O.K. RAJAGOPALAN Vs. O.K. RAJAGOPALAN

JUDGEMENT

(1.) BY this revision, the applicant has challenged legality and propriety of the order dated 1-3-2001 passed by the Judicial Magistrate First Class, Durg in Criminal Case No.144/2001, whereby the Court below has proceeded against the applicant and deceased Mr. P.S. Nair under Section 204 of the Cr.P.C. for the offence punishable under Sections 409, 420, 467 & 471 of the IPC.

(2.) AS per case of non-applicant No.2/complainant, non-applicant No.2 is a member of Indian Coffee Workers' Co-operative Society Limited (ICWCS), Jabalpur (Registration No. 1485) with its Head Office at 592, Malviya Marg, Jabalpur, and he was posted as Senior General Manager, Indian Coffee House, Ispat Bhawan, Bhilai Nagar, Tahsil and Distt. Durg. Applicant No.1 and deceased Mr. P.S. Nair were office bearers of the said Society. Applicant No.1 was Honorary Secretary of the said Society who had submitted Annual Reports before the General Body Meetings of the Society which show that the Society was not having any branch at Nagpur and Durg in the name and style of Indian Coffee House at NTPC, Nagpur or Indian Coffee House at Padmanabhpur, Durg. Applicant No.1 who was Honorary Secretary of the Society had entered into an illegal agreement with NTPC, Nagpur and Power Grid Corporation of India at Padmanabhpur, Durg, and has received huge amount of money from both the Coffee Houses which he had failed to show in the account of the Society and thus, has criminally misappropriated the same by committing cheating and forgery. Both the applicants were liable to account for the amounts and profits received from Indian Coffee House, Durg and Indian Coffee House, Nagpur in the account of ICWCS, Jabalpur. On the aforesaid basis, complaint was filed by non-applicant No.2 before the Court of Judicial Magistrate First class, Durg and the Court below had sent the application under Section 156 (3) of the Crf*6lo the jiolice. The Police of Durg had submitted its report against the applicants and thereafter, statements of the witnesses i.e. non-applicant No.2 and M.A. Chandrabhanpur, were recorded under Chapter XV of the CrPC and the impugned order was passed.

(3.) LEARNED Senior Advocate for the applicant submitted that initially, the order impugned was challenged before the High Court of Madhya Pradesh in W.P.No.1771/2001 and vide order dated 30-4-2001, the High Court of Madhya Pradesh has held that part of cause of action has arisen within the territorial jurisdiction of the Court of Judicial Magistrate First Class situate at Durg and after creation of the State of Chhattisgarh, it is open to the petitioner (therein) to file appropriate proceeding before the competent Court in the State of Chhattisgarh challenging the order passed by the learned Magistrate. Learned Senior Advocate further submitted that definitely, the Court situate within the territorial jurisdiction of Durg is having jurisdiction to entertain the dispute and after creation of the State of Chhattisgarh, this Court is having jurisdiction to entertain the proceeding. Therefore, the applicants are not debarred from filing this revision before this Court. Learned Senior Advocate also submitted that the ICWCS, Jabalpur having its registered office at Jabalpur is a registered society and it is registered under the Madhya Pradesh Cooperative Societies Act. The said Society was not competent to establish its branch beyond the territorial jurisdiction of the then State of Madhya Pradesh. Therefore, the Society was not competent to extend , its business at Nagpur i.e. within the territorial jurisdiction of the State of Maharashtra. After creation of the State of Chhattisgarh, the Society was also not competent to extend/open its branch at Durg. The applicant and deceased Mr. P.S. Nair are office bearers of the said Society, but they were not debarred from opening any business in the name and style of Indian Coffee House at Maharashtra and Chhattisgarh. The complaint reveals that it was their illegal/private contract. Therefore, they were not responsible/liable to account for income and expenditure of the aforesaid two Coffee Houses in the account of the aforesaid Society. After enquiry, the police had submitted its report in negative. The Court below had examined two witnesses who had specifically deposed that the applicants have not shown the new business/branches in the business of the Society. Non-applicant No.2 had failed to file any document to show that Indian Coffee House, Durg and Indian Coffee House, Nagpur were the branches or extension of the Jabalpur Society i.e. the ICWCS. However, taking cognizance of the offence and issuance of process against a person isliot a mere formality, it is a serious act and, therefore, it requires sufficient material before proceeding against the person, especially to save the innocent persons from unwarranted humiliation and groundless prosecution. In order to show prima facie case, non-applicant No.2 was under obligation to produce material that Indian Coffee House, Padmanabhpur, Durg and Indian Coffee House, Nagpur were duly constituted branches of ICWCS, Jabalpur and that the applicants have committed cheating and forgery and criminal misappropriation of funds of ICWCS. Therefore, by issuing process against the applicants the Court below has committed illegality.