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2009 DIGILAW 221 (BOM)

Ashok Fula Ahire v. State of Maharashtra

2009-02-16

S.S.SHINDE

body2009
JUDGMENT 1. Rule. Heard forthwith. 2. This application is filed for quashing and setting aside the proceedings bearing R.C.C.No. 133/2007 registered on the basis of charge sheet submitted in the Court of Judicial Magistrate, Amalner dated 24th September, 2007 in connection with F.I.R. bearing Crime No. 1/2007 registered at Marwad Police Station, Tal. Amalner on 4.1.2007 under sections 420, 468, 506 r/w. 34 of Indian Penal Code. 3. Background facts of the case are as under : According to the applicant, in 2005-2006 the State Government introduced Swarnajayanti Gram Swarojgar Yojana, pupularli known as S.G.S.Y. Scheme for the people below poverty line. As per the said scheme, Rs.48,600/- to be provided for the purchase of buffaloes to each borrower for doing milk business, as loan on his name by the Bank of which the present applicant (Accused No. 4) was Manager. 4. It is further case of the applicant that after due inquiry loan proposals of 19 borrowers were sanctioned by the Dena Bank, Amelner of which the applicant then was Manager. 5. On 16.12.2005 in the first phase of loan disbursement, the loan amount of Rs.32,400/- for the purchase of 2 buffaloes each was disbursed in the accounts of 19 borrowers in the name of buffalo vendor/ seller, Shri. Dilip Rajaram Patil, R/o. Dodhwad, Tal. Amalner, who is accused No. 3 in the said crime. 6. On 29.12.2005 the applicant physically verified the buffaloes. After examination of the said buffaloes by the Veterinary Doctor of Panchayat Samiti, Amalner in presence of the applicant, all the buffaloes were insured. On 18.4.2006 considering the smooth transactions in the first phase of loan disbursement, the applicant issued demand draft of Rs.3,07,800/-(Rs.16200/-each for 19 borrowers) in the name of Shri. Dilip Rajaram Patil, accused No. 3, again with intention that the 19 borrowers would purchase their remaining 1 buffalo each only. On 26.4.2006 the present applicant wrote a letter to Shri. Dilip Rajaram Patil, accused No. 3 pointing him out that the Bank has already given him the payment for purchase of 19 buffaloes, Rs.16200/- each and as it has been observed that 9 borrowers have not purchased the buffaloes from him, he was directed to either give 1 buffalo each to these 9 persons or to deposit the respective amount in the Bank or otherwise legal action will be taken against him. 7. 7. On 30.6.2006 Shri.Dilip Rajaram Patil, the accused No. 3, intimated the applicant that as some of the borrowers (which includes name of the complainant) are not willing to purchase the buffaloes, he is depositing the respective amount of Rs.16,200/-each in their loan account with the Bank. On 30.8.2006 accordingly Shri.Dilip Rajaram Patil, accused No. 3, deposited amount of Rs.16,200/- in the loan account of complainant. 8. On 4.1.2007 respondent No. 2 Shri. Vijai Madhukar Koli, one borrower out of the 19, lodged a complaint bearing Crime No. 1/2007 at Marwad Police Station, Tal. Amalner for the offence punishable under section 420, 506, 468 r/w. 34 of I.P.C. against only 3 persons i.e. (1) Shri. Vijay Prabhakar Patil, (2) Shri. Prabhakar Santosh Patil and (3) Shri. Dilip Rajaram Patil wherein name of the present petitioner is not mentioned. 9. On 24.9.2007 chargesheet was submitted in the Court of Judicial Magistrate, First Class, Amalner by adding two more sections i.e. sections 408 and 504 of I.P.C. in it and accordingly on the basis of the said charge sheet, Regular Criminal Case No. 133/2007 was registered against all the accused including the present applicant. 10. Being aggrieved and dissatisfied with the filing of chargesheet and registration of Regular Criminal Case No. 133/2007 against the present applicant on the basis of F.I.R. bearing Crime No. 1/2007 on 4.1.2007 at Marwad Police Station, Tal. Amalner, on the basis of false complaint of respondent No. 2, the present petitioner is challenging the legality and validity of the said charge sheet in the said regular criminal case. 11. The learned counsel appearing for the applicant would submit that the name of the applicant is not mentioned in the F.I.R. It is further submitted that F.I.R. is lodged after 8 months. It is submitted that the alleged incident