Rajiv S/O Ramkumar Mishra vs State Of Mah., Thr. Principal ...
2021 Latest Caselaw 2656 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL WRIT PETITION NO.11 OF 2020.

 Rajiv S/o. Ramkumar Mishra,
 Aged about 60 years,
 Occ. Legal Practitioner,
 R/o. 194, Cement Road,
 Dharampeth Extension,
 Shivaji Nagar, Nagpur-440010                            . . . . PETITIONER

 . . . VERSUS . . .

 1.       State of Maharashtra through
          Principal Secretary (Special),
          Home Department, 2nd Floor,
          Mantralaya, Madam Cama Road,
          Hutatma Rajguru Chowk,
          Mumbai 400032.

 2.       The Superintendent,
          State CID (Crimes),
          Jafar Nagar Road, Nagpur.                      . . . . RESPONDENTS

                                        ...
          Shri Shyam Dewani , Advocate for Petitioner.
          Shri T.A.Mirza, APP for Respondents/State.
                                        ...
                  CORAM : Z. A. HAQ AND AMIT B. BORKAR, JJ.

DATED : 10.02.2021.

ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :

1. Rule. Rule is made returnable forthwith.

2. By this petition under Articles 226 and 227 of the

Constitution of India, the petitioner has challenged registration of the

First Information Report No.338 of 2007 dated 15 th November 2007

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registered with the Police Station, Sitabuldi, Nagpur and the Charge-

sheet dated 30th June 2010 in R.C.C. No.2190 of 2008 pending before

the Additional Chief Judicial Magistrate-1, Nagpur, for offences under

Sections 406, 408, 409, 467, 468, 471, 420, 201, 120-B, 109 read with

Section 34 of the Indian Penal Code, 1860 and Section 65 of the

Information Technology Act, 2000 alongwith Sections 3 and 4 of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999 (for short, "the Act of 1999").

3. The First Information Report came to be registered against

the petitioner and others with the accusation that the petitioner being

the Managing Committee Member of the Cooperative Bank alongwith

other Managing Committee Members disbursed loans to the borrowers

without following procedure prescribed and without taking securities

for the loans. It is further alleged that the petitioner alongwith other

Managing Committee Members has done acts, which were detrimental

to the interest of the bank, resulting into huge losses to the bank and

have defrauded and misappropriated the account holders of the bank

for amount to the tune of Rs.145,60,56,332/-. It is alleged that the

said misappropriation took place between the period 30 th March 1997

to 31st March 2006.

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4. The Charge-sheet came to be filed against the petitioner,

wherein it is alleged that the petitioner illegally disbursed loans to the

borrowers in connivance with the officials of the bank and the

Managing Committee Members. It is further alleged in the Charge-

sheet that the petitioner on 31st July 1997, 28th May 1998, 30th June

1998, 29th December 1998 and 28th January 1999 had attended

meetings of the Managing Committee of the said bank and disbursed

various loans in favour of various borrowers without obtaining

securities, resulting into loss to the said bank.

5. The petitioner has, therefore, challenged First Information

Report and the Charge-sheet by way of the present petition. This Court

on 15th January 2020, issued notice for final disposal to the

respondents. On 17th December 2020, the respondent no.1 filed its

reply and it is stated that the report in question has been registered on

the complaint made by Special Auditor Class-I, Cooperative Societies,

Nagpur. It is stated that the petitioner was elected as Managing

Committee Member of the said bank and was present in the meetings

dated 31st July 1997, 29th December 1998, 10th January, 1999, 26th

February 1999 and 8th February, 2000. It is undisputed fact that the

petitioner resigned as Managing Committee Member of the said bank

on 22nd December 2000. It is stated that in the facts of the present

case, provisions of Sections 3 and 4 of the Act of 1999 are attracted. It

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is further stated that the properties of the Managing Committee

Members of the bank have been attached and further proceedings in

that regard are stayed because of the interim orders passed by this

Court. In para 12, it has been stated that in the inquiry under Section

88 of the Maharashtra Cooperative Societies Act 1960 (for short "the

Act of 1960"), the petitioner was exonerated.

6. We have heard the learned Advocate for the petitioner and

the learned APP for the respondents.

7. Shri Shyam Dewani, learned Advocate for the petitioner,

submitted that assuming the material in the Charge-sheet to be correct,

still ingredients of offence under the provisions of the Act of 1999 are

not attracted, since the Act of 1999 came into force with effect from

29th April 2019 and all the loans mentioned in the Charge-sheet had

been disbursed prior to coming into force of the said Act. He submitted

that the resignation of the petitioner was accepted on 22 nd December

2000 and, therefore, the petitioner ceased to be the Managing

Committee Member of the said bank from 22.12.2000. He invited our

attention to the order passed by the Divisional Joint Registrar,

Cooperative Societies, who is authorised Officer under Section 88 of

the Act of 1960, thereby exonerating the petitioner of liability for the

loss caused to the said bank. He also invited our attention to the

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Certificate issued by the Commissioner Cooperation under Section 98

of the Act 1960, which shows the list of persons held responsible for

the loss caused to the said bank, which does not reflect the name of the

petitioner,. He invited our attention to the unreported judgment of this

Court in Criminal Writ Petition No.413 of 2018 [Smt. (Dr.) Rita

Parasher Vs. Sate of Maharashtra] and submitted that the petitioner in

the said case was similarly placed like petitioner in the present petition

and, therefore, the said judgment applies to the present case with full

force.

