Bombay High Court
Shri.Kalleshwar Nagari Bigar vs The State Of Maharashtra on 7 February, 2014
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
ALP 85 OF 2013.doc
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.85 OF 2013
Shri.Kalleshwar Nagari Bigar
ShetiSahakari Patsanstha Ltd.
Kurundwad,
Tal. Shirol, District: Kolhapur
its Chairman,
Shri.Sadashiv Nemu Magdum
age:68 years Occn. Agriculture
r/o Kurundwad,
Tal. Shirol
Districrt: Kolhapur
ig .. Applicant.
V/s.
1. The State of Maharashtra
2. Shri. Nandkumar Maruti Patil
r/o Kurundwad, Tal.Shirol
Dist. Kolhapur,
now residing at: Atpadi,
Near Maruti Mandir,
District: Sangli. .. Respondents.
Mr. P. M. Arjunwadkar, for the Applicant.
Mr. Nilesh Wable a/w Mr. V. N. Samlewale i/by
Mr. Umesh Mankapure, for Respondent NO.2.
Mrs. A. A. Mane, APP for the Respondent
State.
CORAM : MRS. MRIDULA BHATKAR, J.
DATE : 7th February, 2014 Oral Judgment Page No.1 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Leave granted. Appeal admitted.
2. Appeal be registered.
3. By consent heard finally at the stage of admission.
4. This appeal is directed against the judgment and order dated 22.12.2012, of the Judicial Magistrate First Class, Kurundwad,whereby he acquitted the Respondent No.2 accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
5. The appellant original complainant is a co-operative society registered under Maharashtra Co-operative Societies Act. The appellant society is having business of accepting deposits and giving loans to the members and is in the business of finance. The respondent No.2 was working as a Secretary of the said society nearly for a period of six years prior to 2008. He was aware of day-to-
day affairs of the society. So also aware of Page No.2 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc disbursement of the loans and gold loan by the society. It is the case of appellant that the respondent No.2 without taking into confidence the Chairman, Vice Chairman or other members of the Managing Committee, forged the signatures and on the basis of false investments receipts, withdrew an amount from the society account and misappropriated the funds of society. The original complainant is a co-operative society, who has kept money in Federal Bank in Kurundwad. So also kept fixed deposit with Jaiprakash Urban Co-operative Society, Kurundwad and Dharmanath Urban Co-
operative Society. At the time of filing complaint ie. in the year 2008, the amount due including interest till 31st July, 2007, was Rs.8,57,744/-. The complainant, therefore, demanded said money from the respondent No.2.
However, he did not show readyness to pay the said amount. Besides this amount, it is the case of complainant that the respondent No.2 Page No.3 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc by misusing his powers and by forged documents in respect of gold loan, withdrew an amount of Rs.2,44,000/- and utilized for his personal use. Thus, the total amount misappropriated by the respondent accused is Rs.11,17,787/-
and therefore, complainant society issued notice demanding the said amount. In response to notice, respondent accused gave two cheques bearing Nos.572516 and 572517 dated 1.1.2008 for Rs.5,00,000/- and for Rs.5,17,787/-, respectively, towards payment of misappropriated amount. The complainant deposited both the cheques, but the same were returned with endorsement, "Refer to the drawer". Thereafter notice dated 6.2.2008 was sent by the appellant through its lawyer demanding the amount of dishonoured cheques which was received to respondent No.2 on 9.2.2008. However, respondent accused neither respond nor paid the said amount. The society, therefore, lodged complaint before the learned Page No.4 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Judicial Magistrate First Class, under section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance.
6. The respondent accused pleaded not guilty and thereafter the trial commenced.
7. The appellant filed affidavit of Sadashiv Magdum, the Chairman of the Society in lieu of examination-in-chief to prove the fact that the cheques were dishonoured and the amounts mentioned in the cheques were given for legally enforceable debt and the respondent is liable to pay the same. The appellant society also examined Deepak Mhaske as C.W.2. The respondent No.2 neither lead any evidence nor examine himself. Both the witnesses were cross-examined by the respondent at length. A defence was put up that the respondent No.2 has taken loan in the name of his wife which was repaid by him, but at that time by way of security two blank cheques were taken by the bank from him. The Page No.5 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc said two blank cheques were subsequently used by the appellant society by filling figures and the amount claimed is not at all due against the respondent No.2.
8. The learned Judge formulated the points in respect of discharge of liability of the complainant and whether the cheques were dishonoured on account of insufficient funds and whether there was proper service of notice to the accused for the payment of dishonoured cheques or not? All these three points were decided by the learned Judge in favour of the appellant. However, the last point as to whether the complainant has proved resolution authorizing Chairman Mr. Magdum-
the Chairman of the Society, to proceed with the case, is decided in negative. Thus, the trial was concluded in the acquittal of the accused for want of proper proof of the resolution authorizing Mr. Magdum to proceed with the case.
