Criminal Writ Petition No.110 of 2003

27th October, 2016.

Petitioner Counsel: Shri R.L. KHAPRE, Adv. a/w Shri AMOL DESHPANDE
Respondent Counsel: Smt K.S. JOSHI, Shri S.B. AHIRKARShri P.C. MADKHOLKAR, Shri V.B. GAWLI, Shri A.S. MARDIKAR, Shri A.M. TIRUKH, Shri R.J. KANKALE

Cases Cited:
Ramrao and anr. Vs. Narayan and anr., AIR 1969 SC 724 [Para 4]
Lalita Kumari Vs. Govt. of U.P. and ors., 2014 ALL SCR 1893=AIR 2014 SC 187 [Para 4]
State of W.B. and ors. Vs. Committee for Protection of Democratic Rights, West Bengal and ors., 2010(2) ALL MR 941 (S.C.)=AIR 2010 SC 1476 [Para 4]
Shivajirao Nilangekar Patil Vs. Dr Mahesh Madhav Gosavi and ors., AIR 1987 SC 294 [Para 4]
Vineet Narain and ors. Vs. Union of India and anr., AIR 1998 SC 889 [Para 4]
Krishna Kumar Vs. Union of India, AIR 1959 SC 1390 [Para 4]
Dinubhai Boghabhai Solanki Vs. State of Gujarat & ors., 2014 ALL MR (Cri) 1132 (S.C.) [Para 4]
Venkatakrishnan Vs. Central Bureau of Investigation, AIR 2010 SC 1812 R [Para 4]
General Manager, Western Coalfields, Ltd. And anr. Vs. Sumit Mullick, Divisional Commissioner Amravati and ors., W.P.No.2613/2001 [Para 4]
Bal Krishna Agarwal Vs. State of Uttar Pradesh, 1995 (1) SCC 614 [Para 4]
Ram Narayan Poply Vs. Central Bureau of Investigation, AIR 2003 SC 2748 [Para 4]
R. K. Dalmiya & ors. Vs. The Delhi Administration, AIR 1962 SC 1821 [Para 4]
Mir Nagvi Askari Vs. Central Bureau of Investigation, AIR 2010 SC 528 [Para 4]
Jaikrishnadas Manohardas Desai and anr.Vs. State of Bombay, AIR 1960 SC 889 [Para 4]
Som Nath Puri Vs. The State of Rajasthan, AIR 1972 SC 1490 [Para 4]
State of Uttar Pradesh & Ors. Vs. Babu Ram Upadhya, AIR 1961 SC 751 [Para 4]
Aleque Padamsee and ors. Vs. Union of India, (2007) 6 SCC 171 [Para 5,6,10]
Sakiri Vasu Vs. State of U.P. and ors., AIR 2008 SC 907 [Para 5,6,10]
Panchbhai Popotbhai Butani and ors. Vs. State of Maharashtra and ors., 2010 ALL MR (Cri) 244 [Para 5]
All India Institute of Medical Sciences Employees’ Union (Regd.) Through President Vs. Union of India and ors., (1996) 11 SCC 582 [Para 5,10]
Dharmeshbhai Vasudevbhai and ors.Vs. State of Gujarat and ors., 2009 ALL SCR 1632=(2009) 6 SCC 576 [Para 5,10]
M. C. Abraham and anr. Vs. State of Maharashtra and ors., (2003) 2 SCC 649 [Para 5,11]
Gangadhar Janardan Mhatre Vs. State of Maharashtra and ors., 2005 ALL MR (Cri) 281 (S.C.)=(2004) 7 SCC 768 [Para 5,10]
Minu Kumari and anr. Vs. State of Bihar and ors., 2006 ALL MR (Cri) 2683 (S.C.)=(2006) 4 SCC 359 [Para 5,10]
Hari Singh Vs. State of U.P., 2006 ALL MR (Cri) 2366 (S.C.)=(2006) 5 SCC 733 [Para 5,11]
Manoranjan Ramdas Rathod Vs. State of Maharashtra, 2016 ALL MR (Cri) 997 [Para 5]
Kunga Nima Lepcha and ors. Vs. State of Sikkim and ors., 2010(3) ALL MR 439 (S.C.)=AIR 2010 SC 1671 [Para 6]
Thansingh Nathmal and ors. Vs. The Superintendent of Taxes, Dhubri and ors., AIR 1964 SC 1419 [Para 6,10]
Radha Pisharassiar Amma Vs. State of Kerala, (2007) 13 SCC 410 [Para 6]
Indian Oil Corporation Vs. NEPC India Ltd. and ors., (2006) 6 SCC 736 [Para 6]
T. T. Antony Vs. State of Kerala and ors., (2001) 6 SCC 181 [Para 6,11]
U. Dhar and ors. Vs. State of Zharkhand and anr, 2003(2) SCC 219 [Para 7]

