Ultimately it is to be noted that the purpose for making a provision
under Section 148(3) of the said Act that no prosecution under this Act
shall be lodged, except with the previous sanction of the Registrar is
precisely to prevent prosecution upon trivial or frivolous or hyper technical
grounds. Even assuming that there was some delay or dispute in the
matter of furnish of documents in pursuance of directions made by the
Deputy Registrar in his order dated 5 March 2004, that by itself cannot be
a ground for sanctioning prosecution of the managing committee
members for having committed offences under Sections 146(i) and 146(j)
of the said Act. In this case, it cannot be said that there was any willful
neglect or refusal on the part of the members of the managing committee
to furnish any information or any non compliance of the orders made
under Section 79 of the said Act without reasonable excuse. At the stage
of grant of sanction, the sanctioning authority not only has to satisfy itself
as to whether there is any prima facie commission of offence but further
whether prosecution is at all warranted upon consideration of totality of
facts and circumstances.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 489 OF 2013
WITH
CIVIL APPLICATION NO. 2300 OF 2014
Mr. Jyotindra R. Shah & Anr. ..Petitioners
versus
The Divisional Jt. Registrar,
Co-operative Societies & Ors. ..Respondents
CORAM : M. S. SONAK, J.
Date of Pronouncing the Judgment : 14 October 2014
Citation;2015(1) ALLMR256
Read original judgment here; click here
1] Rule, with the consent of the parties, Rule was made returnable
forthwith.
2] In the course of final hearing on 1 October 2014, Ms Meena Pomal
– respondent no. 4, who appears in person urged that this petition be
dismissed in limine, inter alia on the following grounds:-
(A) That the petitioners have made several misstatements of facts with
regard to their having furnished certain documents to respondent no. 4;
(B) That extension of interim relief was obtained on 22 August 2014
without disclosing to the court that there was no order extending the
interim relief made on 4 July 2014.
3] In so far as the first objection is concerned, the same can by no
means be regarded to be 'preliminary'. This is because the entire dispute
in the present petition concerns the non furnish of certain documents by
the petitioners to respondent no. 4, despite orders for furnish, thereby
prompting the respondent no. 1 to grant a sanction under Section 148 of
the Maharashtra Co-operative Societies Act, 1960 (said Act) for
prosecution of the petitioners. This issue shall therefore have to be taken
up whilst considering whether the impugned order dated 20 November
2012 granting sanction as aforesaid was validly made.
4] In so far as the second preliminary objection is concerned, it is to be
noted that ad interim relief was granted way back on 24 April 2013, which
was continued with substantial regularity at least upto 13 June 2014. On 4
July 2014, respondent no. 4 stated that the copy of the reply to the
statement filed by the petitioners had been served upon the society,
however the learned Senior Advocate appearing for the petitioners stated
that such copy had not been given to him. Thereupon, this Court recorded
respondent no. 4's statement that the copy would be furnished to the
learned Senior Advocate in the course of the day and the matter was
adjourned to 18 July 2014. There is no record of the ad interim order
granted earlier to continue.
5] Thereafter, on 22 August 2014, when the matter was called out,
respondent no. 4 was not present. However the learned Senior Advocate
for the petitioners pointed out that respondent no. 4 normally appears in
person and thereafter with a view to afford opportunity to respondent no. 4,
the matter was stood over to 5 September 2014. It was directed that the
interim order granted earlier was to continue till the next date.
6] Now, if the sequence of events is perused, it is obvious that on
account of some confusion with regard to the receipt of copy of
respondent no. 4's reply, the learned Senior Advocate for the petitioner
failed to make mention to this Court about extension of ad interim relief
which had been in operation since 24 April 2013. Perhaps, being unaware
of such inadvertent omission, motion was made on 22 August 2014 for the
continuance of interim order, granted earlier. By no stretch can this be
ascribed as some misleading statement, warranting dismissal of the
petition in limine.
7] As noted earlier, the challenge in this petition is to the order dated
20 November 2012 made by the Divisional Joint Registrar (respondent no.
1) granting sanction under Section 148 of the said Act against petitioner
no. 1 for purported offences under Section 146(i) and 146(j) of the said
Act.
8] Shorne of several irrelevancies, the facts and circumstances in
which the impugned order came to be made is that respondent no. 4's
husband by her application dated 14 January 2003 applied to petitioner
no. 2 society for furnish of certain documents, to which reference shall be
made hereafter. This was followed by letters dated 22 September 2003
and 29 January 2004, reiterating the demand for furnish of the
documents. By order dated 5 March 2004, the Deputy Registrar directed
petitioner no. 2 society to furnish the said documents. It is the case of the
petitioners that they, under the cover of their lawyer's letter dated 19 July
2005, furnished the necessary documents as were directed. Further in
the letter dated 11 October 2005 addressed by the Deputy Registrar of Cooperative
Societies to the Divisional Registrar there is a record that the
documents had indeed been furnished to respondent no. 4.
