Bombay High Court
Sanjay Sakharam Nagale vs The State Of Maharashtra And Anrs on 24 August, 2017
Bench: S.S. Shinde
1 WP211.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 211 OF 2017
Mr. Sanjay Sakharam Nagale,
Age : 47 years, Occu. Manager,
Karmayogi Murlidhar Khatod
Janlaxmi Gramin Bigar Sheti Sahakari
Patsanstha Maryadit, Belapur Bk.
Tq. Shrirampur, Dist. Ahmednagar,
R/o. Belapur Bk, Tq. Shrirampur,
District Ahmednagar. ... Petitioner
VERSUS
1. The State of Maharashtra,
Through in-charge of city Police Station,
Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar.
2. Shri. Yogesh Ramesh Gangwal,
Age : Major, Occu. Business,
R/o. Belapur (Bk), Padegaon,
Tq. Shrirampur, District Ahmednagar. ... Respondents
..........
Mr V. D. Sapkal, Advocate for the petitioner
Mr S. D. Ghayal, APP for respondent No. 1
Dr S. D. Tawshikar, Advocte for respondent No. 2
.............
WITH
CRIMINAL WRIT PETITION NO. 216 OF 2017
Mr. Sanjay Sakharam Nagale,
Age : 47 years, Occu. Manager,
Karmayogi Murlidhar Khatod,
Janlaxmi Gramin Bigar Sheti Sahakari
Patsanstha Maryadit, Belapur Bk.
Tq. Shrirampur, Dist. Ahmednagar,
R/o. Belapur Bk, Tq. Shrirampur,
District Ahmednagar. ... Petitioner
VERSUS
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2 WP211.2017
1. The State of Maharashtra,
Through in-charge of city Police Station,
Shrirampur, Tq. Shrirampur,
Dist. Ahmednagar.
2. Shri. Yogesh Ramesh Gangwal,
Age : Major, Occu. Business,
R/o. Belapur (Bk), Padegaon,
Tq. Shrirampur, District Ahmednagar. ... Respondents
..........
Mr V. D. Sapkal, Advocate for the petitioner
Mr S. D. Ghayal, APP for respondent No. 1
Dr S. D. Tawshikar, Advocte for respondent No. 2
.............
CORAM : S. S. SHINDE &
A. M. DHAVALE, JJ.
RESERVED ON : 11.08.2017.
PRONOUNCED ON : 24.08.2017.
JUDGMENT (Per A. M. Dhavale, J.) :
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties and taken up for final disposal at admission
stage. Both the writ petitions involve a common question of law and
fact and as such, they are being disposed of simultaneously by a
common judgment.
2. The petitioner is common in both the petitions. In writ
petition No. 211 of 2017, he seeks quashing of Regular Criminal Case
No. 79 of 2014 filed pursuant to Crime No. MI - 401 of 2012
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registered with Shrirampur City Police Station as per directions of
Judicial Magistrate First Class, Shrirampur in RTC No. 266 of 2012.
In Writ Petition No. 216 of 2017, there is a similar prayer in respect
of quashing of proceedings of Regular Criminal Case No. 80 of 2014
filed pursuant to Crime No. MI - 400 of 2012 registered with
Shrirampur City Police Station pursuant to directions u/s 156(3) of
the Code of Criminal Procedure in RTC No. 267 of 2012.
3. Heard Shri. V. D. Sapkal, learned counsel for the petitioner,
Mr Ghayal, learned APP for respondent/State and Shri. S. D.
Tawshikar, learned counsel for respondent No. 2.
4. The facts relevant for deciding these petitions may be
stated as follows:
Respondent No. 2 - Yogesh Gangwal is a member of
Janlaxmi Rural Non-agricultural Cooperative Society, Belapur Bk., of
which the petitioner is a Manager. He had borrowed five loans from
the said society and those were not paid in time. The bank, after
issuing notice dt. 13.08.2010, initiated proceedings u/s 101 of the
Maharashtra Co-operative Societies Act, 1960 in Application Nos. 34
to 38 of 2010 and obtained orders from the Assistant Registrar,
Cooperative Societies, Shrirampur, for recovery of the outstanding
amount. Mr Anil Jagtap was appointed as Recovery Officer, who
4 WP211.2017
issued notices dt. 04.01.2011 and thereafter by paper publication on
16.02.2011. Respondent No. 2 in 2011 challenged the recovery
certificates by filing Revision before the Divisional Joint Registrar,
Cooperative Societies, Nashik Division, Nashik. Divisional Jt.
Registrar condoned the delay and directed respondent No. 2 herein
to deposit 50% of the amount and as the direction was not complied
with, the revision was rejected.
5. According to the petitioner, on 24.07.2012, respondent No.
2 accepted his liability of Rs. 13,09,107/- and issued two cheques
bearing No. 155407 and 155415 for the amount totaling to
outstanding dues and accordingly issued letter dt. 24.07.2012.
