Pravin Devidas Deshmukh And Ors vs Rajureshwar Nagri Sahakari Pat ...
2016 Latest Caselaw 6693 Bom

     sgp                             1                         APPLN 2447.2007

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          BENCH AT AURANGABAD.




                                                                           
                    CRIMINAL APPLICATION NO. 2447 OF 2007 




                                                   
    1.  Pravin S/o Devidas Deshmukh,
         Age : 43 years, Occ. Business,
         R/o. Durga Colony,
         Opp. J.E.S. College, Jalna.




                                                  
    2.  Anant S/o Pandit Sali,
         Age : 37 years, Occu. Service,
         R/o. Agrasen Nagar,
         Near J.P.C. Colony, Jalna.




                                        
    3.  Ravindra S/o Laxman Ghotankar,
                             
         Age : 35 years, Occu. Service,
         R/o. C/o. Deogiri Nagari Pat Sanstha,
         Old Jalna, Jalna.
                            
    4.  Vijay S/o Pandit Sali,
         Age : 40 years, Occu. Business,
         R/o. Agrasen Nagar, Near Ram Nagar,
      

         Jalna.
   



    5.  Punam Prakash Kadu,
         Age : 33 years, occu. Household,
         R/o. C/o. Shrimant Narayan Mohite,
         Opp. Shital Kirana Store,  





         Gandhi Nagar, Jalna.                              Petitioners...

                  Versus

    Rajureshwar Nagri Sahakari Pat Sanstha Maryadit,





    Near Nar-Narayan Mandir, Badi Sadak, Jalna, 
    through its Chairman, Manoj S/o. Shripal Jain
    Age : 41 years, Occu. Service,
    R/o. House No. 45, C Line, Balaji Nagar,
    Near Jalna Road, Aurangabad.                               Respondent...
                                                             (Orig. Complainant)
                                     ..........
                Mr Vijay Sharma, Advocate for  the petitioners
                            None for respondent.
                                   .............




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      sgp                                  2                          APPLN 2447.2007



                                         CORAM  :  V. K. JADHAV, J.

                                         DATE      :  25TH NOVEMBER, 2016.




                                                                                 
                                                         
     ORAL JUDGMENT :- 

1. Being aggrieved by order dt. 03.07.2007 passed by learned

Chief Judicial Magistrate, Jalna below Exh. 1 & 24 in R.C.C. No. 286

of 2007, the original accused in R.C.C. No. 286 of 2007 have

preferred this Criminal Application.

2. Brief facts giving rise to the present application are

summarized as under:

The petitioner No. 5 has availed a personal loan of

Rs. 50,000/- from the respondent-original complainant. The

petitioner No. 1 was the former secretary of the complainant-Society

and the petitioner No. 5 - borrower is his close relative. Petitioner

No. 5 did not repay the said amount for sometime, the respondent-

original complainant has, therefore, filed a complaint bearing R.C.C.

No. 286 of 2007, before the learned Chief Judicial Magistrate, Jalna

alleging therein that the petitioner No. 5 is not traceable at her old

address and on making inquiry, it was revealed that, the witnesses

who put their signatures on the loan form, shown their ignorance

about such loan proposal and also denied their respective signatures

sgp 3 APPLN 2447.2007

on the loan form as a witnesses. It is also alleged in the complaint

that, the petitioner No. 5-original accused has cheated the

respondent-complainant with the help of other petitioners-accused by

executing bogus documents. Thus, the petitioners-accused have

committed offence of preparation of false documents, cheating and

criminal breach of trust in furtherance of their common intention and

as such, caused heavy financial loss to the complainant-Society.

3.

Learned Magistrate has directed the respondent-

complainant to adduce evidence before the issuance of the process as

provided u/s 202 of Code of Criminal Procedure. Accordingly, the

complainant has examined in all three witnesses including himself

and also filed on record all the relevant documents. However, the

original accused No. 1 appeared through his counsel and filed

application Exh. 24 thereby requesting to consider certain documents

submitted along with the application. The complainant has raised

strong objection to the said application. It is contended that, the

accused have no right to participate in the proceedings meant for

issuing process. The ld. Chief Judicial Magistrate, Jalna has rejected

the application Exh. 24 as aforesaid, however, after considering the

evidence of the complainant and his witnesses and on perusal of the

documents filed by the complainant, issued process against the

sgp 4 APPLN 2447.2007

petitioners for offence punishable u/s 468, 471, 406, 420 r/w 34 of

the Indian Penal Code. Hence, this Criminal Application.

