Bombay High Court
Mahesh S/O. Hanmantrao Padkantwar vs The State Of Maharashtra And Others on 10 February, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(1) Cri.WP 60/2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.60 OF 2020
Mahesh s/o Hanmantrao Padkantwar = PETITIONER
(orig. Accused)
VERSUS
The State of Maharashtra & Ors. = RESPONDENTS
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Mr.SR Palnitkar, Advocate for Petitioner;
Mr.BV Virdhe, APP for Respondent-State
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 10th February, 2020. COURT'S ORDER 1. Present petition has been filed by petitioner-original accused, invoking inherent
powers of this court under Articles 226 and 227 of Constitutional of India to challenge order dated 26.11.2019 passed by learned Judicial Magistrate, First Class, Degloor, Dist. Nanded below Exhibit-92 under Section 319 of Cr.P.C. in RCC No.154/2005.
2. The petitioner is facing the said trial for the offence punishable under Section 406 of Indian Penal Code. FIR has been lodged by one Vinayak Bhagwan Choudhari, Auditor Class-II, ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (2) Cri.WP 60/2020 Cooperative Societies, Degloor, District Nanded on 9.6.2005, stating that when audit of Shivkumar Co- operative Housing Society, Negation, for the period from 1.4.2000 to 31.3.2002, was carried out, at that time, Chairman of the said society, i.e. present petitioner, found to have sold 20 plots for Rs. 40,000/- each and committed misappropriation of Rs.8,00,000/-.
3. After the investigation, charge sheet has been filed and the trial is going on. The prosecution has examined present Respondent Nos.2 and 3, as witness Nos.3 and 8. During their evidence, they have stated that they had collected the amount by selling the plots on 13.12.2000. It is stated that these witnesses have prepared false receipts dated 14.12.2000. It is further stated that there was an agreement, whereby they were allotted certain plots of their share of which they had become absolute owner. They have sold out certain plots and thereafter they have prepared false record. Therefore, taking into consideration their depositions, an application was filed by present petitioner-accused at Exh. 92 for adding ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (3) Cri.WP 60/2020 said witnesses as accused under Section 319 of Cr.P.C.
4. After hearing learned Advocate for the accused and learned APP, learned JMFC has rejected the said application. Hence, the present writ petition.
5. Heard learned Advocate Shri SR Palnitkar for petitioner and learned APP for Respondent No.1- State.
6. Taking into consideration the documents on record and having heard the learned Advocate for the petitioner, there is absolutely no necessity even to issue notice to Respondent Nos. 2 and 3.
7. It has been vehemently submitted on behalf of the petitioner that perusal of the cross- examination of present Respondent Nos.2 and 3, would show that many admissions have been given. PW 3, who was examined before the learned Magistrate, i.e. present Respondent No.2, has admitted that he has filed a civil suit against the accused and it ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (4) Cri.WP 60/2020 has been mentioned in the suit that he himself, present petitioner and Respondent No.3 had received 11 plots each, which they were supposed to be sold by each of them. He had prepared a list. So also, Respondent No.3 had prepared and there was an agreement entered into between all of them on 13.12.2000 that out of total 44 plots, 11 plots, each to be distributed amongst those three persons and 10 plots to be kept for the society as well as one plot should be kept in common between the accused and Respondent No.3. Similar admissions have been given by Respondent No.3 in his cross- examination. These admissions show that they were also required to do certain act and it was not the only present accused person, who was supposed to dispose off 20 plots. Respondent Nos. 2 and 3 have received the amount for the plots sold by them. Therefore, there is no question of committing misappropriation by the accused. If at all there is any act to be attributed, then Respondent Nos.2 and 3 had also taken part in the same and, therefore, they should be arrayed as accused in view of Section 319 of Cr.P.C.
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8. Per contra, learned APP supported the reasons given by the learned Magistrate.