JUDGMENT

A. S. Chandurkar, J. :- By this writ petition, the petitioner challenges the communication dated 06/12/2002 issued by the Police Station Officer, Shirpur, Taluka Malegaon by which the petitioner had been informed that after verifying the relevant record, no prima facie case has been made out for registering any offence in terms of report dated 21/10/2002 made by the petitioner. A prayer has also been made to direct the State Government to hand over investigation to the Central Bureau of Investigation.

2. Facts found relevant for considering the grievance raised in the writ petition are that one Shri Balaji Sahakari Sakhar Karkhana Ltd., Maslapen, Taluka Risod, District Washim (hereinafter referred to as the sugar factory) was duly registered as a Co-operative Society on 22/03/1985 under provisions of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act of 1960). The petitioner claims to be a member of the said sugar factor. According to the petitioner, initially the State Government nominated a provisional committee for managing the affairs of the sugar factory. This board was initially appointed on 07/01/1987 and various extensions came to be granted to the said board from time to time. This provisional committee continued till 06/01/1992. According to the petitioner, by virtue of orders passed in W.P. No.2619/1997 this board was restrained from taking any major policy decision. However in breach of this restriction, on 29/12/1998 a sale deed came to executed on behalf of the sugar factory by which its Distillery Unit was sold for a consideration of Rs.95,00,000/- in favour of Vaibhav Liquor Pvt. Ltd. It is the case of the petitioner that despite the offset price of the distillery being Rs.7.61 crores and the respondent No.20 having made an offier of Rs.5.61 crores, the Distillery Unit was sold for a sum of Rs.95,00,000/- only. According to petitioner this transaction of sale of Distillery as well as various other transactions entered into by temporary Board of Directors amounted to commission of cognizable offence under provisions of Sections 406, 420, 425, 468, 471, 477(a) and Section 201 of the Indian Penal Code (hereinafter referred to as the Penal Code). On that basis the petitioner lodged a report with Police Station Shirpur on 21/10/2002.

3. The respondent No.6 herein on 06/12/2002 informed the petitioner that after verifying the documents filed by the petitioner alongwith his report, no prima facie case was made out under the provisions of the Penal Code for registering an offence. It was stated that the petitioner was free to approach the Court of law. The petitioner being aggrieved by this communication has filed the present writ petition on 17/03/2003.

4. Shri R. L. Khapre, the learned counsel for the petitioner submitted that the respondent No.6 was not justified in refusing to register an offence in terms of the petitioner's report dated 21/10/2002. According to him, various instances that were referred to in the report dated 21/10/2002 lodged by the petitioner clearly made out a case of commission of cognizable offences under aforesaid provisions. After referring to the interim order passed in W.P. No.2619/1997 restraining the temporary Board of Directors from taking any major policy decision, it was submitted that disregarding these orders, the distillery in question came to be sold on 29/12/1998 for a consideration which was below the market value of the said property. The Distillery was sold for Rs.95,00,000/- in favour of M/s Vaibhav Liquors Pvt. Ltd. though as per its tender bid, an amount of Rs.5,61,00,000/- had been quoted. The learned counsel also referred to various other transactions pertaining to purchase of Air Compressor by the sugar factory from M/s Chandresh Engineering Corporation. According to him, the Air Compressor in question was valued only at Rs.95283/- when the same was purchased by M/s Chandresh Engineering Corporation from Ingorsoll Rand. The same Air Compressor was sold by M/s Chandresh Engineering Corporation to the sugar factory for a consideration of Rs.3,21,300/-. Reference was also made to the giving on lease the Boiler by the sugar factory on lease amount of Rs.8,00,000/- which was much less than the actual value. It was further submitted that in the year 1991, an amount of Rs.20,00,000/- was paid to Ashok Workers Industrial Society, Aurangabad for purchase of 200 bullock-carts. However, only 100 bullock-carts were supplied and the balance amount of Rs.9,00,000/- was neither returned by the said Society nor was the same called back by the sugar factory. The bullock-carts were also purchased at a higher price.