9] Sometime in the year 2005, respondent no. 4 lodged application no.
6 of 2005 before the Divisional Joint Registrar under Sections 146 and 147
of the said Act seeking sanction under Section 148 of the said Act to
prosecute the petitioners for having failed to comply with the order dated
5 March 2004 made by the Deputy Registrar under Section 79(1) and (2)
of the said Act.
10] For considerable length of time, the aforesaid application of
respondent no. 4 was not disposed of. Ultimately by order dated 24
September 2012 in criminal writ petition no. 3136 of 2012 instituted by
respondent no. 4, a Division Bench of this Court directed the Divisional
Joint Registrar to dispose of application no. 6 of 2005. The Divisional Joint
Registrar, by the impugned order has granted sanction under Section 148
of the said Act for prosecution of petitioner no. 1 for purported offences
under Section 146(i) and (j) of the said Act.
11] Mr. Kumbhakoni, the learned Senior Advocate for the petitioners
submitted that the Divisional Joint Registrar, in making the impugned
order, failed to take into consideration the communication dated 11
October 2005 addressed by the Deputy Registrar Co-operative Societies,
in which it is clearly recorded that the necessary documents had indeed
been furnished to respondent no. 4. The communications dated 3
February 2005 and the roznama entries dated 18 March 2004 and 17
June 2004, which were prior to issue of communication dated 11 October
2005, could therefore never have been relied upon in order to grant
sanction for prosecution of petitioner no. 1. Mr. Kumbhakoni submitted
that time and again the necessary documents were furnished to
respondent no. 4 and in case there was any deficiency, time and again
said deficiency was offered to be remedied. Respondent no. 4, on the
other hand, was never genuinely interested in receipt of the documents,
but was merely interested in prosecuting the members of the managing
committee, in order to deter them from recovering dues which the
respondent no. 4 was liable to pay to the society. Finally, Mr. Kumbhakoni
submitted that even in this Court, the petitioners offered to furnish
documents to respondent no. 4, who maintained that prosecution of
petitioner no. 1 was the only imperative and furnish of documents cannot
wipe out the offences already committed by the members of the managing
committee. Mr. Kumbhakoni submitted that if the members of the
managing committee of societies are called upon to face prosecution for
such frivolous reasons, there is danger that the cooperative movement
shall itself collapse, as no members will come forward to accept positions
with the managing committee. Taking into consideration all these
circumstances, Mr. Kumbhakoni submitted that the impugned order
deserves to be set aside.
12] Ms Pomal - respondent no. 4 who appeared in person submitted
that all the documents as directed by the Deputy Registrar in his order
dated 5 March 2004 were never furnished either to her husband or herself.
This, she stated, was evident from the communication dated 3 February
2005 addressed by the Deputy Registrar to the Divisional Joint Registrar.
Besides, the factum of non supply of copies of documents was recorded in
the roznama dated 18 March 2004 and 17 June 2004 in revision
application no. 581 of 2002. The supply of documents or rather the offer
to supply documents at a later stage, does not mitigate the offences
committed by the petitioners. Accordingly, Ms Pomal submitted that there
is no warrant to interfere with the impugned order.
13] Rival contentions now fall for my determination.
14] The communication dated 11 October 2005 addressed by the
Deputy Registrar to the Divisional Joint Registrar very categorically
records that the documents referred to therein were furnished or rather
offered to be furnished to respondent no. 4 but respondent no. 4 returned
the same and from her conduct it could be concluded that she had
purposely refused to take the same. The communication dated 11 October
2005, being significant is quoted verbatim:
“Outward No. 2357/Dy.Reg/A-W/B-2/Jayant Mahal/
Pomal/05
Dy. Registrar, Co-operative Societies, A- Ward,
Mumbai, Malhotra House, 6th floor, Opposite GPO
Mumbai 400 001
Dated 11/10/2005
To,
Divisional Joint Registrar
Co-operative Societies, Mumbai
Sub : Jayant Mahal Housing Societies, Marine Drive,
Mumbai 400020
Ref: Your letter dated 31/05.2005/Visni/Mumbai/Appeal
2492/RA/581/02/2005
With reference to the above subject.
With reference to your above letter we had called for hearing on
19.07.2005, 26-07-2005, 01-8-2005, 09-08-2005, 23-08-2005,
29.08.2005 and 13-09-2005. On 19-07-2005 by Society letter,
Society submitted the following documents to Ms. Pomal.
1. Copy of Reply by Opponent No. 1 in Revision Application No.
581/2002 dated 19th May 2002.
2. Copy of letter dated 21-05-2002 from Society's Advocate Mr.
Gabriel Pillai to Mrs. Pomal.
