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2008 DIGILAW 994 (BOM)

N. T. Kotian v. State of Maharashtra

2008-07-14

A.S.OKA

body2008
Judgment : Oral Judgment: Heard the learned counsel appearing for the Petitioners. None appears for the second Respondent, though the second Respondent is represented by an Advocate. Learned A.P.P. appears for the first Respondent. 2. This Petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). The Petitioners have prayed for quashing the proceedings of a private complaint filed by the second Respondent. 3. In view of the decision of the learned single Judge in the case of V.K. Jain & Ors. V/s. Pratap Padode & Anr. ( 2005 (3) Mh.L.J. 778 ), in normal course this Court would have relegated the Petitioners to the Sessions Courts by way of revision under Section 397 of the said code. However, I find that notice before admission was issued by this Court on 29th March, 2001 and Rule was issued on 4th July, 2001. Therefore, after lapse of 7 years, it will not be proper to relegate the parties to another remedy. The Petitioners have also invoked Section 482 of the said Code and after considering the submissions of the learned counsel appearing for the Petitioners, I find that this is one of those rare cases where the power under Section 482 of the said Code will have to be exercised. 4. The Petitioners were at the relevant time the Members of Managing committee of a Co-operative Housing Society of which the second Respondent was a Member. 5. The said Society filed a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 against the second Respondent in the Co-operative Court. It is an admitted position that the second Respondent was holding a flat in the building of the said Society by virtue of his membership of the Society. It was stated that the Society had obtained a loan from the Maharashtra State Cooperative Housing Finance Society and the second Respondent was under an obligation to contribute towards the repayment of the said loan by paying the agreed monthly instalments. According to the Society, the second Respondent was a defaulter and he did not pay the requisite amounts. Therefore, the dispute was filed for recovery of the overdue amount as well as for an order regarding possession of the flat held by the second Respondent. The said dispute was allowed. 6. According to the Society, the second Respondent was a defaulter and he did not pay the requisite amounts. Therefore, the dispute was filed for recovery of the overdue amount as well as for an order regarding possession of the flat held by the second Respondent. The said dispute was allowed. 6. In the private complaint filed by the second Respondent, he alleged that he had paid certain amount to the builder towards the price of the flat. According to second Respondent, there was no loan taken in respect of the Flat held by him from the Housing Finance Society. The second Respondent alleged that by misleading the Co-operative Court, an award was obtained by the Society in its favour. On the said private complaint, notice was issued against the Petitioners. 7. The dispute filed by the Society was finally decided in favour of the Society by directing the second Respondent to pay arrears with interest thereon within the time specified in the Judgment. It was provided that in the event of the failure of the second Respondent to pay the requisite amount within the stipulated time, he will have to vacate the flat and handover the same to the Society. A direction was issued against the Society that in the event the entire amount was paid by the second Respondent, the Society shall return the agreement by and between the second Respondent and the Builder. There was no challenge to the said Judgment and award by the second Respondent. In an appeal preferred by the Society, the aforesaid direction issued by the Co-operative Court to return the agreement was set aside. The order of the Co-operative Appellate Court has been affirmed by this Court in the Writ Petition filed by the second Respondent. 8. Thus, there is a concluded finding of the Co-operative Court that the second Respondent was liable to repay the amount of housing loan and in fact the said amount was not repaid. The case made out by the second Respondent against the Petitioners was of commission of offence punishable under Section 420 read with Section 34 of the Indian Penal Code. Taking the averments made in the complaint as it is, by no stretch of imagination any ingredient of the offences under Section 420 r/w Section 34 of the said Code was made out in the complaint. 9. Taking the averments made in the complaint as it is, by no stretch of imagination any ingredient of the offences under Section 420 r/w Section 34 of the said Code was made out in the complaint. 9. The proceedings initiated by the second Respondent is nothing but abuse of process of law. Therefore, a case is made out for quashing the proceedings. Accordingly, Rule made absolute in terms of prayer clause (a). 10. Parties and the concerned Court to act upon an authenticated copy of this order.