took place on 18.4.2006, however, the F.I.R. is lodged on 4.1.2007. It is further submitted that the present applicant in due discharge of his duties, has only issued the demand draft. According to the learned counsel for the applicant, it was for the other accused to see the implementation of the scheme. He further submitted that looking to the smooth transactions in the first phase, the second demand draft was issued in the name of accused No. 3 who was supposed to give one buffalo each to 19 persons. According to the learned counsel for the applicant, it was for the other accused to see the implementation of the scheme. He further submitted that looking to the smooth transactions in the first phase, the second demand draft was issued in the name of accused No. 3 who was supposed to give one buffalo each to 19 persons. It is further submitted that the original complainant has absolutely no grievance against the present applicant and it seems that only during the investigation the name of the present applicant is added in the chargesheet as accused No. 4, alleging that the present applicant in collusion with the accused No. 3 has cheated the respondent No. 2/ original complainant during the disbursement of second phase loan amount of Rs.16,200/- and two more sections i.e. section 408 and 504 of I.P.C. were added in the chargesheet submitted on 24.9.2007 in the Court of Judicial Magistrate, First Class, Amalner and accordingly on the basis of the said chargesheet, Regular Criminal Case No. 133/2007 is registered against all the accused including the present applicant. 12. According to the learned counsel for the applicant, the second demand draft was issued in favour of Shri.Dilip Rajaram Patil, accused No. 3, on 18.4.2006 considering the smooth transactions in the first phase of loan disbursement. When it came to the notice of the applicant that the 9 borrowers have not purchased the buffaloes from the applicant, he directed said Dilip Rajaram Patil by letter dated 26.4.2006 either to give buffalo each to these 9 persons or to deposit the respective amount in the bank account or otherwise legal action will be taken against him and said Dilip Rajaram Patil, accused No. 3, has deposited Rs.16,200/- each in the loan account of the bank including in the name of complainant. 13. The learned counsel further submitted that no alleged offence has been taken place, the name of the present applicant is falsely inserted in the chargesheet filed on 24th September, 2008. It is further submitted that entertaining such false, frivolous and vexatious complaint will be nothing but abuse of judicial process of law and wastage of time and money. 13. The learned counsel further submitted that no alleged offence has been taken place, the name of the present applicant is falsely inserted in the chargesheet filed on 24th September, 2008. It is further submitted that entertaining such false, frivolous and vexatious complaint will be nothing but abuse of judicial process of law and wastage of time and money. It is further submitted that no offence punishable under section 420, 408, 468, 504, 506 r/w. 34 of Indian Penal Code is made out against the present applicant as is seen from the F.I.R. registered as crime No. 1/2007 on 4.1.2007 at Marwad Police Station, Tal. Amalner. The name of the applicant has been inserted in the chargesheet without properly appreciating the statements. The chargesheet is being filed against the present applicant. It is further submitted that the alleged transaction has taken place on 18.4.2006, there is inordinate delay in lodging the F.I.R at Crime No. 1/2007 on 4.1.2007 and the same has not been properly explained. It is further submitted that so far the complainant is concerned, the amount of Rs.16,200/- is deposited by the accused No. 3 in his loan account and therefore, no loss was caused to the complainant. It is further submitted that if at all, there is any grievance to the complainant, the grievance is of civil nature which can be tried in the civil litigation and therefore, the criminal complaint filed by the complainant is not tenable. 14. Though the complainant is served, none appeared for the respondent No. 2/ original complainant. 