- 1 - 4903 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4903 OF 2010 Mr.Amit Nandkumar Joshi .. Applicant (Accd no.4) vs Dindayal Cooperative Patsanstha Ltd & anr .. Respondents Mr.Prakash Naik for Applicant Mr.S.A.Shaikh APP for Respondent-State CORAM: N.D.DESHPANDE, J DATE: 24th March,2011 PER COURT 1. Heard learned counsel for the applicant. The applicant is accused no.4 The applicant no.2 stood as a surety in the transaction of loan which is a finance for purchase of autorickshaw from a dealer accused no.2. The complainant subsequently came to know that there was a fraud in the transaction and the amount advanced was misappropriated by the accused no.1. The papers of the loan - 2 - 4903 transaction including papers of surety were found to be false and bogus. Those were fabricated and this is how the complainant was defrauded. The said complaint is registered as a warrant case against all the accused including applicant nos. who is accused no.4 a surety in the alleged loan transaction. Charge is not yet framed. Therefore, applicant/accused no.4 made an application under section 245 of Cr.P.C. for seeking discharge from the case stating certain facts and grounds therein. The application for discharge came to be rejected by the learned trial court by an order dated 16.2.2008. The applicant thereafter impugned correctness of the said order of rejection before the Sessions Court namely Ad-hoc Sessions Judge, Raigad by Criminal Revision Application No. 29 of 2008. The said Revision Application was also turned down. However, it has been held - 3 - 4903 that the Application for discharge in the beginning itself could be maintainable. But, no discharge was considered. Hence, applicant/accused no.4 is before this Court. 2. Perused the original Application for discharge under section 245 of Cr.P.C. and the impugned orders of both courts below. It is not seriously disputed that the applicant was a surety in the said loan transaction wherein certain papers were prepared signed and submitted to the complainant-patsanstha and they had received finance for purchase of autorickshaw. The complainant as on date has not been fully repaid loan amount. According to the applicant, he being a surety and the papers disclosed that it was a loan transaction even by accepting it, at the most can give rise to civil liability and therefore, no criminal prosecution can proceed against him - 4 - 4903 and therefore, he is entitled for discharge from the case. 3. Perused the complaint of the respondent- Patsanstha. The averments are not so simple for recovery of the loan amount which is due. The allegations are serious and prima facie disclose offence of cheating by misappropriating the loan amount for purchasing autorickshaw only on paper which was never purchased. 4. The applicant in his discharge Application stated that it is a civil dispute. Merely stating that it was a civil dispute, would not make out a case for discharge under section 245 (2) of Cr.P.C or under section 245 (1) which reads thus : When accused shall be discharged- - 5 - 4903 (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which if unrebutted, would warrant his conviction the Magistrate shall discharge him. 5. Prima facie, it is seen that no case is made out by the applicant seeking discharge at this stage. Hence, no interference is called for. No perversity or illegality is found in the impugned order. Hence, no case is made out for invoking powers of this Court under section 482 of Cr.P.C. is made out. Criminal Application stands dismissed with no order as to costs. (N.D.Deshpande,J) - 6 - 4903