High Court · 2025
Facts
cria-3982.221 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3982 OF 20221) Birjusingh S/o Bhikamsingh Gaherwar (Thakur), Age-35 years, Occu:Business, R/o-Ganesh Galli, Gadipura, Nanded, Taluka and District-Nanded,2) Bhimsingh S/o Hanumansingh Kaushik (Thakur), Age-54 years, Occu:Business, R/o-Beside of Habib Talkies, Gadipura, Nanded, Taluka and District-Nanded,3) Badrisingh S/o Dagdusingh Kathi (Thakur), Age-52 years, Occu:Business, R/o-Ganesh Galli, Gadipura, Nanded, Taluka and District-Nanded, ...APPLICANTS VERSUS 1) The State of Maharashtra, Through Police Station Officer, Itwara Police Station, Nanded, Taluka and District-Nanded,2) Ganeshsingh S/o Hanumansingh Thakur, Age-49 years, Occu:Business, R/o-Chirag Galli, Itwara, Nanded, Taluka and District-Nanded, ...RESPONDENTS ... Mr. Gajanan G. Kadam Advocate for Applicants. Mr. A.R. Kale, Additional P.P. for Respondent No.1 -State. Mr. S.N. Janakwade Advocate for Respondent No.2. ... cria-3982.222 CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATE OF RESERVING ORDER : 17th JUNE 2025DATE OF PRONOUNCING ORDER : 23rd JULY 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Application has been filed for quashing theproceedings in R.C.C. No.1056 of 2021 pending before thelearned Judicial Magistrate First Class, Nanded, arising out of theFirst Information Report (for short “the FIR”) vide Crime No. 337of 2020 registered with Itwara Police Station, Nanded on 24thOctober 2020, for the offence punishable under Sections 405,198, 199, 200, 420, 464, 468, 471 read with Section 34 of theIndian Penal Code. 2.Heard learned Advocate Mr. Kadam for the applicants,learned Additional P.P. Mr. Kale for respondent No.1 and learnedAdvocate Mr. Janakwade for respondent No.2.3.Learned Advocate appearing for the applicants submitsthat the applicants are the members of the trust by name, cria-3982.223“Shree Kshatriya Samaj Renuka Mata Mandir, Gadhipura,Nanded”. It is a registered trust. Respondent No.2 filed OtherMiscellaneous Criminal Application No.2279 of 2020, before thelearned Judicial Magistrate First Class, Nanded against theapplicants for the action to be taken under Section 156(3) of theCode of Criminal Procedure stating that the applicants havecommitted offence under Sections 405, 408, 409, 198, 199, 200,420, 464, 468, 471 read with Section 34 of the Indian PenalCode. The said application came to be allowed by order dated21st October 2020, by the learned Judicial Magistrate First Class,(Court No.3), Nanded. Thereupon the FIR was registered. If weconsider the Original Miscellaneous Application and the FIR,there is total suppression of order that was passed a year priorto the institution of the Miscellaneous Application. It has beencontended that the present applicants were the office bearers ofthe trust and they have created false bills, documents and thencheated the trust and misappropriated the said amount. Whilepassing the order, the learned Magistrate has not considered thatprevious sanction of the Assistant Charity Commissioner has notbeen taken. In fact complainant himself had resorted to Section38 of the Bombay Public Trust Act for special audit. In fact on 9thNovember 2021, the change report was rejected. The Joint cria-3982.224Charity Commissioner had dismissed the appeal and the privatecomplaint is based on re-audit. The informant had no authorityto lodge the report. Though he says that he was the electedsecretary but the said change report has been then rejected.Under such circumstance, it would be unjust to ask theapplicants to face the trial. 4.Learned Advocate appearing for the applicants relies onthe decision in C. Subbiah and others vs. the Superintendent ofPolice and others, AIR 2024 SC 2633, wherein it is held that, itwas clear that the complainant in spite of having madeinvestments in the land deals which were evidently benamitransactions, could not have instituted any civil proceedings forrecovery against the persons in whose name the properties wereheld which would be the accused appellants. Since by virtue ofthe provisions contained in Sections 44(1) and 4(2) of theBenami Act, the complainant was prohibited from suing theaccused for a civil wrong, in relations to these benamitransactions as a corollary, allowing criminal prosecution of theaccused in relation to the self-same cause of action would beimpermissible in law. Here, in the present case also no suchaction would lie when the informant is no longer the secretary. cria-3982.225Learned Advocate for the applicants further relies on the decisionin Sarabjit Kaur vs. the State of Punjab and others, (2023) 5SCC 360, wherein it is held that a breach of contract does notgive rise to criminal prosecution for cheating unless fraudulent ordishonest intention is shown right at the beginning of thetransaction. Merely on the allegation of failure to keep uppromise will not be enough to initiate criminal proceedings. 5.Learned Advocate for the applicants submits that it hasbeen alleged in the FIR that the trust authorities during theperiod 2013 to 2018 had not kept the proper accounts. Further,12 tenants had given the amount of Rs.18,12,000/- apart fromthe rent but the members of the trust issued the receipts for theamount of Rs.51,000/- only and for rest of the amount i.e.Rs.17,61,000/- no note was taken in the accounts of the trust. Adifferent account was also opened without the permissionthrough general body meeting etc., are the contents. However,all those documents were subject of the audit. Demand forspecial audit was made by the complainant/informant himselfbut then he proceeded on the basis of re-audit. Re-audit cannotbe permitted unless it is through the orders of the CharityCommissioner. Learned Advocate for the applicants further relies cria-3982.226on the decision in Narayan Kalba Gaikwad and others vs. theState of Maharashtra and others, 2019 ALL MR (Cri) 3195,decided by the Division Bench of this Court, to which one of theMember of this Division Bench, i.e. SMT. VIBHA KANKANWADI, J.was party, wherein after relying on the decision in Rajeshwarraos/o Vishwanathrao Patil and others vs. the State of Maharashtraand others (Criminal Writ Petition No.507 of 2013, decided on22nd August 2013), it was held that, when the Assistant CharityCommissioner is vested with the powers of the Civil Court then aprivate person cannot institute any FIR. Learned Advocate,therefore, prayed for quashing and setting aside the FIR and thecharge-sheet.6.Per contra, the learned APP as well as learned Advocateappearing for respondent No.2 strongly opposed the application.It is submitted that the learned Magistrate while passing theorder under Section 156(3) of the Code of Criminal Procedure,has considered that since there was misuse of the powers andcreation of false and fabricated bills and documents, thecommittee that came into power, decided to reinspect the auditreport i.e. re-audit the same and thereupon those factsemerged. In fact the change report and copy of Schedule-1
