criappln3879.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3879 OF 2009 Manish s/o Jugalkishor Patwari & others .. APPLICANTS VERSUS Rajwade Mandal Peoples Co-operative Bank Ltd. Dhule & another .. RESPONDENTS Mr. R.N. Dhorde, advocate for the applicants. Mr. S.D. Kaldate, APP for the State. Mr. C.R. Deshpande, advocate for respondent no. 1. ===== CORAM : A.V. POTDAR DATE :19 th OCTOBER, 2011 PER COURT : 1. By present criminal application under section 482 of the Code of Criminal Procedure, the applicants have prayed to quash and set aside the order of issuance of process under section 403, 406, 420, 424, 421, 465, 471 of the Indian Penal Code r/w section 120-B of the Indian Penal Code, by criappln3879.09 2 learned JMFC, Dhule in RCC No. 60/2008. 2. Heard Mr. Dhorde, learned counsel for the applicants, learned APP for the State and Mr. C.R. Deshpande, learned counsel for respondent no. 1. 3. Such of the facts as are necessary for the just decision of this application can be summarised as : . Applicants herein and five others have formed a partnership firm dealing in the business of construction in the name and style “M/s Murlidhar Market”. After the partners of the firm entered into partnership agreement dated 6-11-2000, said firm was registered with the Registrar of Partnership Firms. It is not in dispute that on 21-6-2001 the firm applied for loan for sum of Rs. 40,00,000/- with the bank / respondent no. 1. It appears that at the time the loan was obtained by the said firm, the properties of the firm were mortgaged by executing equitable mortgage deed with the said bank. On 29-12-2002, after publishing notice in the daily newspaper, some plots of the firm which were mortgaged with the bank / respondent no. 1 were sold for Rs. 27,00,000/-. It appears that actually the sale took place on 7-6-2003. Subsequent or simultaneous to the sale of the properties which were criappln3879.09 3 mortgaged with the bank, these applicants - partners of the said firm entered into agreement for retirement from the said firm. It is stated that the continuing partners of the firm accepted the liability to repay the loan of bank, Respondent No. 1, under clause 4 and 5. It is further stated that on 15-3-2003, an intimation about change in the constitution of the firm was given to the Register of partnership firms. It is stated that on 7-1-2003 so also on 9-1-2003, out of the sale proceeds of Rs. 27,00,000/-, an amount of Rs. 18,00,000/- was credited towards the loan taken by the firm from respondent No. 1 and accordingly, entries were effected in the accounts with the bank. It is further stated that on 3-11-2006, respondent / bank issued notice to the partners of the firm including present applicants, calling upon them to repay the balance of the loan amount advanced by the bank to the firm. Bank had also issued public notice about dues from the said firm. It is stated that on 7-11-2003, the bank was informed about the retiring partners and second notice was given to the bank intimating about acceptance of liability by the continuing partners. On 29-6-2007, bank filed dispute in the Co-operative Court, Jalgaon, bearing Dispute No. D-79/07. On the same day, an application was moved for interim relief for injunction thereby not allowing to alienate the property of the firm by executing any deed. Said dispute was contested by the applicants herein by filing reply dated 22-10-2007 wherein criappln3879.09 4 according to the applicants, they have disclosed that some of the properties were already sold and the continuing partners of the said firm have accepted the liability of repayment of loan. On 8-1-2008, respondent no. 1 / bank filed a report to the Chief Judicial Magistrate, Dhule, which was numbered as RCC 60/2008. In the said complaint, it is alleged that even though the property of the firm was mortgaged with respondent no. 1 / bank, without permission of the bank the said property was alienated by the partners of the firm which amounts to an offence of cheating and wrongful loss to the bank and wrongful gain to the partners of the firm. Said complaint came to be lodged for offences under section 403, 406, 420, 421, 424, 465, 468, 471 r/w section 120-B of the Indian Penal Code. After recording verification statement of the authorised persons of the bank/ respondent no. 1, the learned Magistrate was pleased to issue process for the alleged offence against all the partners of the firm, which order is impugned in this criminal application. 4. It is urged across the bar on behalf of the applicant that there was no intention to cheat the bank by selling the property which was mortgaged with the bank. It is also urged that the partners have deposited Rs. 18,00,000/- with the bank which amount was credited in the account of the criappln3879.09 5 said firm. It is therefore contended that the process issued is bad in law and is required to be quashed and set aside. Per contra, it is urged by Mr. C.R. Deshpande, learned counsel for respondent no. 1 / bank that the property was mortgaged by executing equitable mortgage deed on 21-6-2001 when the loan was sanctioned and disbursed to the firm. The firm has sold the mortgaged property without obtaining permission from respondent No. 1 and raised the funds which amounts an offence alleged. 5. In this background, perused the contents of the complaint. The fact remains that at the time of sale of the property by the firm, applicants were the partners of the firm. Admittedly, when the said sale transaction took place, the property was already mortgaged with the bank. It is also not in dispute that at the time of said sale, no permission or sanction was obtained from the bank regarding said sale. Considering this aspect, if the property mortgaged with the bank is sold by the firm without permission of the bank, the applicants who were partners of the said firm at the relevant time, have committed the offence as alleged in the complaint. Contents of the complaint prima facie disclose commission of offence for which process was issued by the learned Judicial Magistrate, First Class, Dhule. In the light of this, I do not find any illegality committed by the learned Judicial Magistrate criappln3879.09 6 while issuing process. In the light of this, no interference is required at the hands of this Court. The application sans any merit, stands rejected. ( A.V. POTDAR ) JUDGE dyb