1 CR.APL. NO.680/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.680 OF 2010 Sunil Laxman Patil, Age 47 years, Occ: Business, r/o Savada, Tal. Raver, District Jalgaon. ..APPLICANT. VERSUS 1. The State of Maharashtra, Through Police Inspector, Savada Police Station, Tal. Raver, District Jalgaon. 2. Pandit Natthu Bari, Age:57 years, occ: Service, Serving as Special Auditor, Class-I, Cooperative Societies (Handloom), Chopada, R/o. Dandekar Nagar, Plot No.18, Pimprala Parisar, Jalgaon. ...RESPONDENTS ... Mr.P.B.Shirsath, Adv., for the applicant. Mr. P.P.More, APP for respondent no.1/State. Mr. M.M.Bhokarikar, Adv., for R.2. ... CORAM: K.U.CHANDIWAL, J. DATE:June 21st, 2011 *** PER COURT : 1. Heard. 2 CR.APL. NO.680/2010 Rule, returnable forthwith. By consent, heard finally. 2. The applicant, a Director of Swami Samarth Urban Cooperative Society Ltd., Savada, taluka Raver, district Jalgaon, seeks quashment of FIR vide Crime No.75/2007, registered by Savada Police Station and the subsequent prosecution in terms of RCC No.7/2009, pending on the file of learned Judicial Magistrate, First Class, Raver, for the offense punishable under Sections 406, 408, 409, 468, 471, 120-B read with Section 34 of IPC. 3. An audit was conducted for a period of 1.4.2005 to 31.3.2006 by the complainant, respondent no.2 Pandit. Report was submitted to the District Deputy Registrar, Cooperative Societies, Jalgaon, who, by his letter dt. 31.10.2007, directed respondent no.2 Pandit to lodge report at the Police Station. Consequently, the report is lodged, which is questioned. 4. It is explicit from the record that even if applicant was elected Director of the said society, however, he did not attend any of the meetings from August, 2004 and, on the contrary, he has put up his grievance by applications to the Registrar dt.23.6.2006, 12.7.2006. The 3 CR.APL. NO.680/2010 applicant, as is evident, was absent for the meeting dt.31.8.2004, 30.9.2004, 31.10.2004, 30.11.2004 and, naturally, could be branded with a disqualification for continued absence, being managing committee member. He has in advance intimated this fact to the Assistant Registrar and requested that whatever transactions are effected in those of the meetings, he should not be held responsible. Such communication dt. 12.7.2007 is placed on record. 5. It was based on representation of the accused/applicant dt.22.7.2006, to the Divisional Joint Registrar, Cooperative Societies, an inquiry was conducted for taking action against the managing committee members of the society. However, it seems, the officer could not carry out such inquiry, being helpless to do so, as there was total non cooperation from the Chairman and other members. However, it revealed that at least 40 per cent disbursal of loans was bogus. 6. The applicant was served with notice dt. 10.10.2007, which was replied with all details on 17.10.2007 and he explained everything. 7. In the report to the Police, the complainant has pointed out irregularity and illegality in disbursement of loans to the 4 CR.APL. NO.680/2010 favourable persons of the Chairman or few of the managing committee members for a period from 24.9.2004 to 8.1.2005. It is explained and revealed from the record that the accused/applicant did not attend any of the meeting of the managing committee nor signed any loan proposal or loan document or recommended any case for disbursement of the loan. 8. During the course of submission, a specific query was made to the learned A.P.P. and the Counsel representing the complainant as to whether accused/applicant in the capacity as managing committee member, at any time, availed loan for himself or his kith or kin or relations and that such loan remained unpaid and staggering. Both the learned Counsel informed, there is no such eventuality nor there was favour or benediction showered on any person close to him. 9. The scheme of Section 73(1AB) of the Maharashtra Cooperative Societies Act, 1960, was indicated by the learned counsel for the accused/applicant and I find substance. Proviso thereof illustrate as under: " Provided further that, any member of the committee, who does not agree with any of the resolution or decision of the committee, may 5 CR.APL. NO.680/2010 express his dissenting opinion which shall be recorded in the proceedings of the meeting and such member shall not be held responsible for the decision embodied in the said resolution or such acts or omissions committed by the committee of that society as per the said resolution. Such dissenting member, if he so desires, may also communicate in writing his dissenting note to the Registrar within seven days from the date of the said resolution or decision. Any member, who is not present for the meeting in which the business of the society is transacted, and who has not subsequently confirmed the proceedings of that meeting, such member shall also not be held responsible for any of the business transacted in that meeting of the society." 10. In view of this legal position, I quite see, the prosecution could not be maintainable as against accused/applicant. The objection from learned A.P.P. that chargesheet is filed and the accused/applicants should face the same, however, at this stage, in the light of the above stated glaring facts, such exercise need not be directed to be initiated against the accused/applicants. 11. Learned Counsel for the complainant placed reliance to the judgment in the matter of M/s Suryalaxmi Vs. M/s Rajdeep ( AIR 2008 SC 1683). Learned Counsel submits that ordinarily, 6 CR.APL. NO.680/2010 a defense of the accused although appears to be plausible, should not be taken into consideration for exercising powers to quash criminal proceedings. In the very judgment the Hon'ble Lordships of the Apex Court have indicated, by rider, "... It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused." 12. Taking survey of all the facts, I find that subject criminal prosecution against the accused/applicant is not maintainable. It is, accordingly, quashed and set aside. Rule made absolute. (K.U.CHANDIWAL) JUDGE ... agp/680-10crapl