@JUDGMENTTAG-ORDER
Anil Kumar Sharma, J.@mdashPetitioner has filed this petition u/s 482 of Cr. PC seeking quashment of ST. No. 235/11 pending before the XIII Additional District and Sessions Judge, Bhopal for the offence punishable under Sections 420, 467, 468, 471 read with Section 120 -of IPC. The brief facts of the case are that complainant-Mukesh Lala forwarded a complaint to the Deputy Commissioner, Co-operative making allegation that Shri Ganesh Grih Nirman Sahkari Sanstha Maryadit, Bhopal (hereinafter shall be referred as "Society") has illegally allotted Plot No. 127 to some other person; however, the said plot was allotted to complainant on 29-10-1998 by Lottery System.
2. An enquiry was conducted by Shri Pramod Rai, Investigation Officer, Co-operative Bhopal and it was found in enquiry report dated 26-9-2009 that after allotment of the said plot No. 127 to the complainant in the year 1998, the complainant has not deposited the maintenance charges, Bhoo Bhatak and further did not complete the registration process, which was necessary for the complete allotment of the said plot to the complainant. On the basis of said deficiencies mentioned above, the right of the complainant to receive the plot was taken away in year 2000 after giving due notice and even after publication of public notice in the newspaper and after giving him the complainant several notices for cancellation of allotment of plot in accordance with the bye-laws of the society. The report of the Investigating Officer, Co-operative Bhopal has been filed as Annexure A-1 with the petition. Thereafter, the Deputy Commissioner, Co-operative, forwarded a letter in accordance with the report on 13-10-2009 to the Superintendent of Police, Bhopal by letter dated 13-10-2009 on the basis of said letter, an FIR has been registered against the Prakash Chand Jain and Board of Directors of the society, under Sections 420, 467, 468, 471 read with Section 120-B of IPC and thereafter on the basis of the FIR investigation was conducted and final report dated 23-11-2000 was filed before the Competent Court. Copy of the challan and order-sheet of the Court have been filed as Annexures A-3 and A-4 with the petition respectively.
3. The petitioner has challenged the FIR and final report and the proceedings before the learned Trial Court on the ground that he is a Public Servant. therefore, no action under the provisions of Cr. PC. can be initiated against him without prior sanction against him as enumerated u/s 197 of Cr. PC.
4. Learned Counsel for the petitioner has submitted that FIR has been lodged ignoring the provisions of M.P. Co-operative Societies Act, 1960 (for short "Act of 1960"). The provisions of Cr. P.C. are not attracted in the case as for alleged offence there is provisions under the Co-operative Societies Act for imposition of punishment. It is further submitted that the matter involves dispute between members of society and governing body of the society and for resolving the same the only Competent Authority is Deputy Registrar or Joint Registrar of the Co-operative Society. Learned Counsel for the petitioner has drawn attention of this Court towards the provisions of Section 64 of the M.P. Co-operative Societies Act, 1960 which is reproduced below:--
64. Disputes.--(1) Notwithstanding anything contained in any other law for the time being in force (any disputes touching the constitution, management or business, terms and conditions of employment of a society or the liquidation of a society shall be referred to the Registrar) by any of the parties to the dispute if the parties thereto are among the following:--(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society; (b) a member, past member or a person claiming through a member past member or deceased member of a society or of a society which is a member of the society; (c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person; (d) a surety of a member, past member or deceased members or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society; (e) any other society or the liquidator of such a society; and (f) a creditor of a society. (2) For the purposes of sub-section (1), a dispute shall include--(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not; (ii) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand be admitted or not; (iii) a claim by a society for any loss caused to it by a member, past member or deceased member, any officer, past officer or deceased officer, any agent, past agent or deceased agent, or any servant, past servant or deceased servant, or its committee, past or present, whether such loss be admitted or not; (iv) a question regarding rights, etc. including tenancy rights between a housing society and its tenants or members; and (v) any dispute arising in connection with the election of any officer of the society or representatives of the society or of composite society; provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results. (3) If any question arising whether a dispute referred to the Registrar is a dispute, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.