He then referred to the audit report that was prepared under provisions of the Act of 1960 and various remarks made therein to substantiate his contention that these were instances of misappropriation by the temporary Board of Directors resulting in loss to the sugar factory. Sale of property by the members of the temporary Board of Directors in violation of the sanction given by the Commissioner of Sugar amounted to criminal breach of trust under Section 405 of the Penal Code. The property of the sugar factory having been entrusted to the temporary Board of Directors and they having dominion over the same, the disposal of said property at a very low price resulted in criminal breach of trust.

The learned counsel referred to the observations of learned Single Judge in judgment dated 05/03/2009 in W.P.No.5993/2005. According to him, the observations in said judgment clearly indicated the nature of mismanagement and extending of misappropriation of the funds of the sugar factory. It was therefore submitted that in the light of the aforesaid facts, petitioner was entitled for the reliefs as prayed. It was also submitted that pursuant to the liberty granted by this Court on 22/04/2016 to file a fresh complaint, such report was filed on 23/05/2016 and the same also indicated commission of cognizable offence by the concerned respondents. In support of his submissions the learned counsel placed reliance upon the following judgments :

(1) AIR 1969 SC 724 Ramrao and anr. vs. Narayan and anr.

(2) AIR 2014 SC 187 : [2014 ALL SCR 1893] Lalita Kumari vs. Govt. of U.P. and ors.

(3) AIR 2010 SC 1476 : [2010(2) ALL MR 941 (S.C.)] State of W.B. and ors. v. Committee for Protection of Democratic Rights, West Bengal and ors.

(4) AIR 1987 SC 294 Shivajirao Nilangekar Patil vs. Dr Mahesh Madhav Gosavi and ors.

(5) AIR 1998 SC 889 Vineet Narain and ors. vs. Union of India and anr.

(6) AIR 1959 SC 1390 Krishna Kumar vs. Union of India

(7) 2014 ALL MR (Cri) 1132 (S.C.) Dinubhai Boghabhai Solanki vs. State of Gujarat & ors.

(8) AIR 2010 SC 1812 R Venkatakrishnan vs. Central Bureau of Investigation

(9) W.P.No.2613/2001 General Manager, Western Coalfields, Ltd. And anr. vs. Sumit Mullick, Divisional Commissioner Amravati and ors.

(10) 1995 (1) SCC 614 Bal Krishna Agarwal vs. State of Uttar Pradesh

(11) AIR 2003 SC 2748 Ram Narayan Poply v. Central Bureau of Investigation.

(12) AIR 1962 SC 1821 R. K. Dalmiya & ors. v. The Delhi Administration.

(13) AIR 2010 SC 528 Mir Nagvi Askari v. Central Bureau of Investigation.

(14) AIR 1960 SC 889 Jaikrishnadas Manohardas Desai and anr. v. State of Bombay.

(15) AIR 1972 SC 1490 Som Nath Puri v. The State of Rajasthan.