3. Xerox copy of Approval Bye-laws.
4. Copy of Resolution of Committee Members dated 4th January
2002 to file the Application under Section 101.
5. Copy of Registration Certificate.
6. Copy of Minutes of the General Body Meeting held on 21st
April 2002 with present members signature.
7. Copy of Minutes of the Meeting of the AGM held on 12th
August 2001 with Registered copy of present members.
8. Copy of the Minutes of the Meeting of the AGM held on 11th
August 2002 with Registered copy of present members.
9. Copy of the Minutes of the Meeting of the AGM held on 10th
August 2003 with Registered copy of present members.
10. Copy of the Minutes of the Meeting of the Special General
Meeting held on 21st March 2004 with Registered copy of
present members.
11. Copy of the Minutes of the Meeting of the Special General
Meeting held on 25th April 2004 with Registered copy of
present members.
12. Copy of the Minutes of the Meeting of the General Meeting
held on 13th August 2005 with Registered copy of present
members.
13. Copies of the Indemnity Bond, which was taken on Stamp
Papers, dated 10th May 2005.
14. Copy of Society's Certificate stating the status of ownership
with respect of Flat No. 20.
15. Copies of society's Reply in Revision, which filed before you.
All documents (Certified Copies) from Society were given to Ms.
Pomal but she returned all the Certified Copies stating in her / his
letter dated 30.08.2005 that these documents were not proper.
On 16-08-2005 in the hearing Ms. Pomal stated that by her letter
dated 14.01.2003 in Para No. E-1, 2, 3, 4, 5 and others documents
were not received from Society. Accordingly this office directed the
Society to give her the documents she wanted. Accordingly all
Certified Copies were made by Society and given to Ms. Pomal, but
again she returned all documents stating that the documents were
not proper by her letter dated 30/08/2005 (Enclosed herewith copy
for your information).
On 16-08-2005 in the hearing Ms. Pomal stated that by her letter
dated 14.01.2003 in their Para No. E-1, 2, 3, 4, 5 and others
documents not received from societies. According that society given
order to produce that documents. Accordingly on 23rd August 2005
at time hearing we had gone through the documents asked by her
letter 14-01-2003 in Para no. 2, 4, 8, 11, 12, 13, 14 related paper
should be given to her was informed to Societies. Next hearing was
fixed 13/09/2005.
In the hearing of 13-09-2005 the Society stated that according para
wise all documents were already given to them (Applicant) from time
to time on hearing.
Para No. 2. - Application dated 22-12-2002 filed before Divisional
Joint Registrar.
Para No. 4 – Minutes Book related to Society.
Para No. 8 – copy of Order dated 23-07-2002 from Dy. Registrar to
the Society to according that Minutes of meeting of General Meeting
held on 11.08.2003.
Para No. 11 – Proceeding Relation Recover Application filed under
101, Bye-laws Copy and Resolution and Application and Revision
Application 581/2002 related documents.
Para No. 12 – Reply of Society to Dy. Registrar's Letter dated
22.03.2002.
Para No. 13 – Reply of the Society to Applicant letter dated
10.08.2002 regarding dues.
Para No. 14 – Document related to Flat No. 20.
In above paras the documents are related to U/s. 101 Proceeding
are all documents already submit to by Society to Applicant. But
Para No. 2 and 12 related documents the Society has not submitted.
On the 30/08/2005 Mrs.Pomal returned all the documents whichever
she received from society in this Office. So on her conduct it can be
concluded that she has purposely refused to take the Documents.
This is for your information.
Sd/-
Dy. Registrar
Co-operative Societies, A Ward, Mumbai
C.C.
1. Mrs. H. M. Pomal
2. Chairman/ Secretary, Jayant Mahal Co-op. Hsg. Ltd.
Sd/-
Dy. Registrar
Co-operative Societies, A Ward, Mumbai”
[Emphasis supplied]
15] The aforesaid communication does not appear to have been taken
into consideration by the Divisional Joint Registrar in making the impugned
order dated 20 November 2012. Instead, the Divisional Joint Registrar
has made reference to the communication dated 3 February 2005 (though
not by date). Further the Divisional Joint Registrar has noted roznama
entries dated 18 March 2004 and 17 June 2004 in revision application no.
581 of 2002. The said roznama entries can hardly be said to be relevant,
particularly since the allegation pertains to the alleged non compliance
with directions contained in the order dated 5 March 2004 and the
communication dated 11 October 2005 records that attempts were indeed
made by the petitioners to furnish the documents to respondent no. 4 who
purposely refused to accept the same.
16] From the perusal of the list of the documents, it is clear that most of
the documents were in the public domain and it was easily possible for
respondent no. 4 to obtain the same from respective authorities before
whom they may have been lodged by the petitioners. The documents do
not appear to be of such nature as would afford any particular advantage
to the petitioners, by way of not furnish of the same to respondent no. 4.
