as these are all disputed
questions of facts. At the stage of deciding the question whether process
issued against the Petitioners in its writ jurisdiction is to be quashed or is
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just, legal and correct, this Court cannot enter into the disputed questions
of facts.
13. Prima facie, however, there is a case that the amount which was
recovered from the employees towards their provident fund dues was not
deposited in time with the Provident Fund Authority and, therefore, the
Provident Fund Authority has also imposed the fine amount of
Rs.23,92,864/- on the Bank and as per the allegations made by
Respondent No.1, the Managing Committee of the Bank has recovered
this amount of fine from the salaries of the employees, particularly, as
regards the present Respondent No.1, he has specifically alleged that the
amount of Rs.28,782/- was deducted from the amount due to him and that
too without his consent. He was also not paid the amount of interest of
Rs.2,12,057/-, which he was entitled to as interest on the said amount.
Therefore, it cannot be said that prima facie ingredients of the offence of
the criminal breach of the trust are not made out.
14. As regards the contention that, at the relevant time, when the
amount deducted from the salaries of employees was deposited in the
separate Bank Account, the Petitioners were not the office bearers or the
Members of the Managing Committee, the least that can be said is that it
is again a disputed question of fact. According to Respondent No.1-
Complainant, as stated in Para No.2 of his complaint, they were very
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much in-charge of the Management Committee of the Bank and they have
passed the resolutions to that effect from time to time. No unimpeachable
and uncontrovertable evidence is produced on record by the Petitioners to
show that, at the relevant time, they were not in-charge of the
Management Committee. In such situation, that question is also required
to be left to be decided at the time of trial.
15. To sum up, therefore, as on bare perusal of the complaint,
ingredients of the offences alleged against the Petitioners are, prima facie,
made out, the impugned order passed by the Trial Court of issuing of
process against the Petitioners, which order is also confirmed by the
Revisional Court, cannot be called as illegal or perverse so as to warrant
interference therein. As there is no jurisdictional error apparent on the face
of the record, these Writ Petitions stand dismissed. Rule is discharged.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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