ssm 1 14.wp.1715.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1715 OF 2009 Shri. Vikas Bhalchandra Patharkar ....Petitioner Versus The State of Maharashtra and anr. ....Respondents ____________ Shri. Niranjan Mundargi for the Petitioner. Smt. U. V. Kejriwal, APP for the Respondent No. 1 -State. Shri. Uday P. Warunjikar for the Respondent No. 2. CORAM: J. H. BHATIA, J. DATED : 11 TH APRIL, 2011. P.C.: Rule. Rule made returnable forthwith. Heard learned Counsel for the parties. 2. The Respondent No. 2 filed a complaint which came to be registered as Criminal Case No. 117/PW/2008 of 2007. The complaint was filed by him in his capacity of Honorary Secretary of the Blue Diamond Co-operative Housing Society situate at Chembur. The Petitioner, who is Accused in that case is also a member of the said society and resident of Flat No. 44. According ssm 2 14.wp.1715.09 to the Complainant, the Accused had tampered with the electric meter of the society and had taken direct electric connection to his flat in the year 2003 and thus committed theft of electricity. The learned Magistrate directed the police to investigate the case under Section 156(3) of the Code of Criminal Procedure. The Accused filed this Petition to quash the proceedings. According to the Accused-Petitioner, he was allowed by the society to take electric supply directly from the meter of the society as there was no electric meter to his flat and some internal work was required to be done which required electric supply. According to him, in the 26 th Annual General Meeting of the society held on 14 th August, 2005, it was brought to the notice of the Annual General Meeting by the Secretary that power supply was directly given from the society's electric meter to the flats of the Accused Vikas and one Praful Khimasia and both of them had agreed to pay the amount. The Managing Committee was, therefore, authorised to workout the dues and recover the same from the said two members. It is ssm 3 14.wp.1715.09 contended by the Petitioner that the Respondent No. 2 Secretary had himself done certain illegal acts and had opened a door from his flat to enter the terrace of the society and this was objected to by him and other members of the society, and therefore, the Respondent No. 2 has filed false case against him. 3. On perusal of the copy of the Minutes of the 26th Annual General Meeting held on 14 th August, 2005, it appears that the Complainant- Respondent No. 2 Alok himself was the Honorary Secretary of the society at that time also. The minutes reveal that after discussion of three subjects in the Agenda, certain subjects were taken up for consideration with permission of the Chairman and those subjects are mentioned in paragraph 4. Sub- paragraph 'H' of paragraph 4 reads as follows: “The secretary brought to the notice that Mr. Praful Khimasia and Mr. Vikas Patharkar were supplied power directly to their flats from the society's electric meter to which both the above members agreed to pay the society. The Mg. Committee was authorized to work out the dues and recover the same from the both the above members.” ssm 4 14.wp.1715.09 It clearly shows that the Petitioner was supplied power directly from the society's electric meter and he had agreed to pay the society. The Managing Committee wants work out the dues and to recover from him and another member Praful. According to the Petitioner, by letter dated 14th October, 2005 addressed to the society's Secretary, he had pointed out that bill for the electricity consumed by him would be of Rs.4,700/- while he had carried out work on behalf of the society to the extent of Rs.5,550/-. According to him, after adjustment amount of Rs.850/- was due to him by the society. The learned Counsel for the Complainant contended that the reply by the complainant goes to show that the Accused had admitted that he had taken electric supply for his flat from the electric meter of the Society. In fact this is not disputed by the accused. However, as per the Minutes of the meeting held on 14 th August, 2005, he was authorized for the same and he was required to make payment of bill, which would be worked out by the Managing Committee whether the Petitioner ssm 5 14.wp.1715.09 had made the payment or not is a different question. Even if he has not made the payment that does not make out a case under Section 379 of the Indian Penal Code. The society may take action against him for recovery of money or may take any other action which may be permissible under the Maharashtra Co-operative Societies Act, Rules and Bye-laws. In any case, no case under Section 379 of the Indian Penal Code is made out and therefore, the proceedings in the complaint filed by the Respondent No. 2 are liable to be quashed. 4. for the aforesaid reasons, the Petition is allowed in terms of prayer clause (c). Rule is made absolute accordingly. (J. H. BHATIA, J.)