1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2543 OF 2008 Kashinath Shankar Bhosale Petitioner versus The State of Maharashtra and others Respondents Mr.Amit S. Date for the petitioner. Mr.Vaibhav Jogalekar with Mr.Y.R.Shah for respondents 3 and 5. Mr.H.J.Dedhia, APP for the State. CORAM : A.S.OKA, J. DATE : 29th June 2009 PC :- 1. Heard learned counsel for the petitioner and learned counsel for the respondent nos.3 and 5. By this writ petition under Article 227 of the Constitution of India the challenge is to the order dated 13th September 2007 passed by the learned Magistrate. By the impugned order, the accused nos.1 to 4 have been discharged by the learned Magistrate. It will be necessary to refer to the facts of the case in brief. 2. The petitioner filed a complaint before the learned Magistrate alleging commission of offences under sections 406, 420 read with sections 34 and 120-B of the Indian Penal Code. In the complaint the allegation made by the petitioner is that he is carrying on business in the 2 name and style of M/s.Wellcon Developers. According to him in August 1992 the accused no.1 along with accused nos.3 to 5 who were partners of accused no.2 firm approached the petitioner with a proposal of entrusting the incomplete work of construction of a building of a co- operative society. According to the petitioner, the accused requested him to complete 20% incomplete construction work by the end of 31st October 1992. According to the case of the petitioner, the accused no.1 represented that he was the Chief Promotor of the co-operative society. According to the petitioner, the third accused represented that he was the Chairman of the CKP Co-operative Bank Limited. According to the petitioner it was agreed that the accused no.2 firm will be the main contractor and the petitioner will complete the work as a sub-contractor of accused no.2. According to the case of the petitioner, a cheque dated 11th September 1992 in the sum of Rs.5.00 lakhs was issued in his favour by the accused no.2 by way of mobilisation advance. According to the petitioner, he started work but on 1st November 1992 he was asked to stop the construction work by the accused as there was an order of the Court. According to the petitioner, the accused represented that he would be permitted to carry out the balance construction work as soon as the Civil Court permitted the work to be carried out. According to the petitioner, after joint measurements were taken, he submitted a bill in the sum of Rs.36,71,666=32 Ps.. The case of the petitioner is that the accused represented to him that the accused no.2 had already submitted a bill in the sum of Rs.59,82,210/- for the work done by the petitioner and the bill has been certified. 3 3. According to the case of the petitioner, out of the bill amount only a sum of Rs.23,70,000/- was paid to him. The balance remained to be paid was Rs.13,01,666=32 Ps. According to the petitioner, the accused represented to him that he should open a bank account with CKP Co- operative Bank Limited, at Dadar. The petitioner was requested to apply for a loan of Rs.10.00 lakhs on representation that the accused no.3 who was claiming to be the Chairman of the said bank would see to it that the loan of Rs.10.00 lakhs will be sanctioned to the petitioner. According to the petitioner, the accused made representation that the said amount will be adjusted towards the dues payable to the petitioner by the accused and the loan will be repaid along with interest thereon by the accused. Relying on the said representation, the petitioner opened an account with the CKP Co-operative Bank Ltd. at Dadar and applied for a loan of Rs. 10.00 lakhs by offering his residential flat as security. His case is that the accused represented to him that the initially loan of Rs.2.00 lakhs will be sanctioned to him and thereafter the balance loan of Rs.8.00 lakhs will be sanctioned by the bank. According to the petitioner, he was induced to accept the initial disbursement of loan amount of Rs.2.00 lakhs. The grievance made in the petition is that the balance loan amount of Rs.8.00 lakhs was not sanctioned notwithstanding the representation made by the accused. Thereafter he was shocked to receive a notice of demand demanding the outstanding loan amount of Rs.1,66,653/-. The case of the petitioner is that the accused informed him to ignore the notice and assured that no notice will be issued against the petitioner and his 4 sureties. Thereafter a reference has been made to the meetings allegedly held between the parties and a demand notice issued by the petitioner to the accused. Thereafter the petitioner filed a private complaint on which an order was passed under section 136(B) of the Code of Criminal Procedure, 1973. On the basis of the said order, FIR was registered by the Dadar Police Station. After carrying out the investigation charge sheet was filed by the Police. By the impugned order, the accused were discharged by holding that there was no material to proceed against the accused. 4. The learned counsel for the petitioner has invited my attention to the impugned order as well as the material placed on record along with charge sheet. He submitted that there was material on record to show that the substantial amount was due and payable by the accused to the petitioner. He pointed out that the learned Trial Judge has not at all considered as to under what circumstances the sum of Rs.2.00 lakhs was paid by the accused for settling the loan account of the petitioner. He submitted that the very fact that the accused paid the amount of loan and got the loan account of the petitioner closed itself proves the prima facie case to proceed against the accused. He submitted that the accused no.3 always claimed to the Chairman of the bank which had advanced the loan. He, therefore, submitted that the Trial Court has committed an error by passing the order of discharge. 5. During the course of investigation a statement was recorded by the 5 Police of one Mr.Nitin Kadu who was the Manager of CKP Co-operative Bank Limited. In the statement he stated that the loan of Rs.2.00 lakhs was disbursed in favour of the petitioner and the loan amount has been repaid on 1st December 1999 by cheque which was drawn on the account of the accused no.2. A letter of the CKP Co-operative Bank Limited recording that the loan account has been fully settled has also been collected by the Police. The learned Trial Judge has also observed that the loan application was made by the petitioner himself on 27th October 1994 by which request was made for grant of loan for the purpose of working capital. There is nothing on record forming part of the charge sheet to show that the accused had played a role in obtaining the sanction of the loan. The learned Judge has observed that no circumstance is brought on record under which the loan account of Rs.2.00 lakhs was closed after the said amount was paid by the accused. 6. A perusal of the documents forming part of the charge sheet and the statement of the petitioner shows that the real grievance is regarding non payment of Rs.13,01,666=32 Ps. by the accused. The loan application was made by the petitioner himself for sanction of loan of Rs. 10.00 lakhs against which a loan of Rs.2.00 lakhs was disbursed. The only evidence, if any, against the accused is that the loan was repaid by the second accused. It must be noted here that as per the statement of the bank officer the loan was repaid on 1st December 1999. The complaint appears to have been filed on 03rd April 1999. 6 7. There is no material on record to show that the application for sanction of loan was made by the petitioner at the instance of the accused and that there was any promise given to the petitioner that the loan of Rs. 10.00 lakhs will be sanctioned. There is no material on record to show that the amount received by way of loan was to be adjusted by the petitioner towards the amount due and payable by the accused to the petitioner on account of the outstanding bill. There is nothing on record to show that the loan of Rs.10.00 lakhs was to be repaid by the accused. In the circumstances, the learned Magistrate has passed an order of discharge. The State has not challenged the said order though the prosecution is at the instance of the State. Considering the material brought on record during the investigation which forms part of the charge sheet, there is no reason to find fault in the impugned order of the Trial Court. Hence, no case for interference is made out. The writ petition is rejected. 8. It is, however, made clear that the observations made herein are for limited purpose of testing the challenge to the order of discharge and none of the said observations made herein shall be construed as findings recorded by this Court on the rights and liabilities of the parties. (A.S.OKA, J.)