Shivaling Swamy and Others vs Nanjunda Swamy

Mohan Shantanagoudar

Petitioners have sought for quashing the order of issuing process against them in C.C.No. 2072/2012 for the offence punishable under Sections 405, 406, 409, 415, 417, 418, 420, 463, 464, 465, 468, 469, 470, 471 & 120B of IPC.

The respondent is the complainant. The case of the complainant is that the petitioners herein misused a sum of ` 4,30,000/- which was granted by the State in favour of Shivayogi Swamy Memorial Education Society; account is opened in the Bank by first petitioner in his personal name and the cheque given by the State is deposited in the said Bank and the said amount is withdrawn by the first petitioner; the complainant states that he is the President of Shivayogi Swamy Memorial Education Society. Therefore, the first petitioner has no locus standi to receive the cheque from the State Government which was paid in favour of Shivayogi Swamy Memorial Education Society; petitioner Nos. 2 to 12 have colluded with the first petitioner and have opened account in the Bank. The sum and substance of the case of the complainant is that the amount of ` 4,30,000/- belonging to Shivayogi Swamy Memorial Education Society is utilized by the first petitioner for his personal use with the help of petitioner Nos. 2 to 12.

However, it is the case of the petitioners herein that the first petitioner is the President of Shivayogi Swamy Memorial Education Society and in that capacity the account is opened in the Bank and the said amount is utilized for the purpose of the society and therefore, the complaint is liable to be dismissed.

From the above it is clear that there appears to be some dispute with regard to the post of President of Shivayogi Swamy Memorial Education Society. The complainant as well as the petitioner claim to be the President of the said society. However, the further allegation of the complainant is that the amount is utilized not for the purpose of society but for the personal use of petitioner No. 1. Since the misuse is alleged against the first petitioner, the same needs to be investigated. So also it is open for both the parties to approach the jurisdictional authorities under the provisions of Societies Registration Act.

Be that as it may, since prima facie material is found against the first petitioner the proceedings cannot be quashed against him. However, the same cannot be said as against petitioner Nos. 2 to 12 who are allegedly helped the first petitioner in opening the account. Vague and bald allegations are made against them. In view of the same, no useful purpose will be served in continuing the proceedings against petitioner Nos. 2 to 12. However, the proceedings may continue as against the first petitioner. It is open for the first petitioner to argue for discharge before the Court below if he so chooses at the relevant stage. Hence the following order is made:

ORDER

(a) The proceedings initiated in C.C.No. 2072/2012 as against petitioner Nos. 2 to 12 stands quashed.

(b) The proceedings against first petitioner shall go on. The first petitioner shall appear before the concerned Court and may seek for his exemption to appear before the Court below whenever his presence is absolutely not necessary.

(c) It is also open for the first petitioner to argue for discharge at the relevant stage.

Criminal petition stands allowed-in-part accordingly.