The Recovery Officer, Janta ... vs The State Of Maharashtra, Thr. ...
2021 Latest Caselaw 10100 Bom

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


                           CRI. APPLN. (APL) NO. 338                         OF 2016


APPLICANTS :                           1)      The Recovery Officer, Janta Sahakari Bank
                                               Ltd., Gondia, Tah. & Dist. - Gondia.

                                       2)      The General Manager, The Janta Sahakari
                                               Bank Ltd. Gondia, Tah. & Dist.- Gondia
                                               through its General Manager.

                                                    -VERSUS-

RESPONDENTS :                          1)      The State of Maharashtra, through the
                                               presiding Officer Civil Judge (Senior
                                               Division) Gondia, Dist.-Gondia.

                                       2)      The District Deputy Registrar, Gondia, Office
                                               at Balaghat Road, Gondia, Tah. & Dist. -
                                               Gondia.

                                       3)      Vijay s/o Ambhubhai Sheth, A/a 50 years,
                                               Occ.-Adv. r/o. Yellow Building, Laxmibai
                                               Ward, Gondia, Tah. & Dist. - Gondia.


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                     Mr. V. R. Borkar, counsel for the applicants.
                 Ms Shamsi Haider, APP for respondent Nos.1 and 2.
                             None for respondent No.2.
----------------------------------------------------------------------------------------------------------------------



                                                CORAM : MANISH PITALE, J.

                                                DATE           : 02.08.2021




KHUNTE





                                                                205-APL338.16.odt





ORAL JUDGMENT

By this application, the applicants - Recovery Officer and the

General Manager of the Janta Sahkari Bank Ltd., Gondia have challenged

orders passed by the Magistrate and the Sessions Court, rejecting the

application for discharge filed on behalf of the applicants. It is the case of

the applicants that the Courts below have failed to appreciate the facts and

circumstances of the present case in the correct perspective.

2. The Janta Sahkari Bank Ltd. had put to auction a property

belonging to one Ravindra Sheth, as he had defaulted in repaying loan

advanced by the said Bank. The auction was conducted and the property

was sold. Thereafter, the son of the said Ravindra Sheth i.e. Nilesh Sheth

filed a suit for declaration, injunction and restoration, contending that the

entire auction proceeding was vitiated and that he was entitled for

restoration of the property. The aforesaid suit bearing Special Civil Suit

No.87 of 1989 (Old No.82 of 1986) was partly decreed by the Court of

Civil Judge, Senior Division, Gondia by judgment and decree dated

24/12/2004. The aforesaid Bank filed appeal against the said judgment

and decree.

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3. During the pendency of the said appeal, the original decree holder

filed an application in execution proceedings before the concerned Court,

seeking a direction for compliance of the judgment and decree passed

against the said Bank. The said application was opposed by the applicants

herein, contending that the same was not maintainable. The original

decree holder also contended that the applicants herein were liable to face

proceedings under section 166 of the Indian Penal Code (IPC) for having

disobeyed the directions in the judgment and decree.

4. Despite the opposition of the applicants and their contention that it

was the decree holder who was delaying proceedings in the Appellate

Court, by order dated 02/05/2009, the Court of Civil Judge, Senior

Division, Gondia, allowed the application of the decree holder and directed

that a separate complaint be filed before the Court of Judicial Magistrate

First Class, Gondia (Magistrate) against the applicants for offences

punishable under sections 166 and 188 of the IPC. Pursuant thereto, on

18/06/2009, the Presiding Officer of the Court of Civil Judge, Senior

Division, Gondia, caused the criminal complaint to be filed against the

applicants under section 340 read with section 195 of the Cr.P.C. for

offences punishable under sections 166 and 188 of the IPC.

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5. Thereafter, on 11/02/2020, the appeal filed by the aforesaid Bank

was allowed and the judgment and decree passed in favour of the original

decree holder was quashed and set aside. Consequently, the suit was

dismissed.

6. Thereafter, the applicants filed an application raising objection to

framing of charge on 04/09/2012, before the Court of Magistrate. The

said application was rejected and a revision application filed by the

applicants was also dismissed by the Sessions Court. Aggrieved by the

same, the applicants have filed Criminal Application (APL) No.183 of 2014

before this Court. By judgment and order dated 17/02/2015, the said

application was dismissed with liberty to the applicants to approach the

Magistrate and to inform the said Court that the suit filed by the original

decree holder being dismissed, the very foundation of the case against

them had been swept away. It was directed that the applicants could

approach the Court of Magistrate within two weeks. Thereafter, the

applicants did approach the Court of the Magistrate to bring on record the

subsequent development of the appeal being allowed and the suit itself

being dismissed. But, by order dated 28/10/2015, the Court of Joint Civil

Judge, Junior Division and Judicial Magistrate First Class, Gondia rejected

the application filed by the applicants for discharge. Aggrieved by the

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same, the applicants approached the Sessions Court. By the impugned

order dated 01/04/2016, the revision application was dismissed. Hence,

the applicants approached this Court, wherein notice was issued on

22/06/2016, in the present application and interim stay was granted in

favour of the applicants. Consequently, the proceedings before the

Magistrate have remained in abeyance.

7. On 03/07/2017, this Court granted Rule in the present application.

Today, when the application was called out for final hearing, Mr.V.R.