8. Shri T.A. Mirza, learned Additional Public Prosecutor

submitted that from the allegations in the First Information Report and

the material in the Charge-sheet, the ingredients of the offences against

the petitioner are fulfilled. He submitted that the Court, at this stage,

cannot hold an inquiry about the veracity of the allegations in the First

Information Report and the Charge-sheet. He submitted that the

petitioner, in connivance with other Managing Committee Members

have caused huge loss to the said bank and to the depositors,

therefore, there is no merit in the petition.

9. We have carefully considered the contents of the First

Information Report and the material in the form of the Charge-sheet.

Undisputedly, the resignation of the petitioner was accepted on

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22nd December 2000. Undisputedly, the Act of 1999 came into force

with effect from 29th April 1999. As per the allegations in the Charge-

sheet, the Managing Committee meetings, which were attended by the

petitioner were - on 31st July 1997, 28th May 1998, 30th June 1998,

29th December 1998 and 28th January 1999, which are prior to

coming into force of the Act of 1999.

10. We have given our most anxious consideration to the rival

submissions and in the light of what we have observed above, the

submissions advanced by Learned advocate for applicant commend us.

It is trite that to bring an accused within the mischief of the penal

provision, ingredients of the offence have to be satisfied on the date

the offence was committed. Article 20(1) of the Constitution of India

permits conviction of a person for an offence for violation of law in

force at the time of commission of the act charged as an offence. The

date of offences alleged against the petitioner are prior to coming into

force of the Act of 1999 i.e. 29th April 1999. Since, the alleged offences

are committed prior to coming into force of the Act of 1999, the

petitioner cannot be charged for the offences under Sections 3 and 4 of

the Act of 1999. The Division Bench of this Court in Criminal Writ

Petition No.2413 of 2018 (Smt. [Dr.] Rita Parasher Vs. State of

Maharashtra) has taken a view that if the offences under Section 3 of

the Act of 1999 are committed prior to coming into force of the Act of

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1999, the Managing Committee Member cannot be charged for the

said offence. This Court in the said unreported judgment, has held that

the offence under Section 3 of the Act of 1999 can be said to be

committed when the Financial Establishment fraudulently defaults in

the payment of deposit on maturity alongwith benefit as referred in

Section 3 of the Act of 1999. On other words every default in the

payment of deposit on maturity alongwith benefit as referred in

Section 3 of the Act of 1999 does not attract penal consequences

unless it is "fraudulent default" as contemplated by provisions of the

Act of 1999. In the facts of the present case also, there is nothing to

show that Samata Sahakari Cooperative Bank i.e. the Financial

Establishment committed "Fraudulent Default" in repayment of any

deposit on maturity alongwith any benefit till 31st March, 2000. We,

are therefore, of the considered view that the ingredients of Sections 3

and 4 of the Act of 1999 are not fulfilled in the present case.

11. Insofar as the offences under Sections 406, 408, 409, 467,

468, 471, 420, 201, 120-B and 109 read with Section 34 of the Indian

Penal Code are concerned, the Authorised Officer under Section 88 of

the Act of 1960, has submitted the report stating that there is no

evidence that the petitioner was involved in any act which caused loss

to the said bank. The Authorised Officer under Section 88 of the Act of

1960 has recorded categorical finding that the petitioner is neither

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directly or indirectly responsible for any misdeed, misappropriation or

financial loss to the Samata Sahakri Bank and, therefore, the petitioner

cannot be held responsible under Section 88 of the Act of 1960 and,

therefore, there was no need to file charge-sheet against him. The

Authoried Officer, therefore, exonerated the petitioner under Section

88 of the Act of 1960. Apart from the exoneration of the petitioner, the

learned Advocate for the petitioner invited our attention to the fact

that the borrowers to whom the loans were disbursed in the meetings

which were attended by the petitioner, had already repaid entire

amount to the bank. Therefore, there is no loss caused to the said bank

for disbursing loans without security.

12. On overall consideration of the material on record, we are

satisfied that the ingredients of the offences alleged against the

petitioner i.e. Sections 406, 408, 409, 467, 468, 471, 420, 201,120-B,

109 read with Section 34 of the Indian Penal Code, 1860 and Section

65 of the Information Technology Act, 2000 alongwith Sections 3 and 4

of the Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999 are not fulfilled even if, the entire material

against the petitioner in the Charge-sheet is taken as correct. We are,

therefore, satisfied that the continuation of the proceedings against the

petitioner would amount to abuse of process of the Court. We

therefore, pass the following order:

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                                                ORDER

Rule is made absolute in terms of prayer clause "A" of the

petition. Prayer Clause "(a)" reads as under:

"Quash and set aside the FIR vide Crime No.338/2007 dated 15.11.2007 (ANNEXURE-A), registered with the Police Station, Sitabuldi, Nagpur and investigated by Respondent no.2, which resulted into filing of Charge- sheets including the 3rd Supplementary Charge-sheet dated 30.6.2010 (ANNEXURE-E) bearing RCC No.2190/2008, which is pending on the file of the Additional Chief Judicial Magistrate-1, Nagpur & all consequent proceedings arising out of registration of the said Crime including the said prosecution, at least against the petitioner, in the peculiar facts and circumstances of the case stated hereinabove and in the interest of Justice".

                           JUDGE                                         JUDGE

Ambulkar.