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1998 DIGILAW 33 (CAL)

Subimal Maity v. State of West Bengal

1998-01-27

Asish Baran Mukherjee

body1998
JUDGMENT A.B. Mukherjee, J. This application under section 482 Criminal Procedure Code has been filed with a view to quash G.R. Case No. 1061 of 1995 pending before the Chief Judicial Magistrate, Midnapore for an alleged offence under section 406/420/465 of the Indian Penal Code. 2. The case of the petitioner is that on 12th of December 1995 the opposite party No. 1 lodged a complaint in the court of Chief Judicial Magistrate at Midnapore against the accused petitioner and four others alleging that he was a member of Hatiari Samabay Krishi Unnayan Samity and the accused petitioner being the Ex-Secretary of the Society and one Subimal Maity being the Manager of the Society and made collusion and granted a loan of Rs. 8,000/- in favour of Netaji Tantubay Samabay Samity at Hatiari which is a Primary Co-operative Society on 18.1.84 without prior permission of the Assistant Registrar of Co-operative Societies. On 20th April 1995 the said Tantubay Samity is alleged to have repaid the loan with interest of Rs. 600/- in favour of Hatiari Samabay Krishi Unnyan Samity. It is alleged that these two transactions are absolutely false and got up and that they misused the money for personal reasons and thereafter fabricated the Accounts Book accordingly. 3. On the basis of the said complaint which was forwarded under section 156(3) of the Criminal Procedure Code, Contai Police Station Case No. 303 of 1995 dated 23rd December 1995 was started against the accused and others. The petitioner was also arrested on 9th of February 1996 and after initial refusal of bail he was ultimately granted bail by this Court. 4. The contention of the petitioner is that he is not in any way connected with the alleged offence. It is his specific case that the alleged date of occurrence is between 1.7.83 and 30.6.84 but the complaint was lodged after an expiry of more than 10 years, that the complaint was not authorised by the Society under the provisions of Co-operative Societies Act to lodge the complaint. It is further alleged that the loan which was granted by virtue of a resolution of the Society on 15th of September 1983 was subsequently repaid with interest. The petitioner took the charge as Secretary of the Society on 24th of June 1986 and as such he could not have any connection with the granting of loan. It is further alleged that the loan which was granted by virtue of a resolution of the Society on 15th of September 1983 was subsequently repaid with interest. The petitioner took the charge as Secretary of the Society on 24th of June 1986 and as such he could not have any connection with the granting of loan. The society was audited by the Auditor and appeared from the Audit Report that the dispute had already been decided by the Board of Directors. 5. The application is not contested by any of the opposite parties on the final date of hearing though at the initial stage there was appearance on behalf of the State. 6. I have given my careful consideration to the averment of the petition and also the argument advanced on behalf of the petitioner fortified with decisions. It appeared from the petition of complaint, a copy of which has been annexed to the application that the loan was given on 18.1.84. On 23rd of December 1995, that is after a lapse of more than 11 years complaint was filed without assigning any reason for such delay. A scrutiny of the complaint further reveals that the complainant had no sanction from the appropriate authority in terms of the Co-operative Societies Act since the complaint has got no such averment. It appears from annexure 'B' that the loan was sanctioned on the basis of a resolution taken on 15th of September 1983. It appears from annexure 'C' that the present petitioner became Secretary of the Society by virtue of a resolution dated 24th of June 1984. Copy of the audit report has been enclosed together with the discrepancies noted during such audit and the remark of the Audit Party. It appears from the same that the Audit party took into consideration the granting of loan to Netaji Weavers Co-operative Society and its repayment. In the remarks column, it has however been mentioned that in the absence of any permission from the Assistant Registrar of Co-operative Society loan cannot be given to another Society and they have been cautioned not to repeat the same in future. Therefore, it appears that the payment of loan was sanctioned by the resolution of the Society at a period when the petitioner was not in the picture. There was also repayment by the loanee with interest as seen by the Audit Party. Therefore, it appears that the payment of loan was sanctioned by the resolution of the Society at a period when the petitioner was not in the picture. There was also repayment by the loanee with interest as seen by the Audit Party. Therefore, the petitioner cannot be tagged with the commission of any irregularity even, not to speak of offences with which he has been charged. In this connection the Ld. Advocate for the petitioner relied on a decision reported in 1997 Cri. LJ 465 (Asim Kumar Roy vs. Bipin Bhai Vhedi & Others). 7. So far as the complaint as a whole is concerned it also suffers from want of sanction. In terms of section 139(3) or Chapter XVI of the West Bengal Co-operative Societies Act, no prosecution can be instituted under the said Act without the previous sanction of the Registrar. Since it is a dispute touching on the exercise of powers on the part of office bearers of a Co-operative Society in relation to the Society itself, such permission is absolutely essential. In this connection reliance has been placed on a decision reported in AIR 1976 SC 1947 , in support of the contention that for want of sanction interference by this Court by virtue of inherent power is called for. 8. On a careful consideration of materials on record it appears that the petition of complaint as a whole can not stand since there was no sanction before starting the prosecution. There is also the question of lapse of 11 years which has not been explained at all. Besides, prima facie the allegation appears to be un-founded since the Audit Report categorically shows that payment of loan and its repayment were genuine. So far as the petitioner is concerned there is the added ground that he was not an office bearer of the Society which granted loan at the relevant time. But in view of the fact that the prosecution has been launched without any sanction as required under the law and in view of the absence of prima facie case, the continuance of the proceeding in the Court below shall be an abuse of process of the Court. As such the said proceeding need be quashed. 9. In the result the G.R. Case No. 1061 of 1995 pending before the Ld. Chief Judicial Magistrate stand quashed. Appeal quashed.