Uttamrao Jaggannathrao Warkad ... vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 7503 Bom

                                          1                                      jg.apl 337.17.odt

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

                 Criminal Application (APL) No. 337 of 2017

(1) Uttamrao Jaggannathrao Warkad 
      Aged about 70 years, 
      President of Akshya Nagri Sahakari 
      Pat Sanstha Maryadit, Lakhani. 
      Having registration No. 1132
      R/o : Lakhani, District : Bhandara. 
(2) Umrao Motiramji Bawankule
      Aged about 65 years, 
      Vice President of Akshya Nagri Sahakari 
      Pat Sanstha Maryadit, Lakhani. 
      R/o : Lakhani, District : Bhandara. 
(3) Dewaji Tukaramji Padole
      Aged about 64 years, 
      Secretary of Akshya Nagri Sahakari 
      Pat Sanstha Maryadit, Lakhani. 
      R/o : Lakhani, District : Bhandara. 
(4) Deorao Vithobaji Chachere
      Aged about 65 years, 
      Assistant Secretary of Akshya 
      Nagri Sahakari Pat Sanstha 
      Maryadit, Lakhani. 
      R/o : Lakhani, District : Bhandara.                               .... Applicants

        //  Versus //

(1) State of Maharashtra
      Through its Police Station Officer, 
      Police Station, Lakhani, 
      District : Bhandara.
(2) Shri Shrikant S. Supe
      District Special Auditor Class I 
      Cooperative Societies, Bhandara. 
      Office at Rajgopalchari Ward, 
      Targhar, Near Motghare Fataka 
      Center, Bhandara. 
      District : Bhandara.                                               .... Respondents

                                                                                        .....2/-




::: Uploaded on - 28/09/2017                                ::: Downloaded on - 29/09/2017 01:27:34 :::
                                              2                                      jg.apl 337.17.odt

Ms. Rucha Pande, Advocate h/f Shri S. S. Ghate, Advocate for the 
applicants
Shri A. M. Joshi, Additional Public Prosecutor for the respondents 
                                                        
                                    CORAM      : SMT. VASANTI  A  NAIK AND
                                                    M. G. GIRATKAR, JJ.

DATE : 25-9-2017.

ORAL JUDGMENT (Per : SMT. VASANTI A NAIK, J.)

The criminal application is admitted and heard finally at the

stage of admission with the consent of the learned counsel for the parties.

2. By this criminal application, the four applicants i.e. Uttamrao

Warkad, Umrao Bawankule, Dewaji Padole and Deorao Chachere have

sought for the quashing and setting aside of the First Information Report

registered against them for the offences punishable under Sections 408,

409, 477-A and 420 read with Section 34 of the Penal Code.

3. The applicants are the President, Vice President, Secretary

and Assistant Secretary of Akshya Nagri Sahakari Pat Sanstha Maryadit,

Lakhani. The object of the said society is to advance loans to its members

and also to receive deposits. The accused nos. 5, 6 and 7 in the First

Information Report are the pigmy agents. The accused no. 8 is a

software engineer working on computer maintenance. During the years

2014-15 and 2015-16, an amount of Rs. 33,99,370/- was not reflected in

the books of account though the same was received by the society. On

.....3/-

3 jg.apl 337.17.odt

realising the said flaw, the applicants decided to secure a fresh audit

report from the official forensic auditor. A report was lodged by the

auditor of the society Shri Motwani and in respect of the allegation of

defalcation of the amount, an enquiry was conducted under the

provisions of the Maharashtra Co-operative Societies Act. As per the

enquiry report, some of the other accused whose names are mentioned

in the first information report were involved in the misappropriation

of the funds of the society. As per the enquiry report, the applicants had

no role to play except that at the relevant time they were the President,

Vice President, Secretary and Assistant Secretary of the society. On the

basis of the said enquiry report, a written complaint was made by

Shri Shrikant Supe, District Special Auditor and the first information

report was registered against the applicants along with the other accused,

for the offences punishable under Section 408, 409, 477-A, 420 read with

Section 34 of the Penal Code.

