High Court
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.4309 OF 2022Harish Kishanchand Mandhwani,Age 54 yrs., Occ. Business,R/o 104/3, Sindhi Colony,Jalgaon. At present r/o C/o Kishanchand Mandhwani,D-301 at Classic, Vidhan Sabha Main Road,Shankar Nagar, Raipur,Chhattisgarh – 492004. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Jilha Peth Police Station,Jalgaon. 2Ashok Namdeo Rane,Age 63 yrs., Occ. Business,R/o 19, Bhoite Nagar,Near Pimprala Gate,Near Chhota Ganpati Temple,Jalgaon, Tq. & Dist. Jalgaon. … Respondents...Mr. M.G. Patil, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1Mr. A.S. Sawant, Advocate for respondent No.2...WITH
Legal Reasoning
2Cri.Appln_4309_2022+2CRIMINAL APPLICATION NO.4087 OF 2022Gurumukh Mehrumal Jagwani,Age 65 yrs., Occ. Business,R/o 20-B, Jainagar, Jalgaon. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Jalgaon Taluka Police Station,Jalgaon. 2Ashok Namdeo Rane,Age 63 yrs., Occ. Business,R/o 19, Bhoite Nagar,Near Pimprala Gate,Near Chhota Ganpati Temple,Jalgaon, Tq. & Dist. Jalgaon. … Respondents...Mr. A.N. Nagargoje, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1Mr. A.S. Sawant, Advocate for respondent No.2...WITHCRIMINAL APPLICATION NO.4263 OF 2023H.A. Lokchandani @ Haresh Ashok Lokchandani,Age 42 yrs., Occ. Chartered Accountant,R/o 23-A, Khandesh Mill Colony, 3Cri.Appln_4309_2022+2Ring Road, Jalgaon, Dist. Jalgaon. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Jalgaon Taluka Police Station,Jalgaon. 2Ashok Namdeo Rane,Age 63 yrs., Occ. Business,R/o 19, Bhoite Nagar,Near Pimprala Gate,Near Chhota Ganpati Temple,Jalgaon, Tq. & Dist. Jalgaon. … Respondents...Mr. V.B. Patil, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1Mr. A.S. Sawant, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &MANJUSHA DESHPANDE, JJ.RESERVED ON :16th APRIL, 2025PRONOUNCED ON :11th JUNE, 2025ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1All these applications filed under Section 482 of the Code of 4Cri.Appln_4309_2022+2Criminal Procedure, 1973 arise out of the same proceedings and, therefore,taken up together for disposal. All the applicants have been arrayed asaccused in First Information Report vide Crime No.306/2022 dated03.11.2022 registered with Jalgaon Taluka Police Station, Tq. & Dist.Jalgaon, for the offence punishable under Section 417, 419, 420, 465, 467,468, 471, 120-B read with Section 34 of the Indian Penal Code, 1860. Thesaid First Information Report came to be lodged at the behest of respondentNo.2 . 2Heard learned Advocates Mr. M.G. Patil, Mr. A.N. Nagargoje andMr. V.B. Patil for applicants in respective matters and learned APP Mr. G.A.Kulkarni for respondent No.1 as well as learned Advocate Mr. A.S. Sawant forrespondent No.2, in all matters. 3The learned Advocates appearing for all the applicantsvehemently submitted that respondent No.2 has already filed RegularCriminal Case No.423/2016 before learned Chief Judicial Magistrate, Jalgaonmaking same allegations against applicants and others. Initially respondentNo.2 (Criminal Miscellaneous Application No.79/2014) had prayed for actionto be taken under Section 156(3) of the Code of Criminal Procedure.However, by order dated 14.03.2014 learned Chief Judicial Magistrate, 5Cri.Appln_4309_2022+2Jalgaon rejected the request of sending the complaint for investigation underthe said provisions, however, had kept the complaint for recordingverification under Section 200 of the Code of Criminal Procedure. Thereafter,in the said matter, it appears that verification was recorded and inquiryreport under Section 202 of the Code of Criminal Procedure was called fromthe concerned Police Station. Said report Exh.6 was received in CriminalM.A. No.79/2014 and hearing the Advocate for complainant issued theprocess against accused Nos.1 to 7, for the offence punishable under Sections120, 182, 417, 419, 420, 465, 466,467, 468, 471, 472, 473, 474, 475, 476,477-A read with Section 34 of the Indian Penal Code and Section 120-B ofthe Indian Penal Code by order dated 02.07.2016. However, thereafter itappears that respondent No.2 managed to get the First Information Reportregistered vide Crime No.306/2022 on 03.11.2022. In the meantime,respondent No.2 had challenged the order of refusal of sending the matterfor investigation under Section 156(3) of the Code of Criminal Procedure inCriminal Revision Application No.119/2017. Learned Additional SessionsJudge, Jalgaon by Judgment and order dated 23.08.2018 had rejected therevision application and upheld the order passed on 20.05.2017 by learnedChief Judicial Magistrate, Jalgaon. In the meantime, the said CriminalMiscellaneous Application came to be registered as Regular Criminal CaseNo.423/2016. There is total suppression of filing of private complaint by 6Cri.Appln_4309_2022+2respondent No.2 in the First Information Report. 4Learned Advocate appearing for applicant in CriminalApplication No.4309 of 2022 and learned Advocate Mr. A.N. Nagargojeappearing for applicant in Criminal Application No.4087 of 2022 have reliedon the decision in T.T. Antony vs. State of Kerala and others [(2001) 6 SCC181] and Upkar Singh vs. Ved Prakash and others [AIR 2004 SC 4320] andsubmitted that registration of second First Information Report on the samefacts is a gross abuse of process of law. Respondent No.2 and prosecutionought not to have registered First Information Report when already thecognizance of offence has been taken by Magistrate. Second FirstInformation Report suffers from doctrine of double jeopardy and theapplicants cannot be asked to face the trial twice. 