SURESH T KILACHAND Vs. SAMPAT SHRIPAT LAMBATE ANOTHER

JUDGEMENT

(1.) All these appeals and the connected SLPs arise out of a common judgment of the High Court of Judicature at Bombay. They can be disposed of by a common judgment here.

(2.) The complainant Sampat Shripat Lambate, the Secretary of the Digvijay Mills Employees Co-operative Credit Society Limited filed a private complaint in the Court of the Metropolitan Magistrate, 6th Court, Mazagaon, Bombay alleging that the eight accused shown in that complaint misappropriated amounts belonging to the Society and thus committed an offence punishable under Section 147(b) of the Maharashtra Co-operative Societies Act, 1960 and Section 409 read with Section 114 of the Indian Penal Code. It was alleged in the complaint that the members of the complainant Society are the employees of the Digvijay Mill Ltd. Accused No. 1 was the Chairman and accused Nos. 2 to 7 were the Directors of the Mill and accused No. 8 was the Secretary of the Board of Directors. The Society used to advance loans to its members and under an agreement with the Management of the Mill, the mill used to recover loans advanced to the members from the salaries payable to such members and the amount so collected was to be paid by the Management to the Society. According to the complainant in the month of June, 1964, the Management collected certain amounts by deducting instalments from the salaries and out of that some amounts were paid as loan to the Society and the balance was misappropriated by the accused. The similar allegations are made in respect of the collections made up to the year 1968. In respect of these collections, 12 cases were filed before the trial Court. The complaints themselves were filed in the year 1976 i.e. after eight years. The trial Court examined the complainant as P.W. 1 who stated that accused No. 1 alone was looking after day-to-day affairs of the Mill and the Society has demanded the amounts from accused No. 1 alone. On the basis of this evidence, the trial court held that accused No. 1 alone could be charged only under Section 406, I.P.C. and in that view other accused were discharged. Regarding the offence under S. 147(b) of the Maharashtra Co-operative Societies Act, 1960, the trial court held that the offence was clearly barred under Section 468, Cr.P.C. When the charge under Section 406, I.P.C. was read over and. explained to the accused, he pleaded not guilty. He, however, stated that there was an oral agreement between the society and the management and the management used to retain part of the salaries payable to the employees but the same was not misappro-priated by the management as alleged. He further stated that the Mill was running at a loss and due to financial difficulties the amounts could not be paid to the Society. He also stated that these amounts were not used by him or any other Director for their personal use. Therefore he cannot be held guilty for any offence. The trial Court examined the evidence of P.W. 1 in detail. In cross-examination, it emerged that the full salaries were not paid to the members and only part of the salaries were paid after deducting the instalments payable to the Society. P.W. 1 also admitted that as the Society could not get the amounts either from the Collector or from the Government, it filed the complaints against the Directors and he further admitted that the Society filed the complaints only to recover the amounts and not because the Directors misappropriated the said amounts. Taking these admissions into considerations, the trial court held that the amounts could not be paid to the Society because of the financial difficulties of the Mill and the only remedy open to the Society is to approach the Government and if the Government fails to pay the amounts then the Society can seek the remedy in the civil court. The learned Magistrate also held that as the complaints are filed after eight years, therefore they are barred by the limitation fixed under Section 468, Cr.P.C. In that view of the matter, he acquitted the first accused namely the Managing Director. The society filed appeals against the order of acquittal before the High Court and accused No. 1 appeared as the sole respondent with the State in each of the appeals. The learned single Judge of the High Court delivered the judgment in Criminal Appeal No. 398/90 on his file. The. learned Judge mainly relied on the statement made by accused No. 1, the Managing Director and pointed out that the agreement between the Society and the Mill was admitted and that the evidence of complainant coupled with the statement would go to show that the funds deducted on behalf of the Society were retained by the accused and it was a continuing offence and therefore the limitation described u/S. 468, Cr.P.C. does not apply. Accordingly the learned Judge allowed all the 12 appeals filed by the complainant and in each case, he convicted the respondent-accused No. 1 therein namely the Managing Director under Section 409, I.P.C. and sentenced him to imprisonment in each case ranging from two years to six months and also directed to pay a fine which roughly represents the amounts due to the Society.

(3.) It appears that the learned advocate Mr. Shalim Samuel appearing for the respondent-aecused No. 1 died and that nobody represented him before the High Court. Therefore an application in each of the appeals was filed to set aside the judgment under S. 482, Cr. P.C. The learned single Judge dismissed the applications holding that Section 362, Cr. P.C. is a bar for recalling the judgment in a criminal case. As against the said impugned order refusing to recall the judgment in each of the appeals, S.L.P. (Criminal) Nos. 4258-59 and 4349-4358/91 are filed in this Court. Questioning the convictions and sentences awarded by the High Court, accused No. 1 has filed Criminal Appeals Nos. 48-58/92 and 589/93.