Mr. Sayyed Tauseef Yaseen, Advocate for the v. K. Kotecha, APP for

Legal Reasoning

(1) appln-3011-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3011 OF 20221.Syed Shafiq Ahmed Hashmi S/o RashidoddinAge: 64 years, Occu: Pensioner,R/o: H. No.1-12-271, Juna Bazar, Beed, Tq. and Dist. Beed.2.Syed Iftekhar Ahmed S/o Abdul JabbarAge: 64 years, Occu: Pensioner,R/o: Behind V.I.P. Lawns, Telgaon Road, Beed, Tq. and Dist. Beed.3.Momin Abdul Zafar S/o Abdul AzizAge: 45 years, Occu: Service,R/o: Near Aman Lawns, Kausar Nagar, ZamZam Colony, Beed, Tq. and Dist. Beed...ApplicantsVersus1.The State of MaharashtraThrough Shivaji Nagar Police Station, Beed. 2.MirzashareqKhurshidBaigAge:39yrs, Occu; TeacherR/o AL-Huda Urdu Primary School, VidyaNagar (East), Barshi Road, Beed...Respondents …Mr. Sayyed Tauseef Yaseen, Advocate for the Applicants.Mr. V. K. Kotecha, APP for Respondent No.1.Mr. R. M. Shaikh, Advocate for Respondent No.2. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 04th SEPTEMBER, 2024.ORDER (Per: S. G. Chapalgaonkar, J.) 1.The applicants seeks to quash and set aside FIR as well ascharge-sheet in Crime No.96/2022 registered with ShivajinagarCity Police Station, Beed for offences punishable under Sections406, 420, 467, 468, 477 and 34 of the Indian Penal Code. (2) appln-3011-2022.odt2.The respondent no.2 lodged FIR alleging that NoorEducational Society has been registered under Bombay PublicTrust Act. It runs Al-Huda Urdu Primary Secondary School. Theconstitution of Trust provides for election of Managing Committeeof Trust for every three years. The change report after everyelection needs to be approved by Deputy Charity Commissioner. InSeptember 2012, the election of Managing Committee was held.The applicant nos.1 and 2 were elected as President and Secretary.However, Application No.1240/2012 reporting change was rejectedvide order dated 12.07.2013. Suppressing the fact of rejection ofchange report, applicant nos.1 and 2 continued to administer Trustwith intention to draw financial benefits. They prepared falsedocuments pretending themselves as Trustees in charge ofadministration and submitted Government authorities andEducation Department of Zilla Parishad. They continued toadminister the Trust depicting themselves as President andSecretary during the period from 2012 to 2019 without authority.Similarly, in connivance with the Headmaster of the school i.e. Mr.Momin Abdul Jafar-applicant no.3 they availed infrastructuregrant of Rs.2,00,000/- during Financial Year 2014-15 from theGovernment. As such, they have committed the offencespunishable under Sections 420, 406 and 34 of the Indian PenalCode. The investigation progressed in pursuance of the aforesaidcrime and charge-sheet came to be filed in the Court of JudicialMagistrate First Class, Beed against the applicants for offencespunishable under Sections 406, 420, 467, 468, 477 and 34 of theIndian Penal Code. The gist of the charge-sheet stipulates thatsubject crime took place during the period from 18.09.2012 to15.09.2015. The applicant nos.1 and 2 falsely depicted themselvesto be President and Secretary of the Trust during the period from2012 to 2019, conducted business of the Trust, although they were (3) appln-3011-2022.odtnot authorized under law and collected donations worthRs.5,24,30,941/-.3.Mr. Sayyed, learned Advocate appearing for the applicantssubmits that applicants have been falsely implicated in theaforesaid crime. He would submit that allegations in the FIR arepalpably false and bereft to constitute any offence. The respondentno.2 has lodged FIR in revengeful manner with ulterior motive forwreaking vengeance against applicants. He would submit thatinformant-Mirza Shareq Baig was given understanding andwarning for his mis-behaviour and misconduct by the Headmaster.The respondent no.2 then raised assault against him.Consequently, Crime No.399/2015 has been registered for offencepunishable under Section 307 of the Indian Penal Code. TheSessions Case No.25/2017 is now pending. The applicant nos.1 and2 initiated disciplinary proceeding and proposal for suspension wasforwarded to the Education Officer. Consequently, the present FIRhas been lodged by the informant in revengeful manner. He would,therefore, urge to quash and set aside FIR, charge-sheet andconsequential criminal proceedings pending against the applicants.4.Mr. Kotecha, learned APP appearing for respondent no.1 aswell as Mr. Shaikh, learned Advocate appearing for respondentno.2 vehemently opposes application. They would submit thatcontents of the FIR makes out ingredients of offences punishableunder Sections 420, 406 r/w 34 of the Indian Penal Code. Thedocumentary evidence in the charge-sheet shows that changereport of elections of September 2012 was