1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.: 1383 OF 2009 1. Shri Ashok Haraakchand Sanghvi, Age: 50 years, Occu. - Business, R/o Gandhi Chawk, Pachora, District: Jalgaon. 2. Shri Kamalkishor Bachraj Patwari, Age: 69 years, Occu.: Business, R/o Bharat Dairy, Pachora, District: Jalgaon. 3. Shri Vijay Bhikamchand Jain, Age: 50 years, Occu.: Business, R/o Gandhi Chowk, Pachora, District: Jalgaon. 4. Shri Poonumchand Ramanand More, Age: 59 years, Occu.: Business, R/o Deshmukh Wadi, Pachora, District: Jalgaon. 5. Shri Pandit Parshram Shinde, Age: 59 years, Occu.: Business, R/o Bhadgaon Road, Pachora, District : Jalgaon. 6. Shri Surendrakumar Premraj Bhora, Age: 62 years, Occu.: Business, R/o Jamner, Tal. Jamner, District: Jalgaon. 7. Dr. Jaywant Baburao Patil, Age: 40 years, Occu.: Medical Practitioner, R/o Bhadgaon Road, Pachora, Dist. Jalgaon. 8. Shri Rajmal Badrilal Agrawal, Age: 55 years, Occu.: Business, R/o Shendurni, Tal. Jamner, Dist. Jalgaon. 9. Shri Chandrakant Meghji Lodhaya, Age: 53 years, Occu.: Business, R/o Bhadgaon Road, Pachora, 2 District: Jalgaon. 10. Shri Vinayak Govind Marathe, Age: 52 years, Occu.: Business, R/o Vivekanand Nagar, Pachora, District: Jalgaon. 11. Shri Rajendra Bhagchand Bhothra, Age: 37 years, Occu.: Business, R/o Bhadgaon Road, Pachora, Dist. Jalgaon. 12. Shri Madan Amlokchand Jain, Age: 42 years, Occu.: Business, R/o Bhadgaon, Dist. Jalgaon. 13. Shri Vishnu Mahadu Sonar, Age: 47 years, Occu.: Business, R/o Gandhi Chawk, Pachora, District: Jalgaon. 14. Shri Mehtabsingh Ramsingh Naik, Age: 57 years, Occu.: Business, R/o Bhadgaon, Dist. Jalgaon. 15. Shri Kishore Harichand Shirude, Age: 32 years, Occu.: Business, R/o Kishore Agencies, Pachora, District: Jalgaon. 16. Sau. Kalpana Sudhakar Patil, Age: 46 years, Occu.: Household, R/o Bhadgaon Road, Pachora, District: Jalgaon. 17. Sau. Savitri Satish Sharma, Age: 55 years, Occu.: Household, R/o Deshmukh Wadi, Pachora, District: Jalgaon. 18. Shri Vilas Trambak Joshi, Age: 58 years, Occu.: Retired Servicemen, R/o V.P.Road, Pachora, District: Jalgaon. 19. Shri Subhash Hansraj Baantiya, Age: 54 years, Occu.: Service, R/o Bhadgaon Road, Pachora, District: Jalgaon. 20. Shri Dattatray Tryambak Wani, Age: 72 years, Occu.: Agriculturist, R/o Sambhaji Nagar, Pachora, District: Jalgaon. 3 21. Shri Subhash Kesharlal Lahoti, Age: 59 years, Occu. Retired, R/o Pachora, Dist. Jalgaon. ... APPLICANTS VERSUS 1. The State of Maharashtra. (Copy to be served on G.P. in his Office at High Court of Judicature of Bombay, Bench at Aurangabad). 2. Shri Chandrkant Shriram Sharma, Age: 56 years, Occu.: Legal Practitioner, R/o Pachora, Tal. Pachora, Dist. Jalgaon. ... RESPONDENTS *** Mr. P.P.Chavan, Advocate for the Applicants. Mr. K. M. Suryawanshi, A.P.P. for the Respondent/ State. Mr. S.V.Suryawanshi, Advocate for Respondent No.2. *** CORAM: K. U. CHANDIWAL, J. DATED: 7th OCTOBER, 2009. ORAL ORDER: 1. Heard learned counsel extensively. Rule. By consent, matter is finally disposed of. 2. The twenty applicants Chairman and Directors of Pachora Peoples Cooperative Bank and Applicant No.21 a Manager, seek to quash proceedings initiated by Respondent No.2 being R.C.C. 124 of 2006 for an offence under section 409 and 420 read 34 of I.P.C. dated 6th October, 2008. The grievance of the complainant Chandrakant Sharma before the learned J.M.F.C. is that the deposits of Rs.23,51,025/- made by one of the employee 4 Mahalpure, accepting his mistakes or defalcation in sundry account with the bank is attracting penal provisions of section 409 and 420 read 34 of I.P.C. 3. It was canvassed by complainant that the amount ought to have been deposited in the suspense account instead of sundry account. 4. Even if this contention is accepted, then, still the ingredients of section 420 or 409 of I.P.C., which are as under, are missing: "409. Criminal breach of trust by public servant, or by banker, merchant or agent. - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Classification of Offence. - The offence under this section is cognizable, non-bailable, non-compoundable and triable by Magistrate of the first class. 