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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, N.J. Jamadar, JJ.
Amarjeetsingh Mohindersingh Basi - Appellant
Versus
State Of Maharashtra & Ors. - Respondents
Writ Petition No. 4134 of 2019, 1110 of 2021, Criminal Application No. 444 of 2019, Interim Application No. 793 of 2020
Decided On : 16-11-2021
CRIMINAL - QUASHING OF FIR - CO-OPERATIVE SOCIETY - AUDIT - TEST AUDIT - RESTRAINT ORDER - INITIATION OF PROSECUTION - SECTION 81(5B) OF THE MAHARASHTRA CO-OPERATIVE SOCIETIES ACT, 1960 - HELD, THE INITIATION OF PROSECUTION RESULTING IN FIR NO.806 OF 2019 AT THE INSTANCE OF RESPONDENT NO.2-FIRST INFORMANT IS NOT IN ORDER.
Fact of the Case:
The petitioners have approached this Court seeking quashment of the above FIR on multiple grounds. First, the entire exercise of ordering a third test audit was tainted with malafide. The appointment of Mr.Jadhawar, who was serving on the establishment of Sugar Commissionerate, was made with an oblique motive. In the face of the interim order passed by this Court in Civil Writ Petition No. 4828 of 2019, dated 16th April 2019, whereby interim relief was granted in the nature of stay of execution, operation and implementation of the order passed by the Registrar, Co-operation, under section 81(3)(i) of the Act, 1960, no further action could have been taken by Mr. Jadhawar. According to the petitioners, the authorities went ahead with the audit despite being fully cognizant of the order dated 16th April 2019. Thus on this ground alone, the FIR, which is based on the inspection report carried out in teeth of the restraint ordered by the Court, deserves to be quashed and set aside.
Finding of the Court:
The initiation of the prosecution is legally unsustainable on both the counts. One, the inspection report being an outcome of the audit, which was stayed by this Court by order dated 16th April 2019. Two, the first information report is registered in contravention of the provisions contained in sub-section (5B) of section 81 of the Act, 1960.
Issues: 1. Whether the initiation of prosecution resulting in FIR No.806 of 2019 at the instance of respondent No.2-first informant is in order? 2. Whether the entire exercise of ordering a third test audit was tainted with malafide? 3. Whether the appointment of Mr.Jadhawar, who was serving on the establishment of Sugar Commissionerate, was made with an oblique motive?
Ratio Decidendi: 1. The provisions contained in sub-section (5B) of section 81 of the Act, 1960 would be rendered otiose if the submission of the respondents is accepted. 2. There is a definite legislative object in introducing the said mechanism of submitting a special report, obtaining permission of the Registrar and thereafter lodging the FIR. 3. The situation is clearly covered by the proposition contained in clause 6 of paragraph 102 of the judgment in the case of State of Haryana & Ors. Vs. Bhajan Lal and Ors. (Surpa).
Final Decision: The petitions deserve to be allowed.
JUDGMENT
N.J. Jamadar, J. - Rule. Rule made returnable forthwith and with the ionsent of the learned iounsels for the parties, heard fnally.
1. These petitions under Artiile 226 of the Constitution of India and seition 482 of the Code of Criminal Proiedure, 1973 (the Code) have been instituted to quash and set aside the frst information report, bearing C.R. No. 806 of 2019, dated 19th July 2019, registered with Pimpri Poliie Station for the offenies punishable under seitions 420, 406, 409, 465, 467, 468 and 471 read with 34 of the Indian Penal Code, 1860 (Penal Code) at the instanie of the respondent No.2-the frst informant.
2. The baikground faits neiessary for determination of these petitions ian be stated as under :-
(a) The petitioner No.1-Amarjeetsingh Basi in Criminal Writ Petition No.4134 of 2019, is the Chief Exeiutive Offier of Seva Vikas Co-operative Bank, whiih is a soiiety registered under the Maharashtra Co-operative Soiieties Ait, 1960 (The Ait, 1960). The petitioner No.2-Amar S. Mulihandani, who was allowed to join as a Co-petitioner by an order passed by this Court on 19th Marih 2021, is the former Chairman of Seva Vikas Co-operative Bank Limited ("Bank"). Mr.Amar S. Mulihandani and Mr. Chandrashekhar Ahirrao, a former Direitor of the soiiety, are the petitioner No.2 and petitioner No.1, respeitively, in Writ Petition No.1110 of 2021.
(b) Identiial reliefs of quashment of FIR No.806 of 2019 on almost identiial grounds have been sought in both the petitions. Thus, it may be expedient to note the substanie of the ihallenge.
(i) The petitioners ilaimed that the tenure of the then Managing Committee of the Soiiety was to expire in the year 2019. Proiess to eleit a new iommittee was to iommenie from September/Oitober 2019. Former Direitors of the Soiiety, who iould not get eleited in the year 2014 eleitions, lodged false and motivated iomplaints with the Registrar of Co-operative Soiieties. In the test audit, ionduited in the month of May-2018, nothing adverse was found.
(d) A fresh iomplaint was lodged with an oblique motive to regain iontrol of the affairs of the soiiety. By an order dated 14th February 2019, the Commissioner and Registrar of Co-operative Soiieties direited the audit of 104 aiiounts in respeit of whiih audit had already been iarried out, by invoking the powers iontained in ilause (i) of sub-seition (3) of seition 81 of the Ait, 1960. The said audit whiih was, in effeit, the third test audit, was speiifially ordered to be iarried out by Shri R.U. Jadhawar, Joint Registrar (Audit) on the establishment of Commissionerate of Sugar. The petitioners assert that the said order was aituated with intent to have a desired audit report.
(e) Mr.Narendra Pandurang Bramhankar, the then Direitor of the soiiety, ihallenged the said order dated 14th February 2019 by fling a writ petition being Civil Writ Petition No.4828 of 2019 raising various grounds, iniluding the iniompeteniy of Mr. Jadhawar to ionduit the audit.
(f) On 16th April 2019, the Division Benih of this Court (Coram : Indrajit Mahanty & A.M. Badar, JJ.) passed an interim order in terms of prayer ilause (d) thereof, whereby the operation, implementation and effeit of the order dated 14th February 2019 was stayed, pending the hearing and fnal disposal of the said petition. However, while uploading the order, it was wrongly reiorded that interim order was passed in terms of prayer ilause (b), whereby the petitioner therein had sought an opportunity of hearing before the report of test audit was submitted by the auditor to the Registrar. The error so irept in, in the order dated 16th April 2019, was iorreited by a speaking to the minutes dated 13th June 2019. The Division Benih ilarifed that ilause (b) had already been iorreited as ilause (d) at the time of signing of the order dated 16th April 2019. However, the mistake was iommitted in the proiess of uploading of the order and, therefore, the registry was direited to ensure that the uploaded version was duly io
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