1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3664 of 2009 (Zilla Parishad Prathamik Shikshak Sahakari Karmachari Pratyay Sanstha Maryadit, Panchayat Samiti, Chimur, Tahsil Chimur, District Chandrapur, through its President v. Divisional Joint Registrar, Co-operative Societies, Dhanwate Chambers Annex, Sitabuldi, Nagpur, and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri D.V. Siras, Advocate for Petitioner. Shri P.D. Kothari, AGP for Respondents. Coram : R.C. Chavan, J. Dated : 30 th September, 2009 By this petition, the petitioner, a Co-operative Society, assails the orders passed by the District Deputy Registrar as well as the Divisional Joint Registrar of the Co-operative Societies, refusing to order a re-audit in the accounts of the petitioner-Society for the period from 1994-95 and 1995-96. In the said audit, misappropriation of Rs.22 lacs was detected and this amount was to be recovered from the then Managing Committee. The Auditor, Shri A.B. Sur, expired. A dispute bearing No.858 of 1999, is already pending before the Co-operative Court 2 under Section 91 of the Maharashtra Co-operative Societies Act, 1960. It is the petitioner’s problem that unless the said Auditor is examined, the petitioner would not be able to prove the Auditor’s report and fasten the liability on the erstwhile Managing Committee. The learned counsel for the petitioner submitted that the Maharashtra State Co-operative Tribunal, Mumbai, had ruled in Appeal No.408 of 1968 decided on 10-12-1969 that in the absence of examination of Auditor to prove the audit report, the dispute had to be dismissed. He, therefore, apprehends that the Co-operative Court would dismiss the dispute, since the Auditor is not available. Therefore the petitioner-Society wanted the District Deputy Registrar to order a fresh audit for the said period. I have heard the learned counsel for the petitioner-Society as well as the learned AGP for the respondents. Instances of Auditors expiring or, for that matter, any witness, who is required to prove a particular fact expiring, may not be new. It does not follow that because a witness has expired, the fact, which the witness is supposed to prove, cannot at all be proved. Secondary evidence can always be placed in such a case. The petitioner could tender evidence to show that Shri Sur was appointed 3 as Auditor. He could prove at the trial that the report was in fact prepared by Shri Sur and could also prove the said report by examining a person, who is conversant with the writing of Shri Sur, which could be appropriate secondary evidence to prove the report of Auditor Shri Sur. A fresh audit may not necessarily lead to a same conclusion and would not serve the purpose of the petitioner. Since it cannot be said that the petitioner is left without any remedy on account of death of Shri Sur, and since, in the light of what is observed above, the judgment of the Co-operative Appellate Court, which the petitioner apprehends would come in his way, would not adversely affect the petitioner’s case, the petition is dismissed. Judge. pdl