1. This is a petition under Article 227 of the Constitution by the original accused, challenging the order of the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, dt. 20th July 1983, whereby he rejected the petitioners' objection that the prosecution against them was barred by time.
2. The material facts lie within a narrow compass. There is a registered co-operative housing society by name 'Greater Bombay Veerashaiva Co-operative Housing Society Ltd.' For the period 1969 to 1973, the petitioners Nos. 1, 2 and 3 were holding the posts of the Chairman, Secretary and Treasurer respectively. The present, Respondent 1 (for short 'the respondent') became the Chairman of this Society in 1977. On 27th April 1982, he filed a criminal complaint against the present petitioners, alleging that during the period 1969 to 1973, they committed criminal breach of trust covering a sum of Rs. 13,0007- or so, belonging to the Society. The copy of this complaint is annexed to the petition as Ex. G. In all, three instances of embezzlements are alleged in the complaint. On 27th Aug 198| the learned Magistrate issued process against all the three petitioners under Section 406, I.P.C. Thereafter the petitioners preferred an objection, submitting that the prosecution was barred by time under Section 468, Cr. P.C. The learned Magistrate held that prima facie three years' limitation will apply for prosecution under Section 406, I.P.C. and further held that the delay was not properly explained. He however felt that it was necessary to take cognizance of offence in the interest of justice and in that view acting under Section 473, Cr. P.C., he has directed the case to proceed. It is this order which is now challenged before me by the petitioners.
3. After hearing the learned Advocates of both sides, I am satisfied that the learned Magistrate's order is eminently just. He observes in his order that there are thousands of societies in Greater Bombay and the office bearers should not be allowed to embezzle the money belonging to the societies. The petitioners have in their petition pleaded that there are some 123 members of the society, most of whom belong to backward classes and that the Society has already constructed two buildings with 50 flats for them. The Petitioners' learned Advocate drew my attention to the averments in para 2 of the petition and urged that a number of rounds of litigation are going on between the two sides on the original side of this Court, and that this shows that the respondent has launched this prosecution mala fide with the sole object of harassing them.
4. The learned Advocate of petitioners has cited a ruling of the Delhi High Court reported in : 17(1980)DLT438 Jagmohan v. State for the proposition that the discretion under Section 473 should be exercised by the Magistrate judicially, and that the only circumstance that the accused are holding high posts should not be sufficient to hold that their prosecution is necessary in the interest of justice, although it may be barred by time. There can be no quarrel with the proposition laid down in the case; but the fact remains that the ultimate decision in Jagmohan's case turned on the peculiar facts of the case. My attention was also drawn to a ruling of the Gujarat High Court reported in (1978) 19 Guj LR 603 State of Gujarat v. Chimanlal Gordhanbhai. This decision enumerates useful aspects which a Court should keep in view, while deciding the question whether the bar of limitation should be overlooked in the interest of justice in a particular case. These considerations would be : Who is the offender? What is his offence? Who is the victim of the offence? Why is it made an offence under the Act? and Will the ends of justice be better served or defeated if the bar of Section 468 of the Code is applied? I am in entire agreement and I say so with respect with the view of the Gujarat High Court. If the above tests are applied to the facts of the present case, it will be obvious that the prosecution of the petitioners will be in the interest of justice. The defalcations are alleged to have been made of money belonging to the members of a housing Society, most of whom belonged to backward classes. The averments in the complaint show that because of the mismanagement of affairs by the Managing Committee of which the petitioners were members of the Registrar of Co-operative Societies was obliged to appoint a Committee of Administrators in 1976. It was thereafter that in 1977 the elected Managing Committee of which the respondent was the Chairman took over. Thereafter in 1980 a special audit was conducted. Considering all the circumstances of the case, I do not see any fault with the Magistrate's view that the prosecution should proceed in the present case in the interest of justice.
5. Before parting with the case I may observe that the averments in the complaint also make out offences punishable under Section 409 also Section 477A of I.P.C. Section 161 of the Maharashtra Co-operative Societies Act provides that an officer as defined in Clause 2(20) of the Act shall be deemed to be a public servant within the meaning of Section 21 of I.P.C. Section 2(20) defines the term 'officer' as inter alia including a Chairman, a Secretary and Treasurer of the Society. So all the three petitioners are public servants for the purposes of I.P.C. Now the offence under Section 409 and Section 4777 A, I.P.C. are punishable with imprisonment for more than three years. On these premises the question of limitation would in the present case not strictly arise. It is of course left to the learned Magistrate to consider as to the proper sections of I.P.C. under which the charge should be framed.
6. The petition is dismissed being without any substance. The rule is discharged.