9. At the outset, it is to be noted that provisions of Section 319 of Cr.P.C. gives powers to the Court to proceed against other persons appearing to be guilty of the offence. Thus, the said provision makes out clear that even if cognizance of the offence is taken against one of the accused persons; yet if the Court, either suo motu or on the basis of an application filed, considers that there is evidence against another person, to be added as an accused and he appears to be guilty of the offence, then the Court may proceed against such person. Further, it can be said that such powers under Section 319 of Cr.P.C. are discretionary in nature and it should be exercised in extreme circumstances only to achieve criminal justice. The said discretion has to be exercised judiciously, keeping in view as to at which stage such application is made; the evidence which has been already collected; what evidence is coming on record against the proposed accused etc. ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (6) Cri.WP 60/2020
10. In Michel Machado Vs. CBI - (2000) 3 SCC 262 and Krishnappa Vs. State of Karnataka - (2004) 7 SCC, 792, it has been held by the Hon'ble Apex court that, the Court, while examining the application under Section 319 of Cr.P.C., has also to bear in mind that, there is no compelling duty on the court to proceed against the other person. In a nut shell, it means that for exercise of discretion under Section 319 of Cr.P.C., all relevant factors; including one noticed above, have to be kept in view and order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the persons sought to be added as accused. The power under Section 319 of Cr.P.C. can be exercised suo motu or on an application by some one including the accused already before the Court. The satisfaction of the concerned court is necessary. In catena of judgments it has been held by the Hon'ble Supreme Court as well as this Court that powers under Section 319 of Cr.P.C. are extraordinary powers which should be exercised very sparingly and only in compelling circumstances/reasons existing for taking action against the person against whom ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (7) Cri.WP 60/2020 action has already not been taken.
11. After noting this legal position, we are required to consider whether there were compelling circumstances or that extraordinary situation prevailed in this case or not.
12. It is to be noted that the offence was registered and charge sheet was filed in the year 2005. Unfortunately, the trial is still going on since fifteen years. We may not go into aspects as to who is responsible for said delay. However, the testimony of PW 3 was recorded on 15.1.2015. Even after the said date, no such attempt was made by the accused to make such application under Section 319 of Cr.P.C. He allowed other witnesses to be examined. PW 8, i.e. present Respondent No.3 was examined on 22.4.2019 and thereafter, it appears that the application (Exhibit-92) has been filed. Thus, at least four years' time has been unnecessarily consumed by the accused. If he had intention to rely on the evidence that had come on record through PW 3 for adding of any person as accused under Section 319 of Cr.P.C, the Petitioner ought to have attempted and filed the application ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (8) Cri.WP 60/2020 much earlier. However, the application Exh.92 does not appear to be filed with bonafide intention.
13. The another fact to be noted is that, present petitioner is relying on the agreement dated 13.12.2000, which appears to be in his possession since beginning. Therefore, why such attempt was not made earlier by the petitioner since institution of the charge sheet against him itself is a question, which has not be answered in the application. Therefore, there was no extreme circumstance that was pointed out by the petitioner. The further aspect to be noted is that the informant and the witnesses have grievance only against the accused. The accused cannot ask that along with him, somebody else is also guilty of committing the offence. What has been admitted by PW 3 and PW 8 that they have collected the amount of the sale proceeds. But then it is their say that they have handed over that amount to the present petitioner/accused for which the accused has given them receipt at Exh. 89. In the said receipt, it is stated that the amount of Rs.8,00,000/- has been handed over. The case is in respect of ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 ::: (9) Cri.WP 60/2020 misappropriation of this amount. Therefore, merely on the basis of the agreement, the petitioner cannot say that the witness Nos.3 and 8 should be made as accused and the Court should ignore the receipt at Exh. 89. Under such circumstance, when the application itself has been filed at belated stage, the learned Magistrate was justified in not exercising extra ordinary powers conferred in him. In other words, the learned Magistrate was justified in rejecting the application at Exh. 92. No case is made out for invoking the constitutional powers of this court. Hence, the writ petition deserves to be dismissed and accordingly it is dismissed.
(SMT. VIBHA KANKANWADI,J.) BDV ::: Uploaded on - 21/04/2020 ::: Downloaded on - 08/06/2020 16:32:08 :::