IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1274 OF 2006. WRIT PETITION NO.1274 OF 2006. WRIT PETITION NO.1274 OF 2006. 1. Shri Amrut Vinayak Deshpande. 2. Smt.Usha Pandurang Potdar. 3. Shri Maruti Nana Kamble. 4. Shri Prakash Appasaheb Biraje. 5. Nandkumar Sadashiv Bapat. 6. Annasaheb Hari Belagi. 7. Shri Lakshman Nagesh Jamdagni. 8. Shri Bapurao Bhau Pujari. 9. Shri Mohan Mahadev Devdhar. 10.Smt. Malati Waman Joshi. 11.Shri Ganesh Hari Gadgil. 12. Shri Avinash Yeshwant Shaligram. ..Petitioners. versus 1. Shri Vinayak Govind Deval. 2. The State of Maharashtra. ..Respondents. .... Mr.A.P.Mundargi, Senior Counsel with Mr.G.H. Keluskar, for the Petitioners. Mr. Uday P. Bobde, i/b. Mr.G.N.Salunke, for the Respondent No.1. Mr.D.P.Adsule, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 24TH JULY,2008. : 24TH JULY,2008. : 24TH JULY,2008. ORAL JUDGMENT : 1. The submissions of the learned Counsel appearing for the Petitioners were heard on 15th July 2008 and the submissions of the learned Counsel appearing for the first Respondent were heard on 21st July 2008. Today, the Petition is kept for dictation of judgment. 2. By this Writ Petition under Article 227 of - 2 - the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"), the Petitioners have challenged the order dated 19th May 2006 passed by the learned Chief Judicial Magistrate, Sangli, by which the learned Chief Judicial Magistrate held that there is material against the Petitioners to frame charge for having committed offences under sections 409, 210 read with section 34 of the Indian Penal Code. 3. It will be necessary to refer to the facts of the case in brief. According to the case of the Petitioners, the eighth Petitioner was the Chairman of the Sangli Urban Co-operative Bank Ltd. (hereinafter referred to as "the said Bank") and the other Petitioners were the Directors of the said Bank. According to the case of the Petitioners, the first Respondent (Complainant) had obtained a crop loan of Rs.30,000/- and a loan of Rs.2,50,000/- from the said Bank against the mortgage of agricultural lands. The said Bank filed disputes under section 91 of the Maharashtra Co-operative Societies Act, 1960 against the first Respondent for recovery of the amounts. The said disputes were withdrawn and the Bank filed recovery proceedings under section 101 of - 3 - the said Act of 1960. The recovery certificates were issued in favour of the said Bank. There were revision applications preferred by the first Respondent for challenging the recovery certificates. The Revision Application relating to recovery certificate regarding the crop loan of Rs.30,000/- was partly allowed to the extent that more than the double amount could be recovered. The other Revision Application was rejected. The first Respondent filed Writ Petitions in this Court challenging the said orders. The Writ Petitions were rejected by this Court. Two separate Special Leave Petitions were filed by the first Respondent. The Special Leave Petition relating to the loan of Rs.2,50,000/- was entertained by the Apex Court and stay of recovery proceeding was granted by the Apex Court, with a direction to the first Respondent to pay Rs.5 lacs. The other Special Leave Petition relating to crop loan of Rs.30,000/- was rejected by the Apex Court. 4. The first Respondent filed a private complaint against the Petitioner and others alleging commission of offences under sections 409, 210 of the Indian Penal Code. In the said private complaint, the first Respondent referred to the aforesaid orders. He stated that the amount payable towards - 4 - the crop loan was fully paid by the first Respondent by depositing a sum of Rs.62,283/- . It is pointed out that in terms of the interim order of the Apex Court, a sum of Rs.5 lacs was deposited by the first Respondent on 30th December 1991 and therefore, stay granted by the Apex Court was operational. 5. The first Respondent stated in the complaint that certain land owned by him was acquired by the State Government. By an award, a compensation of Rs.3,28,000/- was ordered to be paid to the first Respondent. On the basis of the alleged mortgage, the Bank claimed a right in respect of the said compensation amount. It is the case of the first Respondent that he invited the attention of the Land Acquisition Officer to the order passed by the Apex Court and to the fact that the said Respondent had fully repaid the amount repayable towards the crop loan. The specific case made out in the complaint is that thereafter there was a discussion between the said Bank and the Land Acquisition Officer and it was agreed that out of the compensation amount payable to the first Respondent, a sum of Rs.75,000/- shall be kept deposited in the name of the first Respondent in a fixed deposit with the said Bank. It is stated that accordingly, the Special Land Acquisition - 5 - Officer paid the sum of Rs.75,000/- to the said Bank. According to the case of the first Respondent, on 16th October 1992, he made an application to the Managing Director of the said Bank demanding the amount of Rs.75,000/-. The said Bank replied on 31st October 1992 and stated that the amount has been transferred to the Suspense Account. The said Bank forwarded a copy of letter dated 21st May 1992 written by it to the Special Land Acquisition Officer recording therein that a sum of Rs.75,000/- cannot be kept in the fixed deposit in the name of the first Respondent and therefore, the amount was being credited to the loan account. 