- (1.)This application under Section 482 of Criminal Procedure Code (Cr. P.C.),1973, is filed by 9 respondents shown as accused in R.C.C. No. 49 of 2009, challenging the order dated 25.5.2010 passed by the Judicial Magistrate First Class, (JMFC) Akot, and consequential registration of FIR No. M2/2010 dated 1.6.2010 under Sections 406, 468, 477A read with Section 34 of Indian Penal Code (IPC) at Akot police station in Akola district. The proceedings before the JMFC are filed by Respondent No. 2 herein. Though there is no express interim order, this Court has in its order dated 22nd November, 2010 has stated that "Ad interim order, if any, granted earlier to continue till then." There is dispute between the parties about grant or continuation of interim order but then Respondent No. 1 State has in its reply affidavit dated 3.7.2010, in paragraph 8 stated that on 11.6.2010, while issuing notice, this Court orally directed not to arrest the petitioners till filing of reply and Respondent No. 1 was obeying that direction. The challenge as posed u/S. 482 Cr. P.C. was earlier looked into in Cr. W.P. 322 of 2009 & on 21st August, 2009, learned Single Judge of this Court set aside the order dated 3.6.2009 passed by JMFC, Akot, directing that the complaint as filed be forwarded to police station to register it with further direction to investigate and to submit report. This Court set aside that direction and restored RCC No. 49 of 2009 back to file. JMFC was left free to peruse the Complaint and to proceed as per Cr. P.C. The grievance in the matter pertains to business transacted in the year 199495 and after 25.5.2010 there is no further investigation or progress. Hence, as jointly requested, matter is heard finally by issuing Rule and making it returnable forthwith.
(2.)Advocate Khapre for the applicants has urged:
(I) Impact of judgment dated 21.8.2009 delivered by this Court in Cr.W.P. 322 of 2009 has not been considered and said judgment is violated.

Inviting attention to ordersheets from 11.5.2009 onwards by the Court of learned JMFC, it is submitted that the judgment dated 21.8.2009 of this Court was received by the learned LMFC on 31.8.2009. Thereafter, the RCC was adjourned to various dates for verification on 6 occasions. Then due to absence of complainant and his Counsel, it was kept for orders and again stage of verification was restored. Two dates thereafter. An application under S.156(3) Cr. P.C. was moved. It was heard and granted on 25.5.2010. Complaint was made over to police for investigation. Similar order dated 3.6.2009 passed was quashed by this Court and hence, the RCC was then placed for verification. Without any justifiable ground, the step towards verification could not have been withdrawn and same course ( already set aside) could not have been followed. Observation in para 9 of the impugned order that police had knowledge earlier and still did not take any steps are perverse in as much as, the communication dated 2.7.1997 is addressed to Minister for Cooperation and Textiles of State Government and not to police station. Full Bench judgment of this Court reported at Panchabhai Popatbhai Butani vs. State of Maharashtra, 2010 1 BCR(Cri) 1 Mr. looked into by the learned JMFC is read out in an attempt to distinguish it.

(II) Complaint or grievance is only on the basis of loose papers which are inadmissible and insufficient in law to fasten, even prima facie, any guilt on applicants.

To demonstrate that complaint as filed does not make out any offence even primafacie and to assail a finding to the contrary recorded in the impugned order, support is taken from the judgment of Hon. Apex Court reported at Central Bureau of Investigation vs. V.C. Shukla, 1998 AIR(SC) 1406.

Submission is loose papers are not the account books and not admissible under S. 34 of the Evidence Act. The period of commission of alleged offence is from 1.4.1994 to 3.6.1995 and an audit for the period from 1.4.194 till 30.6.1997 is already conducted and Applicants are not found at fault. On 24.7,1997, Regional Deputy Director of Handlooms, Powerlooms and Textiles also ordered an auditinquiry and called for report for fastening liability. After receipt of this audit report, FIR 118 dated 22.5.2001 came to be registered against the Respondent 2 and others. Thus, loose papers needed to be viewed in this background and discarded.

(III) In view of registration of FIR 118 dated 22.5.2001 against Respondent 2 and others under Sections 406, 409 r/w S.34 IPC; there is no scope for recoding a second FIR in the matter again. T.T. Anthony vs. State of Kerla, 2001 AIR(SC) 2637 is relied upon in this respect.

(IV) The alleged offences are prior to 1997 and private complaint registered as RCC 49/2009 is filed on 4.5.2009. Thus, it is barred by the limitation. Artificially, offences attracting more punishment are added to avoid the bar of limitation. As offences punishable under Ss. 468 and 477A are not made out, limitation of 3 years is attracted and RCC 49 of 2009 is not tenable.