5Learned Advocate Mr. V.B. Patil appearing for applicant inCriminal Application No.4263/2023 submits that the matter pertains to Trustproperty and in fact, the proceedings are going on before the CharityCommissioner. Even the Trust has filed Special Civil Suit No.143/2017before Civil Judge Senior Division, Jalgaon for declaration of sale deed dated19.07.2013 as fraudulent and void ab initio. Therefore, when subject-matteris taken care of by Civil Court twice, there cannot be the cognizance i.e. by 7Cri.Appln_4309_2022+2the police on the second occasion. Applicant in his matter is a CharteredAccountant by profession and he has no concern with the Trust. He is not thebeneficiary of sale deed and under such circumstance, it would be an abuseof process of law if he is asked to face the trial. The other two learnedAdvocates appearing for other two applicants submitted that their clients alsohave not played any active role in the execution of sale deed in question. Infact, it was the internal dispute of Trust and change report was still pending. 6Per contra, learned APP and learned Advocate for respondentNo.2 in all the matters strongly objected applications and submitted that theinformant had in fact given a complaint with Jilha Peth Police Station andwhen cognizance was not taken by the police, he had lodged the privatecomplaint in the form of miscellaneous application, wherein he had prayedfor sending the complaint for investigation under Section 156(3) of the Codeof Criminal Procedure. The applicants cannot seek advantage in respect ofthe same because there are already recitals in the application which has beenthen treated as complaint under Section 2(d) of the Code of CriminalProcedure by the Magistrate. The investigation done up till now wouldcertainly show role played by each of the accused. In fact, the suit propertyinvolved in the civil suit pertains to Trust. There are two immovableproperties; one admeasuring 66 R from Gat No.338/1 and another 8Cri.Appln_4309_2022+2admeasuring 95 R from Gat No.339/A situated in village Pimprala. Byforging documents an application for change report was filed before DeputyCharity Commissioner. It was shown that in the Trust there are ninemembers who are in fact bogus members and even when one of theapplicants (as she was shown) Smt. Nirmala Vasant Patil had expired in theyear 2008 itself; yet, she was shown to be the member and with the help oftwo Chartered Accountants false audit report was got prepared in 2010, 2011and 2012. They were produced along with the change report and thereafterby misleading the Deputy Charity Commissioner, Nashik permission wasobtained to sell the lands. In fact, while granting permission a condition wasimposed that the sale proceeds should be used for purchasing 7.33 acres ofland from Gat No.22/1-B and Gat No.23 within the limits of village Kanaldabelonging to one Waman Narayan Rane. In fact, there is no such personstaying in the said village. There is no land bearing Gat No.22/1-B in villageKanalda and owner of Gat No.23 is a different person. Accused GurumukhJagwani has created false document and other accused persons have helpedhim. The misappropriated amount is to the tune of Rs.84,98,850/-.Investigation is still going on and, therefore, this is not a fit case where thepowers under Section 482 of the Code of Criminal Procedure can beexercised by this Court. 9Cri.Appln_4309_2022+27At the outset, we would like to consider the history in the matter.One Madhukar Murlidhar Bhangale represents in the capacity as MemberSecretary of one Jalgaon Zilla Gram Sudhar Samiti, Kanalda, Tq. & Dist.Jalgaon, which has certain properties belonging to the Trust. The accusedpersons are stated to be not members of said Trust nor in any way they areconcerned with the Trust. In order to grab the Trust property all the accusedhave committed the fraud, was the contention of respondent No.2. It appearsthat he filed Criminal Miscellaneous Application No.79/2014 after the saledeed was executed and rejection of the change report on 06.01.2014. Thelearned Chief Judicial Magistrate by order dated 14.03.2014 refused to sendthe complaint for investigation under Section 156(3) of the Code of CriminalProcedure and took up the procedure as contemplated under Section 200 ofthe Code of Criminal Procedure. After recording verification, report underSection 202 of the Code of Criminal Procedure was called from concernedPolice Station and a detailed order was passed on 02.07.2016 for takingcognizance of some of the offences and it appears that in respect of otheroffences it was stated that there is a bar under Section 195 of the Code ofCriminal Procedure and, therefore, cognizance under those offences was nottaken. The said order dated 02.07.2016 of taking cognizance was challengedbefore this Court in Criminal Application No.4136 of 2016 by one of theaccused i.e. Gurumukh Mehrumal Jagwani. By order dated 26.10.2016 the 10Cri.Appln_4309_2022+2Hon’ble the Single Bench of this Court had partly allowed the application.The order of taking cognizance dated 02.07.2016 passed by the learned ChiefJudicial Magistrate, Jalgaon in Criminal Miscellaneous ApplicationNo.79/2014 came to be set aside. The matter was restored on the File ofconcerned Court and Court was directed to pass the fresh order, taking intoconsideration the legal position