But in any case, even before this Court, without prejudice, the petitioners
offered the copies of the documents to respondent no. 4. For this purpose,
under the orders of this Court, charts were prepared, so that the
controversy regards non receipt of documents is narrowed to the
minimum. However, it does appear that respondent no. 4 was interested
less in the documents and more in prosecution of petitioner no. 1, for
having failed to allegedly supply such documents, almost a decade ago. If
circumstances are considered, then I do find merit in the submission of Mr.
Kumbhakoni that this was not a case where sanction under Section 148 of
the said Act should have been granted in order to launch a criminal
proceedings against the petitioners.
17] Ultimately it is to be noted that the purpose for making a provision
under Section 148(3) of the said Act that no prosecution under this Act
shall be lodged, except with the previous sanction of the Registrar is
precisely to prevent prosecution upon trivial or frivolous or hyper technical
grounds. Even assuming that there was some delay or dispute in the
matter of furnish of documents in pursuance of directions made by the
Deputy Registrar in his order dated 5 March 2004, that by itself cannot be
a ground for sanctioning prosecution of the managing committee
members for having committed offences under Sections 146(i) and 146(j)
of the said Act. In this case, it cannot be said that there was any willful
neglect or refusal on the part of the members of the managing committee
to furnish any information or any non compliance of the orders made
under Section 79 of the said Act without reasonable excuse. At the stage
of grant of sanction, the sanctioning authority not only has to satisfy itself
as to whether there is any prima facie commission of offence but further
whether prosecution is at all warranted upon consideration of totality of
facts and circumstances.
18] The policy of Legislature, in enacting a provision like Section 148 of
the said Act is to confer adequate protection, inter alia to the members of
the managing committees and to ensure that they are not prosecuted for
acts done by them in the discharge of their duties as members of the
managing committee, without there being any reasonable cause. The
object of such provision is to protect, inter alia the members of the
managing committees from frivolous, vexatious or false prosecution for
offences alleged to have been committed by them while acting or
purporting to act in the discharge of their duties as members. The larger
interest of the efficiency of the co-operative movement demands that
members of managing committees, who have been democratically elected
from amongst the members of the society, should be free to perform their
duties fearlessly and undeterred by any apprehension of their possible
prosecution at the instance of parties to whom annoyance or injury may
have been caused by their legitimate acts done in the discharge of their
duties. This section has been enacted to facilitate an effective and
unhampered performance of their duties, providing for scrutiny into the
allegations of commission of offence by them by the Registrar and a prior
sanction for their prosecution as a condition precedent to the cognizance
of the cases against them by the courts. Such a provision therefore, can
neither be construed too narrowly nor too widely. Too narrow and
pendentic construction may render it otiose, whereas too wide
construction may enable members, who out of malice, malafides or with
dishonest intentions have committed offences which ultimately affect not
just the members of the co-operative society, but also a co-operative
movement in general.
19] Therefore, if the totality of the facts and circumstances as obtain in
the present case, are taken into consideration then the impugned order
dated 20 November 2012 sanctioning prosecution against petitioner no. 1,
is untenable. The allegation is in the context of alleged non furnish of
documents to respondent no. 4 in pursuance of Deputy Registrar's Order
dated 5 March 2004. The material on record suggests that the documents
were furnished or at least most of the documents were furnished. Besides,
time and again offers were made to furnish such of the documents, which
respondent no. 4 contended, were not furnished. There are reports
emanating from the Deputy Registrar himself, which record that the
documents were furnished from time to time but returned by respondent
no. 4. The communication dated 11 October 2005 records that from the
conduct of respondent no. 4 it can be concluded that she has purposely
refused to take the documents. If all such material is taken into
consideration, then it cannot be said that the petitioners have committed
any offences under Sections 146(i) and 146(j) of the said Act. Any
prosecution of the petitioners under such circumstances, would constitute
an abuse of the process. Therefore, the impugned order dated 20
November 2012 deserves to be set aside and is hereby set aside.
20] Respondent No. 4, in support of the preliminary objection raised by
her has also filed civil application no. 2300 of 2014, urging inter alia action
under Section 340 Cr.P.C. read with Sections 191, 192, 193 of the I.P.C.
In the civil application, it is the case of respondent no. 4 that the petitioners
have made several misstatements of fact. Perusal of the civil application,
the affidavit in support thereof and the documents accompanying the same
would indicate that the grievance of respondent no. 4 is in the context of
alleged non furnish of documents to her. As noted earlier, there is no
merit in such grievance. Therefore, this is not a case which warrants any
action in terms of Section 340 Cr.P.C. The civil application no. 2300 of
2014, therefore, deserves to be dismissed.
21] Rule is made absolute in terms of prayer clause (a) of the petition.
Civil application no. 2300 of 2014 is dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
(M. S. SONAK, J.)
