Bombay High Court
Rahul Prakash Awade And Others vs The State Of Maharashtra And Anr on 10 December, 2018
Bench: T.V. Nalawade, Vibha Kankanwadi
1 W.P. 1489-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1489 OF 2018
1. Rahul Prakash Awade,
Age : 40 Years, Occ. Chairman,
2. Chandrakant Dattatraya Ingawale,
Age : 52 Years, Occ. Director,
3. Aananda Nayaku Nemishte,
Age : 56 Years, Occ. Director
4. Jadhavji Manaji Patel,
Age : 60 Yerars, Occ. Director
5. Prakash Bapuso More,
Age : 60 Years, Occ. Director
6. Gajanan Shankarrao Beedkar,
Age : 58 Years, Occ. Director
7. Atul Tukaram Bugad,
Age : 50 Years, Occ. Director
8. Abhay @ Raju Appaso Magdum
Age : 40 Years Occ. Director
9. Tatayasaheb Dattatraya Kubhaje,
Age : 40 Years, Occ. Director
10. Madhukar Devbappa Maner,
Age : 56 Years, Occu. Director
11. Subhashrao Rajaram Sase,
Age : 55 Years, Occu. Director
12. Balasaheb Valmiki Mane,
Age : 40 Years, Occ. Director
13. Raju Vasant Sutar,
Age : 40 Years, Occ. Director
::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 :::
2 W.P. 1489-2018.odt
14. Pranav Harhar Hogade,
Age : 35 Years, Occ. Director
15. Sow. Suman Sambhaji Bondare,
Age : 50 Years, Occu. Director,
16. Sow. Girja Gurunath Herwade,
Age : 35 Years, Occ. Director
17. Deepak Annasao Patil,
Age : 45 Years, Occ. Managing Director,
All Residents of Nav Maharashtra
Spinning Mill, Kallappanna Awade Nagar,
Post Sajani, Tq. Hatkangale, District
Kolhapur. ... PETITIONERS
VERSUS
1. The state of Maharashtra
Through Police Sub Inspector
Vedant Nagar Police Station,
Aurangabad.
2. Suresh Zumbarlal Gandhi,
Age : 52 Years, Occu. Busness,
R/o.War No.11, Gangapur,
Tq. Gangapur, Dist. Aurangabad ..RESPONDENTS
...
Advocate for the petitioners : Mr. P.S. Agrawal
A.P.P for respondent-State : Mr. M. M. Nerlikar
Advocate for respondent No.2 : Mr. D.P. Palodkar
...
CORAM :T.V. NALAWADE AND
SMT.VIBHA KANKANWADI,JJ.
DATE :10-12-2018
ORDER :
The petition is filed under Article 226 of Constitution of India and Section 482 of the Code of Criminal Procedure seeking relief of quashing ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 ::: 3 W.P. 1489-2018.odt of First Information Report No. 113/2018 dated 10.09.2018 registered with Vedant Nagar Police Station, Aurangabad, for the offences punishable under Sections 406,420 read with Section 34 of the Indian Penal Code, and Sections 3 and 4 of The Maharashtra Protection of Interest of Depositors ( in Financial Establishments) Act, 1999. (hereinafter referred as 'MPID Act' for short)
2. Both the sides are heard.
3. The First Information Report is given by the respondent No.2. The petitioners are the Directors of one Co-operative Society Nav Maharashtra Spinning Mill, Kallappanna Awade Nagar, Post Sajani, Tq. Hatkangale, District Kolhapur. This society is engaged in the activity of manufacturing of cotton yarns.
4. The respondent/ first informant is a businessman and according to him, he purchases cotton from farmers and by processing the cotton in his ginning press, he prepares cotton bales and sells cotton bales to the spinning mills. According to him, in the year 2011, the Managing Director of the aforesaid society-Deepak Patil contacted him and requested to supply cotton bales to his society. It is contended that the promise was given to make timely payment of the price of cotton bales and it was represented that there was good reputation of the society and it was in a position to fulfill the promises. It is contended that due to the representation made from the society, the first informant started supplying cotton bales to the aforesaid society. It is contended that in ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 ::: 4 W.P. 1489-2018.odt the year 2015, most of the amount of the price was paid but in the year 2015-2016, when the cotton bales were supplied, some amount was given out of the total price and the society was in dues of Rs. 75,29,309/- (Rs. Seventy Five Lakhs Twenty Nine Thousand Three Hundred Nine).