4. Learned counsel for the petitioners submits that, due to

some financial problems, the petitioner No. 5 could not repay the

loan amount regularly. He further submits that, the petitioner No. 5

herein had made an application dt. 01.02.2007 thereby requesting

the complainant/Society to grant her sufficient time for repayment of

loan and also requested to allow her to repay the said loan amount in

easy installments. The request was also made to issue a fresh extract

of the loan amount, however, the respondent-complainant has not

taken any cognizance of the same. Thereafter, the respondent-

complainant issued another notice dt. 23.04.2007 thereby directing

the petitioner No. 5/borrower to furnish fresh address and to pay the

entire loan amount along with interest. In reply to the said notice on

10.05.2007, the petitioner No. 5/borrower has deposited an amount

of Rs. 10,000/- and demanded the extract of her loan amount as the

amount shown outstanding against her name was appearing to be

exorbitant. The ld. counsel further submits that, on 04.06.2007 the

petitioner No. 5/borrower has deposited the entire outstanding

amount of Rs. 99,000/- and the receipt issued thereof is placed on

record. The ld. counsel submits that, the petitioner No. 5/borrower

sgp 5 APPLN 2447.2007

has deposited the entire outstanding amount under protest. The ld.

counsel submits that, the petitioner No.5/borrower and the other

petitioners never denied their liability nor executed any false

documents as alleged in the complaint. The ld. counsel submits that,

subsequent to the loan transaction as stated in the complaint, the

relations between the Chairman of the society - Mr. Manoj Jain and

the petitioner No.1-Pravin Deshmukh became strained. The ld.

counsel submits that, the complaint is the outcome of the strain

relations and out of vengeance the complaint was filed. The ld.

counsel submits that, even accepting all the allegations made in the

complaint as it is and considering the unimpeachable document like a

receipt issued by respondent-original complainant about the

satisfaction of the entire outstanding amount, no case is made out for

issuance of the process and continuation of the further proceedings in

the aforesaid case would be an abuse of the court process.

5. None appears for respondent-sole though duly served.

6. On careful perusal of the complaint, it appears, that the

respondent-original complainant has made allegations about causing

of a pecuniary loss, psychological stress, mental agony and harm to

the image, prestige and reputation of the respondent-original

sgp 6 APPLN 2447.2007

complainant/Society. It is nowhere alleged in the complaint that, the

petitioners-original accused have denied their liability so far as

personal loan availed by petitioner No. 5 from the respondent society.

There is no reference in the complaint as to what are those false

documents prepared by the petitioners for availing personal loan.

There are no allegations in the complaint as to how the respondent-

original complainant/society sustained a wrongful loss and the

petitioner No. 5/borrower a wrongful gain. The petitioners No. 1 to

4 since never denied their liability, the ingredients of criminal breach

of trust are also not attracted against them. So far as the inquiry

u/s 202 of Code of Criminal Procedure is concerned, the scope of

such inquiry is extremely limited and the probable defence of the

accused cannot be considered. However, the documents placed on

record which are not denied by the respondent/original complainant

unmistakably point out that, the petitioner No. 5 has deposited the

entire outstanding amount and the receipt thereof has been issued by

the respondent-original complainant. The respondent-original

complainant cannot deny this document and same establish

unimpeachable and unassailable circumstances, which can be

converted into evidence. The respondent-original complainant

though duly served has, therefore, not bothered to appear in this case

and explained about the said receipt issued in favour of petitioner

sgp 7 APPLN 2447.2007

No. 5. In these facts and circumstances of the case, as discussed

above, the impugned order of issuance of process is not sustainable in

law and further proceedings in the aforesaid case would be an abuse

of court process. In view of this, the criminal application is allowed in

terms of prayer clause 'C'.

7. Rule is made absolute in the aforesaid terms.

8.

Criminal Application is accordingly disposed of.

[ V. K. JADHAV ] JUDGE