IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.313 OF 2008. Special Recovery & Sales Officer of Dnyandeep Co-operative Credit Society Ltd. and Another. ..Petitioners. versus The Kurla Nagarik Sahakari Bank Ltd & Others. ..Respondents. .... Mr.P.K.Dhakephalkar, Senior Counsel, i/b. Mr.Amol P. Mhatre, for the Petitioners. Mr. K.V. Tambe, for the Respondent No.1. Mr. Y.S. Shinde, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 17th September 2008. : 17th September 2008. : 17th September 2008. P.C.: 1. The submissions of the learned counsel appearing for the parties were heard on the last date. The challenge in this petition is to the order dated 13th April 2007 passed by the learned Member of the Maharashtra State Co-operative Appellate Court, Mumbai, by which the learned Member directed the Registrar of the Co-operative Appellate Court to forward the case papers to the learned Magistrate for initiating criminal proceeding against the petitioners under section 148-A (3) of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as ‘the said Act’). : 2 : 2. The Petitioners have been the Special Recovery and Sales Officer of Dnyandeep Co-operative Society Ltd. (hereinafter referred to as "the said Credit Society"). It will be necessary to refer the facts of the case in brief. The said Credit Society had filed disputes against the second respondent and others for recovery of loan advanced. An award was passed in one of the three disputes. In execution of the award, one Ramdas Keshav Sanas, Special Recovery and Sales Officer attached three shops standing in the name of the third respondent. During the subsistence of the attachment, the shops were demolished by the second respondent and a developer. In view of the said demolition of existing shops, certain shops in the newly constructed buildings were allotted by the developer. In the meanwhile, one Dnyanoba Chavan assumed the charge of the post of the Special Recovery and Sales Officer. The said Shri Chavan attached three shops in the newly constructed buildings. The shops were put to auction after a reserved price was fixed by the Commissioner and the Registrar of the Co-operative Society. The auction was conducted and the highest bidder deposited the bid amount on 17th December 2006. At that time, one Rajendra Vitthal Jadhav was the Special Recovery Officer. The auction was confirmed by the Registrar of the Co-operative Society. The first : 3 : respondent-Bank filed an application before the Co-operative Court for attachment of surplus sale proceeds in the hands of the Special Recovery and Sales Officer of the said Credit Society. On 4th November 2006, the learned Judge of the Co-operative Court No.II on an application made by the first respondent - Bank passed an order of attachment of sale proceeds in the hands of the second respondent (Special Recovery and Sales Officer). The surplus sale proceeds were ordered to be invested with the said Credit Society or with a Nationalised Bank for a period of one year. The Special Recovery and Sales Officer was directed to intimate to the Co-operative Court about the action taken before the next date. The second petitioner was acting as Special Recovery and Sales Officer from 1st January 2007. The said Credit Society advised the petitioners to challenge the order dated 4th November 2006 of the Co-operative Court. Accordingly, an appeal was preferred before the Co-operative Appellate Court. In the meanwhile, in February and March 2007, the Special Recovery and Sales Officer of the Abhyudaya Co-operative Bank issued attachment orders to attach the surplus sale proceeds. In the meanwhile, on 15th March 2007 the first petitioner invested the amount as per the order of the Co-operative Court in fixed deposit with the said Credit : 4 : Society. In the said appeal, the learned Member of the Co-operative Appellate Court issued notice under section 12 of the Contempt of Courts Act, 1971 read with section 148A of the said Act to the petitioners calling upon them to show cause as to why action should not have taken on account of their failure to comply with the order dated 4th November 2006 passed by the Co-operative Court. Pursuant to the said show cause notice, the petitioners appeared and pointed out that on 15th March 2007, the surplus amount was already invested as per the order dated 4th November 2006 of the Co-operative Court. An apology was also tendered on behalf of the petitioners. The fixed deposit receipt was also produced before the Co-operative Appellate Court. After considering the reply of the petitioner to the show cause notice, the impugned order was passed by the Member of the Co-operative Appellate Court. 3. The learned senior counsel appearing for the petitioner has taken me through various documents on record and pointed out that the order of the Co-operative Court passed on 4th November 2006 is complied with and there was no default on the part of the petitioners. He pointed out that in fact the second petitioner was nowhere connected with the compliance of : 5 : the order passed by the Co-operative Court. The learned counsel appearing for the first respondent did not dispute that the order of the Co-operative Court was complied with and he has submitted to the orders of the Court. 4. I have considered the submissions. The learned Member in the impugned order has noted that the order dated 4th November 2006 passed by the Co-operative Court was complied with as requisite amount was invested in fixed deposit on 15th March 2007. The learned Member however came to the conclusion that certain statements made by the the petitioners, in the reply were false. The learned Judge has also noted in the order that the concerned officers stated in writing that the delay in complying with the order may be pardoned and that they have tendered an apology. 5. Be that as it may, the order of the Co-operative Court passed on 4th November 2006 was complied with on 15th March 2007. It must be noted here that the said order of the Co-operative Court was challenged by preferring an appeal. The appeal was preferred as per the legal advice. Looking to the material on record, it is obvious that there was no intention on the part of : 6 : the petitioners of not stating the truth. The learned Member found that the petitioners informed the Co-operative Court on 9th April 2007 about the compliance with the order and the petitioners took a stand in the reply to show cause notice that the order was complied with prior to 4th April 2007. Therefore, he felt that a false statement was made by the petitioners. When the investment was made on 15th March 2007, the statement made by the petitioners was not at all false. Perhaps, the learned Member was not impressed by the apology tendered and he has taken a strict view of the matter which was not at all warranted either in law or in facts. The petitioners were directed to furnish surety bond before the learned Magistrate. In my view, considering the facts of the case, entire exercise undertaken by the learned Member was uncalled for. The petition must succeed. 6. Hence, I pass the following order :- (1) The impugned Judgment and Order dated 13th April 2007 is quashed and set aside and show cause notice issued to the petitioner is discharged. The proceeding initiated before the learned Magistrate on the basis of the impugned : 7 : order also stand quashed. (2) The bonds submitted by the petitioner stand cancelled. (A.S.Oka,J)