15. The learned A.P.P. appearing for the respondent No. 1 State vehemently opposed the application and submitted that the name of the present applicant has been rightly mentioned in the chargesheet and allegations against him are based upon investigation in pursuant to Crime No. 1/2007. 16. After hearing the learned counsel for the applicant and after perusing the application, annexure thereof and the chargesheet which is made available by the learned counsel for the applicant, I am of the considered view that the present application needs to be entertained. The original complainant has not mentioned the name of the present applicant in the F.I.R. No specific role or any allegations are made against the present applicant in the F.I.R. On careful perusal of the chargesheet would reveal that the accused No. 1 is Sarpanch of the village. The original complainant has not mentioned the name of the present applicant in the F.I.R. No specific role or any allegations are made against the present applicant in the F.I.R. On careful perusal of the chargesheet would reveal that the accused No. 1 is Sarpanch of the village. The accused No. 2 is Chairman of one Bajrang Doodh Utpadak Sanstha. The accused No. 3 is a businessman, dealing in transactions of purchasing and selling the buffaloes. The careful perusal of the chargesheet would show that the accused Nos. 1 and 2 arranged the Gram Sabha in the village and instructed the villagers about the Swarnjayanti Swayanrojgar Yojana and the said scheme was for the business of selling and purchasing the milk. It was stated in the said Gram Sabha that the loan can be obtained under the said scheme from the Panchayat Samity and disbursement of loan would be by Dena Bank, Amalner. Further, the reading of the chargesheet reveals that the accused Nos. 1 and 2 have submitted that loan proposals of complainant and witnesses of Rs.48,600/-each for purchasing 3 buffaloes in two stages. Further, it is mentioned in the chargesheet that the accused Nos. and 3 have got loan sanctioned i.e. Rs.48,600/-and same loan amount was borrowed from the bank in collusion with the present applicant, who is accused No. 4, however, third buffalo was not purchased from the said amount. It is further mentioned in the chargesheet that the accused Nos. 1 to 3 have obtained the receipt from the agricultural market committee and same was submitted with present applicant and behind back of the complainant, the second instalment towards loan of Rs. 16,200/- had been issued in the name of the accused No. 3. In fact, third buffalo was not purchased by the complainant, however, it was shown that the complainant has purchased the third buffalo, the accused Nos. 1 and 2 submitted receipts without signatures to the Bank. The bank issued cheque in favour of accused No. 3. According to the contents of the chargesheet, the accused Nos. 1 to 3 in collusion with present applicant, accused No. 4, have cheated the complainant though the actual buffalo was not purchased and received by the complainant. 17. In my considered view, so far the present applicant is concerned, he acted on the proposal submitted by the accused Nos. According to the contents of the chargesheet, the accused Nos. 1 to 3 in collusion with present applicant, accused No. 4, have cheated the complainant though the actual buffalo was not purchased and received by the complainant. 17. In my considered view, so far the present applicant is concerned, he acted on the proposal submitted by the accused Nos. 1 and 2 and looking to the smooth transaction in the first phase and on the basis of the proposals submitted by the accused Nos. 1 and 2, in the second phase, the applicant issued Demand draft of Rs.3,07,800/- (Rs.16,200/- each for 19 borrowers) on 18.4.2006 in favour of accused No. 3 Shri. Dilip Rajaram Patil. The applicant was clear in his mind that like in earlier phase 19 borrowers would purchase buffaloes from the accused No. 3, therefore, he issued demand draft as the amount of Rs.16,200/-each for 19 borrowers was paid to Shri. Dilip Rajaram Patil, who sold the buffaloes in the first phase and when the transaction was smooth and total amount which was given to said Dilip Rajaram Patil was utilized by giving buffaloes to 19 borrowers in first phase. 