Print Page
under Section 148(3) of the said Act that no prosecution under this Act
shall be lodged, except with the previous sanction of the Registrar is
precisely to prevent prosecution upon trivial or frivolous or hyper technical
grounds. Even assuming that there was some delay or dispute in the
matter of furnish of documents in pursuance of directions made by the
Deputy Registrar in his order dated 5 March 2004, that by itself cannot be
a ground for sanctioning prosecution of the managing committee
members for having committed offences under Sections 146(i) and 146(j)
of the said Act. In this case, it cannot be said that there was any willful
neglect or refusal on the part of the members of the managing committee
to furnish any information or any non compliance of the orders made
under Section 79 of the said Act without reasonable excuse. At the stage
of grant of sanction, the sanctioning authority not only has to satisfy itself
as to whether there is any prima facie commission of offence but further
whether prosecution is at all warranted upon consideration of totality of
facts and circumstances.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 489 OF 2013
WITH
CIVIL APPLICATION NO. 2300 OF 2014
Mr. Jyotindra R. Shah & Anr. ..Petitioners
versus
The Divisional Jt. Registrar,
Co-operative Societies & Ors. ..Respondents
CORAM : M. S. SONAK, J.
Date of Pronouncing the Judgment : 14 October 2014
Citation;2015(1) ALLMR256
Read original judgment here; click here
1] Rule, with the consent of the parties, Rule was made returnable
forthwith.
2] In the course of final hearing on 1 October 2014, Ms Meena Pomal
– respondent no. 4, who appears in person urged that this petition be
dismissed in limine, inter alia on the following grounds:-
(A) That the petitioners have made several misstatements of facts with
regard to their having furnished certain documents to respondent no. 4;
(B) That extension of interim relief was obtained on 22 August 2014
without disclosing to the court that there was no order extending the
interim relief made on 4 July 2014.
3] In so far as the first objection is concerned, the same can by no
means be regarded to be 'preliminary'. This is because the entire dispute
in the present petition concerns the non furnish of certain documents by
the petitioners to respondent no. 4, despite orders for furnish, thereby
prompting the respondent no. 1 to grant a sanction under Section 148 of
the Maharashtra Co-operative Societies Act, 1960 (said Act) for
prosecution of the petitioners. This issue shall therefore have to be taken
up whilst considering whether the impugned order dated 20 November
2012 granting sanction as aforesaid was validly made.
4] In so far as the second preliminary objection is concerned, it is to be
noted that ad interim relief was granted way back on 24 April 2013, which
was continued with substantial regularity at least upto 13 June 2014. On 4
July 2014, respondent no. 4 stated that the copy of the reply to the
statement filed by the petitioners had been served upon the society,
however the learned Senior Advocate appearing for the petitioners stated
that such copy had not been given to him. Thereupon, this Court recorded
respondent no. 4's statement that the copy would be furnished to the
learned Senior Advocate in the course of the day and the matter was
adjourned to 18 July 2014. There is no record of the ad interim order
granted earlier to continue.
5] Thereafter, on 22 August 2014, when the matter was called out,
respondent no. 4 was not present. However the learned Senior Advocate
for the petitioners pointed out that respondent no. 4 normally appears in
person and thereafter with a view to afford opportunity to respondent no. 4,
the matter was stood over to 5 September 2014. It was directed that the
interim order granted earlier was to continue till the next date.
6] Now, if the sequence of events is perused, it is obvious that on
account of some confusion with regard to the receipt of copy of
respondent no. 4's reply, the learned Senior Advocate for the petitioner
failed to make mention to this Court about extension of ad interim relief
which had been in operation since 24 April 2013. Perhaps, being unaware
of such inadvertent omission, motion was made on 22 August 2014 for the
continuance of interim order, granted earlier. By no stretch can this be
ascribed as some misleading statement, warranting dismissal of the
petition in limine.
7] As noted earlier, the challenge in this petition is to the order dated
20 November 2012 made by the Divisional Joint Registrar (respondent no.
1) granting sanction under Section 148 of the said Act against petitioner
no. 1 for purported offences under Section 146(i) and 146(j) of the said
Act.
8] Shorne of several irrelevancies, the facts and circumstances in
which the impugned order came to be made is that respondent no. 4's
husband by her application dated 14 January 2003 applied to petitioner
no. 2 society for furnish of certain documents, to which reference shall be
made hereafter. This was followed by letters dated 22 September 2003
and 29 January 2004, reiterating the demand for furnish of the
documents. By order dated 5 March 2004, the Deputy Registrar directed
petitioner no. 2 society to furnish the said documents. It is the case of the
petitioners that they, under the cover of their lawyer's letter dated 19 July
2005, furnished the necessary documents as were directed. Further in
the letter dated 11 October 2005 addressed by the Deputy Registrar of Cooperative
Societies to the Divisional Registrar there is a record that the
documents had indeed been furnished to respondent no. 4.
