WAMAN SAMBHAJI DUKA Vs. NARHARI SAMBHAJIRAO PHATALE

JUDGEMENT

(1.) THIS is a revision application by the accused who is being prosecuted under sections 406, 467 and 420 of the Indian Penal Code. The accused had made an application before the Judicial Magistrate (First Class) at Parenda. The accused is an officer of the Co-operative Societies and the offences which are alleged against him are supposed to have been committed by him during the course of his duty as an officer of the Co-operative Society. He, therefore, requested the learned Magistrate to dispose of the case as either not maintainable or to stay the proceedings until a valid sanction has been obtained under the provisions of the Maharashtra Co-operative Societies Act, 1960. The learned Magistrate rejected the application relying upon the earlier judgment of this Court and directed that the prosecution shall proceed. Being aggrieved, this revision application has been filed by the accused.

(2.) ON behalf of the accused reliance has been placed upon the provisions of section 146 and section 148 of the Co-operative Societies Act, 1960. It is particularly emphasised that clauses (o) and (p) of Section 146, of the present Co-operative Societies Act, 1960, are new clauses and similar provisions were not to be found in the previous Co-operative Societies Act. in view of these provisions, the offences which are alleged against the accused directly fall under either of these two clauses, and as such, sanction to prosecute the accused was a prior necessity under the provisions of sub-section (3) of section 148 of the said Act. On examination of these clauses (o) and (p) were find that none of the offences that is alleged against the accused is covered by the provisions of clauses (o ). Clause (o) deals with an offence where an officer of the Society wilfully recommends or sanctions for his own personal use or benefit or for the use or benefit of a person in whom he is interested, a loan in the name of any other person. this clause, therefore, speaks about the advance of loan in the name of one person. This clause, therefore, speaks about the advance of loan in the name of one person but the real beneficiary under the loan is not the person in whose name the loan is actually awarded. The beneficiary is either the officer himself or some other person in whom he is interested. It is, therefore, a different type of offence and it has nothing to do with the allegations of misappropriation, forgery or chatting which are offences under which the accused is being tried.

(3.) CLAUSE (p) of section 146 of the Maharashtra Co-operative Societies Act, 1960, is a comprehensive clause dealing with many matters. It speaks of an officer or a Member of a Society destroying, mutilating, tampering with, or otherwise altering, falsifying, or secreting, or being privy to the destruction, multination, alteration, falsification or secretion of any books papers or securities, or makes or is privy to the making of any false or fraudulent entry in the register, book or account or documents belonging to the Society. All these acts are made an offence under this clause which is punishable under section 147, clause (p ). The punishment for this offence is an imprisonment for a term which may extent to three years, or with fine, or with both. Out of the three offences with which the accused is being charged, it is possible to argue that forging of a loan-bond may fall under the falsification of papers relating to the Co-operative Society. However, the other two offences viz. , misappropriation and cheating, are not covered even by this clause.