Page No.6 of 19 ::: Downloaded on - 29/03/2014 18:50:55 :::ALP 85 OF 2013.doc
9. The learned counsel for the appellant has submitted that the issue involved in this behalf is very short as findings on the other issues are in favour of the appellant. The learned counsel has submitted that in fact the appellant has adduced evidence on the point of proper authorisation of Chairman Mr. Magdum.
The learned counsel submitted that the extract of resolution ig authorizing Chairman was produced. However, the learned trial Judge gave a finding that authorization was not duly signed by the appropriate authority. The learned counsel argued that the learned Judge relied on the provisions of Section 40 of the Maharashtra Co-operative Soc ieties Act read with Rule 34 of the Maharashtra Co-operative Societies Rule and submitted that the said provisions are properly considered by the learned Judge. He submitted that the extract of the resolution is produced at Exh.64 and a certificate of authorization is produced at Page No.7 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Exh.67. The learned counsel submitted that in view of the evidence adduced by the complainant, appeal should be allowed and the order of acquittal of the respondent No.2 be set aside.
10. Per contra, the learned counsel for the respondent No.2 submitted that respondent No.2 is insane and taking treatment for his insanity. The learned counsel in support of his submissions relied on some documents and certificates issued by Kripamayee Institute for Mental health Miraj.
The learned counsel submitted that the applicant accused is insane and therefore, it is necessary for this Court to conduct enquiry under Section 328 of the Code of Criminal Procedure. The learned counsel further submitted that under Chapter XXV of the Code of Criminal procedure,certain procedure is laid down in respect of persons of unsound mind, therefore this Court shall direct the Page No.8 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Judicial Magistrate to hold enquiry to find out whether he is capable of making any defence or not. The learned counsel submitted that such enquiry is to be conducted not only at the stage of trial but even at the stage of appeal in case of a person of unsound mind. In support of his submissions he relied upon the decision in case of State of Maharashtra -vs-
Sindhi Alias Raman reported in 1975 AIR (SC) 1665. The learned counsel submitted that the appeal is continuation of the trial and therefore, it is a duty of a Court to consider proceedings on that aspect and the the fundamental principle of natural justice is to be followed. The learned counsel further submitted that at present respondent is insane. The learned counsel for the respondent could not obtain instructions from him.
11. It is to be noted that this appeal was argued on 6th February, 2014 by Mr. V. N. Samlewale, Advocate for the respondent No.2 Page No.9 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc and he has submitted that respondent No.2 is insane and he is taking treatment for his mental health. However, after going through the papers produced in support of his submissions, I expressed disagreement with the submission of the learned counsel for the respondent on the point of insanity of respondent accused. Thereafter the learned counsel for the respondent No.2, Mr. Samlewale, made submissions on merits. The learned counsel argued that the judgment of the trial Court is legal and has to be maintained. The finding given by the learned Judge on point No.4 in respect of non-
authorization of Mr. Magdum is correct. He further submitted that it was necessary for the appellant society to prove signature on the resolution and on the authorization. He submitted that the resolution which is produced before the Court is not in accordance with the provisions of Section 40 of the Page No.10 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Maharashtra Co-operative Societies Act and also in violation of Rule 34 of the Maharashtra Co-Operative Societies Rules.
12. Heard the submissions of both the parties. The contention of the learned counsel for the respondent No.2 on the point of insanity is discarded summarily. The respondent accused at the time of commission of the offence was working as Secretary in the said society. Moreover, at any time during the trial, the defence of his insanity was not taken. After his acquittal when the notice was sent by this Court on 28.8.2013, the medical papers were produced with a view to ascertain his present mental state. In all fairness I have carefully gone through the medical papers. These are the prescriptions of medicines issued by Kripamayee Institute of Mental Health Miraj, produced to show that he is taking treatment in the Kripamayee Institute for Mental Health at Miraj, District Page No.11 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Sangli. All these papers are of the year 2013. None of the paper is prior to 2013.
Besides not a single certificate issued by Government hospital is produced. If at all any such certificate issued by Civil Surgeon of respondent's insanity would have been produced, then this Court would have considered that aspect. However, in this appeal when the evidence is already adduced before the trial Court at the relevant time, respondent No.2 was sound, especially at the time of commission of offence. Assuming that he is taking some treatment may be true, however, taking treatment for mental health does not mean that he is insane. A degree of seriousness can be categorized on the basis of ailment and the treatment given. No such document is produced to prove his insanity.
Bad mental condition cannot be treated as a person is of unsound mind as per requirement of Section 84 of Indian Penal Code.
