Bombay High Court
Pimpalvad Mhalsa Vividh Karyakari Seva ... vs The State Of Maharashtra And Another on 5 August, 2024
2024:BHC-AUG:17017
47-cwp-1248-2024.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1248 OF 2024
Pimpalvad Mhalsa Vividh Karyakari
Seva Sahakari Society Ltd.
Office at : Pimpalvad Mhalsa,
Tal. Chalisgaon, Dist. Jalgaon,
Through its Chairman
Sunil Sukhdev Patil
Age : 50 years, Occ. Agriculture,
R/at : Pimpalvad Mhalsa,
Tal. Chalisgaon, Dist. Jalgaon. ..Petitioner
VERSUS
1. The State Of Maharashtra
Through Chief Secretary for the
State, Mantralay, Mumbai.
2. Ramchandra Babruvahan Patil
Age 59 years, Occ. Retired,
R/at : Umberkhed, Tal. Chalisgaon
Dist. Jalgaon ..Respondents
...
Advocate for the Petitioner : Mr. Jadhav Yogesh Arun
APP for Respondent No.1/State : Mr. S.B. Pulkundwar
...
CORAM : S.G. MEHARE, J.
DATED : AUGUST 05, 2024
ORDER :
-
1. Heard learned counsel for the petitioner.
2. Issue notice to the respondents.
3. Learned APP waives service of notice for the respondent
no.1/State.
4. A small issued has been raised by the petitioner that it is
a cooperative society, hence, entitled to receive the amount deposited
47-cwp-1248-2024.odt
by respondent/accused. Respondent no.2 has misappropriated the
amount. An inquiry under Section 88 of the Maharashtra Co-
operative Societies Act ('M.C.S. Act' for short) was initiated against
him and he was held liable to pay the so-called misappropriated
amount. The petitioner has also obtained the recovery certificate from
the Registrar, Co-operative Society. The said order is executable.
However, the learned counsel for the petitioner approached the
Judicial Magistrate First Class (Court No.1), Chalisgaon by an
application below Exhibit-44 for withdrawal of amount of
Rs.26,43,803/- deposited with the Court of Judicial Magistrate as per
the order of this Court dated 19.07.2022 passed in Bail Application
No.1660 of 2021.
5. The learned Judicial Magistrate rejected the prayer to
allow him to withdraw the amount. The learned Magistrate has
observed that perusing the bail order of this Court, it appears that it
was a condition precedent for releasing him on bail and this Court did
not direct about the management of the said amount. So, releasing
such amount to the applicant will amount to go beyond the order of
the Hon'ble Bombay High Court.
6. The question is should the amount directed to be
deposited by respondent no.2 as a condition precedent for bail be
allowed to be withdrawn by the complainant as recovery of dues.
47-cwp-1248-2024.odt
7. Learned counsel for the petitioner would submit that
non-applicant no.2 has no other property than the amount deposited
with the Court. It would be very difficult to execute the recovery
certificate. In these peculiar circumstances, if the amount is allowed
to be withdrawn, the society may save its incorporation. Ultimately, it
is a property of the complainant. Hence, the petition deserves to be
allowed.
8. Learned APP would submit that the amount deposited by
the accused was a condition precedent for bail. It was not an
assurance by the Court for recovery of the amount as per the recovery
certificate. The petitioner has a legal remedy to execute the recovery
certificate under the M.C.S. Act.
9. The order of this Court granting bail dated 19.07.2022 to
deposit the amount of Rs.26,43,803/- was a condition precedent for
releasing him on bail. The law is well settled that it is not the duty of
the Criminal Court to ensure the recovery of the amount due to the
complainant or the decree holders. The Criminal Court has to pass
appropriate judgment of conviction if the charges are proved beyond
the reasonable doubt. No law restrains the complainant/decree
holder to proceed with the recovery of the so-called amount to be
recovered from the accused. Since the amount deposited was a bail
condition, it could not be said that it was a muddemal property, which
may be released to the person entitled to receive on satisfying the
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Court that he/she has a title over it. The alternate efficacious remedy
is available to the petitioner to recover the amount as per the recovery
certificate. Hence, the prayer of the petitioner to allow him to
withdraw that amount as recovery of dues against the accused could
not be considered. On this point, the learned Judicial Magistrate has
recorded the correct finding. There is no substance in the matter.
Hence, the petition stands dismissed in limine without notice to
respondent no.2.
(S.G. MEHARE, J.)
Mujaheed//