420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person de3ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Classification of Offence. - The offence under this section is cognizable, non-bailable, compoundable with permission of the Court before which any prosecution of such offence is pending and triable by Magistrate of the first class." 5. Section 415 defines cheating. There must be a dishonest concealment of facts or a fraudulent inducement 5 of any person so deceived to deliver any property to any person. There is no such eventuality that has been surfaced in the present matter. Section 409 stipulates criminal breach of trust by public servant or by banker, merchant or agent. The entrustment of the property is the paramount aspect. In this case, it was indeed not an entrustment by the employee Mahalpure. It was noticed by the auditor that there were defalcation in accounts maintained by Mahalpure, the Chairman called meeting, services of chartered accountant were solicited, accounts were checked, it was noticed that there was misappropriation of funds by Mahalpure, consequently, he has made the above referred deposits. It was in any eventuality to meet his obligation of defalcation which would not be entrustment by an employee to the Chairman or Director for any specific cause attracting violation of section 409 of IPC. 6. The entrustment of the property of which accused is duty bound to account for and the committal of criminal breach of trust needs to be primarily highlighted. There is no whisper anywhere in the complaint that the amount collected from Mahalpure has been used by any of the applicants [Chairman or Directors of the bank] for their personal gain or they have diverted route of the credits to any illegal or illegitimate imaginary account. It is a banking system prevalent, which provides such credits to be in a sundry account, the account is to be maintained in the name of in-charge of the bank i.e. Manager and then as per rules the amounts are apportioned, to respective accounts. At the most, a care can be taken, instead of 6 keeping the amount in sundry account it can be placed in suspense account. However, by and standard, the summit of the matter will not involve any deception since inception in the mind of the accused inviting infraction of section 420 or any criminal breach of trust or punishment in terms of section 409 of IPC. 7. During the course of submissions, it was pointed that the complainant has a grudge and grievance with the bank as there was recovery certificate dated 3rd September, 2001, demand notice was issued against the complainant dated 10th October, 2001, attachment orders were issued. The wife of the complainant was a guarantor. The orders were challenged by her before the competent forum. The property was seized. Based on this, the complainant filed numerous cases against the Directors probably with a view to delay the recovery process and succeeded at-least for certain period to avoid the repayment of loan. 8. The allegations in the complaint as a whole and the verification do not attract ingredients of section 402, 409 of IPC. The allegations in complaint even if they are taken at their face value, do not prima facie constitute an offence. It is more than clear, the proceedings are as a lever and ruse to ventilate other grievance which the complainant had with the bank Directors. He wanted to stall the recovery, and his appalling behaviour brought the directors to face the prosecution, stated above. The proceedings are abuse of the process of the Court and cannot further be sustained, hence, quashed. However, the statement of Mr. Chavan that the amounts lying in sundry account will be 7 transmitted in suspense account or as per rules, is accepted. Rule made absolute in above terms. [K. U. CHANDIWAL, J.] Dated:07/10/2009. ans/1383