ARUN DATTATRAY Vs. SHAIKH NIZAM BABUMIYA JAGIRDAR

JUDGEMENT

(1.) The main petition is for the purpose of quashing an order whereby the petitioners therein have been summoned to appear before the Judicial Magistrate, First Class at Srirampur to answer charge of having committed offences punishable under Section 409 r/w. 34 of I.P.C.

(2.) Respondent No. 1 in the main petition who is the petitioner in the 1988 application and who shall hereinafter be referred to as the complainant, is a cultivator-cum-practicing Advocate of Srirampur in District Ahmednagar. He owns some agricultural land at village Bklahare, Taluka Srirampur, District Ahmednagar. Petitioners 1 to 10 are the Directors of a company incorporated under the Companies Act doing business in the name and style of The Maharashtra Sugar Mills Ltd. This Mills being in the private sector and apparently finding it difficult to get cultivation to supply sugarcane to it, introduced a scheme. Under this scheme the Mills stood guarantee for repayment of loans advanced by the State Bank of Indias branch at Tilak Nagar. The cultivator was to receive the amount by way of advance towards the price payable unto him for the expected delivery of the cane. The amount was to be adjusted against the price payable to him by the Mills. The Mills was to pass on the recovered amount advanced to the Bank. Interest, if any, payable on the same received by the cultivator was to be paid by the Mills. Under this arrangement a sum of Rs. 6375/- was advanced to the complainant by the Bank. On 16th December, 1986, the complainant delivered cane to the Mills and out of the value thereof a sum of Rs. 6375/- was deducted as amount payable to the Bank for the advance made by it. On 22nd May, 1987, the complainant received a notice from the Bank intimating him that the sum of Rs. 6375/- was still outstanding, and that he had to repay alongwith interest. A copy of this notice was also sent to the Mills, drawing its attention the fact that it had stood surety for the repayment of the advance and was under an obligation to make the repayment as early as possible. Complainant on 3rd August, 1983 appeared before the JMFC, Srirampur and tendered a complaint. This complaint recites the aforementioned details as also that the Mills was a Board managed company, the Board consisting of Accused Nos. 1 to 9, the Accused No. 10 was a Director (Works), the Accused No. 11 was the accountant and Accused No. 12 was the General Manager, that all the accused were in charge of the affairs of the Mills, that despite having recovered Rs. 6375/- on 29th December, 1986, they had not transmitted the amount to the Bank and that this amounted to criminal breach of trust. Something to the same effect was stated by the complainant in his preliminary statement which has been labelled as a verification. After the preliminary statement had been recorded the learned Magistrate passed an order in these words :

(3.) In the 1987 application, the petitioners contend that the Additional Sessions Judge was in error in directing the Magistrate to take cognizance. In fact no offence had been made out against them or any of them. The truth was that the Bank had been paid its dues on 14th August, 1987 and there was no question of breach of trust, much less criminal breach of trust. The complaint raised questions essentially of a civil nature and it was an error on the part of the Additional Sessions Judge to direct the issue of process. As a matter of fact, the Sessions Judge had no jurisdiction to interfere with the order passed by the Magistrate, for basically that Magistrate, had not taken cognizance but had deferred the taking of cognizance until such time as the as the Police investigation was over and a report received from the Investigating Officer. The order passed by the Magistrate on 3rd August, 1987 was perfectly correct and should not have been interfered with.