5. It is the contention of the first informant that for some time when the society did not make payment and when the amount was demanded, the Managing Director represented that the amount can be kept as deposit with the society and the society will give interest at the rate of 18% per annum on such deposit. It is contended that due to such representation, the first informant agreed to keep the amount for one year as the deposit and there was promise to return the deposit with the aforesaid interest. It is contended that in the year 2016-2017, cotton bales were supplied of the value of Rs. 1.5 Crores and substantial amount of the price of that year was returned.
6. It is contended that the amount of Rs. 1.27 lakhs was only remaining in respect of the cotton bales supplied during the year 2016- 2017 and there was aforesaid deposit of Rs. 75,51,309/- and so after expiry of the period of one year, the first informant requested the Managing director and a Director by name Rahul Awade to return his amount, but they avoided to return the amount under one or the other pretext. It is contended that when he insisted for returning the amount, three cheques of RS. 10,00,000/- (Rs. Ten Lakh) each were given to ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 ::: 5 W.P. 1489-2018.odt him, but they bounced as the account on which the cheques was given were not active.
7. In view of the aforesaid allegations, the crime is registered under the provisions of M.P.I.D Act, 1999 also. Some record like copy of notice given by the complainant demanding the amount is produced and account extract is also produced.
8. The learned counsel for the petitioners submitted that in view of the circumstances that case is filed for the offence punishable under Section 138 of the Negotiable Instrument Act, the crime could not have been registered. It is not disputed that such case came to be filed but the case was filed subsequent to the registration of the crime. Crime came to be registered on 10.07.2018, and the private complaint for the offence punishable under Section 138 of the Negotiable Instrument Act came to be filed in the month of September 2018. On the point of tenability of proceeding under the provision of the Indian Penal Code, when case is also filed for the offence punishable under Section 138 of the Negotiable Instrument Act, the learned counsel for the first informant placed reliance on observations made by this Court in Criminal Writ Petition No. 807 of 2011 decided on 30.10.2018 (Dr. Govindsingh Fulchand Rajput Vs. Laxminarayan Namdeo Zalwar and others). In that case this Court referred the decision of the Apex Court reported in the year 2012 Cri.L.J. 2432 ( Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and Another) and held that ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 ::: 6 W.P. 1489-2018.odt when the allegations in the two matters are different and the matter involves breach of trust and cheating, doctrine of double jeopardy does not apply and case can lie under the provisions of the Indian Penal Code also. In view of such a position of law, this Court holds that there is no force in the aforesaid preposition made by the learned counsel for the petitioners.
9. One more contention was made for the petitioners by their counsel. It was submitted that when in the matter filed under Section 138 of the Negotiable Instrument Act, it is contended that the amount was due as consideration in respect of the cotton bales sold, in the present matter that amount cannot be treated as deposit. This contention also cannot be accepted at least at this stage. In the present matter, there is specific allegation that in respect of the cotton bales supplied during the year 2016-2017, consideration amount was not given and only due to representation made for the society, the amount was kept as deposit and when there is circumstance that the amount which was due as consideration in respect of subsequent year 2017- 2018, was paid by the society, it needs to be believed at this stage that the previous amount was kept with the society as the deposit. For the offence punishable under Section 138 of the Negotiable Instrument Act, it is required to be made out that the cheque was issued for legally enforcable debt for the amount due, only for that condition the complainant is required to show that there was lawful consideration ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 ::: 7 W.P. 1489-2018.odt against which the cheques were issued. Thus, not much can be made out due to circumstances like the filing of other private complaint in respect of bouncing of cheques by the first informant.
10. With regard to the aforesaid preposition made for the petitioners by their counsel the provisions of Section 2 (c) and Section 3 of the M.P.I.D Act are relevant as there is allegation that the amount is lying with the society as deposit and there is default committed by the society and all the petitioners are involved in the Management as the office bearers or employees and hence the registration of the crime under the provisions of the M.P.I.D Act is possible. In view of all these circumstances, this Court holds that there is no force in the second submission also.
11. The learned counsel for the petitioners produced on record the account extract of the society showing that the amount of Rs. 76,56,553/- is due to the first informant and he submitted that in view of this circumstance, it cannot be said that the amount is kept as deposit. Careful perusal of the account shows that the amount is shown as credit amount in the account statement. Thus, the submissions are not supported by account extract also. Opening Balance is shown for April, 2017 and closing balance is the same amount.
12. In view of the discussion made above, this Court holds that no relief can be granted to the petitioners. In the result, the petition is dismissed.
::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 ::: 8 W.P. 1489-2018.odt [SMT.VIBHA KANKANWADI] [T.V. NALAWADE] JUDGE JUDGE YSK/ ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 04:50:30 :::