Criminal Application Nos. 80 to 84 of 2013,Criminal Application No.115 of 2013

3rd September, 2013

Petitioner Counsel: Shri S. A. MOHTA
Respondent Counsel: Shri R.S. NAYAK, Shri M. V. AMALE

Cases Cited:
Srinivas Gundluri & Ors. Vs. M/s. SPECO Electric Power Construction Corporation & Ors., 2010 ALL MR (Cri) 2982 (S.C.)=2010 Cri.L.J. 4457 [Para 3]
State of Maharashtra Vs. Shashikant s/o. Eknath Shinde, 2013 ALL MR (Cri) 3060=Cri. Application No.258/2013, Dt.2.7.2013 [Para 5]

JUDGMENT

Z. A. HAQ, J. :- Heard Shri Mohta, learned Counsel for the applicants, Shri Nayak, learned Additional Public Prosecutor for non-applicant no.1 and Shri Amale, learned Counsel for non-applicant no.2. Rule. The rule is made returnable forthwith.

2. This is a bunch of applications filed under Section 482 of the Code of Criminal Procedure praying for quashing and setting aside the orders dated 8/1/2013 passed by the Judicial Magistrate, First Class, Nandura directing non-applicant no.1 to conduct investigation under Section 156(3) of the Code of Criminal Procedure and to file charge-sheet or final report after investigation. The applicants have also prayed for quashing first information reports, which are registered consequent to the impugned orders passed by the learned Magistrate.

3. The applicants are Directors of the Nandura Sindhu Urban Cooperative Credit Society Ltd., Nandura (hereinafter referred to as "the Society"), which is registered under the provisions of the Maharashtra Cooperative Societies Act, 1960. The non-applicant no.2, who is a borrower of the Society and in whose favour loan of Rs.5,00,000/- was sanctioned and an amount of Rs.13,07,000/- is due against him, filed criminal complaints before the learned Magistrate and applied under Section 156(3) of Code of Criminal Procedure praying for issuance of directions for registering first information reports for the offences punishable under Sections 406, 409, 415, 417, 418, 420, 425, 427, 463, 464, 468, 471, 499, 500 and 511 and 120-B read with Section 34 of Indian Penal Code. On receiving the complaints, the learned Magistrate by orders dated 8/1/2013 relying on the judgment of the Apex Court in Srinivas Gundluri and others vs. M/s. SPECO Electric Power Construction Corporation and others (2010 Cri.L.J. 4457) : [2010 ALL MR (Cri) 2982 (S.C.)] concluded that as per observations in the above referred judgment, if the complaint discloses cognizable offence, it would be conducive to forward the complaint to Police under Section 156 (3) of the Code of Criminal Procedure for enquiring into the matter. The learned Magistrate has observed that the complaint on its face value discloses cognizable offences punishable under Sections 468 and 471 read with Section 34 of Indian Penal Code besides other cognizable offences and the offences alleged are of such nature that they require investigation by Police. With the above observations, the learned Magistrate forwarded the complaints to the Police Station, Nandura for investigation under Section 156(3) of the Code of Criminal Procedure and directed that chargesheet or final report be filed after investigation.

4. On perusal of the complaints filed by the non-applicant no.2/complainant, it is clear that the non-applicant no.2 is alleging the illegalities committed by the applicants in conduct of the business of the Society. There is no averment in the complaints, which contains the ingredients constituting offences alleged to have been committed by the applicants.

5. The Division Bench of this Court while dealing with the issue regarding powers and duties of the learned Magistrate while giving directions under Section 156(3) of the Code of Criminal Procedure, in the judgment dated 2/7/2013 delivered in Criminal Application No.258/2013 : [2013 ALL MR (Cri) 3060] (State of Maharashtra vs. Shashikant s/o Eknath Shinde) has laid down as follows:

"46. It may not be out of place to mention that day in and day out we come across various cases wherein the provisions of the Atrocities Act are misused. We find that various complaints are filed immediately after the Gram Panchayat Elections, alleging offences under the Atrocities Act. We have no hesitation in saying that in many of the instances, it was found that the complaints were filed only to settle score with their opponents, after defeat in the Gram Panchayat elections. We have also come across various cases wherein private civil disputes arising out of property, monetary matters, disputes between the members and office bearers of cooperative societies; disputes between the trustees of the Charitable Trusts are given penal and complaints are being filed either under Section 190 read with Section 200 or under Section 156(3) of Cr. P.C. In many of such cases, we have come across that the learned Magistrates are passing mechanical orders directing investigation under Section 156(3) of Cr.P.C. without recording any reasons and without verifying as to whether the complaint discloses the ingredients to constitute the offence or not. It is needless to say that least that is expected of the learned Magistrate before passing the order under Section 156(3) of Cr.P.C. Is to satisfy himself, that taking the allegations to be true in entirety, as to whether the ingredients to constitute the offence alleged have been made out or not. The least that is expected of the learned Magistrate while passing an order, directing investigation is to at least give some reasons, as to why he finds substance in the complaint and as to how the complaint discloses ingredients to constitute the offence alleged. The learned Magistrates ought to take into consideration, that passing such mechanical orders in complaints, which do not have any criminal element causes great hardships, humiliation, inconvenience and harassment to the citizens. For no reasons, the reputation of the citizens is put to stake as immediately after said orders are passed, innocent citizens are termed as accused."

6. Further more, the grievance as sought to be made in the complaints filed by the non-applicant no.2 before the learned Magistrate is a matter, which falls within the purview of the provisions of the Maharashtra Cooperative Societies Act, 1960. It need not be said that the Maharashtra Cooperative Societies Act, 1960 is a complete Code in itself and the remedies are available to the non-applicant no.2 under the said Act to agitate his grievance, if any. The filing of the criminal complaints is nothing but an abuse of process of law and, therefore, they have to be quashed. The impugned orders passed by the learned Magistrate are not only without application of mind, but also illegal and unsustainable in law. Consequential registration of first information reports is also unsustainable in law and they also have to be quashed.

7. In view of the above, the impugned orders passed by the learned Magistrate are set aside and consequential first information reports are quashed. Accordingly, rule is made absolute in terms of prayer clauses (A) and (1-A) of Criminal Application Nos.80/2013, 81/2013, 82/2013, 83/2013 and 84/2013 and in terms of prayer clauses (A) and (B) of Criminal Application No. 115/2013. The parties to bear their own costs.

Applications allowed.