9] Sometime in the year 2005, respondent no. 4 lodged application no.
6 of 2005 before the Divisional Joint Registrar under Sections 146 and 147
of the said Act seeking sanction under Section 148 of the said Act to
prosecute the petitioners for having failed to comply with the order dated
5 March 2004 made by the Deputy Registrar under Section 79(1) and (2)
of the said Act.
10] For considerable length of time, the aforesaid application of
respondent no. 4 was not disposed of. Ultimately by order dated 24
September 2012 in criminal writ petition no. 3136 of 2012 instituted by
respondent no. 4, a Division Bench of this Court directed the Divisional
Joint Registrar to dispose of application no. 6 of 2005. The Divisional Joint
Registrar, by the impugned order has granted sanction under Section 148
of the said Act for prosecution of petitioner no. 1 for purported offences
under Section 146(i) and (j) of the said Act.
11] Mr. Kumbhakoni, the learned Senior Advocate for the petitioners
submitted that the Divisional Joint Registrar, in making the impugned
order, failed to take into consideration the communication dated 11
October 2005 addressed by the Deputy Registrar Co-operative Societies,
in which it is clearly recorded that the necessary documents had indeed
been furnished to respondent no. 4. The communications dated 3
February 2005 and the roznama entries dated 18 March 2004 and 17
June 2004, which were prior to issue of communication dated 11 October
2005, could therefore never have been relied upon in order to grant
sanction for prosecution of petitioner no. 1. Mr. Kumbhakoni submitted
that time and again the necessary documents were furnished to
respondent no. 4 and in case there was any deficiency, time and again
said deficiency was offered to be remedied. Respondent no. 4, on the
other hand, was never genuinely interested in receipt of the documents,
but was merely interested in prosecuting the members of the managing
committee, in order to deter them from recovering dues which the
respondent no. 4 was liable to pay to the society. Finally, Mr. Kumbhakoni
submitted that even in this Court, the petitioners offered to furnish
documents to respondent no. 4, who maintained that prosecution of
petitioner no. 1 was the only imperative and furnish of documents cannot
wipe out the offences already committed by the members of the managing
committee. Mr. Kumbhakoni submitted that if the members of the
managing committee of societies are called upon to face prosecution for
such frivolous reasons, there is danger that the cooperative movement
shall itself collapse, as no members will come forward to accept positions
with the managing committee. Taking into consideration all these
circumstances, Mr. Kumbhakoni submitted that the impugned order
deserves to be set aside.
12] Ms Pomal - respondent no. 4 who appeared in person submitted
that all the documents as directed by the Deputy Registrar in his order
dated 5 March 2004 were never furnished either to her husband or herself.
This, she stated, was evident from the communication dated 3 February
2005 addressed by the Deputy Registrar to the Divisional Joint Registrar.
Besides, the factum of non supply of copies of documents was recorded in
the roznama dated 18 March 2004 and 17 June 2004 in revision
application no. 581 of 2002. The supply of documents or rather the offer
to supply documents at a later stage, does not mitigate the offences
committed by the petitioners. Accordingly, Ms Pomal submitted that there
is no warrant to interfere with the impugned order.
13] Rival contentions now fall for my determination.
14] The communication dated 11 October 2005 addressed by the
Deputy Registrar to the Divisional Joint Registrar very categorically
records that the documents referred to therein were furnished or rather
offered to be furnished to respondent no. 4 but respondent no. 4 returned
the same and from her conduct it could be concluded that she had
purposely refused to take the same. The communication dated 11 October
2005, being significant is quoted verbatim:
“Outward No. 2357/Dy.Reg/A-W/B-2/Jayant Mahal/
Pomal/05
Dy. Registrar, Co-operative Societies, A- Ward,
Mumbai, Malhotra House, 6th floor, Opposite GPO
Mumbai 400 001
Dated 11/10/2005
To,
Divisional Joint Registrar
Co-operative Societies, Mumbai
Sub : Jayant Mahal Housing Societies, Marine Drive,
Mumbai 400020
Ref: Your letter dated 31/05.2005/Visni/Mumbai/Appeal
2492/RA/581/02/2005
With reference to the above subject.
With reference to your above letter we had called for hearing on
19.07.2005, 26-07-2005, 01-8-2005, 09-08-2005, 23-08-2005,
29.08.2005 and 13-09-2005. On 19-07-2005 by Society letter,
Society submitted the following documents to Ms. Pomal.
1. Copy of Reply by Opponent No. 1 in Revision Application No.
581/2002 dated 19th May 2002.
2. Copy of letter dated 21-05-2002 from Society's Advocate Mr.
Gabriel Pillai to Mrs. Pomal.