18. Immediately, on 26.4.2006 when it was brought to the notice of the present applicant that, from said Dilip Rajaram Patil, accused No. 3, the 9 borrowers have not purchased the buffaloes, the applicant by letter dated 26th April, 2006, directed the said accused No. 3 Dilip Rajaram Patil either to give one buffalo to each 9 persons or to deposit the respective amount in the Bank or otherwise legal action will be taken against the accused No. 3. On 30.6.2006 the accused No. 3 Shri. Dilip Rajaram Patil intimated the present applicant that as some of the borrowers including the complainant are not willing to purchase the buffaloes, he has deposited the respective amount of Rs.16,200/-each in their loan account with the Bank. Accordingly, the said accused No. 3 has deposited the amount of Rs.16,200/-in the loan account of the complainant. 19. If the sequence of events and dates are taken in to consideration, in my considered view the applicant approached to the scheme and implemented the scheme in two phases with bona fide belief that the proposals submitted by the accused Nos. Accordingly, the said accused No. 3 has deposited the amount of Rs.16,200/-in the loan account of the complainant. 19. If the sequence of events and dates are taken in to consideration, in my considered view the applicant approached to the scheme and implemented the scheme in two phases with bona fide belief that the proposals submitted by the accused Nos. 1 and 2 to disburse the loan amount in the name of accused No. 3, to enable him to give one buffalo each to 19 borrowers was trusted by the applicant, looking to the smooth transactions in the first phase. The accused Nos. 1 and 2 are supposed to coordinate the entire scheme and to submit proposal, have submitted proposalto the bank and on their proposal the present applicant acted with bona fide belief that since in the first phase the scheme has been implemented and the amount which was disbursed in the name of accused No. 3 in turn has been spent by providing one buffalo to each 19 borrowers in the said phase. 20. The action of the present applicant to write letter immediately to Dilip Rajaram Patil on 26.4.2006 when it was brought to the notice of the applicant that 9 borrowers have not received the buffaloes from the accused No. 3, was spontaneous and accordingly within 8 days from the issuance of demand draft he wrote detail letter to accused No. 3 Dilip Rajaram Patil, indicating that in case no buffaloes are handed over to 9 borrowers including the complaint who have not received the buffaloes so far, the accused No. shall deposit amount in their loan account or in case, he fails to deposit the same, he would face legal action. 21. In my considered view, the name of the present applicant was not mentioned in the F.I.R. and complainant had no grievance against the present applicant. At the belated stage on 24.9.2007 the name of the present applicant is added in the chargesheet. In my considered view, after careful reading of the chargesheet, it would clearly demonstrate that the real culprits are accused Nos. 1 to 3 on whose instance and on submitting proposals, the present applicant has acted. At the belated stage on 24.9.2007 the name of the present applicant is added in the chargesheet. In my considered view, after careful reading of the chargesheet, it would clearly demonstrate that the real culprits are accused Nos. 1 to 3 on whose instance and on submitting proposals, the present applicant has acted. By any stretch of imagination it cannot be said that the present applicant acted in collusion with accused No. 1 to 3 and conspired with them to cheat the complainant or other borrowers and therefore, any further proceedings would be wastage of time of the Court and abuse of process of law. Therefore, the application deserves to be allowed in terms of prayer clause B. 22. In the result, the proceedings in the Regular Criminal Case No. 133/2007 registered on the basis of the chargesheet submitted in the Court of Judicial Magistrate, First Class, Amalner on 24.9.2007 in connection with F.I.R. bearing Crime No. 1/2007 registered by respondent No. 2 at Marwad Police Station, Tal. Amalner on 4.1.2007 for the offences punishable under sections 420, 468, 506 r/w. 34 of Indian Penal Code so far it relates to the present applicant, is quashed and set aside. The Rule is made absolute in terms of prayer clause B and the application is disposed of. It is made clear that this order is passed only qua present applicant and the case shall proceed against other accused Nos. 1 to 3.