rejected in 2013 andsince then, applicant nos.1 and 2 illegally conducted business of theTrust using stamps and letter heads. The grants and donationswere received from the Government on the basis of such (4) appln-3011-2022.odtcommunications. Apparently, offence of cheating andmisappropriation has been made out. 5.We have considered submissions advanced by the learnedAdvocate appearing for the respective parties. The bone of thecontentions in the FIR is that applicant nos.1 and 2 were neverauthorized as Trustees of the Noor Educational and WelfareSociety. The change report in respect of election dated 23.09.2012was rejected by the Deputy Charity Commissioner, Beed vide orderdated 12.07.2013. Suppressing the said fact, applicant nos.1 and 2continued to represent themselves as Trustees and continued torun business using seal and letter heads of the Trust till 2019.During this period, various grants have been received from theState Government on the basis of proposal moved by applicantnos.1 and 2 depicting themselves to be President and Secretary ofthe Trust. 6.Apparently respondent no.2 has already instituted a privatecomplaint in Criminal Application No.429/2016 before the ChiefJudicial Magistrate First Class, wherein similar allegations aremade. The order issuing process in the said complaint has beenquashed by this Court and matter is remitted back. The recordalso indicates that proposal dated 20.04.2014 supported byResolution for grant of approval to the services of respondent no.2under signatures of applicant nos.1 and 2 was moved to Educationofficer and same was approved. Further order dated 29.08.2019passed by Deputy Charity Commissioner, Beed in MiscellaneousApplication No.846/2019 shows that members office bearers /Executive Board who assumed office of Trust as per election of2012 were declared as de-facto Executive Body fro the period from27.09.2012 till the next election. In view of aforesaid declaration (5) appln-3011-2022.odtapplicant nos.1 and 2 cannot be treated as unauthorized Presidentand Secretary of the Trust. We have considered the contents of theFIR in light of aforesaid order passed by the Deputy CharityCommissioner. The Deputy Charity Commissioner has observedthat change report no.1240/2012 was submitted on the basis ofelection dated 23.09.2012 for the period from 2012 to 2015. Thesaid change report was rejected on 12.07.2013. The order dated12.07.2013 was challenged before Joint Charity Commissioner,Latur under Section 70(A) of the Maharashtra Public Trust Act.However, said Revision Application came to be rejected on03.01.2019. It is also observed that Executive Body of the Trustcontinued to function since 2012 to 2018 and they have acceptedthe responsibility of conduct of business of the Trust during thesaid period. Consequently, the said Executive Body is declared asde-facto Executive Body and they were directed to conduct furtherelection within a period of sixty days. It appears that in pursuanceof order dated 29.08.2019 the further elections were conducted.The applicant nos.1 and 2 are again elected as members ofExecutive Body. The order passed by the Deputy CharityCommissioner has attained finality. 7.Pertinently, the impugned FIR is lodged in the year 2022 foralleged offences during the period from 2012 to 2015. Therespondent no.2 was well aware that applicant nos.1 and 2 aredischarging function as President and Secretary of the Trust.Infact, in the year 2014 his own proposal for approval ofappointment was routed through Executive Body presided over byapplicant no.1 on recommendation of applicant no.2. Therespondent no.2 has been benefited on the basis of proposal.Apparently, as long as he was receiving benefit, he had no objectionto accept applicant nos.1 and 2 as President and Secretary of the (6) appln-3011-2022.odtTrust. It is only when dispute erupted between respondent no.2and applicants, he started filing various complaints/criminalproceedings against the applicants. At this stage, reference can begiven to the guidelines laid down in case of State of Haryanaand Ors. Vs. Ch. Bhajan Lal and Ors.1, which are as under:“108.In the backdrop of the interpretation of the variousrelevant provisions of the Code under Chapter XIV and of theprinciples law enunciated by this Court in a series of decisionsrelating to the exercise of the extra-ordinary power underArticle 226 or the inherent powers under Section 482 of theCode which we have extracted and reproduced above, we givethe following categories of cases by way of illustration whereinsuch power could be exercised either to prevent abuse of theprocess of any Court or otherwise to secure the ends of justice,though it may not be possible to lay down any precise, clearlydefined and sufficiently channelised and inflexible