Shivram S/O Sukhdeo Sable vs The State Of Maharashtra & Anr
2017 Latest Caselaw 1322 Bom

                                              546.2015 Cri.Appln.+.odt
                                     1



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO.546 OF 2015 

          Amit s/o. Thamaji Dighe,  
          Age: 31 years, Occu: Business,  
          Original R/o.Village Wadzire,  
          Taluka Parner, District Ahmednagar 
          Now residing at Alok Park, Flat No.A-6,  
          DKS Vishwa Road, Dhayari, Pune,  
          Taluka and District Pune.       APPLICANT
                                       [Orig.Accused 
                                        No.15]
                VERSUS 

          1.       The State of Maharashtra 
                   Through the Police Inspector,  
                   Parner Police Station, Parner,  
                   Taluka Parner, District Ahmednagar.  

          2.       Dadasaheb s/o Nivrutti Gaikwad,  
                   Age: 43 years, Occu. Service as 
                   Certified Auditor in the office of 
                   The Assistant Registrar, Cooperative 
                   Societies, Parner, Taluka Parner,  
                   District: Ahmednagar, R/o. Village 
                   Jategaon, Taluka : Parner,  
                   District : Ahmednagar.    NON-APPLICANTS/
                                             RESPONDENTS      
                                            [No.2 - original
                                             complainant]

                               ...
          Mr.Rajendra   Deshmukh,   Advocate   for   the 
          applicant 
          Mr.D.R.Kale, APP for the Respondent / State
                               ...




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                                                   546.2015 Cri.Appln.+.odt
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                                  WITH 
                  CRIMINAL APPLICATION NO.3285 OF 2015 

          Shivram s/o Sukhdeo Sable,  
          Age: 66 years, Occu: Agril.,  
          R/o. Walawane, Tq. Parner, 
          Dist. Ahmednagar.                 APPLICANT

                    VERSUS 

          1.       The State of Maharashtra 
                   Through the Police Inspector,  
                   Parner Police Station, Tq.Parner,  
                   Dist. Ahmednagar.   

          2.       Dadasaheb s/o Nivrutti Gaikwad,  
                   Age: 43 years, Occu. Service as 
                   Certified Auditor in the office of 
                   The Assistant Registrar, Cooperative 
                   Societies, Parner, Taluka Parner,  
                   District: Ahmednagar, 
                   R/o. Village Jategaon, Tq.Parner,  
                   Dist.Ahmednagar.            RESPONDENTS                       

                                ...
          Mr.Y.D.Kale,   Advocate   holding   for 
          Mr.R.R.Karpe, Advocate for the applicant 
          Mr.D.R.Kale, APP for the Respondent / State
                                ...
                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 14.03.2017 Pronounced on : 31.03.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Since both the Applications are

filed praying relief of quashing and setting

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aside the First Information Report bearing

Crime No.I-206/2014, registered with Parner

Police Station, Parner, District Ahmednagar,

for the offences punishable under Sections

406, 467, 468, 477 r/w. 34 of the Indian

Penal Code. Both these Applications are being

heard and disposed off by the common

judgment.

2. The learned counsel appearing for

the applicant, namely Amit Thamaji Dighe, in

Criminal Application No.546/2015 submits

that, the applicant worked in the capacity of

Cashier with Ashwamedh Gramin Bigarsheti

Sahakari Patsanstha Maryadit, Wadzire, Taluka

Parner, District Ahmednagar, for the period

from 28th March, 2003 to 11th January, 2005. On

11th January, 2005, he submitted his

resignation from the post of Cashier of the

said Credit Society and the charge was handed

over on the very day. The said resignation

came to be accepted by the said Credit

546.2015 Cri.Appln.+.odt

Society on 26th February, 2005. The applicant

worked in the capacity of Clerk in the said

Credit Society during the period from 11th

January, 2005 to 13th January, 2013 and

wherefrom he resigned on 13th January, 2013

and came to be relieved on the very day. It

is submitted that, non applicant no.2 audited

the said credit society for the period from

1st April, 2013 to 31st March, 2014, and prior

to the said period, applicant has resigned.

He submits that, the application deserves to

be allowed.

3. The learned counsel appearing for

the applicant, namely Shivram Sukhdeo Sable,

in Criminal Application No.3285/2015 submits

that, in the year 2008 the applicant was

member of the Managing Committee of the

Ashwamedh Gramin Bigarsheti Path Sanstha,

Wadzire, Taluka Parner, District Ahmednagar.

The applicant resigned from the membership

and tendered his resignation as Managing

546.2015 Cri.Appln.+.odt

Committee member on 30.12.2009. The said

resignation has been accepted on 29th January,

2010, and therefore, he had nothing to do

with the affairs of the said society for the

financial year 2013-14.