3. Xerox copy of Approval Bye-laws.
4. Copy of Resolution of Committee Members dated 4th January
2002 to file the Application under Section 101.
5. Copy of Registration Certificate.
6. Copy of Minutes of the General Body Meeting held on 21st
April 2002 with present members signature.
7. Copy of Minutes of the Meeting of the AGM held on 12th
August 2001 with Registered copy of present members.
8. Copy of the Minutes of the Meeting of the AGM held on 11th
August 2002 with Registered copy of present members.
9. Copy of the Minutes of the Meeting of the AGM held on 10th
August 2003 with Registered copy of present members.
10. Copy of the Minutes of the Meeting of the Special General
Meeting held on 21st March 2004 with Registered copy of
present members.
11. Copy of the Minutes of the Meeting of the Special General
Meeting held on 25th April 2004 with Registered copy of
present members.
12. Copy of the Minutes of the Meeting of the General Meeting
held on 13th August 2005 with Registered copy of present
members.
13. Copies of the Indemnity Bond, which was taken on Stamp
Papers, dated 10th May 2005.
14. Copy of Society's Certificate stating the status of ownership
with respect of Flat No. 20.
15. Copies of society's Reply in Revision, which filed before you.
All documents (Certified Copies) from Society were given to Ms.
Pomal but she returned all the Certified Copies stating in her / his
letter dated 30.08.2005 that these documents were not proper.
On 16-08-2005 in the hearing Ms. Pomal stated that by her letter
dated 14.01.2003 in Para No. E-1, 2, 3, 4, 5 and others documents
were not received from Society. Accordingly this office directed the
Society to give her the documents she wanted. Accordingly all
Certified Copies were made by Society and given to Ms. Pomal, but
again she returned all documents stating that the documents were
not proper by her letter dated 30/08/2005 (Enclosed herewith copy
for your information).
On 16-08-2005 in the hearing Ms. Pomal stated that by her letter
dated 14.01.2003 in their Para No. E-1, 2, 3, 4, 5 and others
documents not received from societies. According that society given
order to produce that documents. Accordingly on 23rd August 2005
at time hearing we had gone through the documents asked by her
letter 14-01-2003 in Para no. 2, 4, 8, 11, 12, 13, 14 related paper
should be given to her was informed to Societies. Next hearing was
fixed 13/09/2005.
In the hearing of 13-09-2005 the Society stated that according para
wise all documents were already given to them (Applicant) from time
to time on hearing.
Para No. 2. - Application dated 22-12-2002 filed before Divisional
Joint Registrar.
Para No. 4 – Minutes Book related to Society.
Para No. 8 – copy of Order dated 23-07-2002 from Dy. Registrar to
the Society to according that Minutes of meeting of General Meeting
held on 11.08.2003.
Para No. 11 – Proceeding Relation Recover Application filed under
101, Bye-laws Copy and Resolution and Application and Revision
Application 581/2002 related documents.
Para No. 12 – Reply of Society to Dy. Registrar's Letter dated
22.03.2002.
Para No. 13 – Reply of the Society to Applicant letter dated
10.08.2002 regarding dues.
Para No. 14 – Document related to Flat No. 20.
In above paras the documents are related to U/s. 101 Proceeding
are all documents already submit to by Society to Applicant. But
Para No. 2 and 12 related documents the Society has not submitted.
On the 30/08/2005 Mrs.Pomal returned all the documents whichever
she received from society in this Office. So on her conduct it can be
concluded that she has purposely refused to take the Documents.
This is for your information.
Sd/-
Dy. Registrar
Co-operative Societies, A Ward, Mumbai
C.C.
1. Mrs. H. M. Pomal
2. Chairman/ Secretary, Jayant Mahal Co-op. Hsg. Ltd.
Sd/-
Dy. Registrar
Co-operative Societies, A Ward, Mumbai”
[Emphasis supplied]
15] The aforesaid communication does not appear to have been taken
into consideration by the Divisional Joint Registrar in making the impugned
order dated 20 November 2012. Instead, the Divisional Joint Registrar
has made reference to the communication dated 3 February 2005 (though
not by date). Further the Divisional Joint Registrar has noted roznama
entries dated 18 March 2004 and 17 June 2004 in revision application no.
581 of 2002. The said roznama entries can hardly be said to be relevant,
particularly since the allegation pertains to the alleged non compliance
with directions contained in the order dated 5 March 2004 and the
communication dated 11 October 2005 records that attempts were indeed
made by the petitioners to furnish the documents to respondent no. 4 who
purposely refused to accept the same.
16] From the perusal of the list of the documents, it is clear that most of
the documents were in the public domain and it was easily possible for
respondent no. 4 to obtain the same from respective authorities before
whom they may have been lodged by the petitioners. The documents do
not appear to be of such nature as would afford any particular advantage
to the petitioners, by way of not furnish of the same to respondent no. 4.