According to respondent No. 2, this letter is fabricated, his signatures
were taken on blank cheques and same were misused.
6. These cheques when presented by the petitioner for
encashment on 04.09.2012, were dishonoured and after following
the relevant procedure, Summary Cases No. 520 of 2012 and 521 of
2012 are filed by the bank against respondent No. 2 under Section
138 of the Negotiable Instruments Act. The process was issued in
both the cases. Thereafter, respondent No. 2 filed RCC No. 266 of
2012 and 267 of 2012 against the petitioner in the Court of JMFC,
Shrirampur, for offences u/s 417, 420, 465, 467, 468, 469, 470 and
5 WP211.2017
471 of the IPC. Respondent No. 2 herein contended that, he had paid
the entire loan amount but the petitioner-bank officers continued to
issue false notices to him and prepared false documents. On
01.02.2010, the petitioner represented to him that he would secure
50% exemption from payment of loan and would provide a new loan
to him. The bank was in difficulty in view of audit objection and,
therefore, two cheques and nine blank stamps were taken from
respondent No. 2 on assurance that those would be returned to him
after 2-3 months. Respondent No. 2 claimed that he was induced by
the said offer and he issued two cheques bearing No. 155407 and
155415 and nine stamp papers but, on discussion with his relatives
and friends, he realized his mistake and he issued notice dt.
21.04.2010 to the petitioner and General Manager for returning
those cheques and documents. It was served on the petitioner on
23.04.2010 but it was not complied with. Respondent No. 2 also
contended that, in Suit No. 37 of 2010 filed before the Assistant
Registrar in Reply dt. 15.07.2010, he raised this defence specifically
and, therefore, he would not have issued those two cheques and
would not have given letter dt. 24.07.2012 to the petitioner as
claimed by him. The said letter as well as cheques were forged and
those were misused, got dishonoured and false prosecution u/s 138
of the Negotiable Instrument Act was lodged against him.
6 WP211.2017
7. The learned JMFC issued directions u/s 156(3) of the Code
of Criminal Procedure in both the matters. C.R. Nos. MI - 400 of
2012 and MI - 401 of 2012 were registered against the petitioner at
Shrirampur City Police Station. After completion of investigation, the
police have submitted charge-sheet in both the cases which are
numbered as RCC No. 79 of 2014 and 80 of 2014.
8. The petitioner claimed that, respondent No. 2 was a
borrower and defaulter and the bank initiated a legal action against
him and obtained recovery orders against him. Respondent No. 2 had
challenged those orders but had failed. As the dispute is of a civil
nature and the continuation of this proceeding against the petitioner
is abuse of process of the court. He had communicated that he had
filed revisions to challenge the orders of issuance of process bearing
No. 10/14 and 11/14 before the Sessions Judge, Shrirampur but his
revisions came to be dismissed. The petitioner has also disclosed that
respondent No. 2 had initiated dispute No. 172 of 2012 and 206 of
2012 in Cooperative Court for declaration that the cheques obtained
by the petitioner from him were illegally obtained and the
proceedings u/s 138 of the Negotiable Instrument Act initiated on the
basis of dishonoured cheques should not be prosecuted.
7 WP211.2017
9. The respondent No. 2 has also initiated another Criminal
Proceedings bearing RCC No. 89 of 2016 in the court of JMFC,
Shrirampur, against the petitioner, Gram Panchayat, Belapur,
Gramsevak & the society. The said case was fixed by learned JMFC
for verification. In the said case, learned JMFC had called report u/s
202 and had taken cognizance on 02.04.2016 for offence u/s 420,
468, 471 of the IPC. The said order is under challenge before the
Sessions Court, Shrirampur in Revision No. 22/2016. Thus, the
respondent No. 2 was a defaulter and when asked to repay loan
amount outstanding from him has abused the process of court to
harass the Manager of Society, which has obtained legal orders of
recovery against him.
10. Shri. V. D. Sapkal, learned counsel for the petitioner,
placed heavy reliance on the judgment in case of Priyanka
Srivastava Vs State of U.P. AIR 2015 SC 1758. He submitted that,
the orders u/s 156(3) of Cr.P.C. were passed without following the
directions regarding taking of affidavit of informant/complainant.
Besides, he submitted that, in the above referred case in similar facts
& circumstances, it was held that the impugned order was abuse of
process of the court and was quashed.
8 WP211.2017
11. Shri. Dr. Tawshikar, learned counsel for respondent No. 2
and Mr. Ghayal, learned APP for the State pointed out that, the
documentary material on record shows that the letter dt. 24.07.2012
purportedly signed by respondent No. 2 is fabricated so also the
cheques are also fabricated and the proceedings filed u/s 138 of the
Negotiable Instruments Act were initiated against the respondent No.