4. On the other hand, the learned APP

appearing for respondent-State in Criminal

Application No.546/2015 relying upon the

investigation papers submits that, there are

number of documents show involvement of the

applicant. He submits that, number of

receipts were issued by him, not only that he

has also drawn salary. It is submitted that

though the Auditor made audit of the said

Credit Society for the period from 1st April,

2013 to 31st March, 2014. However, he found

that since the registration of the said

Credit Society without adhering to the

provisions of the bye-laws, contrary to the

Rules, the loan amount is disturbed to the

various persons and there was no effort on

546.2015 Cri.Appln.+.odt

the part of the other Directors or employee

to recover the said loan amount. Even the

earlier Auditor in collusion with the member

of the Managing Committee/Board of Directors

and employees have prepared record showing

that the affairs of the society are running

in profit. Therefore, he submits that the

scope of investigation is not restricted only

to particular financial year, but even for

the earlier period. He invites our attention

to the affidavit filed by the applicant and

submits that by way of filing such affidavit,

applicant has assured that he will be

responsible for the decision, which will be

taken for the period from 2008-2009 to

2013-2014 not only that he has also drawn

salary. He invites our attention to the

various deposit vouchers wherein the

applicant has signed. Even on 20th November,

2013, the applicant has drawn Rs.10,000/-

towards his fees. The learned APP submits

546.2015 Cri.Appln.+.odt

that, the contention of the applicant that

his resignation was accepted, is in dispute,

as a matter of fact that his resignation from

the post of Cashier was not accepted.

5. In reply to the submissions made by

the learned counsel appearing for the

applicant in Criminal Application No.

3285/2015, the learned APP appearing for the

respondent - State submits that, the scope of

investigation is not restricted only to the

financial year 2013-14, however, respondent

no.2 during the audit, noticed that since the

registration of the said society, contrary to

the provisions of the bye-laws, the Managing

Committee in collusion with the employees

have disbursed the loan amount and also not

recovered the same. In collusion with the

then Auditor, who audited / inspected the

record of the society for earlier period in

collusion with the members of the Managing

Committee and employees have prepared false

546.2015 Cri.Appln.+.odt

documents showing that the financial affairs

of the society are in good health and as a

matter of fact the said society is running in

making profits.

6. We have heard the learned counsel

appearing for the applicants, and the learned

APP appearing for the respondent-State at

length. With their able assistance, we have

perused the averments in the applications,

grounds taken therein and the investigation

papers. Upon perusal of the investigation

papers, it clearly reveals that, the

applicant in Criminal Application No.546/2015

had played active role even in recent past of

conducting audit by the Auditor. There are

deposit vouchers signed by him; amount is

also withdrawn by him. There is also an

affidavit Rs.100/- on stamp papers that,

personally he will be responsible for the

affairs of the said society for the period,

which is mentioned in the said affidavit.

546.2015 Cri.Appln.+.odt

Therefore, further investigation is necessary

so as to bring on record truth and

involvement of the accused.

7. So far as applicant in Criminal

Application No.3285/2015 is concerned,

admittedly, he was member of the Managing

Committee, whether his resignation was

accepted or otherwise, would lead the

adjudication of the disputed questions of

fact as submitted by the learned APP. The

scope of investigation is not restricted only

to one financial year, but the investigation

is being carried out for the past period

also. There are serious allegations of

disbursement of loan contrary to the

provisions of the bye-laws, and there is also

no attempt to recover the said amount.

Therefore, the prayer for quashing the FIR

deserves no consideration. The Supreme Court

in the case of Bhaskar Lal Sharma and another

546.2015 Cri.Appln.+.odt

Vs. Monica and others1 in para 11 and 12 held

thus:

11. The facts, as alleged, therefore will have to be proved which can only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceeding. The appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.

1 [2014] 3 SCC 383

546.2015 Cri.Appln.+.odt

12. Insofar as the offence under Section 406 of the Penal Code is concerned, it is clear from the averments made in Paras 16, 18, 24 and 29 of the complaint petition that it has been alleged that the appellants were entrusted or had exercised dominion over the property belonging to the respondent and further that the appellants had unlawfully retained the same. The statements made in Para 6 of the complaint also alleges retention of cash and other gifts received by the respondent complainant at the time of her marriage to the Appellant 2 - accused. In the face of the said averments made in the complaint petition, it cannot be said that the complaint filed by the respondent is shorn of the necessary allegations to prima facie sustain the case of commission of the offence under Section 406 by the appellants.

8. The Supreme Court in the case of CBI

546.2015 Cri.Appln.+.odt

Vs. Jagjit Singh2, Their Lordship of Supreme

Court in para 15 elucidated as under:

"15. The debt which was due to the Bank was recovered by the Bank pursuant to an order passed by Debts Recovery Tribunal. Therefore, it cannot be said that there is a compromise between the offender and the victim. The offences when committed in relation with Banking activities including offences under Sections 420/471 IPC have harmful effect on the public and threaten the well being of the society.

These offences fall under the category of offences involving moral turpitude committed by public servants while working in that capacity. Prima Facie, one may state that the bank as the victim in such cases but, in fact, the society in general, including customers of the Bank is the sufferer. In the present case, there was neither an allegation regarding any abuse of process of any Court nor anything on

2 2013 DGLS [Soft] 675

546.2015 Cri.Appln.+.odt

record to suggest that the offenders were entitled to secure the order in the ends of justice.

In the instant case, the High Court has not considered the above factors while passing the impugned order. Hence, we are of the opinion that the High Court erred in addressing the issue in right perspective."

9. Therefore, for the reasons

aforesaid, we are not inclined to quash the

First Information Reports, hence both

Criminal Applications stand rejected.

10. The observations made herein before

are prima facie in nature. This order will

not preclude the applicants to apply for

discharge in the event of filing of the

charge-sheet by the Investigating Officer.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC