P D PALKHANDWAR Vs. SIDDAYYA SHIVAMURTAYA HIREMATH

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India by the original accused, challenging the order of the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, dated 20th July, 1983 whereby he rejected the petitioners objection that the prosecution against them was barred by time.

(2.) The material facts lie within a narrow compass. There is a registered co-operative housing society by name Greater Bombay Veerashaiva Co-operative Housing Society Ltd. For the period 1969 to 1973, the petitioners Nos. 1, 2 and 3 were holding the posts of the Chairman, Secretary and Treasurer respectively. The present respondent No. 1 (for short the respondent) became the Chairman of this Society in 1977. On 27th April, 1982, he filed a criminal complaint against the present petitioners, alleging that during the period 1969 to 1973, they committed criminal breach of trust covering a sum of Rs. 13,000/- or so, belonging to the Society. The copy of this complaint is annexed to the petition as Ex. G. In all, three instances of embezzlement are alleged in the complaint. On 27th August, 1982 the learned Magistrate issued process against all the three petitioners under section 406 I.P.C. Thereafter the petitioners preferred an objection, submitting that the prosecution was barred by time under section 406 Cri.P.C. The learned Magistrate held that prima facie three years limitation will apply for prosecution under section 406 I.P.C. and further held that the delay was not properly explained. He however felt that it was necessary to take cognizance of offence in the interests of justice and in that view acting under section 473 Cri. P.C., he has directed the case to proceed. It is this order which is now challenged before me by the petitioners.

(3.) After hearing the learned Advocates of both sides, I am satisfied that the learned Magistrates order is entirely just. He observes in his order that there are thousands of societies in Greater Bombay and the office-bearers should not be allowed to embezzle the money belonging to the societies. The petitioners have in their petition pleaded that there are some 123 members of the society, most of whom belong to backward classes and that the Society has already constructed two buildings with 50 flats for them. The petitioners learned Advocate drew my attention to the averments in para 2 of the petition and urged that a number of rounds of litigation are going on between the two sides on the original side of this Court, and that this shows that the respondent has launched this prosecution mala fide with the sole object of harassing them.