On perusal of the above provisions, it is clear that as per above mentioned Section 64 of Act, 1960, the Registrar, Co-operative Societies has jurisdiction to resolve the dispute between the member of society and the society. Learned Counsel for the petitioner has further submitted that even if any criminal aspect is found out in dispute of society then the Registrar is competent to lodge a criminal case and as such the cases can be registered after obtaining due permission from the Registrar as per the provisions of Act, 1960. He has further drawn attention of this Court towards provisions of Section 72-D of the Act, 1960 which shall amount to and be construed as offence punishable u/s 74 of the Act. The provisions of Section 72-D are reproduced below:--
72-D. Offences.--Any of the following acts shall amount to and be construed as an offence u/s 74, namely.--(i) transfer of a registered plot, dwelling house or flat to another person, in violation of the provisions of this Act, Rules, Bye-laws of the society or any condition of allotment; (ii) tempering with the membership list; (iii) admitting members in excess of the number prescribed in the bye-laws; (iv) not developing the land in accordance with the development plans of the society; (v) allotment or the sale of the land, in violation of the approved lay out plans of the society; (vi) non-development of the land which is reserved for general use of the society such as for community hall, school or hospital, or for any other purpose specified in the bye-laws; (vii) not maintaining or providing services paid for by the members without just and sufficient cause; (viii) allotment of plots to members are not made according to the priority list of members; (ix) selling or leasing out the land held by society or transferred the land without permission of the Registrar; (x) not complying with the provisions of clause (f) of sub-section (1) of Section 72-B.
5. According to Section 76 of the Act, 1960 for instituting the prosecution, previous sanction in writing of the Registrar is necessary and the Competent Court having jurisdiction to try such offence shall be not to inferior to that of a Magistrate of the First Class shall try any offence under this Act. Provisions of Section 76 of the Act, 1960 are reproduced below:--
76. Cognizance of offence.--(1) No Court inferior to that of a Magistrate of the First Class shall try any offence under this Act. (2) No prosecution shall be instituted under this Act without the previous sanction" in writing of the Registrar and such sanction shall not be given without giving to the person concerned an opportunity to represent his case.
6. According to provisions of Section 72-D (i) of the Act, 1960, the transfer of a registered plot to any person in violation of provisions of Act, 1960, rules, bye-laws or any condition of allotment, shall amount to and be construed as an offence u/s 74 of the Act of 1960. Considering the allegation made in the complaint, the only grievance of the complainant is that his plot has been allotted to other person. Learned Counsel for the petitioner has submitted that the plot of the complainant has been allotted to other person after not only publishing public notice in newspaper Dainik Bhaskar dated 5-10-2008 and 6-10-2008 but also after sending him several notices. Copy of the notices published in Dainik Bhaskar are at Page Nos. 142 and 143 of the petition. Annexure A-5 and Annexure A-6 are making a reference of earlier notices dated 16-6-1999, 10-1-1998 and 25-11-1999. Learned Counsel for the petitioner has also drawn attention of this Court towards the resolution passed by the society dated 29-10-2000 which has been filed as Annexure A-7 by which allotment of plots to the members who have not got registered their plots and have not given any reply to the notices sent to them after giving several notices, have been cancelled and resolution has been passed to allot these plots to the members who are in waiting list. List of those persons to whom allotment of plot has been cancelled finds name of complainant at serial No. 26. The copy of the resolution has also been sent to Deputy Registrar, Co-operative Societies thereafter letter Annexure A-9 has been sent by Registered A/D post to complainant u/s 19(c) of the Act of 1960 by which the resolution of general meeting dated 25-3-2007 regarding cancellation of membership and allotment of plot to the complainant, has been intimated to him. Copy of the acknowledge of registered letter has also been filed by the petitioner.
7. Therefore, the allotment of plot to the complainant has been cancelled alongwith his membership with the society by passing resolution of which due intimation was also given to the complainant. Since, the act of the society has been done in accordance with the bye-laws of the society and allotment of plot to the complainant has been cancelled in accordance with the bye-laws of the society, therefore, looking to the provisions of Section 72 read with Section 74 of the Act of 1960, no offence punishable under Sections 420, 467, 468, 471 read with Section 120-B of IPC is made out against the petitioner.