(16) AIR 1961 SC 751 State of Uttar Pradesh & Ors. v. Babu Ram Upadhya

5. Shri P. C. Madkholkar, the learned counsel for the respondent No.8 at the outset raised objection to the nature of reliefs sought in the writ petition on the ground that the statutory remedy available to the petitioner had not been availed of and that the petitioner had directly approached this Court under Section 482 of the Code. He referred to the submissions made in paragraph 40 of the writ petition as well as the prayers as made. He referred to the provisions of Section 154(3) as well as Sections 155, 156(3), 190 and 201 of the Code. He further referred to the provisions of Section 81(5)(B) along with its proviso as well as Section 148 of the Act of 1960. He then submitted that the directions issued by learned Single Judge in W.P. No.5993/2005 and modified by the Division Bench in Letters Patent Appeal had been stayed by the Honourable Supreme Court and the proceedings in that regard were still pending. He therefore submitted that no exceptional case had been made out by the petitioner so as to bypass availing the statutory remedy and for invoking the extraordinary jurisdiction of this Court. In support of his submissions the learned counsel placed reliance upon the following judgments :

(1) (2007) 6 SCC 171 Aleque Padamsee and ors. vs. Union of India

(2) AIR 2008 SC 907 Sakiri Vasu vs. State of U.P. and ors.

(3) 2010 ALL MR (Cri) 244 Panchbhai Popotbhai Butani and ors. vs. State of Maharashtra and ors.

(4) (1996) 11 SCC 582 All India Institute of Medical Sciences Employees' Union (Regd.) Through President vs. Union of India and ors.

(5) (2009) 6 SCC 576 : [2009 ALL SCR 1632] Dharmeshbhai Vasudevbhai and ors. vs. State of Gujarat and ors.

(6) (2003) 2 SCC 649 M. C. Abraham and anr. vs. State of Maharashtra and ors.

(7) (2004) 7 Supreme Court Cases 768 : [2005 ALL MR (Cri) 281 (S.C.)] Gangadhar Janardan Mhatre vs. State of Maharashtra and ors.

(8) (2006) 4 Supreme Court Cases 359 : [2006 ALL MR (Cri) 2683 (S.C.)] Minu Kumari and anr. vs. State of Bihar and ors.

(9) (2006) 5 Supreme Court Cases 733 : [2006 ALL MR (Cri) 2366 (S.C.)] Hari Singh v. State of U.P.

(10) 2016 ALL MR (Cri) 997 Manoranjan Ramdas Rathod v State of Maharashtra.

6. Shri A. S. Mardikar, the learned senior counsel with Shri A. M. Tirukh, learned counsel for respondent No.17 also opposed the prayers made in the writ petition. It was submitted that the respondent No.17 was an expert Director on the Board of Directors and he had no role whatsoever to play in the day-to-day affairs of the sugar factory. According to him the said respondent No.17 had been unnecessarily joined as a party to the writ petition. He referred to the bye-laws of the sugar factory and especially Clause-27(e)(5) thereof to indicate absence of any liability of respondent No.17. It was thus submitted that the inquiry proceedings under Section 83 of the Act of 1960 had not become final and hence reliance placed on those proceedings was misconceived. According to him, there was no allegation that the Directors of the sugar factory had any dishonest intention whatsoever when the alleged acts were committed and at the most it could be said that the Board of Directors had taken a bad business decision. There was also absence of mens rea when said acts were alleged to have been committed. He also referred to the subsequents developments in the form of fresh orders being passed for holding an inquiry and the challenge to those orders are pending in this Court in W.P. No.6142/14. He then referred to the order dated 22/04/2016 passed in the present proceedings by which liberty had been granted to the petitioner to lodge a fresh another report of the matter. According to him, the contents of the second report dated 23/05/2016 were identical to the first report lodged by the petitioner on 21/10/2002.

It was then submitted that on a plain reading of both the reports lodged by the petitioner, the same did not indicate commission of any cognizable offence as alleged. He supported the communication dated 06/12/2002 to that effect issued by the Police Authority and urged the petitioner ought to have taken recourse to the provisions of Section 154(3) or Section 156(3) and thereafter Section 190 read with Section 200 of the Code. He sought to support his aforesaid submissions by relying upon the following decisions :

(1) (2007) 6 Supreme Court Cases 171 Aleque Padamsee and ors. vs. Union of India and ors.

