DWARKADAS MOTILAL BAHETI DR Vs. PANDURANG MANIKRAO KAKDE

JUDGEMENT

(1.) THE challenge in all these matters arises out of the same order of issue of process and recall dated 10-3-1997 and order dated 2-4-1998 passed by the Judicial Magistrate, First Class, Nagpur vide which application for recall of process was rejected.

(2.) HOW criminal forum can be misused, is best illustrated by the case under consideration. The complainant Pandurang Kakade who is the respondent in all these matters, had filed a complaint on 11-2-1996 before the Judicial Magistrate, First Class, Nagpur complaining of offences under sections 406, 409 read with sections 34 and 109 of the Indian Penal Code. His case is that he is a member of Bhagyodaya Co-operative Housing Society Limited, Nagpur and he had purchased Plot Nos. 13 and 14 admeasuring 4759. 59 square feet at the rate of Rs. 15/- per square foot and had accordingly deposited a sum of Rs. 72,000/- with the said society. The society, after receipt of the said amount, had issued possession letter of the said plots in his favour on 19-11-1992 and the complainant/respondent took possession of the same in the year 1992 itself. According to the complainant/respondent, the persons complained against, avoided to execute and register sale deed. The complaint was filed against eleven persons of which accused No. 1 Jagdish Joshi was stated to be the ex-President of the society and the other accused Nos. 2 to 11 were said to be the members of the Executive Committee of the said society. According to the complainant, in the month of June 1993, particularly accused No. 1 with the authority and permission of the other accused, demand extra amount of Rs. 18,500/- in total. The break-up which was Rs. 13,500/- towards registration charges and Rs. 5,000/- for extra area of land which the complainant was assured by the persons complained against the said extra area being 252. 16 square feet. According to the complainant/respondent, amount of Rs. 18,500/- was paid to accused No. 1 viz. Jagdish Joshi. If we see the original complaint, column relating to the date on which said amount of Rs. 18,500/- is said to have been given by complainant to accused No. 1 is found blank. Therefore, it is necessary at this stage to note down that the case of the complainant is that the amount of Rs. 18,500/- was handed over by him to accused No. 1, but the date when it was handed over is not mentioned in the complaint which is a crucial fact. Besides this, it is the case of the complainant himself that no receipt had been issued by accused No. 1 for the receipt of the said amount of Rs. 18,500/ -. The complainants case further is that the said amount was not shown in the cash book and annual balance sheet and as such, according to the complainant, this amount of Rs. 18,500/- minus the expenses which are required for the registration, was misappropriated. The stamp duty for the sale deed was Rs. 4050/- and registration charges were Rs. 2370/-, and deducting this amount from Rs. 18,500/- the complainant had demanded the return of balance amount of Rs. 12,380/- which was not returned to him and had been misappropriated by all the eleven accused. It appears that the complainant also moved the Co-operative Court which went ex parte and the Co-operative Court decreed the claim of the complainant for a sum of Rs. 12,380/- with interest as also correction of sale deed of plots Nos. 13 and 14 by the society. The judgment of the Co-operative Court was rendered on 5-6-1996. The complainant, had on 16-5-1995, sought the return of Rs. 12,380/.

(3.) THE criminal complaint was ultimately filed on 11-2-1996. As I have already stated, the Magistrate issued process and the application for recall of process was rejected. In these matters under consideration, seven of the accused have approached this Court for quashing complaint dated 11-12-1996 as also order of issue of process and order rejecting recall of process. It appears that remaining six accused have filed revision before the Sessions Court which is pending there. . Learned Advocate for the applicants has urged before me that on the basis of allegations in the complaint, the process could not have been issued against the present applicants since even, according to the case of the complainant, himself, money was not entrusted to them, but the sum of Rs. 18,500/-, according to the complainant was given to accused No. 1 who neither issued receipt nor reflected the same in the Cash Book or the Balance Sheet. It is further argued that inspite of having brought all these facts before the Magistrate, the Magistrate refused to recall the process. According to the learned Advocate for the applicant, in the circumstances, the complaint against the present applicants is required to be quashed. Learned Advocate for the respondent urged before me that though the amount of Rs. 18,500/- was given to the accused No. 1 Jagdish Joshi, yet it was at the instance of all the accused that the said amount was demanded and since the said amount was not accounted for and was misappropriated, all of them are liable. According to learned Advocate for respondent, said amount of Rs. 18,500/- was paid by complainant in the month of June 1993 for which no receipt has been issued. It is urged that the society is run by the Executive Committee and as such, all the executive members are responsible. Reliance was placed on two judgments, viz. (Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others), A. I. R. 1976 S. C. 1947 and (Madhosingh Ratansingh and others v. Smt. Kamla Devi and others), 1994 (1) Bom. C. R. 165 : 1993 C. T. J. 51. He, therefore, contends that the revision application be rejected.