4. Ms. Pande, the learned counsel for the applicants submitted

that even if, the allegations in the FIR and the findings in the enquiry

report are accepted at their face value in the entirety, the offences under

Sections 408, 409, 477-A and 420 of the Penal Code cannot be prima

facie made out against the applicants. It is submitted that there are no

allegations against the applicants either in the first information report or

.....4/-

4 jg.apl 337.17.odt

the enquiry report prepared under the provisions of the Maharashtra

Co-operative Societies Act. It is submitted that in any case, offences

could not have been registered against the applicants for cheating,

criminal breach of trust etc. as no allegations are levelled against the

applicants either in the first information report or the enquiry report, in

respect of the said offences.

5. Shri Joshi, the learned Additional Public Prosecutor

appearing for the respondents has submitted that in the enquiry report,

there is an observation that the applicant no. 3 Shri Dewaji Padole is

the relative of the Manager and as he had not kept any control over the

pigmy agents, the funds of the society have been misappropriated. It is

submitted that since at the relevant time, the applicants were the office

bearers and certain funds of the society are misappropriated, the first

information report was registered against the applicants.

6. We have perused the provisions of Sections 405, 408, 409,

415, 420 and 477 of the Penal Code. On a reading of the said provisions,

it is clear that the offences could not have been registered against the

applicants under Section 408, 409, 420 and 477-A of the Penal Code.

Section 408 of the Penal Code provides the punishment for the offence of

criminal breach of trust by a clerk or servant. The applicants are not

.....5/-

                                              5                                      jg.apl 337.17.odt

clerks   or   servants   of   the   society.     They   are   the   office   bearers   of   the

society. Section 409 of the Penal Code provides the punishment for the

offence of criminal breach of trust by a public servant, banker, merchant

or agent. Section 405 of the Penal Code defines criminal breach of trust.

For committing an offence of criminal breach of trust, it would be

necessary for a person who is entrusted with the property or who has a

dominion over the property to dishonestly misappropriate the property

or convert the property as their own or dispose of the property in

violation of any law. There is no allegation against the applicants in the

FIR or in the enquiry report that they have in any manner dishonestly

misappropriated or converted the property entrusted to them, as their

own or disposed of the property in violation of the law. Similarly, the

offence of cheating could not have been registered against the applicant.

For the commission of the offence of cheating, it would be necessary for a

person to dishonestly induce the person deceived to deliver any property

to him or to make, alter or destroy the whole or any part of a valuable

security. There is no allegation either in the FIR or the enquiry report

that the applicants were involved in the offence of cheating. Similar

would be our finding in respect of the registration of the offence under

Section 477-A of the Penal Code. The offence under Section 477-A could

be committed by a clerk, officer or servant, if he wilfully and with an

intent to defraud, destroys, alters, mutilates or falsifies any valuable

.....6/-

6 jg.apl 337.17.odt

security or account which belongs to, or is in the possession of his

employer. The said provision could not have been applied to the

applicants. In fact, the applicants had noticed some irregularities in the

maintenance of the accounts of the society and Shri Motwani, the auditor

of the society had lodged the report. On the basis of the report, an

enquiry was made in the affairs of the society. The enquiry report,

however, does not record a finding that any of the applicants were in any

manner whatsoever, responsible for the defalcation of the society's fund.

There is no allegation in the first information report or the enquiry report

that could have resulted in the registration of the first information report

against the applicants under Sections 408, 409, 420 and 477-A of the

Penal code. While registering the FIR against the persons against whom

certain findings were recorded in the enquiry report, the FIR was

wrongfully registered against the applicants.

7. Hence, for the reasons aforesaid, the criminal application is

allowed. The First Information Report registered against the applicants

for the offences punishable under Sections 408, 409, 420, 477-A read

with Section 34 of the Penal Code is hereby quashed and set aside.

Order accordingly.

                       JUDGE                                               JUDGE
wasnik


                                                                                              ...../-