(2) (2008) 2 Supreme Court Cases 409 Sakiri Vasu vs. State of Uttar Pradesh and ors.

(3) AIR 2010 SC 1671 : [2010(3) ALL MR 439 (S.C.)] Kunga Nima Lepcha and ors. vs. State of Sikkim and ors.

(4) AIR 1964 SC 1419 Thansingh Nathmal and ors. vs. The Superintendent of Taxes, Dhubri and ors.

(5) (2007) 13 SCC 410 Radha Pisharassiar Amma vs. State of Kerala

(6) (2006) 6 SCC 736 Indian Oil Corporation vs. NEPC India Ltd. and ors.

(7) (2001) 6 SCC 181 T. T. Antony vs. State of Kerala and ors.

7. Ms K. Joshi, the learned Additional Public Prosecutor for the respondent Nos.1 to 5 also opposed the prayers made in the writ petition. According to her the statutory remedy provided under various provisions of the Code availed ought to be availed by the petitioner. The audit report on which the petitioner had sought to rely had not become final and the proceedings under Section 83 of the Act of 1960 were still pending. It was then submitted that response of the Police Authority that no cognizable offence had been made out was justified in the facts of the present case. She placed reliance upon the judgment of the Honourable Supreme Court in 2003(2) SCC 219 U. Dhar and ors. vs. State of Zharkhand and anr. Relying upon the affidavit dated 20/07/2016 filed on behalf of respondent Nos.5 and 6 it was submitted that even the additional material filed alongwith the report dated 23/05/2016 was not found sufficient to register any cognizable offence.

Shri V. B. Gawli, learned counsel for the respondent No.16 and Shri R. J. Kankale, learned counsel for respondent No.23 adopted the arguments made by the learned counsel for the other respondents. Shri S. B. Ahirkar, learned counsel appeared for respondent No.7.

8. In reply, it was submitted by Shri R. L. Khapre, learned counsel for the petitioner that a similar preliminary objection had been raised to the maintainability of the present proceedings on behalf of respondent No.8 before the writ petition was admitted on the ground that the petitioner ought to have filed a private complaint by way of statutory remedy available under the Code. According to him, this preliminary objection was not accepted by the Division Bench and hence it was not permissible for the respondents to raise the same objection once again. He also submitted that at the stage of registering an offence, the aspect of presence of mens rea was not very relevant. The respondents as trustees ought to have safeguarded the interests of the sugar factory and its properties. It was thus urged that the submissions made on behalf of the respondents had no merit.

9. We have heard the respective counsel for the parties at length and with their assistance we have gone through the various documents filed on record. We have also given due consideration to their respective submissions. The respondents having raised an objection that as the petitioner has not availed the statutory remedy provided under the Code and has approached this Court directly, the said aspect of the matter can be taken up for consideration at the outset.

Under Section 154(1) of the Code, the information relating to commission of a cognizable offence can be given to the officer in charge of a police station. On refusal to record such information, the said information can be forwarded to the Superintendent of Police under Section 154(3) of the Code. If the informant is still not satisfied by the action taken, recourse can be had by approaching the Magistrate under Section 156(3) of the Code. Still thereafter, further recourse of filing a private complaint by invoking the provisions of Section 190 read with Section 200 of the Code can be availed.

10. The legal position with regard to the course to be followed in matters of the present nature is well settled. It has been held by the Hon'ble Supreme Court in its various decisions that whenever any information is received by the police authorities about the alleged commission of an offence which is cognizable in nature, there is a duty to register First Information Report. However, if the same is not so registered, then the modalities that are to be adopted are as per the provisions of Section 190 read with Section 200 of the Code. It is further well settled that on failure to register the First Information Report despite an allegation that a cognizable offence has been committed, the aggrieved complainant is required to approach the Superintendent of Police under Section 154 (3) of the Code. Thereafter, the Magistrate is required to be approached under Section 156 (3) of the Code. Even if cognizance is not taken, then the further remedy of approaching the Magistrate under Section 190 of the Code is available. Reference in this regard can be made to the decisions of the Hon'ble Supreme Court in Aleque Padamsee, Sakiri Vasu, Thansingh Nathmal, All India Institute of Medical Sciences Employees Union, Dharmeshbhai Vasudevbhai, [2009 ALL SCR 1632] Gangadhar Janardhan Mhatre, [2005 ALL MR (Cri) 281 (S.C.)] and Minu Kumar, [2006 ALL MR (Cri) 2683 (S.C.)] (supra) relied upon by the learned counsel for the respondents.