2 on the basis of the same. Hence, these orders under challenge are
not abuse of the process of the court and the inherent powers u/s 482
of the Code of Criminal Procedure and under Article 226 & 227 of the
Constitution cannot be invoked.
12. After having considered the arguments of the learned
advocates, we find that, it is a disputed question of facts as to
whether the letter dt. 24.07.2012 and two cheques are issued by
respondent No. 2 or not. Respondent No. 2 has issued notice dt.
21.04.2010 and had stated therein that two blank cheques bearing
No.155407 & 155415 were taken from respondent No. 2 by the
petitioner in addition to 9 blank stamp papers. The petitioner was
called upon to return those blank signed cheques & blank stamp
papers. Besides, in Suit No. 37/2010 filed by Society, respondent No.
2 had filed reply dt. 15.07.2010 wherein he has specifically stated
that two blank signed cheques bearing No. 155407 and 155415 were
9 WP211.2017
obtained by Patsanstha from him in addition to nine blank signed
stamp papers.
13. The documentary evidence on record shows that,
respondent No. 2 was a defaulter and Janlaxmi Patsanstha had
obtained legal recovery orders against him. The efforts of respondent
No. 2 to challenge the recovery orders have failed at every stage, still
respondent No. 2 was not paying the amount.
14. From the above documents, respondent No. 2 must have
issued blank signed cheques bearing No. 155407 and 155415 to the
bank before issuing notice dt. 21.04.2010. Those might have been
obtained towards security for repayment of loan but the petitioner
does not come with such a case. He claimed that, those cheques
were issued by respondent No. 2 on 24.07.2012 for Rs. 6,76,512 and
Rs. 6,32,595/-, respectively, for settled amount of Rs. 13,09,107/-.
The contents of the letter dt. 24.07.2012 prima facie appear to be
false. Prima facie, the cheques were issued much earlier and most
probably letter dt. 24.07.2012 must not have been issued by
respondent No. 2.
15. It is true that, when a borrower prosecutes the lender or
officers of the lendee association after losing the litigation at various
10 WP211.2017
places as has happened in Priyanka Srivastava's case (cited supra),
the court should be cautious and should not help the borrower to
abuse the process of the court. In the present case, the contention of
respondent No. 2 that, no amount was due from him, prima facie,
does not appear to be correct. But it does not mean that, inspite of
notice dt. 21.04.2010 and stand taken in reply dt. 15.07.2010, the
Bank Manager can misuse the two blank signed cheques obtained
from respondent No. 2 and get them dishonoured and file criminal
prosecution u/s 138 of the Negotiable Instrument Act against
respondent No. 2. Having carefully considered the ratio laid down in
the case of Priyanka Srivastava's case in paras 1, 3, 5, 16 & 17, we
find that the observations made therein are totally in different set of
facts and the same are not applicable to the present case. Though
Society had obtained legal orders for recovery, the last attempt for
implementation of those orders is not prima facie legal. The petitioner
was Manager of the Cooperative Society and there are specific
allegations against him. This is not a case of no evidence nor it is a
case which can be said to be inherently improbable.
15. General principles for exercising powers u/s 482 of Cr.P.C.
are laid down in case of State of Haryana Vs Chaudhary Bhajanlal
AIR 1992 SC 604. In Padal Venkata Rama Reddy v. Kovvuri
Satyanarayana Reddy (2011) 12 SCC 437, it is laid down that
11 WP211.2017
while exercising powers u/s 482 of Cr.P.C., High Court should not
ordinarily embark upon an inquiry whether evidence in question
was reliable or not or whether on reasonable appreciation of it,
accusation would not sustain. If there is no legal and acceptable
evidence, powers u/s 482 could be exercised only to prevent the
abuse of the court process or to meet the ends of justice. In Amit
Kapoor vs Ramesh Chander & Anr. (2012) 9 SCC 460, the
principles for quashing u/s 482 of Cr.P.C. are reiterated and it is held
that quashing of charge-sheet is an exception to the rule of
continuous prosecution when the offence is broadly satisfied then the
court should be more inclined to permit continuation of prosecution.
16. In the light of the settled principles, we find that there is no
substance in the challenge to the prosecution of the petitioner in both
the petitions and these are not fit cases to invoke the powers u/s 482
of Cr.P.C. or under Articles 226 & 227 of the constitution of India.
Both the petitions therefore deserve to be dismissed. Needless to
state, the observation made herein above are prima facie in nature
and confined for deciding this petition only. Hence, the following
order.
ORDER
(i) Criminal Writ Petitions No. 211 of 2017 and 216 of 2017
stand dismissed.
12 WP211.2017
(ii) Rule in both the petitions is discharged.
(iii) Interim orders, if any, stand vacated.
[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE
sgp
