Bombay High Court
Omprakash Dadappa Koyate And Ors vs The State Of Maharashtra And Ors on 5 May, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1072 OF 2016
1. Omprakash s/o.Dadappa Koyate,
Age: 64 years, Occ : Business,
R/o. Niwara Housing Society,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar.
2. Jintendra Kantilal Shaha
Age: 62 years, Occ : Business,
R/o. Surya Complex, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
3. Mohanlal s/o. Anandram Zawar,
Age: 68 years, Occ : Business,
R/o. Kapad Bazar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
4. Padmakant s/o. Shankarrao Kudale,
Age: 70 years, Occ : Agri.
R/o. village Takli, Tq.Kopargaon,
Dist. Ahmednagar.
5. Gulabchand s/o. Khemchand Agrawal,
Age: 70 years, Occ : Business,
R/o. Vivekanand Nagar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
6. Rajkumar s/o. Suganchand Bumb,
Age: 55 Years, Occ : Business,
R/o. Gandhi Chowk, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
7. Ramchandra s/o. Motilal Baglecha,
Age: 60 years, Occ: Business,
R/o. New Jain Temple, Tera Bungalow,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar.
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8. Arvind s/o. Damodhar Patel,
Age: 60 years, Occ : Business,
R/o. Nivara Housing Society,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar.
9. Changdeo s/o. Eknath Shirode,
Age: 60 years, Occ : Business,
R/o. Shivaji Road, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
10. Madhukar s/o. Jagannath Pawar,
Age: 65 years, Occ : Business,
R/o. village Khadki, Tq.Kopargaon,
Dist. Ahmednagar.
11. Mrs. Rohini w/o. Sudhir Koyate,
Age: 50 years, Occ : Household,
R/o. Niwara Housing Society,
Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar.
12. Kunda s/o. Babasaheb Jangam,
Age : 55 years, Occ : Nil,
R/o. Kapad Bazar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
13. Samata Urban Credit Co-operative
Bank Main Road, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar
Through its Managing Director
Petitioner no.14
14. Sachin s/o. Shankarlal Bhatad
Age: 40 years, Occ : General Manager,
R/o. Sai City, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
15. Janardhan s/o. Sudhakar Kadam,
Age: 40 years, Occ : Recovery Officer,
R/o. Nivara Housing Society,
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Kopargaon, Tq. Kopargaon,
Dist. Ahmednagar.
16. Raghunath s/o. Sadashiv Autade,
Age: 60 years, Occ : Branch Manager,
R/o. Laxmi Nagar, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
17. Sanjay s/o. Sahebrao Jadhav,
Age: 45 years, Occ : Cashier,
R/o. Gokulnagari, Kopargaon,
Tq. Kopargaon, Dist. Ahmednagar.
18. Sunil s/o. Mohanlal Bhutada,
Age: 54 years, Occ : Government Valuer,
R/o. Pravara Housing Society,
Shrirampur, Tq.Shrirampur,
Dist. Ahmednagar. PETITIONERS
[orig.accused]
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Home Department, Mantralaya,
Mumbai-32.
2. The Deputy Commissioner of Police,
Circle-2, Aurangabad City,
Aurangabad.
3. Omprakash s/o. Babuappa Khake,
Age: 60 years, Occ : Business,
R/o. Seven Hill, Opposite Lokvikas
Bank, Aurangabad
At present R/o. Flat Nos.10 and 11
Chinar Apartment, Third Floor,
Near Krushi Bhavan, Shivaji Nagar,
Pune. RESPONDENTS
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...
Mr.R.N.Dhorde, Senior counsel instructed by
Mr.Vikram R. Dhorde, Advocate for the
petitioners
Mr.A.B.Girase, Public Prosecutor for
respondent nos.1 and 2.
Mr.A.N.Kakade, Advocate for respondent no.3.
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 28.04.2017
Pronounced on : 05.05.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
2. Rule. Rule made returnable
forthwith, and heard finally with the consent
of the parties.