Borkar, learned counsel appearing for the applicants, brought to the notice

of this Court the aforesaid facts pertaining to the case. It was submitted

that respondent No.3 was served in the present application, but he has

chosen not to appear along with his counsel today. The learned counsel

appearing for the applicant not only stated that the appeal filed before the

District Court by the said Bank was allowed, but second appeal filed by the

original decree holder also stood dismissed by a reasoned judgment and

order dated 17/02/2011, passed by this Court. It was submitted that

therefore, the dismissal of the suit stood confirmed up to this Court and the

same had attained finality. It was submitted that this was a crucial aspect

in the present case because the complaint filed against the applicant was

for disobeying directions given in a judgment and decree, which

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subsequently was set aside in appeal and confirmed by this Court in

second appeal. All these aspects were placed on record before the Courts

below and yet they proceeded to reject the application for discharge filed

on behalf of the applicants. It was submitted that when the whole basis of

proceeding against the applicants for alleged offences under sections 166

and 188 of the IPC, no longer existed, there was no question of the

applicants being forced to face trial in the matter. It was submitted that

the interest of justice required the present application to be allowed and

the impugned order be set aside.

8. As noted above, respondent No.3 and his counsel are not present

when the application is called for hearing today. The written submissions

filed on behalf of respondent No.3 are perused by this Court. Although the

said written submissions copiously quote from the orders passed by the

Presiding Officer of the Court of Civil Judge, Senior Division, leading to

filing of the criminal complaint against the applicants, there is nothing to

show as to what would be the effect of the admitted subsequent events

concerning the present case.

9. Ms Shamsi Haider, learned APP has appeared on behalf of the

respondent-State.

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10. It is relevant that this Court in its earlier judgment and order

passed on 17/02/2015, granted liberty to the applicants to place on record

subsequent developments before the Courts below. It was found that

when the Court of Magistrate and the Sessions Court had rejected the

contentions of the applicants in the first round, perhaps the subsequent

developments pertaining to the appeal being allowed and the suit itself

being dismissed, were not brought to the notice of the Courts below.

Pursuant to the liberty granted by this Court, the applicants did move the

Court of Magistrate with an application for discharge, while placing on

record subsequent developments. A perusal of the order passed by the

Magistrate on 20/12/2015, does not show any discussion on the

subsequent development and there is hardly any reasoning in the order

while rejecting the application of the applicants. It appears that one of the

reasons given by the Magistrate while rejecting the application of the

applicants was that they had not approached the said Court within two

weeks of the order of this Court and then there is a cursory reference to

the material on record, with a finding that there is prima facie evidence

against the accused for framing charges. Similarly, in the judgment and

order dated 01/04/2016, there is hardly any reasoning given by the

Sessions Court as regards the subsequent developments in the matter,

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which had a crucial bearing on the aspect as to whether the criminal

proceedings could proceed against the applicants.

11. This Court has perused the material on record. Admittedly, the

appeal filed by the Bank against the judgment and decree was allowed and

the suit filed by the original decree holder itself was dismissed by

judgment and order dated 11/02/2010. The said judgment of the

Appellate Court was confirmed by this Court by judgment and order dated

17/02/2011 passed in Second Appeal No.473 of 2010 and a connected

second appeal. Therefore, when the application raising objection to

framing of charges was filed by the applicants before the Magistrate in the

year 2012, the judgment and decree passed by the Court did not exist and

the suit itself had been dismissed. Since this was not brought to the notice

of the Magistrate and the Sessions Court in the first round, this Court

granted liberty for doing so.

12. Despite the applicants placing such subsequent developments on

record, which had a crucial bearing on the present case, the Magistrate as

well as the Sessions Court have proceeded to reject the application for

discharge filed by the applicants, in the absence of any discussion as to the

effect of the said subsequent developments. This Court is of the opinion

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that when the very basis of the criminal proceedings initiated against the

applicants was taken away by dismissal of the suit, there was no material

on record for proceeding against the applicants in the criminal case.

13. This Court is of the opinion that the filing of the criminal complaint

by the Presiding Officer of the Court of Civil Judge, Senior Division, in a

hurry during pendency of the appeal before the Appellate Court, itself was

a procedure which appears to be unsustainable. The fact that the applicants

had brought to the notice of the said Court about the pendency of the

appeal and there was an allegation made that the original decree holder

was deliberately delaying proceedings before the Appellate Court, the

same ought to have been taken into consideration by the concerned Court

and its Presiding Officer. Yet, not only was the application filed by the

original decree holder for proceeding against the applicants under sections

166 and 188 of the IPC allowed in a hurry, but the aforesaid separate

complaint was filed by the Presiding Officer of the Court itself.

14. Apart from this, when the orders of the First Appellate Court and

this Court in second appeal were brought to the notice of the Magistrate,

demonstrating that the suit itself stood dismissed and there was no

direction to be complied with, the Court of the Magistrate ought to have

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taken into consideration the said crucial subsequent development in the

matter. Neither the Magistrate nor the Sessions Court in the present case

paid any attention to these aspects of the matter while rejecting the

contentions raised on behalf of the applicants. Allowing the criminal

proceedings against the applicants to proceed further would be of no

consequence in the facts and circumstances of the present case and it

would amount to flogging a dead horse. The Courts below failed to

appreciate this aspect of the matter while passing the impugned orders.

15. Therefore, the present application is allowed. The order dated

28/12/2015, passed by the Court of Judicial Magistrate First Class and the

judgment and order dated 01/04/2016 passed by the Court of Sessions

Judge, Gondia are quashed and set aside. The application filed by the

applicants at Exhibit-117 seeking discharge from the Special Criminal Case

No.592 of 2009, is allowed. Consequently the said criminal case stands

quashed.

16. Rule is made absolute in the above terms.

JUDGE

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