Sau. Maya Shivanandan Mor v. Sau. Maya Motilal Shere

Judicial Magistrate, First Class, Yavatmal in Criminal Case No. 2250 of 2009. The brief facts giving rise to filing of the present application are as under:- The applicant is the original accused. A complaint came to be lodged by the respondent No.1 against the applicant under Section 138 read with Section 142 of the Negotiable Instruments Act. It was submitted in the complainant that the complainant and accused had acquaintance and friendly relations and also were partners of one Scooter Training Institute. It was further stated in the complaint that the accused requested the complainant for an amount of rupees two lakhs on the ground that her husband is seriously ill and she requires amount for medical expenses. The accused assured the complainant that the amount would be repaid by her within two months. Though the complainant expressed her inability for such a big amount, the accused persuaded her for availing loan from one M/s. SKS Micro Finance. It is further the grievance of the complainant that as the amount was not repaid by the accused/applicant, the complainant requested the applicant/accused for repayment time and again and the accused submitted that as she is not having the 2 amount in cash with her she would give cheque of the said amount and accordingly issued a cheque of Buldana Urban Co- operative Credit Society Limited, Buldana. When the complainant deposited the said cheque for withdrawing the amount, the same was returned back on the ground that the complainant directed the bank to stop the payment of the amount. On these facts, the complaint was lodged by the respondent No.1. Learned JMFC, Yavatmal, vide order dated 19.03.2010, on finding that there is a prima facie case made out by the complainant, was pleased to issue process against the applicant/ accused for the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by the said order, the applicant preferred the revision before the learned Sessions Judge, Yavatmal and the learned Additional Sessions Judge, on considering the facts and submissions of the learned Counsel, found no favour with the revision and the revision came to be dismissed by order dated 21.01.2011. The applicant is questioning the aforesaid orders. Heard Shri A. Deshpande, the learned Counsel appearing on behalf of the applicant, Shri S. Maniyar, the learned Counsel appearing on behalf of the respondent No.1 and Shri D.B. Yengal, the learned Additional Public Prosecutor appearing on behalf of the respondent No.2/State. The only ground raised by the learned Counsel for the applicant is that the Buldana Urban Co-operative Credit Society Limited being a cooperative society as defined under the provision of Section 5(ccii) of the Banking Regulation Act, 1949 is not a bank and as such no case was made out by the complainant under Sections 138 and 142 of the Negotiable Instruments Act and this fact is not considered by both the Courts below. The learned Counsel for the applicant places heavy reliance on the information received from the Reserve Bank of India on the application of the applicant under the Right to Information Act. It is not in dispute that this ground was raised before the revisional Court which was dealt with by the revisional Court. 3 The relevant submission before the revisional Court is as follows:- “The learned Counsel also referred the letter received under the Right to Information Act by the Chief Public Information Officer of Reserve Bank of India, in which, it is mentioned that Co-operative Credit Society cannot work as a bank as per Banking Regulations Act and such society cannot provide the facility of cheque and cheque books to its members. The learned Counsel further submitted that the cheque on which strength the complaint is filed is not a cheque within the meaning of section 138 of the Act and, therefore, on that count the complaint is liable to be dismissed.” As this is the limited point of controversy raised in the application, the issue involves around this controversy. The learned revisional Court while dealing with the submission of the learned Counsel by referring to the judgment of this Court in Hinganghat Nagari Sahakari Pat Sanstha Maryadit, Hinganghat .v. Ashok Keshavrao Fukat (reported in 2008(3) Mh.L.J., 732) has observed thus - “In this case, His Lordship of the Hon'ble Bombay High Court, Bench at Nagpur observed that a Co-operative Society doing the business of banking as defined in clause (b) of Section 5 of the Banking Regulation Act, 1949 is covered by Section 2(10) of the Co-operative Societies Act. Therefore, credit society falls within the ambit of Section 44-A of the Societies Act. Consequently, Section 44-A has full application against the applicant/appellant.” It will be useful to refer to the observations of this Court in the case of Hinganghat Nagari Sahakari Pat Sanstha Maryadit, Hinganghat .v. Ashok Keshavrao Fukat (cited supra) as follows :- “Perusal of the above provision shows that the provisions of Section 44-A will apply in its application in inclusive manner to a co-operative society and includes a Co-operative bank. Definition of Co-operative Bank under section 2(1) of the Societies Act reads thus : “Co-operative bank means a society which is doing 4 the business of banking as defined in clause (b) of sub-section (1) of Section 5 of the Banking Companies Act, 1949 and includes any society which is functioning or is to function as a Co-operative Agriculture and Rural Multipurpose Development Bank under Chapter XI.” A Co-operative Society thus doing the business of banking as defined in clause (b) of Section 5 of the Banking Regulation Act, 1949, is covered by this definition. It is clarified at this stage that the previous name of the Banking Companies Act, 1949 was changed as Banking Regulation Act 1949 by the Banking Laws (Application to Co-operative Societies) Act, 1965 (23 of 1965), Section 11 with effect from 1-3-1966. It further appears that in Section 2(10) of the Societies Act despite the above amendment the mention of “Banking Companies Act, 1949” continues, which is wrong. In the light of the above provision, I have absolutely no doubt that the applicant/credit society falls within the ambit of Section 44-A of the Societies Act. Consequently, Section 44-A applicant/appellant.” (emphasis supplied). application against In view of the judgment of this Court in the case of Hinganghat Nagari Sahakari Pat Sanstha Maryadit, Hinganghat .v. Ashok Keshavrao Fukat (cited supra), I see no merit in the submission of the learned Counsel for the learned Counsel for the applicant based on the communication issued by the Reserve Bank of India which only informs that RBI does not regulate the credit societies. The said information no way supports the submissions of the learned Counsel for the applicant and more particularly in view of the judgment of this Court in the case of Hinganghat Nagari Sahakari Pat Sanstha Maryadit, Hinganghat .v. Ashok Keshavrao Fukat (cited supra) wherein this Court specifically observed that the credit society falls within the ambit of Section 44-A, I see no reason to take any different view. The application is devoid of merit and deserves to be rejected. In the result, the criminal application is rejected. *rrg. JUDGE