3. Brief facts leading for filing the
petition are as under:
It is the case of the petitioners
that the various litigations are pending
between the petitioner no.13 and respondent
no.3. The details of the said litigation,
outcome of the said litigation and also the
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actions taken against respondent no.3 for
recovery of loan, has been extensively stated
in the Writ Petition. The main grievance of
the petitioners is that, (a) despite all
these litigation mentioned in the Writ
Petition, and various orders passed by the
authorities issuing certificates under
Section 101, which has become final, (b)
challenging the auction proceedings, which
has become final, (c) challenging the
fixation of upset price, which has become
final, (d) challenging the granting of 'R'
certificates under Section 100, which has
also become final, and (e) pendency of the
Writ Petition No.3512/2014 in the High Court,
respondent no.3 is so influential that, he
made application to respondent no.2 Deputy
Commissioner of Police, Circle-2, Aurangabad
City making certain allegations, and
respondent no.2 high handedly and mala fidely
without authority issued notice dated
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02.08.2016 to petitioner no.18, who is
Government Valuer and has submitted the
valuation report to the District Deputy
Registrar for fixing upset price.
4. Learned senior counsel invites our
attention to the fact that, the loan amount
in crores of rupees was borrowed by
respondent no.3 from petitioner no.13 -
Samata Urban Credit Co-operative Bank in the
year 2008 and 2009, and due to non payment of
such huge amount, the petitioners approached
to the various Forums including the High
Court. He invites our attention to the
pleadings in the petition and submits that,
in spite of various orders passed by the
authorities issuing certificates under
Section 101, which has become final, the
auction sale has also become final, the
fixation of upset price, which has also
become final, the granting of 'R'
certificates under Section 100, which has
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become final and even Writ Petition
No.3512/2014 filed in the High Court is
pending, respondent no.2 has courage to
entertain the complaint filed by respondent
no.3. Learned senior counsel submits that,
when the civil litigation is pending between
the parties, respondent no.2 had no business
to issue notice to petitioner no.18 or any
other Government Authorities in relation to
such civil dispute pending between petitioner
no.13 and respondent no.3. He pressed into
service exposition of law by the Supreme
Court in the case of Priyanka Srivastava and
another Vs. State of Uttar Pradesh and
others1 and submits that, the Supreme Court
has deprecated practice of taking recourse to
criminal law, when the dispute is arising out
of the civil transactions and same is of
civil in nature. He invites our attention to
the paras 19, 27 and 28 of the said judgment
and submits that, the Supreme Court has
1 [2015] 6 SCC 287
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deprecated practice of bypassing statutory
remedies and opting for prosecution route for
instilling fear amongst the individual
authorities compelling them to concede to the
request for one-time settlement which the
financial institution possibly might not have
acceded. Therefore, he submits that, issuance
of the notice by respondent no.2 to the
Government Valuer i.e. petitioner no.18, is
nothing but pressurizing tactics so as to
ensure that, petitioner no.13 should come
across table for one-time settlement. The
learned senior counsel submits that,
converting civil case into criminal
proceedings by giving colour of criminality
to a civil case would amount to abuse of
process of law. In support of the aforesaid
contention, he pressed into service an
exposition of law in the cases of Rajib
Ranjan and others v. R. Vijaykumar2, Binod
Kumar and others Vs. State of Bihar and
2 [2015] 1 SCC 513
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another3, Thermax Limited and others Vs.
K.M.Johny and others4 and also in the case of
M/s.Indian Oil Corporation Vs. M/s. NEPC
India Ltd. and ors.5. In support of his
contention that, in order to prevent
injustice or abuse of process, it is
incumbent to consider the document /
documents which have a bearing on the matter
even at the initial stage and grant relief to
the person concerned by exercising
jurisdiction under Section 482 of the
Criminal Procedure Code. He invites our
attention to the para 20 of the judgment in
the case of Anita Malhotra Vs. Apparel Export
Promotion Council and another6. The learned
senior counsel invites our attention to the
pleadings in the petition, grounds taken
therein, annexures thereto, affidavit-in-
rejoinder to the affidavit-in-reply filed on
3 [2014] 10 SCC 663
4 [2011] 13 SCC 412
5 AIR 2006 SC 2780
6 [2012] 1 SCC 520
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behalf of respondent no.2 and submits that,
the petition deserves to be allowed.