guidelinesor rigid formulae and to give an exhaustive list of myriad kindsof cases wherein such power should be exercised.1. Where the allegations made in the First InformationReport or the complaint, even if they are taken at theirface value and accepted in their entirety do not primafacie constitute any offence or make out a case against theaccused.2. Where the allegations in the First Information Reportand other materials, if any, accompanying the F.I.R. donot disclose a cognizable offence, justifying aninvestigation by police officers under Section 156 (1) of theCode except under an order of a Magistrate within thepurview of Section 155(2) of the Code.3. Where the uncontroverted allegations made in the FIRor complaint and the evidence collected in support of thesame do not disclose the commission of any offence andmake out a case against the accused.4. Where, the allegations in the F.I.R. do not constitute acognizable offence but constitute only a non-cognizableoffence, no investigation is permitted by a police officerwithout an order of a Magistrate as contemplated underSection 155(2) of the Code.5. Where the allegations made in the FIR or complaint areso absurd and inherently improbable on the basis of1AIR 1992 SC 604. (7) appln-3011-2022.odtwhich no prudent person can ever reach a just conclusionthat there is sufficient ground for proceeding against theaccused.6. Where there is an express legal bar engrafted in any ofthe provisions of the Code or the concerned Act (underwhich a criminal proceeding is instituted) to theinstitution and continuance of the proceedings and/orwhere there is a specific provision in the Code or theconcerned Act, providing efficacious redress for thegrievance of the aggrieved party.7. Where a criminal proceeding is manifestly attendedwith mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view tospite him due to private and personal grudge.”8.Applying aforesaid guidelines in the facts of the present case,it can be noted here that first part of the allegation that applicantswere not authorized to conduct business of the Trust during theperiod from 2012 to 2015 and that they have illegally orunauthorizedly depicted themselves to be Trustees does not holdwater in light of the declaration given by the Deputy CharityCommissioner, Beed vide order dated 29.08.2019 passed inMiscellaneous Application No.846/2019. The record further showsthat respondent no.2 had also initiated proceeding under Section41(B) of the Maharashtra Public Trust Act, 1950 against theapplicants with similar allegations, as incorporated in theimpugned FIR. The said application came to be rejected on17.06.2022 with observations that there is no material to acceptcontentions of respondent no.2. In that view of the matter, firstlimb of allegation does not survive. Even after considering entirematerial in the charge-sheet, the ingredients of Sections 406, 420,467, 468, 477 of the Indian Penal Code are not discernible. On theother hand, it can be observed that applicants have bonafidelyconducted business of the Trust while change report was pendingbefore the authorities under Maharashtra Public Trust Act. (8) appln-3011-2022.odtAlthough respondent no.2 alleges that proposal for grant ofRs.2,00,000/- was moved by the applicants without authority, suchallegation does not stand to scrutiny in view of aforesaidobservations. Prima facie, there is nothing to controvert accountscertified by auditor. The amounts received towards grant in aidappears to be properly utilized against designated heads as peraudited reports. There is nothing in charge-sheet to depict thatapplicants have misappropriated funds of trust in any manner ordishonestly used amount received towards grants to attract offenseof breach of Trust, cheating etc.9.The evidence on record suggests that respondent no.2 isusing procedure for wreaking vengeance against applicants onlyafter proposed action for misconduct of respondent no.2. Theclause No. 7 of guidelines by Supreme court in case of Ch. BhajanLal (Supra) would squarely apply in this case. In that view of thematter, this Court finds that this is a fit case to exercisejurisdiction under Section 482 of the Criminal Procedure Code andquash and set aside the impugned FIR and further proceeding inRegular Criminal Case pending before the Judicial MagistrateFirst Class at Beed. Hence, following order:ORDERa.Criminal Application is allowed.b.The FIR vide Crime No.96/2022 registered with ShivajinagarPolice Station, Beed, charge-sheet filed in pursuant thereto andconsequential criminal proceeding pending before JudicatureMagistrate First Class, Beed is hereby quashed and set aside.c.Criminal Application is disposed of.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/September-2024