2015 ALL MR (Cri) 7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S.S. SHINDE AND V.L. ACHLIYA, JJ.
Ashok s/o. Sopan Patil Vs. The State of Maharashtra & Ors.
Criminal Writ Petition No.1220 of 2013,Criminal Writ Petition No.1221 of 2013
17th December, 2014
Petitioner Counsel: Mr. B.R. WARAMAA
Respondent Counsel: Mr. S.A. AMBAD, Mr. D.B. THOKE
Criminal P.C. (1973), Ss.154, 482 - Second FIR - Quashing - First FIR filed against Chairman and Director of a Co-operative Credit Society on the basis of audit conducted in 2007-2008 - Another FIR filed against borrowers including petitioners on basis of audit conducted in 2011-2012 - Same cannot be treated as second FIR - Even though list of borrowers was referred in earlier FIR, no allegations made against those borrowers in first FIR - They were not accused - Subsequent FIR therefore cannot be quashed as second FIR. (Paras 9, 10)
2. Petitioners have preferred these writ petitions to quash the F.I.R.No.123/2013 registered against them for offences punishable under Sections 420, 406 r.w. Section 34 of IPC mainly on the ground that the second FIR is not permissible in law.
3. In nutshell, it is the say of petitioners that they are the members of Sahakar Mitra Chandrakant Hari Badhe Sir Urban Cooperative Credit Society Ltd. Warangaon [hereinafter referred to as the said society for the sake of brevity]. As members, they had taken certain loan which they have repaid. However, subsequently the office bearers of said society have prepared some false and fabricated documents in their names and on the basis of those documents, created false record that they have further secured loan and same is not repaid by them. They have challenged the said act of the office bearers of said society by filing dispute before the cooperative Court at Jalgaon. In which they have claimed the declaration that they have not secured such loan from the said society and documents made in that behalf are false and fabricated. The dispute is pending for adjudication before cooperative Court at Jalgaon.
4. On the basis of audit of said society conducted for the period 1/4/2007 to 31/3/2009 the auditor has lodged complaint with police station Varangaon and acting on that report the police have registered FIR/CR No.90/2010 u/s 406, 408, 409, 201 r/w Section 34 of IPC against the Chairman and Members of Board of Directors of said society. It is further say of petitioners that without any cause or justifiable reason the respondent no.2 i.e. the auditor has lodged another report with Police Station, Varangaon as against the petitioners and few other borrowers of said society. On the basis of said report, police have registered offence under Sections 420,406, r/w Section 34 I.P.C. vide FIR/CR No.123/13 against the petitioners and some other borrowers. In nutshell, it is the contention of the petitioners that as FIR No.90/10 was already registered at the instance of the auditor against the Chairman and Directors of said society, the registration of FIR i.e. FIR No.123/13 is not permissible under law against them as it amounts to second FIR.
5. Respondent no.1 has filed affidavit and opposed the admission of petition with contention that the crime registered against the petitioners is based upon altogether different facts and based upon the audit of the said society conducted by the auditor for the Period 2011-2012. In fact FIR No.90/10 was registered only against the Chairman and Directors of the said society and that too on the basis of outcome of audit of society for the period 1/4/2007 to 31/3/2009. The petitioners are neither named as accused nor they are subsequently added as accused in said CR/FIR No.90/10. The said FIR has been registered on the basis of complainant disclosing allegations that the Chairman and the Board of Directors of said society have illegally sanctioned and disbursed loan to the tune of more than Rs.100 Crores. Whereas FIR No.123/13 dated 10/12/2013 which is challenged by way of present petition is registered on the basis of separate report filed by one Ramesh Maroti Yadav, the Special Auditor who conducted audit of the said society for the period 2011-12. It is the contention of the respondent no.1 that FIR registered against the petitioners is a substantive FIR registered on the basis of separate complaint filed against the petitioners and few other persons which is based upon outcome of audit made for the period 2011-12. Hence same cannot be termed as second FIR. The FIR/CR No.123/13 is registered on the basis of allegations made in complaint that the petitioners and few other persons who borrowed the loan from society have got sanctioned the loan amount of Rs.2,77,71,909/- without submitting requisite documents to repay the loan. In this factual background, the respondent no.1 has prayed for dismissal of petitions.
