High Court
Facts
APPLN 2420 21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2420 OF 2021Gangadhar s/o Shankarappa Mathpati (Swami)Age 60 years, Occ. .Priest & Agricultural,R/o. Gagalegaon, Tq. Biloli, Dist. Nanded.…ApplicantVERSUS1)The State of Maharashtra.2)Vijaykumar s/o. Gopalrao Kulkarni,Age 47 years, Occ. Service as Talathi,at village Gagalegaon, Tq. Biloli,Dist. Nanded.…Respondents…Advocate for Applicant : Mr. G.K. MuneshwarA.P.P. for Respondent/State : Mr. M.M. NerlikarCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ONPRONOUNCED ON:: 01.03.2024 05.03.2024PER COURT : Heard. At the joint request of the parties, the matter is heard finally atthe stage of admission.2.By invoking the powers of this Court under Section 482 of the Code ofCriminal Procedure, the applicant is seeking quashment of Crime No.38/2021, registered with Ramtirth police station, District Nanded, for theoffences punishable under Sections 406, 420, 468, 471 read with Section 34of the Indian Penal Code and the consequent criminal case bearing RegularCriminal Case No. 128/2022, pending before the Judicial Magistrate, FirstClass, Naigaon, Dist. Nanded. 1/6 APPLN 2420 21.odt3.The sum and substance of the allegations in the F.I.R. lodged by therespondent no. 2 are to the effect that he was serving as a Talathi of villageGagalegaon, Tq. Biloli since the year 2018. One Rajeshwar Vyankatrao Patil,President of Marotiraya Hanuman Mandir Trust, Gagalegaon, had filed apolice complaint against him (respondent no. 2) and the applicant on13.09.2020 alleging that both of them that is the applicant and therespondent no. 2 having conspired and manipulated the record of the priestof the temple namely Marotiraya Archak Balsing by modifying it asBhunjyyappa Basayappa and the land Gat No. 55 of the Trust, admeasuring6-Are, was mutated in the name of Bhunjyyappa Basayappa andmisappropriated the government grant and thereby defrauded thegovernment and the Trust.4.The F.I.R. mentions that the respondent no. 2 was called by police inconnection with enquiry into the allegations in respect of the complaint ofRajeshwar Vyankatrao Patil. In response to that he submitted that on13.05.2020 the applicant obtained a false certificate from him (respondentno. 2) to the effect that Marotiraya Archak Balsing was BhunjyyappaBasayappa and derived the benefit of the government grant in respect of theland of the Trust. The respondent no. 2 alleged that while he was in hurryin connection with official work, the applicant fraudulently obtained hissignature on the certificate, which he presented to the bank and withdrewan amount of Rs. 13,400/-. The offence was registered. Investigation wascarried out and in due course of time the charge-sheet was filed. 5.The learned advocate for the applicant would take us through thepapers and the charge-sheet. He would submit that the post of priest is ahereditary office. The original priest was his grandfather. After demise ofhis grandfather in the year 1974 his father Shankarappa started lookingafter the temple till his death i.e. up to 26.08.1988 and thereafter he hasbeen managing and maintaining the temple. It is in that capacity, that hehad received the amount of Rs. 13,400/-. He has not committed any crime.2/6 APPLN 2420 21.odtHe has been falsely implicated by Rajeshwar Vyankatrao Patil. He wouldsubmit that after following due process, as a hereditary priest, on hisapplication the mutation was applied for. However, the Collector rejectedthat application on the ground of limitation. He has preferred an appealwhich is pending before the Divisional Commissioner, Aurangabad. Hewould, therefore, submit that it is a genuine dispute and after realizing thatthe issue is being raised by Rajeshwar Patil, he has deposited the moneyback. The respondent no. 2 was pressurized to lodge the F.I.R. There is noquestion of any dishonest or fraudulent intention. If at all, it would be acivil dispute as regards the management of the temple trust. It would besheer abuse of the process of the Court to allow the prosecution to go onwhen his appeal has been pending before the Divisional Commissioner. 6.The learned advocate for the applicant would further submit that infact the applicant had filed Misc. Criminal Application No. 44/2019 inrespect of the self-same allegations seeking a direction for registration ofCrime and its investigation under the provisions of Section 156(3) of theCode of Criminal Procedure against Rajeshwar Patil and the respondent no.2 for receiving the grant in question. Though his application was rejected bythe Magistrate, he has challenged the order in revision under Section 397 ofthe Code of Criminal Procedure, which is still pending. He would, therefore,submit that in view of such dispute regarding the management of the Trust,at the most it can be said that the applicant has been claiming to be thepriest but no criminality can be attached to his claim. 