Allowed

Bharadwaj Yadavrao Pagare and Anr. v. the State of Maharashtra and Ors.

Bombay HC10 Oct 2013WP/227/2011

Case brief

AI extract

What is this about?

The High Court allowed the criminal writ petition filed by an Assistant Registrar and a clerk challenging the issuance of process against them. The court held that the Assistant Registrar, whose act of issuing a recovery certificate was done in discharge of duty without dishonest intent, could not be prosecuted without sanction under Section 197 CrPC. The clerk was held to have no role in the alle

What did the court decide?

The private criminal complaint bearing R.T.C. No.92/2008 was quashed and set aside to the extent of the petitioners.

Bharadwaj Yadavrao Pagare and Anr. Vs the State of… — Service and Employment | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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CRIMINAL WRIT PETITION NO.227 OF 2011

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Bharadwaj Yadavrao Pagare aged 52 years,Occu. Service, as Assistant Registrar, Co-operative Societies, Ulhas Nagar, Dist. Thane.

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Arjun s/o Ramchandra Nikshe, aged 48 years, Occu. service, as Clerk in the Office of Assistant Registrar, Co-operative Societies, Nandgaon, Tq. Nandgaon, Dist. Nashik.

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... PETITIONERS.

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VERSUS

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The State of Maharashtra

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Dattu s/o Dagadu Petare, aged 45 years, occu. Labourer, r/o Kolhar, Tq. Rahata, Dist. Ahmednagar.

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The Manager, Suvarna Nagari Sahakari Pat Sanstha Ltd. Kopargaon, Branch Kolhar, Tq. Rahata, Dist. Ahmednagar.

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Shri Sushant D.Wadile, aged 45 years, occu. service,

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2 as Special Recovery Officer & Sales Officer with Suvarna Nagari Sahakari Pat Sanstha Ltd. Kopargaon, Tq. Kopargaon, Dist. Ahmednagar. ... RESPONDENTS.

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Advocate for Petitioners : Mr. Bhavar Nitin R APP for Respondent No.1 : Mr. G.R. Ingole.

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Advocate for Respondent Nos.3 & 4 : Mr.S.N. Patil h/f Mr. Gaware Niteen V. Advocate for Respondent No.2 : Mr. Suryawanshi Nitin B.

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CORAM : ABHAY M. THIPSAY, J.

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10th OCTOBER, 2013.

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P.C:

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1. Heard Mr. Bhavar, learned Counsel for the petitioners,

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Mr. Ingole, learned A.P.P. for respondent No.1, Mr. Gaware,

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learned Counsel for Respondent Nos.3 and 4 and Mr.

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Suryawanshi, learned Counsel for respondent No.2.

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Rule. Rule is made returnable forthwith. By consent

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of the parties, taken up for final hearing.

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The petitioners are accused Nos.2 and 4, respectively,

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in R.T.C. No.92/2008, pending before the J.M.F.C., Kopergaon. The case arises on a complaint filed by the respondent No.2 herein. There are two other accused in the said case; namely, original accused No.1-the Manager, Suvarna Nagari Sahakari Patsanstha Maryadit, Kopergaon and original No.3-Special Recovery Officer of the same Patsanstha. The case against the petitioners is in respect of offences punishable under Sections 466, 471, 474, 219 r.w. 34 of I.P.C. The petitioners are aggrieved by the order

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of issuing process, as passed by the Magistrate on 22.7.2008 and have invoked the Constitutional jurisdiction of this Court, challenging the prosecution against them.

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The petitioner No.1 is the Assistant Registrar of Cooperative Societies and the petitioner No.2 is a clerk attached to the petitioner No.1.

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The substance of the complaint is that the

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complainant had taken a loan from Suvarna Nagari Sahakari Patsanstha. Since, it was not repaid, the Manager of the said Patsanstha (accused No.1 in the said case), started recovery proceedings and applied for recovery certificate under Section 101 of the Maharashtra Cooperative Societies Act. Those proceedings were pending before the petitioner No.1 and the matter appeared before him on 14.9.2007. On that day, the complainant filed his say in the matter and the matter was adjourned to 3.10.2007 for arguments. However, the petitioner No.1, on 26.9.2007 itself, issued recovery certificate, purportedly, issued on 10.9.2007. The contention of the petitioner is that since the matter was actually pending and since, arguments were to be made before the petitioner No.1 on 3.10.2007, his act of issuing the certificate dated 10.9.2007, amounts to committing forgery for the purpose of cheating, etc.

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It is not necessary to go deeper into the matter

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inasmuch as, it is not in dispute that the petitioner No.1 is not removable from his office except by an order of the State Government. Clearly, alleged offence has been committed by him in discharge of his duties as an Assistant Registrar of the Co-operative Societies. No cognizance of the alleged offence, so far it relates to the petitioner No.1, could have been taken by the learned Magistrate.

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Even otherwise, the petitioner No.1 had clearly clarified that this had happened due to oversight and inadvertently. It is difficult to comprehend as to how the requisite dishonest intention or mens rea can be, prima facie, attributed to the petitioner No.1, in issuing such a recovery certificate. Obviously, that the proceedings were pending before him, could be easily pointed out and no one would expect to derive any actual benefit from the said recovery certificate. It would be easily pointed out to be invalid. As such, apart from the aspect of sanction, on merits also, there does not seem to be sufficient basis for

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proceeding against the petitioner No.1.

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So far as petitioner No.2 is concerned, though he

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being a clerk, is not entitled to have the protection of section 197 of the Code of Criminal Procedure, still no role whatsoever, in the alleged offence has been attributed to him. He is not the person who had issued so called forged recovery certificate. There is no averment in the complaint, which shows the role, allegedly played by the petitioner No.

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2, in the alleged offence.

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The order passed by the learned Magistrate, issuing process against the petitioners, is not in accordance with the law. Apart from the fact that there does not appear to be, prima facie, a case for proceeding against the petitioners, with respect to the alleged offences, so far as petitioner No.1 is concerned, cognizance of the offences, allegedly committed by him, could not have been taken in absence of a sanction under Section 197 of the Code.

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The petition succeeds.

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The petition is allowed in terms of prayer clause (B),

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which reads, as under:

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"(B) Quash and set aside Private Criminal Complaint bearing R.T.C. No.92/2008 filed by the respondent No.3 in the Court of Learned Judicial Magistrate, First Class, Kopargaon to the extent of petitioners and for that purpose issue necessary orders."

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Rule is made absolute, accordingly.

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(ABHAY M. THIPSAY, J.)

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PLK/*

Bharadwaj Yadavrao Pagare and Anr. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Bharadwaj Yadavrao Pagare and Anr. v. the State of Maharashtra and Ors.

Case brief

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What did the court decide?

What the court decided

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