Cr.Appln. 7/11 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICAITION NO.7/2011 1] Subhash Harishchandra Chaudhari, age 59 yrs., occu.Chairman, r/o Bahepura, Raje Sambhaji Chowk, Amalner Dist.Jalgaon. 2] Dilip Dhondur Thakur, age 52 yrs., occu.Vice Chairman, r/o Shriram Colony, New Munthe Plot, Amalner Dist.Jalgaon. 3] Shamdas Gurudasmal Lulla, age 66 yrs., occu.Director, r/o Lulla Market, Amalner Dist.Jalgaon. 4] Mangilal Tilokchand Jain, age 40 yrs., occu.Director, r/o Pankhidki, Amalner Dist.Jalgaon. 5] Namdeo Tukadu Chaudhari, age 65 yrs., occu.Director, r/o Near Hotel Samrat, Amalner Dist.Jalgaon. 6] Manohar Dagadu Kumavat, age 47 yrs., occu.Director, r/o R.K. Nagar, Amalner Dist.Jalgaon. 7] Motiram Ramchandra Hinduja, age 45 yrs., occu.Director, r/o Shrikrishna Sari Centre, Shahid Hemu Colony Road, Amalner Dist.Jalgaon. Cr.Appln. 7/11 - 2 - 8] Sanjay Khandu Landage, age 42 yrs., occu.Director, r/o Palad, Amalner Dist.Jalgaon. 9] Vijaya Ramchandra Mali, age 52 yrs., occu.Director, r/o L.I.C. Colony, Bhushan Bangla, Amalner Dist.Jalgaon. 10] Sau.Ushabai Subhash Chaudhari, age yrs., occu.Director, r/o Baherpura, Raje Sambhaji Chowk, Amalner Dist.Jalgaon. 11] Pandit Dhanaji Jadhav, age 65 yrs., occu.Director, r/o Savata Mali, Zami Chowk, Amalner Dist.Jalgaon. 12] Subhash Ghevarchand Jain, age 50 yrs., occu.Director, r/o Mumbai Galli, Amalner. 13] Devidas Atmaram Patil, age 48 yrs., occu.Vice Chairman, r/o Sanenagar, Amalner Dist.Jalgaon. 14] Bharatsingh Dhansingh Patil, age 52 yrs., occu.Director, r/o Kasar Galli, Amalner Dist.Jalgaon. 15] Jagdish Purushottam Solanki, age 47 yrs., occu.Director, r/o Near Dagadi Darwaj, Amalner Dist.Jalgaon. 16] Jagannath Waman Patil, age 40 yrs., occu.Director, r/o Farshi Road, Amalner Dist.Jalgaon. 17] Nimba Dala Chaudhari, age 61 yrs., occu.Director, r/o Chimanpuri Pimple, Amalner Dist.Jalgaon. Cr.Appln. 7/11 - 3 - 18] Vasant Wamanrao Marathe, age 47 yrs., occu.service, (Manager/Secretary), r/o Balajipura, Saibaba Mandir Lane, Amalner Dist.Jalgaon. ...Applicants.. Versus 1] The State of Maharashtra, Amalner Police Station, Amalner Dist.Jalgaon. 2] Dnyaneshwar Barku Mahajan, age major, occu.labour, r/o Mangalnagar, Tadepura, Amalner. Dist.Jalgaon. ...Respondents... ..... Shri R.S. Shinde, Advocate h/f Shri N.L. Chaudhari, Advocate for applicants. Shri N.R. Shaikh, APP for respondent no.1. Shri R.A. Birhade, Advocate for respondent no.2 (absent). ..... CORAM: A.V. POTDAR, J. DATE: 13.04.2011 ORAL JUDGMENT : 1] Heard learned counsel for the parties. Rule. Rule made returnable forthwith for final hearing at the stage of admission with the consent of learned counsel for the parties. 2] By the present application u/s 482 of the Code of Criminal Procedure, the Cr.Appln. 7/11 - 4 - applicants have approached this Court with the prayer in terms of prayer clause (B) to the effect that the FIR lodged with Amalner Police Station vide Crime No. 282/2010 u/s 120-B, 420, 468 of the Indian Penal Code on 20.12.2010 on the basis of private complaint filed by the complainant / respondent no.2 before the learned JMFC, Amalner, and the criminal proceedings initiated in furtherance thereto may be quashed and set aside to the extent of present applicants. 3] Such of the facts as are necessary for the just decision of this application can be summarised as under: Applicant nos.3, 5, 7, 9 and 16 are the ex-Directors of the institution known as Dr.Hedgewar Nagari Sahakari Patsanstha Maryadit, Amalner Dist.Jalgaon, while applicant no.1 is the Chairman of the said institution. Applicant nos.2, 4, 6, 8 and 10 to 15 are the present Directors of the said institution, while applicant no. 18 is the Secretary-cum-Manager of the said institution. Respondent no.2 is the shareholder member of the said institution. It appears that respondent no.2 and his two sons applied for grant of loan in the sum of Rs.30,000/- each in the month of April, 2006. It appears that the said three loan proposals were sanctioned by the said institution. The sanctioned loan was availed and obtained by respondent no.2 and his two sons. As per the agreement executed by respondent no.2 and his two sons with the said institution, it is agreed between the parties that the loan availed and obtained by respondent no.2 so also his two sons was to be repaid in 36 equal monthly installments. It further appears that certain rate of interest was Cr.Appln. 7/11 - 5 - agreed between the parties in respect of the said loan granted in favour of respondent no.2 and his two sons. It further appears that in pursuance of the said agreement, respondent no.2 so also his two sons repaid 10 to 11 installments to the institution. Thereafter, since the agreed monthly installments were not paid, the amount of loan with the accrued interest became due. Thereafter, the institution took requisite steps for recovery of the said amount. It appears that the son of the respondent no.2 by name Chandrakant issued cheque against the balance amount along with the accrued interest to the institution. When the said cheque was deposited in the bank, it was returned as “bounced for insufficient funds in the bank”. In view of this, complaint u/s 138 of the Negotiable Instruments Act was lodged against Chandrakant – the son of respondent no.2. It appears that thereafter by using the facility provided under the Right to Information Act, certain documents were called for by respondent no.2 and thereafter tried to lodge a complaint with Amalner Police Station. It further appears that as the Police from Amalner Police Station had not taken cognizance of the said complaint, respondent no.2 lodged private complaint directly before the learned JMFC, Amalner, on 16.12.2010. It further appears that after hearing the counsel for respondent no.2, learned JMFC was pleased to pass the order directing the concerned Police Station to carry out the investigation u/s 156 (3) of the Code of Criminal Procedure. On the basis of the allegations in the complaint, offence u/s 120-B, 420, 468 r/w 34 of the Indian Penal Code was registered against these applicants and two others. The averments in the complaint disclose that 1% extra Cr.Appln. 