6. It is alleged in the complaint filed by the first Respondent that instead of keeping the amount of Rs.75,000/- invested in the fixed deposit in the name of the first Respondent, by misleading the Land Acquisition Officer and the first Respondent, the amount was kept in the suspense Account for more than one year. 7. The first Respondent stated that on the ground that the said amount of Rs.75,000/- was credited towards the repayment of loan of Rs.2,50,000/-, the first Respondent filed a Contempt - 6 - Petition in the Apex Court. It is alleged that after the Bank came to know about the filing of the Contempt Petition, the Bank showed that the said amount has been credited to the crop loan account. It is alleged that a record was deliberately created by the said Bank for showing that the amount was adjusted towards the crop loan account though the first Respondent had earlier repaid the entire amount payable under the said account. It is contended that a sum of Rs.75,000/- was entrusted to the said Bank and instead of investing the said amount in a fixed deposit in the name of the first Respondent, initially the same was transferred to the suspense account and thereafter, it was purportedly adjusted against the loan account in respect of which a recovery certificate issued earlier was already fully satisfied. It is alleged that the said transactions were made as per the approval granted by the Managing Committee. It is stated that the Petitioners were Directors when the offence was committed. 8. On the basis of the complaint filed by the first Respondent, the police made an investigation and submitted a report to the learned Magistrate on 6th May 1998 stating therein that no offence was made out. Evidence before the charge was recorded. The - 7 - first Respondent examined himself. He also examined two officers of the said Bank as witnesses. After considering the evidence adduced before the charge, the learned Chief Judicial Magistrate passed the impugned order. The operative part of the impugned order reads thus :- " As there is material so as to frame charge against the accused nos.1, 2, 4 to 11, 15 and 17 for having committed offences under sections 409, 210, 34 I.P.C. matter is kept so as to frame charge against these accused under section 409, 210, 34 I.P.C. Matter is abated against accused nos.3, 12, 13, 14 and 16." 9. The learned Senior Counsel appearing for the Petitioners has taken me through the documents on record. He submitted that section 409 will have no application as the first Respondent had never deposited the amount of Rs.75,000/- with the said Bank in its capacity as his Banker. It is submitted that on plain reading of section 210, the said section was not attracted. He invited my attention to section 195 of the Code of Criminal Procedure, - 8 - 1973. He submitted that the bar created thereunder was squarely applicable. He submitted that though the Petitioners were allegedly the Directors of the said Bank when the alleged offence was committed, there cannot be any vicarious criminal liability fastened against the Petitioners. He, therefore, submitted that the impugned order deserves to be quashed and set aside. 10. The learned Counsel appearing for the first Respondent opposed the said submissions relying upon the decision of the Apex Court in a case of Smt. Om Wati and Anr v/s. State [ 2001 Cr.L.J. 1723 ]. He submitted that when there was sufficient material on record to proceed against the Petitioners, at the stage of framing of the charge, this Court ought not to interfere. He also placed reliance on another case of Hardeo Singh v/s. State of Bihar & Anr [2000 SAR (Criminal) 717]. He also invited my attention to the evidence of the two officers of the said Bank adduced by the first Respondent. He submitted that a sum of Rs.75,000/- was admittedly payable to the first Respondent towards the compensation under the Land Acquisition Act, 1974 and ------ the consent of the first Respondent and the said Bank, the Land Acquisition Officer forwarded the said amount of - 9 - Rs.75,000/- to the said Bank. He pointed out that there was a clear agreement between the Bank, first Respondent and the Special Land Acquisition Officer that the amount was to be invested by the Special Land Acquisition Officer in the name of the first Respondent in a fixed deposit with the said Bank He submitted that instead of investing the amount in a fixed deposit, initially the amount was transferred to the suspense account and thereafter, it was shown as adjusted against the crop loan account though the entire amount payable by the first Respondent under the amount payable under the said account was already repaid by the first Respondent much earlier. He submitted that the amount was appropriated towards the loan account under a resolution of the Board of Directors to which the present Petitioners were parties. He, therefore, submitted that an offence under section 409 was clearly made out. Inviting my attention to section 210 of the Indian Penal Code, he also pointed out that there was a prima-facie material to proceed against the Petitioners fraudulently causing a decree under section 210 of the Indian Penal Code. 11. I have carefully considered the submissions. Section 210 of the Penal Code reads thus :- - 10 - "210. "210. "210. Fraudulently obtaining decree for sum Fraudulently obtaining decree for sum Fraudulently obtaining decree for sum not not not due.- due.- due.- Whoever fraudulently obtains a decree or order against any person for a sum not due or for a large sum than is due, or for any property or interest in property to which he is not entitled, or fraudulently causes a decree or order to be executed against any person after it has been satisfied or for anything in respect of which it has been satisfied, or fraudulently suffers or permits any such act to be done in his name, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 12. Sub-section (1) of Section 195 of the Code of Criminal Procedure, 1973 thereof reads thus :- "195. 195. 195. Prosecution for contempt of lawful Prosecution for contempt of lawful Prosecution for contempt of lawful authority authority authority of public servants, for offences of public servants, for offences of public servants, for offences against against against public justice and for offences public justice and for offences public justice and for offences relating relating relating to documents given in evidence.