(3.)Submissions of Advocate A.M. Ghare :
At the outset, learned Counsel submits that for past more than 15 years, the complaint lodged by the Respondent 2 has not been inquired into and the Applicants have succeeded in scuttling the prosecution. They are politically influential and because of oral directions of this Court, they did not cooperate with the police,did not supply them any documents or information and police authorities also indirectly helped them in avoiding the legal process. Though there is no stay to the impugned order, police have not submitted any report either u/S.169 or 173 Cr. P.C. He requested the Court to call for case diary and note the noncooperation by the applicants.

(I) On earlier judgment and directions by the learned Single Judge of this Court on 21.8.2009, he argues that the course adopted by the learned JMFC is in consonance therewith and also as per Cr. P.C. The police can after suitable inquiry, submit the report of "no offence" and hence, merely by an order u/s 156(3), no cause accrues to them. He relies upon the judgment reported at Laxminarayan Vishwanath Arya Vs. State of Maharashtra and Ors, 2007 4 MhLJ 7. looked into by the Full Bench, supra. He also accepts that there is no difference between the order dated 3.6.2009 passed earlier and set aside by this Court on 21.8.2009 as also present impugned order dated 25.5.2010. His submission is judgment of High Court dated 21.8.2009 does not decide further course of action to be adopted by the learned JMFC and leaves it to that Court.

Said Court has accordingly heard parties and as per the law laid down in Shri Shyamsunder Radhyeshyam Agrwal vs. State of Maharashtra, 2013 AllMR(Cri) 970 used its discretion and decided to send the matter for investigation. By issuing such direction. JMFC can not be said to have taken cognizance of the RCC 49 of 2009. Order under S.156(3) is an innocuous order not infringing any of the rights of the Applicants.

(II) On use of loose papers, learned Counsel states that Central Bureau of Investigation vs. V.C. Shukla, 1998 AIR(SC) 1406 considers the use of loose documents and the concept of presumption about account books when charge was being framed. Here, the loose papers in handwriting of Prabhakar primafacie revealed manipulations and fabricated accounts. The auditinquiry and report which lead to FIR 118 overlook these documents. Report submitted by Shri Mehandale after inspection on 28 and 30th August,1997 as also report of the auditor forwarded with letter dated 21.12.1997 show the guilt of Applicants.

(III) Advocate Ghare points out that FIR 118 is in relation to period from 4.6.1995 to 31.3.1997 while the Respondent 2 seeks investigation into role of Applicants for the period from 1.4.1994 to 3.6.1005. Thus, the periods are distinct and hence, there is no second FIR. However, he relies Surinder Kaushik vs. State of Uttar Pradesh, 2013 2 Scale 491 to demonstrate that there is no absolute bar on recording such FIR.

(IV) Complaint filed before the JMFC, particularly para 5 & 6 are pressed into service to show how in present facts, the loose documents show transactions carried out in black and provisions made for money over and above the agreed sums.

The excess amount on one occasion, was asked to be paid at Bombay where Applicant 1 resided. Said Applicant was the Chairman of the Board and also MLA. The loose documents are in the handwriting of the applicant 3 Prabhakar. Pleadings in para 9 of the RCC are read out to show how the auditinquiry was manged and the inquiry into facts emerging from loose documents was avoided by them. Enquiry report by Shri Mehandale for the period and later auditinquiry report were not made available to the Respondent 2. On the contrary, Respondent 2 has been falsely implicated in FIR 118/2001. After Respondent 2 was charge sheeted therein on 24.10.2008, the report of Shri Mehandale became available to Respondent 2 under RTI Act and then complaint came to be filed. As the documents are fabricated, false account books have been brought into existence, offences punishable under Ss. 468 & 477A are disclosed and there is no limitation for taking its cognizance. In the alternative, he contends that JMFC is not concerned with limitation bar at S.156 stage and police authorities, in their report, can point out said bar to the Court. As the applicants are relying upon the provisions of S. 319 Cr. P.C which enables addition of accused, the bar of limitation is not attracted at all.

(V) Support is taken from Mr. Panchabhai Popatbhai Butani vs. State of Maharashtra which in turn relies upon Madhu Bala vs. Suresh Kumar, 1997 8 SCC 476 and Full Bench view of this Court in Laxminarayan Vishwanath Arya Vs. State of Maharashtra & ors., 2007 4 MhLJ 7 and Shri Shyamsunder Radhyeshyam Agrwal vs. State of Maharashtra, 2013 AllMR(Cri) 970 to buttress his contentions. We may mention here that the Full Bench in Mr. Panchabhai Popatbhai Butani vs. State of Maharashtra ,supra, considers the Full Bench in Laxminarayan Vishwanath Arya Vs. State of Maharashtra & ors. .