S G PAWAR Vs. KISHORMAL B JAIN

JUDGEMENT

(1.) HEARD Mr.Sathe for the Petitioner and Mr. Mukesh Modi for Respondent No.1. Also heard the learned A.P.P. Mrs. Pawar for the State. This petition is filed to challenge the order of issue of process of the learned Addl. C.M.M. dt. 24/02/1988, U/s. 420 read with 114 I.P.C. However, in the original complaint filed by the Respondent No.1, there were three accused, but, Accused Nos.1 & 2 do not appear to have challenged the order of issue of process. The petitioner who was Accused No.3 has filed this petition. It is admitted fast that the petitioner was an officer of the Maharashtra State Financial Corporation (M.S.F.C.), from which Accused Nos.1 & 2 had taken substantial amount of loan for their firm known as Kokila Pharmaceuticals. It is the case of the complainant that all the three accused including the Petitioner prevailed upon him to purchase the business of M/s. Kokila Pharmaceuticals by making false representations on account of which the complainant was made to part with a sum of Rs.1,20,000/- or near about.

(2.) THE necessary allegations for the purpose of filing the complaint have been made against this accused in Paragraph Nos. 8, 9 & 10. So far as Petitioner is concerned, it is alleged that as an officer of M.S.F.C., he approached the complainant and visited the complainant's office, number of times alongwith the Accused Nos.1 & 2, and all of them induced the complainant to enter into the aforesaid transaction. According to the complainant, the present Petitioner as an officer of the M.S.F.C. represented that the complainant can purchase the business of Accused Nos.1 & 2 and the same would be transferred in the name of the complainant as soon as the loan amount which was due was repaid by Accused Nos.1 & 2 to the M.S.F.C. The complainant has alleged that on these representations, he gave a cheque of Rs.96,000/- and odd and the cash amount of Rs.30,000/- to the Accused Nos.1 & 2 on 5/2/85, on account of inducement of all the accused. However, as per the complaint, the Accused Nos.1 & 2 never came forward for execution of deed of assignment of M/s. Kokila Pharmaceuticals. The complainant was realised that he was cheated, but, according to him, in order to prevent him from taking legal action in that regard, all the accused further induced him to execute the deed of partnership with the Accused Nos.1 & 2 with the assurance that the aforesaid amount (which was paid by the complainant to the Accused Nos.1 & 2.) would be repaid by the Accused No.1 from the profits of the above firm. But, according to the complainant, after receiving this amount and executing the deed of partnership, Accused Nos.1 & 2 discontinued business of their firm namely M/s. Kokila Pharmaceuticals.

(3.) THE preliminery objection was raised by Mr.Modi the learned counsel for Respondent No.1 to the tenability of this petition on the ground that it was always open to the accused to appear before the Magistrate and claim discharged. He relied upon two judgments of this court reported in 1994 Cr.L.J. 1726 Pandey Ajay Bhushan, Collector and District Magistrate Jalgaon and Others V/s Shri Sureshkumar Bhikamchand Jain & Anr., and 1994 (4) Bombay C.R.391 - Yashwant S/o Ram Bhasmare and Others V/s. Asrabai W/o Yashwant Bhasmare. I am in full agreement with the views expressed in these two judgments. However, the present petition is pending before this court since 1986, i.e. more than 6-7 years and therefore, after such a long time, I do not propose to direct the petitioner to approach the Magistrate and claim discharge. Earlier also I had decided the similar petitions challenging the issue of process only because they were pending more than 6-7 years.