1 24-2287-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2287 OF 2010 Elias M. D’Souza .. Applicant. Vs. The State of Maharashtra & Another .. Respondents. Mr. H.E.Palwe, for the Applicant. Mr. P.S.Hingorani, APP for Respondent-State. CORAM : SMT.R.P. SONDURBALDOTA,J. DATE : 14th FEBRUARY, 2011. P.C.: 1 This application is filed under section 482 of Criminal Procedure Code for quashing of CR No.271/2006 lodged at Panchvati Police Sation, Nashik for the offences punishable under section 406, 408 and 409 r/w section 34 of Indian Penal Code filed by Respondent No.2. 2 24-2287-10.sxw 2 Applicant at the relevant time was director of the Company by name Nashik Breeding and Research Farms Pvt. Ltd. Respondent No.2 filed complaint on 3rd August, 2006 with the Panchavati Police Station, Nashik, alleging offences of mis-appropriation and cheating committed by members of managing committee of respondent No.2.-Society and various other persons listed in the complaint. The company Nashik Breeding and Research Farms Pvt. Ltd is mentioned at serial no.3 in the complaint. It is alleged that the applicant herein got the loan upto the extent of Rs.50.00 lacs sanctioned from respondent no.,2 in respect of the goods supplied by Nashik Breeding and Research Farms Pvt. Ltd. to a company by name M/s. C & M Farming Ltd. The Directors of both the companies are same. The auditor reported that since the directors of both the companies are same, loan to one company by way of discounting bill in respect of the goods supplied to the other company is an accommodation loan which is not permissible. Such loan amounts to mis-appropriation of monies. It appears that subsequently, both the companies have amalgamated pursuant to the order dated 24th January, 2001 passed by this court under section 391 to 394 of Indian Companies Act, 1956. By the said order all the assets and liabilities of Nashik Breeding and Research Farms Ltd., including loans 3 24-2287-10.sxw from banks, co-operative credit societies and other lenders got transferred to M/s. C & M Farming Ltd. with effect from 15th May, 2000. 3 The learned counsel for the applicant submits that in view of amalgamation of the two companies, the restrictions with regard grant of the loan is no longer valid. He also submits that subsequently, M/s. C & M Farming Ltd. has repaid the entire amount to Respondent No.2. He relies upon the certificate dated 14th December, 2006 issued by respondent No.2, stating that “the Advanced Bills loan a/c. no.5 on the name of M/s. Nashik Breeding and Research Ltd. is fully paid as on 14th December, 2006”. The learned counsel submits that in view of amalgamation of both the companies and in view of payment of the entire loan amount, no fruitful purpose will be served by continuing the complaint against applicant. The dispute in the complaint stands resolved by repayments of the loan. 4 The learned counsel relies upon the decision of this Court dated 5th March, 2010 passed in Criminal Writ Petition No.2808 of 2009 (Tejas Kirtikumar Salot & Others v/s. State of Maharashtra & Another) in support of his argument. 4 24-2287-10.sxw 5 The basis difference in the facts of the case in the decision cited and the facts of the present case is that there was no allegations made against the officers of the Bank. The allegations were restricted to non-payment of the loan granted to the Petitioner. Later, there was one time settlement between the bank and the Petitioner. In the instant case, the allegations are not limited to repayment of the loan but extended to the manner in which the loan was sanctioned. Complaint has been filed pursuant to the report of the auditors. Complaint is not only against the applicant but also against the persons who at the time of the sanction of loan were incharge of the running of the society. In these facts and circumstances of the case, it cannot be said that the dispute is purely between the applicant and respondent No.2. Hence, application is dismissed. (JUDGE)