Page No.12 of 19 ::: Downloaded on - 29/03/2014 18:50:55 :::ALP 85 OF 2013.doc
13. In the case OF State of Maharashtra
-vs- Sindni Alias Raman (supra) the accused was convicted for double murder and was given death penalty and the appeal, therefore, was preferred for confirmation. The defence was on the ground of insanity and the Supreme Court has taken a view that such enquiry in the mental capacity of the accused is correct.
The said case is distinguishable considering the nature of evidence and from the set of facts.
14. On merit the challenge is raised on the point of authorisation. Extract at Exh.67 issued on 18.5.2012, is produced before the Court. The said certificate was given by the Secretary of the appellant society in favour of Sadashiv Magdum discloses that the Secretary has signed and put his seal and put the seal of the appellant society. The said certificate is given on the letter head of the Page No.13 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc society. By this certificate, society has authorized C. W. 1 Mr. Sadashiv Magdum to persue matter in the Court In the said certificate, it was mentioned that Mr. Sadashiv Magdum was authorised by virtue of resolution No.4 dated 15.3.2008. The extract of the said resolution is at exh.64.
Resolution No.4 as per section 40 of the Maharashtra ig Co-operative Society's Act. The section 40 reads as under:-
"40. (1) A copy of any entry in any book, register or list, regularly kept in the course of business and in the possession of the society, shall if duly certified in such manner as may be prescribed, be admissible in evidence of the existence of the entry and shall be admitted as evidence of the matters and transactions therein recorded in every case where and to the same extent to which the original entry would, if produced have been admissible to prove such matters.
(2) In case of such societies, as Page No.14 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc the State Government may be general or special order direct, no officer of a society shall in any legal proceeding to which the society is not a party, be compelled to produce any of the society's books the contents of which can be proved under the foregoing subsection, to appear as a witness to prove the matters transactions and accounts therein recorded, unless by order of the Court or Judge made for special cause".
whereas, Rule 34 reads that :
For the purpose of S.40, copies of any entries referred to in that section may be certified by any officer of the society duly authorized in that behalf of by the committee under the seal of the society".
15. It says that a copy of any entry, if duly certified, it can be admissible in the evidence. The learned Trial Judge has erred in holding that the original books where such entry or resolutions are made ought to have been produced. However, Rule 34 says that a copies of any entries if duly certified as may be prescribed can be read in the evidence.
Page No.15 of 19 ::: Downloaded on - 29/03/2014 18:50:55 :::ALP 85 OF 2013.doc Section does not demand production of the original extract only.
16. As per Rule 34 the manner in which copy is to be certified is prescribed. Any officer of the society duly authorised in that behalf by the Committee under the seal of the society may certify said document.
17. Exn. 64. disclosed that the said entry is certified by the Chairman of the appellant Society. Chairman has put his signature and certified it as true copy. As also seal of the society is put on the letter head of the society and thus, there is compliance of Section 40 and rule 34 of the Maharashtra Co-
operative Societies Act. Thus, the finding given by the learned Magistrate that the appellant society has failed to prove proper authorization of Mr. Magdum to represent the appellant society and to proceed with the case is illegal, hence is set aside. In view of this, the other finding given by the learned Page No.16 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc Magistrate, as to issuance of the cheques, dishonour of cheques and sending of notice within stipulated time are in favour of the appellant.
18. In view of foregoing reasons the impugned judgment and order dated 12.12.2012, passed by the Judicial Magistrate First Class, Kurdundwad, in Summary Criminal Case No.62 of 2008 is set aside. The respondent accused is hereby found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
19. On the point of quantum of punishment learned counsel for the respondent No.2 accused is heard. He submitted that in the dispute raised by the appellant Society before Co-operative Court, Kolhapur, the said Court by its dated 14.10.2010 has allowed the dispute and has directed the recovery proceedings against present accused alongwith interest. The learned counsel submitted that Page No.17 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc in view of this and considering the financial condition of the respondent accused, lenient view be taken. The learned counsel for the appellant submits that the respondent accused has cheated public undertaking and hence prays for maximum punishment.
20. The judgment and order of acquittal is set aside. The respondent No.2 accused is held guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for four months and to pay fine of Rs.10,17,787/-. Out of fine amounts, an amount of Rs.10 lacs is to be paid by way of compensation to the appellant society; in default of payment of the fine the respondent shall undergo S.I. for one month.
21. The learned counsel for the respondent accused prays for stay of the impugned order.
At his request the execution, implementation and operation of this order shall stand stayed Page No.18 of 19 ::: Downloaded on - 29/03/2014 18:50:55 ::: ALP 85 OF 2013.doc for six weeks from the day and date this judgment is signed.
(MRS. MRIDULA BHATKAR, J.) Page No.19 of 19 ::: Downloaded on - 29/03/2014 18:50:55 :::