5. On the other hand, learned Public
Prosecutor relying upon the averments in the
affidavit-in-reply submits that, keeping in
view the provisions of Section 36 of the
Criminal Procedure Code and also the judgment
of the Supreme Court in the case of State of
Telangana Vs. Habib Abdullah Jeelani and
others7 and also the judgment of the Supreme
Court in the case of Lalita Kumari Vs.
Government of Uttar Pradesh and others8, it
is permissible to cause preliminary enquiry
if the complaint is received by the Superior
Officer. However, relying upon the avements
in the affidavit-in-reply and in particular
para 11 thereof, he submits that, respondent
no.2 realized after perusal of the complaint
given by the complainant along with record
discloses dispute of civil in nature and it
7 [2017] 2 SCC 779
8 [2014] 2 SCC 1
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indicates necessity for enquiry only to
ascertain whether the cognizable offence is
disclosed or not. Therefore, the preliminary
enquiry was initiated and necessary record
was called. He submits that, since respondent
no.2 is of the opinion that, after perusal of
the complaint given by the complainant along
with the record, dispute is predominantly
civil in nature. Therefore, on instructions
of respondent no.2, who is present in the
Court, learned Public Prosecutor submits
that, respondent no.2 has no objection to
allow the petition.
6. Learned counsel appearing for
respondent no.3 invites our attention to the
Section 36 of the Criminal Procedure Code and
also other relevant provisions of the Code of
Criminal Procedure, and relying upon the
judgment of the Supreme Court in the case of
Lalita Kumari and State of Telangana [cited
supra] submits that, respondent no.2 was well
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within his power to cause preliminary
enquiry. He invites our attention to the
allegations in the complaint filed by him to
respondent no.2 and submit that, the
cognizable offences have been disclosed, the
petitioners have cheated respondent no.3.
They have dealt with his property very
casually and fixed meager amount towards
upset price of the said property. There is
fabrication of the documents at the hands of
the office bearers of petitioner no.13. He
submits that, respondent no.3 cannot be
rendered remedy-less, and therefore, the
petition may be rejected.
7. Learned counsel further submits
that, petitioner nos.1 to 17 had no cause of
action to file present Petition inasmuch as
no notices are issued by respondent no.2 to
petitioner nos.1 to 17, they can file reply
in case notices are issued to them.
Therefore, he submits that, the petition may
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be rejected.
8. We have given careful consideration
to the submissions of the learned Senior
Counsel appearing for the petitioners,
learned Public Prosecutor appearing for
respondent nos.1 and 2, and the learned
Advocate Mr.A.N.Kakade appearing for
respondent no.3. With their able assistance,
we have perused the pleadings in the
petition, grounds taken therein, annexures
thereto, and the affidavit-in-reply filed by
respondent no.2, affidavit-in-rejoinder to
the affidavit-in-reply filed on behalf of
respondent no.2. Upon perusal of the
pleadings in the petition, the petitioners
have stated the facts extensively, however,
for the purpose of deciding this petition, it
is not necessary to refer to those facts in
detail, suffice it to say that, it is
admitted position that, respondent no.3
borrowed loan from petitioner no.13, in the
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year 2008 and 2009. The said amount runs in
crores. Thereafter, the various proceedings
were initiated either by the petitioners or
by respondent no.3, and ultimately,
certificate under Section 101 of the
Maharashtra Co-operative Societies Act has
been issued by the Competent Authority for
recovery of amount. In pursuance to the said
certificate, there was auction of the
properties, the said proceedings were
challenged by respondent no.3, however, the
auction proceedings became final.
Thereafter, there was challenge to the
fixation of upset price, but which has also
become final. There was also challenge to the
granting of 'R' certificate under Section 100
of the Maharashtra Co-operative Societies
Act, which has also become final, and it is
also not in dispute that, Writ Petition
No.3512/2014 is pending before the High
Court. It appears that, the litigation
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reached up to the High Court and certain
orders are also passed by the High Court.
