Shri.Sushilkumar Ramnarayan Ruia v. State of Maharashtra & Anr.

Shri.Anilkumar Sushilkumar Ruia. …Applicant versus

1.State of Maharashtra & Anr. ...Respondents AND CRIMINAL APPLICATION NO.649 OF 2011 & CRIMINAL APPLICATION NO.650 OF 2011 Shri.Shrikant Govardhandas Ruparel …Applicant versus

1.State of Maharashtra & Anr. ...Respondents --- Mr.Abhay Nevagi, for Applicants in APL nos.647/11, 648/11, 651/11, 652/11. Mr.P.R.Arjunwadkar, for Applicants in APL 649/11, 650/11. Mr.Kuldeep S.Patil, for Respondent no.2 in all matters. Mr.S.S.Pednekar, APP for State in all matters. --- CORAM : K.U.CHANDIWAL, J. DATED : 26th September, 2012 Pvr P.C. : apl647-11grp.sxw These set of applications question orders of the learned Judicial Magistrate First Class, Kolhapur dated 25.11.2010, declining to discharge them for the offence punishable under Section 468, 471 r/w. 34 of IPC, however, the applicants were discharged for the offence punishable under Sections 420, 120B of IPC. The petitioners carried the matter in the respective criminal revision applications before the learned Sessions Judge at Kolhapur, however, did not yield any result.

2. The respondent -Sangli Bank Ltd. prosecuted the petitioners in the capacity as Directors of Kolhapur Sugar Mills Ltd., asserting that they have, by issuing hundies signed by original accused no.5 K.E.Prasad on behalf of accused no.1-the sugar mill, in favour of the purchasers either M/s.Jay Tex Udyog, or M/s. Star India Sales Corporation, cheated the bank , as the hundies were not honoured by M/s.Star India Sales Corporation and even they have disputed the invoices which were presented by the Sugar mills.

3. Initially Writ Petition no.1231 of 2009 was moved by Anil Kumar Ruia, it was disposed of on 4th August,2009, however, liberty was granted for getting the NBW terminated and to make an appropriate Pvr apl647-11grp.sxw application for discharge before the Trial Court with liberty to raise all contentions.

4. Another Writ Petition no.1295 of 2009 was filed by Kolhapur Sugar Mills Ltd, and by order dated 4th August,2009, the prosecution i.e. Process issued against the petitioner-company was quashed and set aside.

5. It is a matter of record, the other accused K.E.Prasad, M/s.Jay Tex Udyog and M/s.Star India Sales Corporation are discharged by the bank in the respective proceedings. Shri.A.P.Desai expired during the pendency and the case is abated.

6. The afore referred details are of importance as the theory propounded by the bank in the prosecution, starts with the accused no.1 (Sugar Mills) had financial transaction with the bank since long time. There were loan arrangements called as Inland Bill Discounting Facility which was after going through the necessary formalities and execution of documents, for an amount of Rs.65,00,000/-. The accused no.1 (Sugar Mills) was allowed to draw hundies (bill of exchange) at Laxmipuri Branch of the bank which was against the invoices and acceptance of respective parties. Such hundies, subject of individual complaints, were issued under the authorised signature of original accused no.5 and accused no.6 drew the Pvr apl647-11grp.sxw hundies as detailed in the respective complaints. However, the hundies on presentation were dishonoured. The notices were issued to the other accused i.e. M/s.Jay Tex Udyog and M/s.Star India Sales Corporation, but did not yield any result. They even disputed issuance of invoices as claimed by the sugar mills.

7. The learned Judge initially issued process under Sections 420, 468, 471, 120B r/w. 34 of IPC by order dated 14.6.1995.

8. The grievance of the applicants is that they were not served with the summons in the criminal case and surreptitiously NBW was issued against them, prior thereof paper proclamation was caused and have faced the turmoil. The applicants applied the learned Judicial Magistrate First Class for discharge. On the available material, the learned J.M.F.C., as stated earlier, has discharged the applicants for the offence punishable under Section 420, 120B of IPC by exercising provisions of Section 245(2) of Cr.P.C.

9. Reading the complaint as a whole, there is nothing to demonstrate that any of the applicants has created forged documents and presented the same to the Bank. The hundies which were signed by original accused no.5 for company have been discharged as referred earlier. The Pvr apl647-11grp.sxw omnibus statement is made that the applicants are the Directors of the Sugar Mills and therefore, the liability. Any obligation for offence under Section 468, 471 r/w. 34 of IPC, the directors' liability will not play any role as the individual act attracting the penal provisions has to be spelt out. No such situation is carved in the complaint. The learned Additional Sessions Judge has in paragraph 26 observed, “Therefore, their liability is the vicarious liability. If they have or have not played any role in forgery they could be prosecuted if accused no.1 holds guilty.” As stated earlier, accused no.1 is already discharged by this Court. There could not be vicarious liability to face penal prosecution oblivious to specific role in dealing or preparing the documents. None of the petitioners has apparently placed so called forged Hundies to the Bank.

10. The learned Additional Sessions Judge, while dismissing the revisions, has referred that if the allegations in the complaint are as it is accepted alongwith the verification statement, it is clear that those hundies were not accepted by Accused no.7 which were drawn on complainant-bank and the complainant-bank had to part with the amount of hundies. Consequently, it suffered financial loss. The hundies submitted to the complainant bank were shown as genuine. Basically, the learned Judge should have considered whether there was any representation from either of the applicants that the hundies presented to the bank were said to be Pvr apl647-11grp.sxw genuine. The signature on the hundies were of the discharged accused no.5. The ingredients of Section 468 and 471 r/w. Section 34 of IPC would hardly apply.

11. There is nothing to demonstrate, that the applicants had any pre- meditation or pre-arranged plan for dubbing, deceiving the bank.

12. It is a matter of record that the applicants are facing proceedings for recovery of the amount covered under the hundies and other financial benefits they have availed from the bank. It is also a part of record, as against the hundies, the position of the bank was secured by execution of loan documents.

13. Taking survey of the above facts, the prosecution initiated against the applicants and the process for an offence under Section 468 and 471 r/w. 34 of IPC, calls for interference.

14. The applicants are discharged from the said prosecution. The respective applications are allowed. (K.U.CHANDIWAL, J.)