1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3330 OF 2008 1. Karim Rajak Khairakhan 2. Dawood Amir Sutar ..... Applicants. V/s The State of Maharashtra ...... Respondent. ----- Mr. Rahul Kate for the applicants. Mr Umesh Mankapure for the original complainant. Mrs. M.H. Mhatre, APP for the State. ------ CORAM: V.M. KANADE, J. DATE : 19th January, 2009 P.C.: 1. Heard the learned Counsel appearing on behalf of the applicants, original complainant and the learned APP for the State. 2. The original complainant has filed a private complaint against the present applicants alleging that the applicants had used the Power of Attorney which was given by the firm Akansha Builders, after it was cancelled on 28/12/2002. Secondly, it is alleged that the applicants had misappropriated the huge amounts belonging to the firm Akansha Builders. 3. Brief facts are as under:- 2 4. The applicant No.1 was given a Power of Attorney by partners of Akansha Builders. By the said Power of Attorney, general power was given to applicant No.1 to do acts which were mentioned in the said Power of Attorney. The partners of Akansha Builders are the complainant, son of applicant No.1 and one other person. 5. It is the case of the original complainant that he had filed a private complaint before the Magistrate alleging that the Fixed Deposit amount of Rs 2,71,000/- which was kept in the Fixed Deposit of Patsanstha where applicant No.1 is a Chairman was deposited not in the Loan Account of the firm but in the Saving Account of the firm. It is further alleged that even after the Power of Attorney was cancelled by the complainant giving notice which was duly received by applicant No.1, he continued to use the said Power of Attorney and withdrew various amounts from the said account of the firm and used it for his own purposes. It is submitted that the Police had given a report to the Magistrate that, prima facie, the applicant No.1 had withdrawn certain amounts from the Bank after the Power of Attorney was cancelled. Counsel for the applicants invited my attention to the Auditor's report which was given after the police report was submitted to the Magistrate. He submitted that in the said report of the Auditor, the Auditor has given clean-chit to the applicant No.1. He also submitted that the other two partners of the firm had not cancelled the Power of Attorney and unilaterally a notice was issued by the complainant to applicant No.1. It is submitted that the complaint is filed against the applicants to pressurize them to withdraw the proceedings filed against the complainant under section 101 of the Co-operative Societies Act. 3 6. I have heard both the learned Counsel at length. I have perused the documents which are annexed to the compilation filed by the complainant. In my view, since the entire case is based on documents, custodial interrogation of the applicants is not necessary. It is an admitted position that a general Power of Attorney was executed by the partners of the firm Akansha Builders in favour of applicant No.1 and he was authorized to operate the account of the firm and also to withdraw the amounts from the account of the firm. It is also an admitted position that only the complainant had given notice cancelling the Power of Attorney. The Auditor's report also clearly exonerates the present applicant No.1. The question whether the Power of Attorney was validly terminated or not is a question which will have to be decided by the Civil Court. Even otherwise, so far as Fixed Deposits are concerned, the allegation against applicant No.1 is that instead of depositing the said amount in the loan account of the firm, he had deposited the same in the Saving Account. 7. It does appear that the applicant No.1 had taken different pleas in different proceedings. However, that by itself, in my view, will not establish the case of misappropriation against the applicants. The litigant in civil proceedings is entitled to take different pleas and defences which are available to him and merely because such pleas are taken, on that basis it cannot be said that he has prima facie committed an offence which is alleged against him. In any case, since there are various disputes pending between the parties in Civil Courts as well as in Criminal Courts and since the entire case is based on documentary evidence, custodial interrogation of the applicants, in my view, is not necessary. Had it been the case where 4 applicant No.1 withdrew the amount from the Fixed Deposit and transferred it in his own personal account, possibly, it could have been said that the amount has been misappropriated. However, in this case applicant No.1 has deposited the said amount in Saving Account of the firm. 8. Therefore, under these circumstances, in the event of the applicants' arrest in connection with private complaint which is filed by the complainant in the Court of J.M.F.C. Karad being regular Criminal Case No.274 of 2008, they shall be released on bail in the sum of Rs 5000/- each with one or two sureties in the like amount. 9. It is clarified that the trial court shall not be influenced by any observations made by this Court while granting anticipatory bail, since the said findings are based on prima facie material which is placed before me and the trial court shall decide the criminal case on its own merits and in accordance with law. 10. Application is disposed of. (V.M. KANADE, J.)