But in any case, even before this Court, without prejudice, the petitioners
offered the copies of the documents to respondent no. 4. For this purpose,
under the orders of this Court, charts were prepared, so that the
controversy regards non receipt of documents is narrowed to the
minimum. However, it does appear that respondent no. 4 was interested
less in the documents and more in prosecution of petitioner no. 1, for
having failed to allegedly supply such documents, almost a decade ago. If
circumstances are considered, then I do find merit in the submission of Mr.
Kumbhakoni that this was not a case where sanction under Section 148 of
the said Act should have been granted in order to launch a criminal
proceedings against the petitioners.
17] Ultimately it is to be noted that the purpose for making a provision
under Section 148(3) of the said Act that no prosecution under this Act
shall be lodged, except with the previous sanction of the Registrar is
precisely to prevent prosecution upon trivial or frivolous or hyper technical
grounds. Even assuming that there was some delay or dispute in the
matter of furnish of documents in pursuance of directions made by the
Deputy Registrar in his order dated 5 March 2004, that by itself cannot be
a ground for sanctioning prosecution of the managing committee
members for having committed offences under Sections 146(i) and 146(j)
of the said Act. In this case, it cannot be said that there was any willful
neglect or refusal on the part of the members of the managing committee
to furnish any information or any non compliance of the orders made
under Section 79 of the said Act without reasonable excuse. At the stage
of grant of sanction, the sanctioning authority not only has to satisfy itself
as to whether there is any prima facie commission of offence but further
whether prosecution is at all warranted upon consideration of totality of
facts and circumstances.
18] The policy of Legislature, in enacting a provision like Section 148 of
the said Act is to confer adequate protection, inter alia to the members of
the managing committees and to ensure that they are not prosecuted for
acts done by them in the discharge of their duties as members of the
managing committee, without there being any reasonable cause. The
object of such provision is to protect, inter alia the members of the
managing committees from frivolous, vexatious or false prosecution for
offences alleged to have been committed by them while acting or
purporting to act in the discharge of their duties as members. The larger
interest of the efficiency of the co-operative movement demands that
members of managing committees, who have been democratically elected
from amongst the members of the society, should be free to perform their
duties fearlessly and undeterred by any apprehension of their possible
prosecution at the instance of parties to whom annoyance or injury may
have been caused by their legitimate acts done in the discharge of their
duties. This section has been enacted to facilitate an effective and
unhampered performance of their duties, providing for scrutiny into the
allegations of commission of offence by them by the Registrar and a prior
sanction for their prosecution as a condition precedent to the cognizance
of the cases against them by the courts. Such a provision therefore, can
neither be construed too narrowly nor too widely. Too narrow and
pendentic construction may render it otiose, whereas too wide
construction may enable members, who out of malice, malafides or with
dishonest intentions have committed offences which ultimately affect not
just the members of the co-operative society, but also a co-operative
movement in general.
19] Therefore, if the totality of the facts and circumstances as obtain in
the present case, are taken into consideration then the impugned order
dated 20 November 2012 sanctioning prosecution against petitioner no. 1,
is untenable. The allegation is in the context of alleged non furnish of
documents to respondent no. 4 in pursuance of Deputy Registrar's Order
dated 5 March 2004. The material on record suggests that the documents
were furnished or at least most of the documents were furnished. Besides,
time and again offers were made to furnish such of the documents, which
respondent no. 4 contended, were not furnished. There are reports
emanating from the Deputy Registrar himself, which record that the
documents were furnished from time to time but returned by respondent
no. 4. The communication dated 11 October 2005 records that from the
conduct of respondent no. 4 it can be concluded that she has purposely
refused to take the documents. If all such material is taken into
consideration, then it cannot be said that the petitioners have committed
any offences under Sections 146(i) and 146(j) of the said Act. Any
prosecution of the petitioners under such circumstances, would constitute
an abuse of the process. Therefore, the impugned order dated 20
November 2012 deserves to be set aside and is hereby set aside.
20] Respondent No. 4, in support of the preliminary objection raised by
her has also filed civil application no. 2300 of 2014, urging inter alia action
under Section 340 Cr.P.C. read with Sections 191, 192, 193 of the I.P.C.
In the civil application, it is the case of respondent no. 4 that the petitioners
have made several misstatements of fact. Perusal of the civil application,
the affidavit in support thereof and the documents accompanying the same
would indicate that the grievance of respondent no. 4 is in the context of
alleged non furnish of documents to her. As noted earlier, there is no
merit in such grievance. Therefore, this is not a case which warrants any
action in terms of Section 340 Cr.P.C. The civil application no. 2300 of
2014, therefore, deserves to be dismissed.
21] Rule is made absolute in terms of prayer clause (a) of the petition.
Civil application no. 2300 of 2014 is dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
(M. S. SONAK, J.)
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