Kailas Shrikisan Kulwal and Others vs The State of Maharashtra and Others

S.S. Shinde, J—Heard. Rule. Rule made returnable forthwith.

This Petition is filed with following prayer clause:

"B] By appropriate writ, order or direction the FIR in C.R. No. 188 of 2009 registered with the Amalner Police Station, Amalner dated 12.11.2009 [Exh. A] and entire proceedings in pursuance to the said FIR, as against the petitioners may kindly be quashed."

The adjudication of the present Petition is confined to the petitioner Nos. 1 to 5, 7 and 8. The Petition so far petitioner No. 6 Mayur Kailas Kulwal is concerned, his Petition is dismissed as withdrawn.

The learned counsel appearing for the petitioners submits that, the contents of First Information Report if read as it is, would not constitute any offence as against the petitioners. It is further submitted that, the default in repayment of loan can not be an offence by any stretch of imagination. However, perusal of First Information Report would disclose that, the only allegation as against the petitioners is alleged default in repayment of amount of loan. Therefore, mere default in repayment of loan not be considered as an offence.

It is further submitted that, the petitioner Nos. 1 to 5 have already repaid the entire amount of loan in the year 2009 itself. However, even after a period of 4 Years, the criminal proceedings are still pending. Furthermore, the petitioners No. 7 and 8 have repaid the entire loan amount. In such circumstances, the pendency of the criminal proceedings for recovery of amount is abuse of process of law. It is further submitted that, the respondent society has adequate remedies available under the law for recovering the alleged amount. However, instead of resorting to such remedies, the present criminal proceedings are resorted to. It is submitted that, such proceedings are not maintainable.

It is further submitted that, the First Information Report is filed in the Year 2009. Till the date there is no progress in the proceedings. Therefore, on the ground of delay the proceedings deserve to be quashed. It is further submitted that, the allegations in the First Information Report are vague in nature; no allegations are made, as against the present petitioners, so as to implicate them in the alleged crime. It is further submitted that, the allegations in the First Information Report regarding the alleged loan transactions in one family are baseless. It is most respectfully submitted that, there is no bar for disbursement of such loans.

It is further submitted that, the alleged irregularities stated in First Information Report cannot be considered as an offence by any stretch of imagination. Therefore, the entire proceedings, which are initiated and prosecuted by abusing the process of law deserve to be quashed. It is further submitted that, the allegations in First Information Report are so improbable that, no person of ordinary prudence would ever arrive at a conclusion that, the petitioners have committed the alleged offence. Entire proceedings as against the petitioners are abuse of process of law. It is further submitted that, as per the law laid down by the Hon''ble Supreme Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 : (1992) CriLJ 527 : (1990) 4 JT 650 : (1990) 2 SCALE 1066 : (1992) 1 SCC 335 Supp : (1990) 3 SCR 259 Supp where the allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding further against the accused, the proceedings need to be quashed. In view of the aforesaid ratio, the proceedings in the present case, deserve to be quashed at this stage itself.

It is further submitted that, none of the contents of First Information Report prima facie establishes that, the petitioners have committed any of the offence, nor there is any document on record to show the nexus of the petitioners, with the offence alleged.

The learned counsel appearing for the petitioners pressed into service exposition of the Bombay High Court in the case of Yashapal Nathuram Janwani and Others Vs. State of Maharashtra and Another, (2013) ALLMR(Cri) 3794 and submits that, the said Judgment is squarely applicable in the present case inasmuch as subject matter of the dispute would fall within purview of the Maharashtra Co-operative Societies Act, 1960, and therefore remedy to the complainant is available under the said Act. The learned counsel appearing for the petitioners submits that, the entire loan amount with interest has been paid by the petitioners. Therefore, he prays that, the Petition may be allowed.

On the other hand, the learned counsel appearing for the respondent No. 2, on instructions, submits that, the petitioners have already paid loan amount with interest, and the respondent No. 2 has no objection for quashing the proceedings as prayed by the petitioners.

We have given due consideration to the submissions advanced by the counsel appearing for the petitioners, learned APP for the Respondent - State and the learned counsel appearing for the respondent No. 2, with their able assistance, perused the pleadings and the grounds in the Petition, annexure thereto, Judgments cited across the bar by the counsel appearing for the petitioners and we are of the opinion that, Petition deserves to be allowed for following two reasons; firstly, the petitioners have paid entire loan amount with interest as contended by the learned counsel appearing for the petitioners and said statement is not disputed by the learned counsel appearing for the respondent No. 2; and secondly, prima facie it appears that, subject matter falls within purview of the Maharashtra Co-operative Societies Act, 1960. The learned counsel appearing for the petitioners is right in contending that, in somewhat similar facts situation in the case of Yashapal Nathuram Janwani [supra], in the facts of that case this Court held that, matter falls within purview of the Co-operative Societies Act and filing of criminal case is nothing but abuse of process of law.

In view of the fact that, the petitioners have paid entire loan amount with interest as stated by the learned counsel appearing for the petitioners and said statement is not disputed by the learned counsel appearing for the respondent No. 2 and further the learned counsel appearing for the respondent No. 2 has no objection for quashing the proceedings, the Petition deserves to be allowed, and accordingly same is allowed in terms of prayer clause-B, to the extent of petitioner Nos. 1 to 5, 7 and 8 only.

Rule made absolute to above extent. The Criminal Application stands disposed of accordingly.