P.C.:-
1. Writ Petition is filed for quashing and setting aside the order made by J.M.F.C. Dondaicha in application no. 192 of 2009. In a private complaint filed by respondent no.2 for offences punishable under Sections 403, 406, 407, 408, 409, 420, 465, 467, 468, 471, 477A, 120B and 34 of the Indian Penal Code, J.M.F.C. has made order under Section 156(3) of Cr.P.C. and the concerned Police Station is directed to make investigation of the matter. Both sides are heard.
2. Present petitioners are said to be borrowers of Dadasaheb Rawal Co-operative Bank Ltd., Dondaicha, Tq. Shindkheda, Dist Dhule. Accused no.2 â Jaideosing Rawal was Chairman of this bank at the relevant time. The complainant, who is share holder of the Bank has made allegations that Swodharak Vidhyarthi Sanstha belongs to the family of accused no.2, Kanhayya Traders, a concerned belongs to a daughter of accused no.2 and Krushiraj Traders belongs to a daughter of accused no.2. It is contended that accused no.2 conspired with the other directors of the Bank and siphoned the money of bank to the concerned institutions established and created in the names of his family members. Allegations are made that no procedure was followed for sanctioning the loans to the petitioners and even when there was no sufficient security, huge loans were given. There are also allegations that false record was prepared of bad debts of Rs. 101 Lac though the bad debt amount had gone upto Rs. 1597 Lacs. Attempt was made to show that everything was all right but due to siphoning of the amount in the aforesaid manner the Bank ultimately went into liquidation and its depositors were cheated.
3. When on one occasion audit was done, it was revealed that to Swodharak Vidhyarthi Sanstha, the property loan of Rs. 32.55 lacs was given and there was no sufficient security for this loan. Whatever, security was shown to be given was also subsequently disposed of. To Kanhayya Traders trading loan of Rs. 79.99 Lacs was given which was in excess of the capacity of the traders and for which there was no sufficient security. To Krushiraj Traders trading loan of Rs. 69.66 Lacs was given and for this also there was no sufficient security. To Kanhayya Traders cash credit loan was given of Rs. 31.77 Lacs and for this loan old stock which was there as per their record three years prior to date of loan, was shown.
4. It was submitted for the petitioners that at present no amount is due in respect of aforesaid transactions and petitioners have not committed any offence. Advocate for the petitioners relied on one enquiry report. This Court has gone through the enquiry report, which is not accepted by anybody. Report shows that very vague report was prepared. Security papers and other aspects were not at all discussed. However, report shows that the borrowers had defaulted in making repayment of loan when the report was prepared.
5. Another submission was made that the complaint is filed out of political rivalry. Reliance was placed on the Station Dairy entry no. 38 made in the Police Station of Dondaicha. It shows that when the present complainant had gone to the police station, the Ex- State Minister and Secretary of Marketing Committee and one Advocate had given him company and they had tried to pressurize the Police Officer to register the crime on the basis of the report. This incident had taken place on 20.10.2006. Though there is such station dairy entry, that cannot absolve the petitioners or Chairman and Directors of the Bank if with dishonest intention and against the provisions made in that regard the money was siphoned to the institutions created by the Chairman in the names of his family members. At the time of consideration of such case, all events need to be considered only to ascertain as to whether the alleged incidents had caused loss to the depositors. The bank went into liquidation and this can not be ignored in such case.
6. One more modus operandi was also pointed out. To Kanhayya institution loan was sanctioned of Rs. 27 Lacs and interest charged was 12.5%, when the interest ought to have been 14.5% p.a.. It was submitted that the interest was increased subsequently, but such circumstance needs to be kept in the mind while considering the proceedings like present one. A brother of accused no.2 is a trustee of Swodharak Vidhyarthi institution. Other institution are in the name of a daughter of the accused no.2. These circumstances also need to be kept in the mind while deciding the proceedings like present one. Arguments were advanced on some other circumstances like correspondence made by police with the office of Assistant Registrar to take instructions with regard to registration of crime. Such circumstances cannot be considered as there is now order made by Magistrate under Section 156(3) of Cr.P.C. and there are circumstances as mentioned above to make out the case of cognizable offence.
7. Reliance was placed on some reported cases for the petitioners. In a case reported as (2008) 5 SCC 668 (Muksud Saiyed V/s State of Gujarat and others), advocate took this Court through para no.13. This is in regard to vicarious liability of the Directors and the requirement of making out the case of vicarious liability. Attention of this Court was brought to para nos. 34 and 37 of the case reported in (2011) 13 Supreme Court Cases 412 (Thermax Limited and others V/s K.M. Johny and others). It was observed that when the matter has favour of civil dispute and if ingredients of offence are not made out, then the power under Section 482 can be used when there is a direction under Section 156(3) of Cr.P.C. There is no dispute about these propositions. Reliance was placed on some observations made by the Apex Court in the case reported as (2011) 3 Supreme Court Cases 351 ( Harshendra Kumar D. V/s Rebatilata Koley and others). It is observed that the High Court can use inherent powers to prevent abuse of process of law and the High Court can look into the material which have significant bearing on the matter at prima facie stage. It is observed that the material relied upon by the accused can also be used for quashing the complaint if the material is beyond suspicion or it is in the nature of public documents and it is uncontraverted. Reliance was also placed on guidelines given by the Apex Court in AIR 1992 SC 604 (State of Haryana and others V/s Ch. Bhajan Lal and others). It was submitted that present case falls under category no. 7 mentioned in para no. 108 of the case. This criteria is about the malafides of the complainant.
8. On the other hand, for the respondents reliance was placed on two reported cases (i) (2011) 5 Supreme Court Cases 708 ( Sushil Suri V/s Central Bureau of Investigation and another) and (ii) 2010(8) SCC 206 (Srinivas Gundluri and ors V/s M/s Sepco Electric Power Construction Corporation and ors). In the first case submission was made for the accused that the amount was returned to the Bank and so continuation of criminal proceeding was not proper. This contention was not accepted by the Apex Court. Facts and circumstances of each and every case are different. Relevant facts of the present case are quoted and discussed by this Court.
9. From the report of enquiry prepared by the office of Assistant Registrar even at this stage, observations can be made that attempt was made to cover up the things. Prima facie, the amount was siphoned to the institution created in the names of family members of the Chairman of Credit society. They became defaulters. There was no sufficient security with them for giving such huge loan. Not only this, but there are many similar instances mentioned in the complaint and for which there is a report of enquiry also. Ultimately the society went into liquidation. Thus it cannot be said that false allegations are made against the petitioners, who are close relatives of the then Chairman. Such instances are increasing day by day. Many Co-operative institutions have gone into liquidation due to such modus operandi adopted by the persons, who were in control of the Co-operative Institutions. The entire co-operative movement has suffered severe set-back due to such conduct of the persons who were controlling the Co-operative institutions. The poor depositors are cheated due to such conduct. Thus thorough investigation of such matter needs to be made. Only making of payments of the loan amount can not absolve the close relatives of the persons who were controlling the things. It can be said that petitioners were also benefited and so the relief claimed cannot be given to them.
10. It appears that initially the relief was claimed in respect of entire C.R. No. 5 of 2010 and it was granted by this Court. Due to the interim relief total investigation was stopped from 21.01.2010 and it can be said that till today, the investigation could not be made. Submission was made for petitioners to limit the relief only in respect of the petitioners. Such prayer also cannot be considered in this case. So the Writ Petition stands rejected.
11. Advocate for petitioners requested for continuation of interim relief for two weeks, but such relief is also refused.