7.The respondent no. 2 in spite of service and having causedappearance once before the Court, did not turn up. 8.The learned A.P.P. would oppose the application. He would submitthat the investigation has been carried out in a fair manner. In fact, therespondent no. 2 has also been made a co-accused for indulging inpreparation of false document to unable the applicant to lay claim. As of3/6 APPLN 2420 21.odtnow, there is no order in favour of the applicant declaring him to be thehereditary priest still he laid a claim by using a false certificate issued by therespondent no. 2. It is a serious matter. Even if the applicant hassubsequently deposited back the grant received that would not obliterate thecrime. Opportunity deserves to be extended to the prosecution tosubstantiate the charge.9.We have considered the rival submissions and perused the papers.10.As can be seen from the papers, indeed there seems to be somedispute as regards the applicant’s claim of being a hereditary priest.However, the fact remains that his grandfather and after demise of hisgrandfather his father were working as priests. In fact, the applicantpossesses hership certificate issued under the Bombay Regulation, 1827issued by the Court of Jt. Civil Judge Junior Division, Naigaon in Misc. CivilApplication (RJE) No. 74/2020. It has been expressly mentioned thereinthat deceased Shankarappa s/o Bhujaiyaappa Mathpati was his father andsurvived by the applicant and his mother and sisters. It is a certificate issuedunder the Bombay Regulation, it is an order in rem. 11.True it is that his application claiming to be the hereditary priest wasrejected by the Deputy Collector (Atiyat) and the appeal preferred by himhas also been dismissed. But he has challenged that order before theDivisional Commissioner. Assuming for the sake of arguments that he is nota hereditary priest, still when it is abundantly clear that he is claiming to beso and seeking a declaration by resorting to the remedies available to him inlaw, at the most it can be said that he is laying a false claim.12.However, in order to attract criminality, it would be necessary todemonstrate that the applicant has been laying a false claim with dishonestand fraudulent intention. A copy of the 7x12 revenue record clearly showsthat though the land Gat No. 55 has been standing in the name of Shri.Marotiraya Archak Balsing in the ownership column, name of the applicant’s4/6
Legal Reasoning
APPLN 2420 21.odtfather Shankarappa has been appearing in the possession column since1970-71.13.Besides, as can be seen from the order passed by the Collector,Nanded, on the applicant’s appeal, it has been dismissed solely on theground that the application for Virasat under the provision of Section 12(2)of the Atiyat Enquiry Act, 1952, was made beyond the time limit prescribed,after 41 years, as the sole ground for dismissing the appeal. We are merelypointing out this fact to demonstrate that irrespective of the ultimatedecision in that proceeding, it cannot be said by any stretch of imaginationthat the applicant has been laying a claim dishonestly and fraudulently byresorting to some forgery.14.It is equally important to note that admittedly, the allegations were inrespect of withdrawal of an amount of government grant to the tune of Rs.13,400/- which he had subsequently returned. True it is that mere return ofthe money would not obliterate the crime of misappropriation as it couldconstitute a temporary misappropriation. However, in our considered view,the fact that the money was returned ex facie substantiates the fact that theapplicant has been claiming the right of a hereditary priest not by way ofsome vexatious litigation but by seeking to take recourse to the rule of law.15.In view of such peculiar facts and circumstances, in our consideredview, the crime alleged has its genesis in a legitimate civil dispute about theright of the applicant to claim himself to be the heir of the original priestand seeking to succeed to the office as such, it would be inappropriate toallow the prosecution to go on in spite of aforementioned state of affairs.16.In our considered view, it would be abuse of process of law and anexercise in futility to allow the prosecution to go on and the applicant toface the trial.17.The Application is allowed. Crime No. 38/2021, registered with5/6 APPLN 2420 21.odtRamtirth police station, District Nanded, for the offences punishable underSections 406, 420, 468, 471 read with Section 34 of the Indian Penal Codeand the consequent criminal case bearing Regular Criminal Case No.128/2022, pending before the Judicial Magistrate, First Class, Naigaon, Dist.Nanded, are quashed and set aside. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-6/6