Bombay High Court
Prakash Balkrishna Phalak And Ors vs The State Of Mah And Anr on 26 September, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 293 OF 2007
1. Prakash S/o Balkrushna Phalak,
Age 43 years, Occ. Business &
Director of Saraswati Credit Co-operative
Housing society,
R/o. Near Ashtabhuja Devi Temple,
Bhusawal, Tq. Bhusawal, Dist. Jalgaon.
2. Kishor S/o Sopan Patil,
Age 43 years, Occ. Business &
Chairman of Saraswati Credit co-operative
Housing Society,
R/o. Near R.K. Narkhede Vidyalaya,
Sharda Nagar, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
3. Vishram S/o Tukaram Baviskar,
Age 59 years, Occ. Director of Saraswati
Credit Co-operative Housing Society,
R/o. Gandhi Nagar, Khadka Road, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
4. Sharad S/o Ananda Choudhari,
Age 65 years, Occ. Director of Saraswati
Credit Co-operative Housing Society,
R/o. Gajanan Maharaj Nagar, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
5. Jhaverilal S/o Bansilal Kotecha,
Age 55 years, Occ. Director of Saraswati
Credit Co-operative Housing Society,
R/o. Ram Mandir Ward, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
6. Kalpana W/o Waman Patil,
Age 40 years, Occ. Service,
R/o. Govind Colony, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
7. Parshuram S/o Rama Bonde,
Age 42 years, Occ. Service,
R/o. Govind Colony, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon. ...Petitioners
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Versus
1. The State of Maharashtra.
(Copy to be served on APP of High
Court Bench at Aurangabad)
2. Ravi S/o Anantrao Patil,
Age 38 years, Occ. Driver,
R/o. Nemade Colony,
Khadka Road, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon. ...Respondents
.....
Mr. S.C. Bhosale, advocate h/f Mr. H.S. Bedi, advocate for the petitioners
Mr. P.G. Borade, A.P.P. for the respondent No.1-State
Mr. N.S. Patekar h/f Mr. P.R. Katneshwarkar, advocate for R. No.2
.....
CORAM : V. K. JADHAV, J.
DATED : 26th SEPTEMBER, 2016
ORAL JUDGMENT:-
1. The petitioners are seeking quashment of complaint bearing
R.C.C. No. 535 of 2006 pending for adjudication before the learned
J.M.F.C. Bhusawal.
2. Brief facts giving rise to the present writ petition are as follows:-
Respondent No.2 original complainant is a member of
Saraswati Co-operative Credit Society Ltd.. In the year 1996, the
complainant had borrowed loan from the society for business
purpose. He had repaid certain amounts. Subsequently, he had also
borrowed loan from the society on several occasions and never
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repaid the outstanding dues. Respondent No.2 complainant has
however, approached the Sessions Court, Jalgaon and filed
complaint, alleging therein that the outstanding loan amount has
been fraudulently shown in his name and he had never borrowed
such huge amount from the society. It has also alleged in the
complaint that some unknown person, at the instance of the present
petitioners, threated him of dire consequences in case the
outstanding amount is not cleared. The learned Sessions Judge has
forwarded the said complaint to J.M.F.C. Bhusawal and learned
Magistrate, after recording verification statement of respondent No.2,
pleased to call report of police under the provisions of Section 202 of
the Cr.P.C. The learned Magistrate after perusal of said statement
and the report of police, submitted under the provisions of Section
202 of Cr.P.C., issued process against the accused for the offences
punishable under Sections 420, 468, 477, 504, 506 r.w. 34 of I.P.C.
3. Learned counsel for the petitioners submits that the petitioner
No.1 was Chairman of Saraswati Co-operative Credit Society,
petitioner No.2 is present chairman of the society, petitioner No.3 is
present Director and Vice Chairman of the society, petitioner Nos. 4
and 5 are the ex-directors of the society, petitioner No.6 is Manager
and Special Recovery officer appointed by the society and petitioner
No.7 is pigmy agent of the said society. Respondent No.2 original
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complainant had borrowed loan of Rs.1,00,000/- in the year 1996
and repaid an amount of Rs.61,804/- for which receipts have been
issued. Furthermore, respondent No.2 had borrowed loan from the
society on several occasions and lastly on 22.3.2002 he had
borrowed loan of Rs.5,50,000/- on cash credit, for which father and
wife of respondent No.2 are guarantors. He has not paid any amount
and accordingly the outstanding dues alongwith interest and penal
interest gone up to Rs.10,47,249/-. Even the Assistant Registrar,
Co-operative Societies, Bhusawal, has issued recovery certificate
under Section 101 of the Maharashtra Co-operative Societies Act
1960 for recovery of outstanding dues. There are absolutely no
allegations in the complaint and no details whatsoever are given in
the complaint about cheating, forgery etc. Respondent No.2 had
filed complaint with malafide intention to pressurize the petitioners
and also in order to prevent the petitioners from taking any legal
action against the complainant. Learned counsel submits that the
Magistrate, without applying his mind, has entertained the complaint
and issued process against the petitioners.
4. Learned counsel for respondent No.2 submits that the
petitioners have not availed alternate remedy of filing revision before
the Sessions Court and directly approached this Court by way of
present writ petition. Even though respondent No.2 has repaid
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substantial amount for the loan availed by him, entries to that effect
have not been taken and in that way the petitioners had committed
offence of cheating, forgery etc. Considering the verification
statement of respondent No.2 and the police report under section
202 of Cr.P.C. the Magistrate has rightly entertained the complaint
and issued process against the petitioners. There is no substance in
the writ petition and writ petition is liable to be dismissed.
5.
It is not disputed that respondent No.2 had availed the loan.
Learned counsel for the petitioners brought to my notice the recovery
certificate at page 21 of the petition issued by the Assistant Registrar,
Co-operative Societies, Bhusawal. In view of provisions of sub-
section (3) of Section 101 of the Societies Act, recovery certificate
issued by the Assistant Registrar is final and conclusive proof of
arrears of loan amount as mentioned therein. In the instant case,
admittedly, respondent No.2 has not challenged the said certificate
and said certificate has attained finality. Learned counsel for the
petitioners submits that some part of loan has been recovered from
respondent No.2 by selling his immovable property. Even learned
counsel for respondent No.2 has also not disputed this position.
Learned counsel for the petitioners has rightly pointed out that no
details are given in the complaint about forgery and alleged act of
cheating. So far as the allegations of threats given by some unknown
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person, at the instance of petitioners and society, are concerned, the
day, date and time of said incident are not mentioned and there are
only general allegations in the complaint about the same. I do not
think that the learned Magistrate has applied his mind while
entertaining the complaint and by issuing process against the
petitioners accused for the offences punishable under Sections 420,
468, 477, 504, 506 r.w. 34 of I.P.C.
6.
In view of above discussion, in my view, continuation of the
proceedings of R.C.C. No. 535 of 2006 would be an abuse of
process of law. Hence, I proceed to pass the following order:-
ORDER
I. Criminal writ petition is hereby allowed in terms of prayer
clause "B".
II. Writ petition is accordingly disposed of. Rule made
absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
