P U BAWANKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This application takes an exception to the order dated 6-1-2001 passed by the learned J. M. F. C. in Regular Criminal Case No. 3 of 1994 whereby the learned Magistrate allowed the application filed by the original respondent No. 2 for permitting him to continue the criminal prosecution against the petitioner alongwith other three co-accused.

(2.) Brief case of prosecution is as under:a) The petitioner has retired from service as Assistant Registrar of Co-operative Societies. The original complainant Dhansukh was the President of chandralok Co-operative Housing Society. An Administrator was appointed in the said Society and the President in his official capacity had directed enquiry into the affairs of the Society under Section 83 of the maharashtra Co-operative Societies Act (hereinafter called as the Act) and a criminal case was filed against Dhansukh on the basis of the defaults found in the said enquiry. (b) Dhansukh had instituted private criminal case which was numbered as criminal Case No. 3/89 against the petitioner and 11 members as well as the Administrator and Auditor of the Society for the offences punishable under various sections of Indian Penal Code. (c) The petitioner filed Criminal Appln. No. 68 of 1989 in this Court seekingthe relief of quashing and setting aside the proceedings in Criminal case No. 3 of 1989. This Court allowed the said application and quashed the proceedings in Criminal Case No. 3/89. The original complainant dhansukh thereafter filed another private criminal complaint which was numbered as Criminal Case No. 200 of 1989 against the petitioner under section 193 of Indian Penal Code which was dismissed for default by the learned J. M. F. C. On 6-1-1994. Thereafter the said Dhansukh instituted a private criminal case on 7-1-1994 which was numbered as regular Criminal Case No. 3 of 1994 against the petitioner under section 193 of Indian Penal Code. Dhansukh died on 14-9-1999 during the pendency of the said criminal case and his son moved an application before the learned J. M. F. C. seeking permission to continue the prosecution. The learned J. M. F. C. allowed the said application on 6-1-2001 and this order is challenged in this application.

(3.) Mr. Mehadia, learned Counsel, for the petitioner contended that the criminal prosecution which was instituted by the complainant Dhansukh against the petitioner in the capacity of Ex-President of Chandralok Co-operative housing Society, has abated on his death and his son has no legal right to prosecute the case. He contended that the petitioner was a public servant and it was necessary to obtain permission for his prosecution from the competent authority. In fact the permission to prosecute the petitioner was sought but the competent authority refused to grant permission and on this ground also the criminal prosecution against the petitioner is liable to be quashed. He further contended that since all the criminal prosecutions initiated by deceased Dhansuk were on the basis of the letter dated 3-12-1986 and since the earlier proceedings have been quashed by this Court, the learned J. M. F. C. Has committed an error on granting permission to the son of deceased Dhansukh to continue the said criminal prosecution and, therefore, the impugned order has resulted into miscarriage of justice and deserves to be set aside.