Therefore, there is no manner of doubt that,
the litigation between the parties appears to
be civil in nature.
It appears that, respondent no.3 filed
complaint with the MIDC Police Station at
Aurangabad, however, the said complaint was
not entertained, and the respondent no.3
approached respondent no.2. It appears that,
respondent no.2 issued notices to petitioner
no.18 and also authorities working in the Co-
operative Department, asking certain
documents. In fact, respondent no.2 should
have been more careful to find out from the
averments in the complaint and the documents
submitted by the complainant that, whether it
is necessary to issue notices to petitioner
no.18 or other Government authorities calling
the record. However, it appears that,
respondent no.2, without proper application
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of mind, issued notices to petitioner no.18
and also other authorities from the Co-
operative Department of the Government of
Maharashtra calling the record.
9. Be that as it may, the Public
Prosecutor appearing for respondent no.2
relying upon the averments in the affidavit-
in-reply, and in particular para 11 thereof,
on instructions of respondent no.2, who is
present in the Court hall submitted that,
this Court may allow the Writ Petition. In
that view of the matter, we do not wish to
elaborate the reasons about conduct of
respondent no.2, in fact respondent no.2,
after perusal of the averments in the
complaint and record, realized that, dispute
was prominently civil in nature, in that
case, he himself should have taken note of
such conclusion/decision reached by him in
the station diary. However, he instructed the
Public Prosecutor to make oral statement
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before this Court that, in the light of the
averments in para 11 of the affidavit-in-
reply, he has no objection to allow this
Petition.
10. We do not wish to make further
observations about conduct of respondent
no.2, in view of the graceful submissions
made by Mr.A.B.Girase, Public Prosecutor
during the course of hearing. However, we
issue word of caution to respondent no.2
that, as and when in future, such kind of
complaint would be received by him, he shall
keep in mind the law laid down in afore-
mentioned judgments of the Supreme Court,
which are cited across the Bar by learned
senior counsel appearing for the petitioners
during the course of hearing, and then
proceed with such complaint.
11. We are aware that, respondent no.3
was pursuing his complaint with belief that,
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the MIDC Police Station, Aurangabad, will
take care of his complaint. However, upon
considering the pleadings in the petition,
annexures thereto and also other documents
made available for perusal, we are of the
view that, the entire proceedings/litigation
between petitioner no.13 and respondent no.3
appears to be of a civil in nature. Whenever
there is any complaint, which discloses
cognizable offence, the aggrieved person has
to approach to the concerned Police Station
in whose jurisdiction cause of action has
arisen by invoking the provisions of Section
154 of the Criminal Procedure Code. He cannot
approach directly to the superior police
authorities, who are not concerned with his
grievance or had no jurisdiction directly to
entertain complaint in relation to his
grievance. It is true that, the notices are
not issued to petitioner nos.1 to 17 by
respondent no.2, nevertheless the notices
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were issued to petitioner no.18 and also
other Government authorities, in connection
with / in relation with the civil disputes
pending between petitioner no.13 and
respondent no.3. Therefore, we are of the
opinion that, in the peculiar facts and
circumstances of this case, respondent no.2
should not have issued notices before
satisfying himself on the basis of averments
in the complaint and record submitted by
respondent no.3, and also without addressing
himself about his power to entertain such
complaint. Therefore, we are of the opinion
that petition deserves to be allowed.
Accordingly, the Writ Petition is allowed in
terms of prayer clause-B.
12. So far as the relief claimed in
prayer clause-C is concerned, we are not
inclined to entertain the said prayer at
present. As and when such occasion will
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arise, we grant liberty to the petitioners to
approach the appropriate Forum. We make it
clear that, we have passed this order in the
peculiar facts and circumstances of this case
and it does not mean that, there is
impediment to the parties to avail of an
appropriate remedy as available in law for
the redressal of their grievances in relation
to the dispute between them.
13. With the above observations, the
Writ Petition stands disposed of. Rule is
made absolute on above terms. We make it
clear that, the observations made herein
above are confined to the adjudication of the
present petition.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