- to documents given in evidence.- to documents given in evidence.- (1) No Court shall take cognizance - (a)(i) of any offence punishable under sections 172 to - 11 - 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 28, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of - 12 - the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.]" 13. Clause (b) of sub-section (1) refers to offences punishable under various sections including an offence under section 210 when such an offence alleged to have been committed in, or in relation to the proceeding in the Court. The section provides that a Court cannot take cognizance of such offence except on a complaint in writing of that Court or by such an officer of the Court as that Court may in writing in this behalf may authorise. Thus, when the offence under section 210 of the Penal Code was alleged, the Court could not have taken cognizance of such offence except in accordance with the aforesaid provision and certainly not on the basis of the complaint filed by the first Respondent. Therefore, there is a substance in the submission made by the learned Senior Counsel appearing for the Petitioner as regards section 210 of the Indian Penal Code. Therefore, it is very difficult to sustain the order of the learned Judge by which it has been held that the offence punishable under section 210 is attracted. - 13 - 14. Coming back to the complaint filed by the first Respondent, in paragraph no.8 thereof, the first Respondent has stated that when a demand was made by the said Bank to the Special Land Acquisition Officer for payment of the sum of Rs.75,000/-, the first Respondent raised an objection in writing before the Special Land Acquisition Officer by pointing out that the entire amount payable towards crop loan is already paid and there was a stay granted by the Apex Court as regards the other loan amount. It is specifically averred that thereafter, there was a discussion between the said Bank and the Special Land Acquisition Officer in which they agreed that a sum of Rs.75,000/- shall remain invested with the said Bank in the fixed deposit in the name of the first Respondent. 15. The letter dated 7th May 1992 sent by the Special Land Acquisition Officer to the Manager of the said Bank is on record in which it is stated that a sum of Rs.75,000/- is being forwarded to the said Bank for depositing the same in the fixed deposit in the name of the first Respondent. There is a reply dated 21st May 1992 sent to the said letter by the said Bank in which it is stated that there was a charge created in favour of the said Bank on the - 14 - property of the first Respondent which was acquired. It was mentioned in the said letter written by the said Bank that the demand draft sent by the Special Land Acquisition Officer has been deposited towards the said claim based on the mortgage. The said Bank specifically informed the Special Land Acquisition Officer that the said amount cannot be invested in the name of the first Respondent. Apart from the fact that there is no specific allegation in the complaint that there was a tri-partite agreement to which the first Respondent, the Special Land Acquisition Officer and the Petitioners were the parties. The case of the first Respondent is that he had entrusted the sum or Rs.75,000/- to the said Bank. However, the documents on record show that the Special Land Acquisition Officer directly forwarded a sum of Rs.75,000/- to the said Bank with an instruction that the amount be invested in the name of the first Respondent in the fixed deposit. Even in the said letter dated 7th May 1992 sent by the Special Land Acquisition Officer, there is no reference to any such understanding to which the said Bank and the first Respondent were parties. As pointed out earlier, the letter dated 7th May 1992 sent by the Special Land Acquisition Officer refers to the fact that certain land of the first Respondent - 15 - was acquired for Krishna-Koyna Project and a sum of Rs.75,000/- be deposited in a fixed deposit in the name of the first Respondent. In the reply dated 21st May 1992, the Bank categorically informed the Special Land Acquisition Officer that the amount cannot be invested as the said Bank had a right over the said amount as there was a charge created over the acquired land in favour of the said Bank. Thus, even going by the assertions made in the complaint and the correspondence on record, the amount of Rs.75,000/- was directly forwarded by the Special Land Acquisition Officer to the Bank and the first Respondent did not deposit the said amount with the said Bank. 16. The learned Counsel appearing for the first Respondent has placed reliance on evidence of Narayan Ramchand Borgikar and Moreshwar Dhondiraj Masurkar who were the Officers of the Bank. It is pertinent to note that even the said witnesses have not deposed that a sum of Rs.75,000/- was handed over or transmitted to the said Bank with the consent of the first Respondent. 17. Thus, the net result is that on plain reading of the averments made in the complaint and what is - 16 - set out in the documents produced on record, an offence under section 409 of the Indian Penal Code cannot be attracted even by taking the averments made in the complaint filed by the first Respondent as true. 18. Thus, the learned Judge has committed an error by passing the impugned order. Hence, the Petition must succeed and the same deserves to be allowed. Accordingly, rule is made absolute in terms of prayer clause (b). 19. It is made clear that the observations made in the judgment are only for the limited purpose of considering the issue regarding the legality of the order passed by the learned Magistrate and the observations made in this order shall not be construed as the findings on the legal right claimed by the first Respondent. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]