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High Court of Judicature at Bombay
M.S. SONAK, J.
Jyotindra R. Shah & Another
Versus
The Divisional Jt. Registrar, Co-operative Societies & Others
Writ Petition No. 489 of 2013 with Civil Application No. 2300 of 2014
Decided On : 14-10-2014
Maharashtra Co-operative Societies Act, 1960 - Sections 79, 146 and 148 - Grant of sanction to prosecution. - Non-furnishing of documents to petitioner by respondent, renders order sanctioning prosecution against petitioner, not sustainable. - It is clear that most of the documents were in the public domain and it was easily possible for respondent No. 4 to obtain the same from respective authorities before whom they may have been lodged by the petitioners. The documents do not appear to be of such nature as would afford any particular advantage to the petitioners, by way of not furnish of the same to respondent No. 4. But in any case, even before this Court, without prejudice, the petitioners offered the copies of the documents to respondent No. 4. For this purpose, under the orders of this Court, charts were prepared, so that the controversy regards non receipt of documents is narrowed to the minimum. However, it does appear that respondent No. 4 was interested less in the documents and more in prosecution of petitioner No. 1, for having failed to allegedly supply such documents, almost a decade ago. If circumstances are considered, this was not a case where sanction under Section 148 of the said Act should have been granted in order to launch a criminal proceedings against the petitioners.
Ultimately it is to be noted that the purpose for making a provision under Section 148(3) of the said Act that no prosecution under this Act shall be lodged, except with the previous sanction of the Registrar is precisely to prevent prosecution upon trivial or frivolous or hyper-technical grounds. Even assuming that there was some delay or dispute in the matter of furnish of documents in pursuance of directions made by the Deputy Registrar in his order dated 5.March 2004, that by itself cannot be a ground for sanctioning prosecution of the managing committee members for having committed offences under Sections 146(i) and 146(j) of the said Act.
In this case, it cannot be said that there was any willful neglect or refusal on the part of the members of the managing committee to furnish any information or any non compliance of the orders made under Section 79 of the said Act without reasonable excuse. At the stage of grant of sanction, the sanctioning authority not only has to satisfy itself as to whether there is any prima facie commission of offence but further whether prosecution is at all warranted upon consideration of totality of facts and circumstances.
1. Rule, with the consent of the parties, Rule was made returnable forthwith.
2. In the course of final hearing on 1 October 2014, Ms Meena Pomal – respondent no. 4, who appears in person urged that this petition be dismissed in limine, inter alia on the following grounds :-
(A) That the petitioners have made several misstatements of facts with regard to their having furnished certain documents to respondent no. 4;
(B) That extension of interim relief was obtained on 22 August 2014 without disclosing to the court that there was no order extending the interim relief made on 4 July 2014.
3. In so far as the first objection is concerned, the same can by no means be regarded to be 'preliminary'. This is because the entire dispute in the present petition concerns the non furnish of certain documents by the petitioners to respondent no. 4, despite orders for furnish, thereby prompting the respondent no. 1 to grant a sanction under Section 148 of the Maharashtra Cooperative Societies Act, 1960 (said Act) for prosecution of the petitioners. This issue shall therefore have to be taken up whilst considering whether the impugned order dated 20 November 2012 granting sanction as aforesaid was validly made.
4. In so far as the second preliminary objection is concerned, it is to be noted that ad interim relief was granted way back on 24 April 2013, which was continued with substantial regularity at least upto 13 June 2014. On 4 July 2014, respondent no. 4 stated that the copy of the reply to the statement filed by the petitioners had been served upon the society, however the learned Senior Advocate appearing for the petitioners stated that such copy had not been given to him. Thereupon, this Court recorded respondent no. 4's statement that the copy would be furnished to the learned Senior Advocate in the course of the day and the matter was adjourned to 18 July 2014. There is no record of the ad interim order granted earlier to continue.
5. Thereafter, on 22 August 2014, when the matter was called out, respondent no. 4 was not present. However the learned Senior Advocate for the petitioners pointed out that respondent no. 4 normally appears in person and thereafter with a view to afford opportunity to respondent no. 4, the matter was stood over to 5 September 2014. It was directed that the interim order granted earlier was to continue till the next date.
6. Now, if the sequence of events is perused, it is obvious that on account of some confusion with regard to the receipt of copy of respondent no. 4's reply, the learned Senior Advocate for the petitioner failed to make mention to this Court about extension of ad interim relief which had been in operation since 24 April 2013. Perhaps, being unaware of such inadvertent omission, motion was made on 22 August 2014 for the continuance of interim order, granted earlier. By no stretch can this be ascribed as some misleading statement, warranting dismissal of the petition in limine.
7. As noted earlier, the challenge in this petition is to the order dated 20 November 2012 made by the Divisional Joint Registrar (respondent no. 1) granting sanction under Section 148 of the said Act against petitioner no. 1 for purported offences under Section 146(i) and 146(j) of the said Act.
8. Shorne of several irrelevancies, the facts and circumstances in which the impugned order came to be made is that respondent no. 4's husband by her application dated 14 January 2003 applied to petitioner no. 2 society for furnish of certain documents, to which reference shall be made hereafter. This was followed by letters dated 22 September 2003 and 29 January 2004, reiterating the demand for furnish of the documents. By order dated 5 March 2004, the Deputy Registrar directed petitioner no. 2 society to furnish the said documents. It is the case of the petitioners that they, under the cover of their lawyer's letter dated 19 July 2005, furnished the necessary documents as were directed. Further in the letter dated
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