1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 2055/2010 Pandurang s/o Raghobaji Lanjewar V/s. State of Maharashtra through P.S.O., P.S. Wani, Dist. Yavatmal and anr. ------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ------------------------------------------------------------------------------------------------------------------------------- Mr. S. P. Gadling, advocate for applicant. Mr. M. K. Pathan, APP for respondent no.1. Mr. S. M. Ghodeswar for respondent no.2. Coram: A.P. Bhangale, J Dated : 15th June 2011 1. By this application under Section 482 of Code of Criminal Procedure, the applicant has questioned the FIR arising out of magisterial case no. 3/2010, registered with Wani Police Station, Dist. Yavatmal, for the offence punishable under Section 403, 408 r/w Section 34 of Indian Penal Code with a prayer that the respondent no. 1 be directed not to arrest the applicant for offence in connection with the said FIR. 2. Brief facts are that the applicant is the Director / Founder and Secretary of ‘Vyapari Mitra Nagari Sahakari Pat Sanstha, Wani’. According to him, one Sanjay s/o Rambhau Pote (respondent no.2) serving as a 2 Cashier at ‘The Yavatmal Urban Co-op. Bank Ltd., Yavatmal, Wani Branch, filed Miscellaneous Criminal Application No. 47/2010 dated 30/11/2010 before the learned Judicial Magistrate First Class, Wani, with a prayer for direction under Section 156(3) of Code of Criminal Procedure to register the FIR and investigate the case for the offence punishable under Section 403, 408 r/w Section 34 of I.P.C against the non-applicant and two others. According to him, on 14/10/2010, the incident had occurred that the peon of ‘Vyapari Mitra Nagari Sahakari Pat Sanstha Ltd., Wani named Mangesh s/o Janardhan Kadam came to the bank at about 13.04 hrs., and presented the cheque to respondent no. 2 for encashment of amount of Rs. 6,50,000/-. It is the case of the complainant that, by mistake, he gave 1100 currency notes in the denomination of Rs. 1000/- and 100 currency notes in the denomination of Rs. 500/- totaling to Rs. 11,50,000/-, instead of 100 currency notes in denomination of Rs. 1000/- and 1100 currency notes in the denomination of Rs. 500/-, i.e. total amount of Rs. 6,50,000/-. It is the case of the complainant that although Shri. Mangesh Janardhan Kadam received excess amount in addition to the cheque amount, he suppressed the fact from the cashier in connivance with Director/Founder/Secretary of the Pat Sanstha along with Rupak s/o Ramdas Davre (Manager) and in furtherance of their common intention they misappropriated excess amount among themselves. Thus it is alleged that they have committed an offence punishable under Section 403, 408 r/w 34 of Indian Penal Code. The learned Judicial Magistrate First Class, Wani by order dated 23/12/2010 directed the Police Station to register F.I.R. and investigate the case for the offence punishable under Sections 403, 408 r/w Section 34 of Indian Penal Code. The police of Wani Police 3 Station started investigation into the alleged offence. 3. It is grievance of the applicant that the allegations have been made in connection with the alleged crime and he is not involved in an the day to day transaction of ‘Vyapari Mitra Nagari Sahakari Pat Sanstha Ltd., Wani’ but the transactions are carried out by the staff of the credit society. According to the applicant, he has been falsely implicated in the present crime with Mangesh Kadam (Peon) though he has not played any part in commission of the offence, as alleged. He also contended that the application preferred by the Cashier was delayed by about 45 days or more and therefore, the learned Judicial Magistrate First Class, Wani, directed the investigation by the police. It is, therefore, prayed that FIR / magisterial case no. 3/2010 registered by Wani Police Station be quashed. 4. It is contended on behalf of the respondent-State that the applicant, who is president of the ‘Vyapari Mitra Nagari Sahakari Pat Sanstha Ltd., Wani’, is deeply involved into the day-to-day affair of the Pat Sanstha and he can not escape from the accusations. It is also revealed that the excess payment in the sum of Rs. 5,00,000/- was made to Mr. Mangesh Kadam on 14/10/2010 instead of Rs. 6,50,000/-, therefore the investigation which is at the preliminary stage, has to be taken to its logical end. The respondent no. 4, who is cashier, also opposed the petition on the ground that he had, by mistake, handed over 1100 currency notes in the denomination of Rs. 1000/- and 100 currency notes in denomination of Rs. 500/- totaling Rs. 11,50,000/-, instead of 100 currency notes in the denomination of Rs. 1000/- and 1100 currency notes in the denomination 4 of Rs. 500/- i.e. total amount of Rs. 6,50,000/-; thus, excess amount of Rs. 5,00,000/- was paid to Mr. Mangesh Kadam, which he ought to have refunded immediately; but, instead of that, he along with applicant and one Rupak Ramdas Daware in connivance with each other and in furtherance of their common intention misappropriated the amount paid in excess. It is also alleged that the present applicant after the date of incident made payment in the sum of Rs. 49,000/- to the Arya Automobiles. It is also brought to the notice of this Court that the Branch Manager of the Yavatmal Urban Co-operative Bank Limited, Branch Wani was informed by ‘Vyapari Mitra Nagari Sahakari Pat Sanstha Ltd., Wani’ that they had acknowledged the cash amount as - 600 currency notes in the denomination of Rs. 1000/- and 100 currency notes in the denomination of Rs. 500/- totaling amount Rs. 6,50,000/-. Pursuant to encashment of cheque bearing no. 314588, the above statement is considered in the light of the bank statements which shows that 600 notes in the denomination of Rs. 1,000/- and 100 currency notes in the denomination of Rs. 500/- totaling to Rs. 6,50,000/- was received by Vyapari Mitra Nagari Sahakari Pat Sanstha Ltd., Wani, which shows that excess payment was made, for which the accused were accountable. 5. Be that as it may, the investigation is in progress and it must be taken to its logical end so that the poor cashier, who had to incur loan in order to pay back the excess amount in the sum of Rs. 5,00,000/- to the bank on the same day to save his job need not to suffer financially and irreparably. 5 6. For the reasons stated above, no fault can be found with the order passed by the learned Judicial Magistrate, First Class directing investigation by police under Section 156(3) of Code of Criminal Procedure. Hence the prayer made by the applicant to direct the non applicant no.1 not to arrest him cannot be granted & no such drastic direction can be issued against the police to prevent arrest as it is a statutory power of the police to arrest the accused or the suspect who appears to have committed the offence. No ground is made out for interference in the impugned order. Hence the application is dismissed. JUDGE Punde