11. The Hon'ble Supreme Court has further held that wherever statutory remedies have been provided, resort to availing an extraordinary remedy should not be easily permitted. The High Court should discourage the practice of entertaining a writ petition even in cases where the First Information Report has not been registered. Further, it has been held that the High Court should not issue directions to the investigating authorities to conduct investigation in a particular manner nor should the High Court interfere when the investigation is under progress. Reference in this regard can be made to the decisions of the Hon'ble Supreme Court in T. T. Anthony, M. C. Abraham and Hari Singh, [2006 ALL MR (Cri) 2366 (S.C.)] (supra). It is in the light of the aforesaid settled legal position that the submissions made on behalf of the petitioner would have to be taken into consideration.

12. In the present case, the initial report lodged by the petitioner is dated 21/10/2002. This report was made to Police Station, Shirpur. In that report, the petitioner referred to various instances relating to the alleged illegal activities of the accused named in the report and sale of distillery of the sugar factory at a lower price. Similarly, it was stated that the lease of the distillery had been granted for a lower amount of rent. In support of the said report, the petitioner also submitted various documents including the report of the auditor. The Police Station Officer on 06/12/2002 informed the petitioner that after verification of the relevant documents, no prima facie case was made out for registering a cognizable offence. After this response, the petitioner did not invoke the remedy that is prescribed under the provisions of Section 154 (3) of the Code nor did he approach the Magistrate under Section 156 (3) of the Code. The petitioner has chosen to directly approach this Court by invoking its jurisdiction under Section 482 of the Code read with Article 226 of the Constitution of India.

13. The material on record indicates that in proceedings under the Act of 1960, the Commissioner of Sugar on 22/02/2002 had directed holding of an enquiry under Section 83 of the Act of 1960. This order, however, came to be set aside by the State Government on 01/06/2005. This order, in turn, was challenged by filing Writ Petition No.5993/2005 and on 05/03/2009, learned Single Judge of this Court had set aside the order dated 01/06/2005. In Letters Patent Appeals preferred by the present respondent No.8 as well as by the Maharashtra State Co-operative Bank Ltd., this judgment was partly modified with a direction to complete the inquiry proceedings under Section 83 of the said Act. The present petitioner being aggrieved by the orders passed in the Letters Patent Appeals has approached the Hon'ble Supreme Court vide SLP (Civil) No.9703/2010 in which leave has been granted alongwith an interim order of stay.

Subsequently, a fresh enquiry was directed to be held by the Commissioner of Sugar on 20th April, 2010. A report to that effect was submitted by the Enquiry Officer on 09/06/2011. The orders appointing the Enquiry Officer as well as the report submitted by the Enquiry Officer came to be challenged by filing two Revision Applications. On 19/08/2014 both these orders came to be set aside and directions to hold a fresh inquiry were issued. Writ Petition No. 6142 of 2014 challenging these orders dated 19/08/2014 is stated to be pending and an interim order of stay continues to operate therein.

14. In the backdrop of aforesaid facts, the endeavour on the part of learned counsel for the petitioner to rely upon the report of the auditor as well as the enquiry proceedings under Section 83 of the Act of 1960 would have to be considered keeping in mind the fact that those proceedings have not attained any finality. The report of the auditor is the entire basis of the report dated 21/10/2002 lodged by the petitioner. As noted above, the proceedings of the earlier round of litigation in which a direction to hold inquiry under Section 83 of the Act of 1960 are still pending before the Hon'ble Supreme Court. Any adjudication by relying upon those proceedings in these facts therefore would be unwarranted.

