SAHAKAR MAHARSHI SHANKARRAO MOHITE PATIL NAGARI GRAMIN SAHAKARI PATHSANSTHA AND ANOTHER Vs. SUBHASH BHIMRAO GAVSANE AND ANOTHER

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution read with Section 482 of Code of Criminal Procedure prays for setting aside the order of issuance of process passed by the learned JMFC, Madha on 9/7/2004 in S.T.C. No. 417 of 2004 filed under Section 138 of the Negotiable Instruments Act, 1881 (the Act for short) and duly confirmed by the learned Ist Adhoc Additional Sessions Judge, Solapur by dismissing Criminal Revision Application No. 187 of 2004, as per his Judgment and Order dated 20/6/2005. In short, the petitioner - Credit Co-operative Society prays for quashing of the proceedings in S.T.C. No. 417 of 2004 filed under Section 138 of the Act in respect of the dishonour of cheque bearing No.249385 and in the sum of Rs. 50,00,000/- drawn in favour of the complainant allegedly by the petitioner No.1 - Credit Society which is registered under the Maharashtra Co-operative Societies Act, 1960. The petition was admitted and by way of interim relief the trial of the complaint was stayed. As this was an ex parte order passed by this court on 22/12/2005, the complainant - present respondent no.1 filed Criminal Application No. 213 of 2007 and prayed for vacating the interim relief. Criminal Application No. 412 of 2006 was filed for the same relief by the complainant but it was turned down on 26/2/2007 by this court and the complainant was granted liberty to prefer a fresh application for vacating the stay, if the petition was not disposed off by 10/4/2007. Hence, this second application has been filed by the complainant. With the consent of the parties, the main petition itself has been heard finally and it is being decided on merits.

(2.) The petitioner No. 1 is managed by a Managing Committee/Board of Directors and petitioner No. 2 is the Secretary of the petitioner No. 1-Society. The respondent No. 1 is a certified Auditor by the Department for Cooperation, Government of Maharshtra for carrying out audit of Co-operative Societies. As per the letter dated 28/5/2003 issued by the District Deputy Registrar, Co-operative Societies at Solapur, the complainant came to be appointed as certified auditor for four different Co-operative Societies and first of them being the petitioner No. 1-society. It is the case of the complainant that after the said order was issued by the District Deputy Registrar on 28/5/2003, the accused Nos. 1 to 4 approached him sometimes in the month of April 2004 and requested to render consultancy services by way of legal/expert advice to streamline the working of the society and its branches and also to undertake the audit. The complainant agreed to render his service but claimed that his fees would be Rs. 50,00,000/- which was allegedly agreed by the accused Nos. 1 to 4 and consequently the dishonoured cheque was issued on 3/5/2004 in the sum of Rs. 50,00,000/-. The said cheque was received dishonoured on 14/5/2004 from the Solapur District Central Co-op. Bank Limited, Kurduwadi Branch, Dist. Solapur and, therefore, on the same day the complainant issued a demand notice under Section 138 (b) of the Act. The notice was replied to by the accused on 17/6/2004 and it is obvious that it was not replied within 15 days from the receipt of the notice from the complainant. The claim of the complainant was denied in the reply and it was further claimed that the dishonoured cheque was, in fact, missing from the office of the accused no.1-society and a complaint to that effect was lodged with the Solapur District Central Co-operative Bank, Kurduwadi Branch on 25/3/2004. The notice further indicates that there was no such contract as claimed by the complainant and the society was not required to pay any fees to him. It was further alleged that, on the contrary, while discharging the duties as Auditor - the complainant had clandestinely taken away a blank cheque signed by the accused and sought to encash.

(3.) The learned Additional Sessions Judge considered all the grounds raised by the accused while challenging the order of issuance of process passed by the learned JMFC and held that the defence so raised would be considered only during the trial and on adducing evidence by both the parties and it could not be said that the learned JMFC had committed any manifest error or exercised his jurisdiction erroneously while issuing the process.