Legal Reasoning
cria-3982.227showed that the applicants and other members were appointedas trustees and a note was taken that there was fulfillment ofthe requirement of Section 22 of the Bombay Public Trust Act.After finding that there was prima facie commission ofcognizable offence, the order of investigation under Section156(3) of the Code of Criminal Procedure was passed. Thestatements of witnesses have been taken including the tenants,who had stated that they had given huge amount to the thencommittee but proper receipts were not issued. Therefore,certainly, the offences have been made out prima facie and thereis evidence to that effect.7.Learned Advocate for respondent No.2 relies on thedecision in Suresh Bhagwanrao Puri vs. State of Maharashtra,2017 All M.R. (Cri.) 465, wherein it is held that the applicants-trustees sold property of trust by posing that property is selfacquired property. false documents created by applicants forshowing that property is self acquired, though it was of trust.Sufficient documentary evidence was on record showing thatland was purchased on behalf of trust. Merely because civilremedy may also be available to complainant, that by itselfcannot be a ground to quash criminal proceedings. Learned cria-3982.228Advocate for respondent No.2 further relies on the decision inNara Chandrababu Naidu S/o Kharjura Naidu vs. State ofMaharashtra, 2024 All M.R. (Cri.) 2118, wherein it is held thataction by two authorities is maintainable.8.Here it is to be noted that there are much disputed facts inthe matter. First of all, as per the FIR, the complainant -informant is the secretary, who along with the other committeemembers took charge of the trust on 19th September 2018.Along with the complaint application he had filed change reportand copy of Schedule-1. So prima facie, he showed that he hadthe authority to lodge the report. The facts were taken intoconsideration regarding the embezzlement worth Rs.47,09,575/-and then investigation was ordered. During the course of theinvestigation, the other documents have also been collectedincluding the trust documents. It is then stated by the applicantsthat complainant had resorted to Section 38 of the BombayPublic Trust Act for special audit but the ultimate order, even ason the date on which the submissions were heard, was notproduced. The said application cannot be kept pending for yearstogether. But it appears that the re-audit was got done and onthe basis of the same the complaint application was filed. cria-3982.2299.We are not of the opinion that previous sanction of theAssistant Charity Commissioner is must for lodging the criminalreport. It appears that the learned Advocate for the applicantsgot confused regarding the decision of this Court in NarayanKalba Gaikwad and others vs. the State of Maharashtra andothers, (supra). It was observed in Rajeshwarrao s/oVishwanathrao Patil and others vs. the State of Maharashtra andothers, (supra), that, the Assistant Charity Commissioner is anauthority constituted under the Bombay Public Trust Act, and isvested with the powers, duties and functions under said Act, theAssistant Charity Commissioner is vested with powers of civilcourt, therefore, if any offence is committed by the accused inthe process of any investigation or enquiry, it is an independentmatter to be dealt with by the competent authority under theBombay Public Trust Act under the provisions of Chapter XIVread with Chapter XXIV of the Code of Criminal Procedure. InNarayan Kalba Gaikwad and others vs. the State of Maharashtraand others, (supra), the Assistant Charity Commissioner hadrejected the application Exhibit 23 in order to initiate action asper Section 51 of the Bombay Public Trust Act and the said orderappears to have not been challenged by the informant and cria-3982.2210taking into consideration this factual scenario, this Court hadcome to the conclusion that the FIR therein was not maintainableor it was thought to be a fit case where the powers underSection 482 of the Code of Criminal Procedure could beexercised. But here there are no such events those have takenplace. Only asking for the special audit under Section 38 of theBombay Public Trust Act is different from seeking criminalprosecution under Section 51 of the said Act.10.Now the contents of the charge-sheet would show that thestatements of various tenants have been recorded who say thatthey had given huge amount to the committee members of thetrust, however, neither proper receipts were given nor anydocument was given regarding the same and whatever receiptwas given, was of a very less amount. Supporting further is there-audit document. The criminal law can be set in motion byanybody and therefore, we do not find that there is any illegalityin the order passed by the learned Magistrate in sending thematter for investigation under Section 156(3) of the Code ofCriminal Procedure. 11.There is prima facie evidence against the applicants and cria-3982.2211therefore, we do not find this to be a fit case where we shouldexercise our powers under Section 482 of the Code of CriminalProcedure.12.The Application stands rejected. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/JULY25