15. It was vehemently urged on behalf of the petitioner that a preliminary objection to the maintainability of the present proceedings had been raised by the respondent no.5, the Division Bench by order dated 28/03/2003 had not accepted said preliminary objection and had refused to nonsuit the petitioners at that stage. According to the learned counsel for the petitioner, the very same preliminary objections that are now pressed into service had also been raised at that point of time and the same had been turned down.

We, however, do not feel that the order dated 28/03/2003 precludes the consideration of the objection to the entertainment of the present writ petition on the ground of availability of a statutory remedy. It is to be noted that when the order dated 28/03/2003 came to be passed, it was observed that in the writ petition various serious allegations regarding mismanagement of a Co-operative Society had been raised. The Court found it too premature at that stage to arrive at any finding regarding maintainability of the Writ Petition and/or whether any interference in writ jurisdiction was required. On that basis, time was granted to the respondents to file reply. Considering the legal position which is by now fairly well settled in the matter of the modality to be followed on the refusal of the police authorities to register the First Information Report, we do not find any exceptional case made out by the petitioner for entertaining the present writ petition bypassing the statutory remedies available under the Code. Though it is true that the writ petition in its present form would be maintainable, the question would be one of exercising extraordinary jurisdiction in the facts of the present case. We, therefore, do not find any such extraordinary case being made out by the petitioner that would call upon this Court to exercise extraordinary writ jurisdiction.

16. Pursuant to the liberty granted to the petitioner vide order dated 22/04/2016 passed in the writ petition, the petitioner lodged another report with the respondent No.6 on 23/05/2016. This report appears to be principally based on the Audit report of the years 1995 to 2001-02. Further, the inquiry held under Section 83 of the Act of 1960 on the basis of said Audit reports has still not attained finality in view of pendency of Writ Petition No.6142/2014 challenging the subsequent consequential orders arising therefrom. Hence, the effort of the petitioner to rely upon the Audit reports of the years 1995 to 2001-02 for justifying the making out of a cognizable offence is therefore premature.

17. Even otherwise, merely because it is mentioned in the audit report that the distillery was sold to M/s Vaibhav Liquors Pvt. Ltd for an amount lesser than the bid amount or that the Air Compressor was purchased at a higher price than the price at which it was purchased by M/s Chandresh Engineering Corporation or that lesser number of bullock-carts were supplied that too at a higher price, the same by itself would not prima facie reveal commission of a cognizable offence. The amounts either spent or received by the sugar factory have been duly accounted for and the documents on record do not indicate that by virtue of said transactions, the Directors received any personal benefit or that the amounts were siphoned off by the Directors. In the absence of any such material on record, it is not possible to accept the submission of the learned counsel for the petitioner that in view of the observations made by the Auditor in the audit report, commission of an cognizable offence has been made out.

Though it was urged on behalf of the petitioner that the Directors having held the properties of the sugar factory in trust and having dominion over the same had disposed of the same resulting in criminal breach of trust under Section 405 of the Penal Code, plain reading of the report of the petitioner does not indicate such cognizable offence being made out. Presence of mens rea on the part of the Directors also cannot be gathered on that basis. As noted above, the report of the Auditor is the entire basis of the complaint dated 21/10/2002. Said audit report has not yet attained finality. Relying upon said audit report alone at this stage for the purposes of taking cognizance would therefore be unjustified.

18. In this backdrop therefore no case has been made out exercise extraordinary jurisdiction in favour of the petitioner for considering the prayers made therein. After the proceedings under Section 83 of the Act of 1960 attain finality, it would be open for the petitioner to seek to rely upon the same if so advised and the present adjudication shall not preclude the petitioner from doing so. Similarly, if the petitioner obtains any fresh material which according to him indicates commission of any cognizable offence, he is always free to rely upon the same. With these observations, the writ petition is disposed of.

Ordered accordingly.