7/11 - 6 - interest was charged by the applicants being the Directors of the said institution so also 5% amount was charged towards the share contribution, notice fees and towards other expenses, which according to respondent no.2, constitute offence u/s 120-B, 420, 468 r/w 34 of the Indian Penal Code. 4] Subsequent to the order passed directing the concerned Police Station to carry out the investigation u/s 156(3) of the Code of Criminal Procedure, Amalner Police Station registered Crime No.282/2010 against the present applicants and two others on 20.12.2010 pursuant to the directions of the learned JMFC, Amalner. Thereafter, the present applicants approached this Court in its extraordinary jurisdiction u/s 482 of the Code of Criminal Procedure. 5] In response to the notice, the respondent no.1 – State so also the respondent no.2 filed their appearance and affidavits in reply. When the application was on Board on the last occasion, learned counsel for respondent no. 2 was present, but when today the matter was called out, the learned counsel for respondent no.2 is absent. In the light of that, I have perused the affidavit in reply and the documents annexed along with the affidavit in reply filed by respondent no.2 so also perused the affidavit in reply filed by respondent no.1 – the State. At this stage, it is necessary to take a note that in uncertain terms and words, the respondent no.1 – State has made it clear that during the investigation, no material was available against these applicants, which may constitute offence u/s 120-B, Cr.Appln. 7/11 - 7 - 420, 468 r/w 34 of the Indian Penal Code. 6] In the light of these contents of the affidavit in reply filed by the State so also the documents produced along with the affidavit filed by respondent no.2, I have considered the averments made in the complaint. Admittedly, the applicant nos.3, 5, 7, 9 and 16, who are the ex-Directors of the said institution, have nothing to do with the day-to-day management of the said institution – Dr.Hedgewar Nagari Sahakari Patsantha Maryadit, Amalner Dist.Jalgaon. Apart from it, it is observed by the Apex Court in the matter of Everest Advertising (P) Ltd. V/s State, Govt. of NCT of Delhi & others [ (2007) 5 SCC 54 ] as to when the Managing Directors of the company are to be held responsible for prosecution if the averments in the complaint disclose about their control over day-to-day management of the company or the institute concerned. In absence of it, the Managing Directors of the company are not to be held responsible for the act of the company. Observations on similar lines are also made by the Apex Court in the matter of Aneeta Hada V/s Godfather Travels and Tours (P) Ltd. [ (2008) 13 SCC, 703 ]. 7] On perusal of the averments in the entire complaint in the light of the parameters provided to us as to when the officers of any institution are to be held liable for prosecution for the alleged offence, only two averments are found. Firstly, 1% extra interest was charged by the institution towards the due amount of the unpaid loan and the interest accrued on it. It appears before filing of the Cr.Appln. 7/11 - 8 - complaint, application was moved by respondent no.2 or his son Chandrakant before the concerned Assistant Registrar complaining about excess charging of interest on the unpaid loan due from respondent no.2 wherein by his order, the Assistant Registrar has concluded that charging of 1% interest will not amount to criminal offence, but it is interpretation of the technicality while charging interest on the due unpaid loan amount. Secondly, it is stated by the concerned Assistant Registrar, when his statement was recorded during investigation, about charging of 5% amount on the loan towards notice fees, legal charges and other expenses, to be legal and valid if permissible as per bye-laws of the institution concerned. 8] Apart from these findings of the concerned Assistant Registrar, bare perusal of the complaint, on which order was passed by learned JMFC, Amalner, directing investigation u/s 156(3) of the Code of Criminal Procedure, the averments in the complaint prima facie do not disclose commission of offence u/s 120-B, 420, 468 r/w 34 of the Indian Penal Code. At this juncture, it is useful to give reference of the observations of the Apex Court in the case of Maharashtra State Electricity Distribution Co.Ltd. V/s Datar Switchgear Ltd. [ (2010) 10 SCC, 479 ]. It is observed that if no prima facie case is made out from the averments in the complaint, then in such cases, the High Court can exercise jurisdiction u/s 482 of the Code of Criminal Procedure. 9] Considering these legal aspects, the application succeeds. Hence, Rule is Cr.Appln. 7/11 - 9 - made absolute in terms of prayer clause (B). The application is disposed of accordingly. (A.V. POTDAR, J.) ndk/cr1341125