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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, J.
Guma Tech Marine Services - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Writ Petition No. 2269 of 2015
Decided On : 04-07-2019
Cheque - Criminal Misappropriation - Section 406, 408, 420, 464, 467, 34 of IPC - The court discussed the offenses under Section 406, 408, 420, 464, 467 read with Section 34 of the Indian Penal Code, 1860. The key legal provisions of criminal misappropriation and cheating were interpreted to establish the guilt of the accused and influence the court's decision.
Fact of the Case:
The petitioner firm alleged that the General Manager misappropriated a cheque and opened a bank account without authorization, leading to criminal charges against the accused. The court found prima facie evidence of the accused's involvement in the offenses and directed the trial court to proceed with the case.
Finding of the Court:
The court found that the accused had played an active role in the misappropriation and unauthorized opening of the bank account, leading to the issuance of process against the accused. The court also confirmed the judgment against one respondent and set aside the judgment against another.
Issues: The issues revolved around the misappropriation of funds, unauthorized opening of a bank account, and the roles of the accused in the alleged offenses.
Ratio Decidendi: The court's decision was based on the prima facie evidence of the accused's active involvement in the offenses, as established through the investigation and the allegations in the complaint.
Final Decision: The petition was partly allowed, with the court confirming the judgment against one respondent and setting aside the judgment against another. The trial court was directed to proceed against the accused and dispose of the pending case within three months.
JUDGMENT :
S.S. Shinde, J.
Rule. Rule made returnable with consent of the parties and heard.
2. The brief facts leading to the filing of the present petition are as under:-
It is the case of the petitioner that the petitioner had appointed Late Satyendrababu Saxena as the General Manager (who is Respondent No. 4) of the petitioner firm on 20.01.2009, and he was thereafter handling the day to day affairs of the new workshop being Gala No. 71, ground floor, Hasti Industrial Estate, Mahape, New Mumbail. The petitioner shifted from its workshop at Gala No. 71, Ground Floor, Hasti Industria Estate, Mahape, New Mumbai to the new address being 10-B/1, Saniya Industrial Estate, Kaman Bhiwandi Road, (opp. Sagar hotel), Vasai 401208. The petitioner had purchased generator from a company called M/S C.S. Diesel Engineering Pvt. Ltd. for its workshop at Vasai in February 2010. In lieu of booking the said generator with M/s C.S. Diesel Enginnering Pvt. Ltd., the petitioner had given an initial booking deposit money of Rs. 50,000/- to the said M/s. C.S. Diesel Engineering Pvt. Ltd. After making the full payment of the price of the said generator, the said company namely M/s. C.S. Diesel Engineering Pvt. Ltd. had issued a cheque bearing no. 118751 dated 11.03.2010 of an amount of Rs. 50,000/- favouring M/s. Guma Tech Marine Serviceds, the petitioner herein, and the said cheque was issued towards refund of the initial booking amount of Rs. 50,000/- paid by the petitioner firm to M/s. C.S. Diesel Enginnering Pvt. Ltd. Thereafter, Respondent No. 4 in the capacity of the General Manager of the petitioner firm, took the said cheque from Mr. Baby Kunju, the employee of the petitioner firm who had collected the said cheque from M/S. C.S. Diesel Enginnering Pvt. Ltd., on the pretext that Respondent No. 4 would deposit the said cheque in the account of the petitioner firm.
3. It is the case of the petitioner that the petitioner firm is having bank accounts only with three banks namely ING Vysya Bank, Bhavnagar, Bank of India, Bhavnagar and Axix Bank, Malad Branch, Mumbai. Moreover the petitioner firm is catering to the needs of the shipping industry since a long time and almost 90% of the business of the petitioner firm is in the nature of export. Thereafter, Respondent No. 4 after taking the said cheque of Rs. 50,000/- neither informed any of the partners of the petitioner firm nor any of the employees of the petitioner firm about the said cheque. It was only when M/s. C.S. Diesel Engineering Pvt. Ltd., demanded the C Form from the petitioner firm, that the accountant of the petitioner firm namely Mr. Deepak Chavda, demanded the invoice of the said transaction in order to verify the same from the records. After detailed examination and reconfirmation from M/s. C.S. Diesel Engineering Pvt. Ltd., it was revealed that Respondent No. 4 had taken away the said cheque bearing no. 118751 dated 11.03.2010 of an amount of Rs. 50,000/- favouring M/s. Guma Tech Marine Services, the petitioner herein, on the pretext that the same would be deposited in the account of the petitioner firm. Thereafter, the petitioner firm acting through its partner Mr. G.V. Seetharam, tried to find out the details pertaining to the encashment of the said cheque bearing no. 118751 dated 11.03.2010 issued by M/s. C.S. Diesel Engineering Pvt. Ltd. It was revealed that the said cheque had been encashed in the State Bank of India, Hughes Road Branch, Mumbai- 400007. Thereafter, the petitioner firm, acting through its partner Mr. G.V. Seetharam, tries to find out as to how the said account payee cheque favouring the said firm could have been encashed at the State Bank of India, Hughes Road Branch, Mumbai 400007 when the petitioner firm had no account in the said bank. Upon further enquiries it was revealed that the Respondent No. 2 was working as a Deputy Manager in the said State Bank of India, Hughes Road Branch, Mumai- 400007 and an account in the name of the petitioner firm had been opened
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