6. The respondent no.2 has also filed affidavit in reply and opposed the admission of the petitions for the reasons set out in detail in the affidavit. In nutshell, it is the say of respondent no.2 that the FIR registered against the petitioners cannot be termed as second FIR. It is the say of respondent no.2 that the loan obtained by petitioners and few other borrowers in respect of which the complaint has been lodged is outcome of criminal conspiracy. They have also prayed for dismissal of Petitions as same being filed without any merit and substance therein.
7. We have heard the learned counsel for the petitioners, learned APP for the State and the counsel representing respondent no.2. We have also perused the record and proceedings and more particularly, the contents of FIR No.90/10 and FIR No.123/13. We are of the view that the petitions filed by the petitioners are devoid of any substance and merit therein as the F.I.R. No. 123/13 can not be termed as second F.I.R.
8. We have already discussed in forgoing para the facts of the case of the petitioners as well as the stand taken by respondent nos.1 and 2. It is an admitted position that FIR/CR No.90/10 has been registered against the Chairman and Directors of the said society. The said complaint neither discloses any allegations made against the petitioners nor the petitioners have been made an accused in said case. The said complaint was lodged on the basis of audit of the said society conducted for the period 2007-08. Whereas, the FIR/CR No.123/13 is concerned, the same is based upon the complaint lodged by Auditor on the basis of audit of the said society, conducted for the period 2011-12. We are therefore, not inclined to accept the submission of learned counsel for the petitioners that FIR No.123/13 is a second FIR and same is not permissible in law. On the face of record, FIR/CR No.90/10 and FIR/CR No.123/13 are registered on the basis of two different complaints and based upon altogether different facts. By no stretch of imagination the complaint lodged against the petitioners can be treated as supplementary allegations to complaint dated 21/10/2010. The present petitioners are not accused in FIR/CR No.90/10. Since FIR No.123/13 is based upon altogether different facts and outcome of subsequent audit conducted in the year 2011-12, same cannot be treated as second F.I.R.
9. The learned counsel for the petitioners by inviting our attention to the list of borrowers referred in complaint dated 21/10/2010 in which the names of present petitioners have been figured as borrowers, alongwith 154 other borrowers to whom the loan was disbursed without any security, tried to canvass submission that as their names are figured in that list the subsequent complaint made against petitioners deserves to be treated as second FIR. We are not inclined to accept this submission for the sole reason that the names of the petitioners are shown alongwith other 154 borrowers as persons to whom the Chairman and Directors of the said society alleged to have illegally sanctioned the loan/cash credit facility without obtaining any security. They are not shown as accused nor any allegations are made against them to implicate them as an accused in Cr.No.90/2010. Only for the reason that their names have been shown in the list of such borrowers to whom the loan was illegally disbursed by the Chairman and Board of Directors, the petitioners cannot be termed as an accused in C.R. No. 90/2010. It is nowhere the case of the petitioners that they are accused in FIR/CR No.90/10 and on same allegations, they have also been made accused in FIR/CR No.123/13. Admittedly, only one FIR is registered against the petitioners. Therefore, the entire contention of the petitioners that the FIR No.123/13 is second FIR is totally incorrect.
10. The learned counsel for the petitioners has further argued that on the face of allegations made in FIR No.123/13, no criminal offence is made out against petitioner as the transaction referred in said complaint based upon false and fabricated documents created by Directors of the said society and they have filed dispute before the Cooperative Court. We are of the view that such contentions of the petitioners which are in the form of defence, cannot be considered in this petition; on correctness of the same can be ascertained only during investigation. The petitioners can very well put forth their say and submissions in respect of those documents before the investigating agency during the course of investigation, which can certainly look into such contention of the petitioners. It is not possible for this Court in exercise of writ jurisdiction to examine the genuineness of the documents as well as correctness of other contentions of petitioners. If the investigating agency after investigation decides to file charge sheet against the petitioners then the petitioners can very well avail the appropriate remedy available to them under the law.
11. In view of the conclusions to which we have arrived, we are of the view that petitions are devoid of any substance and merit therein. In the result, We dismiss both the Petitions. However, we clarify that the disposal of these Petitions shall not come in the way of petitioners to avail appropriate remedy if investigating agency files charge sheet against them. Rule discharged.