8. Learned Counsel for the petitioner has cited the judgment of Hon''ble Apex Court in the matter of
9. Counsel for the petitioner has also cited the judgment of Hon''ble Apex Court in the matter of
10. In the present case, the membership and allotment of plot to the complainant have been cancelled for non-following the due procedure in accordance with the bye-laws of the society and complainant has not filed any objection or taken recourse to any legal action by filing a suit against the petitioner, further no complaint has been lodged by him before the Deputy Registrar, Co-operative Societies, who is Competent Authority to enquire into and lodged complaint, if any offence is committed by society with regard to allotment of plot and in absence of such proceedings, u/s 76 of the Act of 1960, the FIR registered against the petitioner is liable to be quashed.
11. Learned Counsel for the petitioner has further drawn attention of this Court towards the provisions of Section 5 of Cr. P.C. which is reproduced below:-
5. Saving.--Nothing contained in this Code shall, in the absence of a specific provisions to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
On perusal of above provision, it is clear that dispute regarding allotment of plot or cancellation of plot allotted to a member by society is punishable u/s 72 read with Section 74 of the Act of 1960 and cognizance of such offence can be taken only on a sanction given by Registrar, Co-operative societies u/s 76 of the Act of 1960 and the provisions of Cr. P.C. are not applicable to such offence which are part of a Special Act, i.e., M.P. Co-operative Societies Act.
12. Learned Counsel for the petitioner has cited the judgment of Hon''ble Apex Court in the matter of
13. By applying principle of analogy, this citation is also applicable to M.P. Co-operative Societies Act, 1960, which makes the provisions for investigation and filing of complaint after due sanction and cognizance of offence on a complaint filed by the Registrar, Co-operative Societies. Therefore, provisions of Cr. P.C. are also not applicable to the facts and circumstances of the present case.
14. Therefore, considering the fact that first, no offence punishable under Sections 420, 467, 468, 471 read with Section 120-B of IPC is made out against the petitioner as the plot allotted to the complainant has been cancelled alongwith his membership with the society after following due procedure of law under the Act of 1960 and in accordance with the bye-laws of the society. Secondly, after the allotment has been cancelled after due intimation to the complainant in the year 1999 and after cancellation of membership and allotment of plot to the complainant, complainant has been given due intimation of the resolution passed by society in its general meeting, therefore, also the complaint submitted by the complainant is just a counter blast to the cancellation of plot allotted to him and there is no ingredient of cheating involved in the case as the plot has been allotted to other person after due intimation of the same to the complainant in accordance with the bye-laws of the society and rules made thereunder.
15. Learned Counsel for the petitioner has drawn attention of this Court towards the letter (Annexure A-11) according to which complainant has been allotted a house by Danish Grih Nirman Sahkari Sanstha Maryadit, Bhopal and he is not a homeless person, therefore, after allotment of house to the complainant, complainant is not entitled to get the plot in the society of the petitioner.
16. Looking to the provisions of Sections 72-D, 74, 76 and 64 of the Act of 1960, neither the police has any power to investigate the dispute between member of society and society relating to business of society which include allotment and cancellation of plot, therefore, looking to the provisions of Act of 1960 and bye-laws of the society for allotment of a plot and cancellation of allotment, no cognizance for the offence punishable under Sections 420, 467, 468, 471 read with Section 120-B of IPC can be taken or FIR can be lodged as the offence falls within the ambit of Section 72-D of the Act of 1960 and provisions of punishable have been made in the said Act and cognizance of such offence can only be taken u/s 76(2) of the Act of 1960 on a sanction given by Registrar of the Co-operative Society, therefore, the proceedings pending against the petitioner in S.T. No. 235/11 pending before the XIII Additional District and Sessions Judge, Bhopal for the offence punishable under Sections 420, 467, 468, 471 read with Section 120-B of IPC and FIR lodged against him at Crime No. 616/2009 at Police Station, Shahjahanabad, Bhopal are liable to be quashed considering the circumstance Nos. 1, 2 and 4 as laid down by Hon''ble Apex Court in the matter of State of Haryana Vs. Bhajanlal, 1992 AIR SCW 237, which is reproduced as under:-
(1) Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(4) Where, the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.
Resultantly, petition is allowed and the proceedings pending against the petitioner in S.T. No. 235/11 pending before the XIII Additional District and Sessions Judge, Bhopal for the offence punishable under Sections 420, 467, 468, 471 read with Section 120-B of IPC and FIR lodged against him at Crime No. 616/2009 at Police Station, Shahjahanabad, Bhopal are hereby quashed and petitioner is acquitted from all the charges.
A copy of this order be sent to concerned Court for necessary action and compliance.