as it was stated in the order. Thereafter,learned Chief Judicial Magistrate by order dated 20.05.2017 taken note ofthe order passed by this Court and other documents and once again issuedprocess against accused Nos.1 to 7 for the offences mentioned in the order. Itis almost the similar order as regards taking cognizance is concerned. Itappears that Madhukar Murlidhar Bhangale in the capacity of MemberSecretary challenged the order of rejection of sending the matter forinvestigation under Section 156(3) of the Code of Criminal Procedure inCriminal Revision Application No.119/2017. Learned Additional SessionsJudge, Jalgaon by order dated 23.08.2018 dismissed the revision applicationand maintained the order dated 20.05.2017 passed by learned Chief JudicialMagistrate, Jalgaon regarding issuance of process. It can be seen that noneof the applicants have come with a case that they have challenged the orderof issuing process against them on 20.05.2017 passed by learned ChiefJudicial Magistrate, Jalgaon. No document has been produced to show as tohow the applicants were concerned with the said Trust property. However, 11Cri.Appln_4309_2022+2the copy of the sale deed is on record and the police papers definitely showthe collection of various documents including the audited accounts byChartered Accountants which were submitted before Deputy CharityCommissioner. As regards the sale proceeds are concerned, it is alleged thata separate account was created apart from the account which was shown inthe Trust documents and the amount was received therein. If the personswho are not concerned with the Trust property have managed to sell it, thencertainly investigation is necessary in the matter. 8Turning to the point that has been raised that when thecognizance of the offences already been taken in the private complaint, theFirst Information Report was not maintainable. It is to be noted that whatwas filed before the learned Chief Judicial Magistrate was a complaintinitially for relief under Section 156(3) of the Code of Criminal Procedure.However, that was rejected and then by treating that complaint under Section2(d) of the Code of Criminal Procedure the further action has been takenunder Section 200 of the Code of Criminal Procedure. The complainant wasa different person. He was then Member Secretary and respondent No.2 hasstated that since 2008 to 2023 he is the President of said Trust. Present FirstInformation Report is under Section 154 of the Code of Criminal Procedure.There is basic difference between a complaint under Section 2(d) and First 12Cri.Appln_4309_2022+2Information Report under Section 154 of the Code of Criminal Procedure.What has been prohibited is lodging of second First Information Report onthe same set of facts. That means, both the actions should have been underSection 154 of the Code of Criminal Procedure or both the actions cannot betaken under Section 2(d) of the Code of Criminal Procedure in the normalcourse. Of course, in one of the recent decision in State of Rajasthan vs.Surendra Singh Rathore [2025 INSC 248] Hon’ble Supreme Court has laiddown under which circumstances the second First Information Report ispermissible. Even in case of subsequent complaint under Section 2(d) of theCode of Criminal Procedure unless the first would have been resulted inacquittal, there would be a hurdle. However, subject to explanation incertain circumstances even the second complaint can also be stated to bemaintainable. There is no question of involvement of doctrine of DoubleJeopardy in the present case. There is no final decision or acquittal orconviction of the applicants earlier in the same set of facts. The said criminalprivate complaint is also pending before the learned Chief JudicialMagistrate, Jalgaon. 9We would like to take note of Section 210 of the Code ofCriminal Procedure which runs thus - “210. Procedure to be followed when there is a complaint case and 13Cri.Appln_4309_2022+2police investigation in respect of the same offence.—(1) When in acase instituted otherwise than on a police report (hereinafter referredto as a complaint case), it is made to appear to the Magistrate, duringthe course of the inquiry or trial held by him, that an investigation bythe police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay theproceedings of such inquiry or trial and call for a report on the matterfrom the police officer conducting the investigation.(2)If a report is made by the investigating police officer underSection 173 and on such report cognizance of any offence is taken bythe Magistrate against any person who is an accused in the complaintcase, the Magistrate shall inquire into or try together the complaintcase and the case arising out of the police report as if both the caseswere instituted on a police report.(3)If the police report does not relate to any accused in thecomplaint case or if the Magistrate does not take cognizance of anyoffence on the police report, he shall proceed with the inquiry or trial,which was stayed by him, in accordance with the provisions of thisCode.”Therefore, it can be seen that this provision prescribes completeprocedure to be followed when there is a complaint case and policeinvestigation in respect of the same offence. This Section also indicates thatthere is no bar of lodging First Information Report or continuation of theinvestigation by police when there is already a complaint instituted otherwisethan on a police report i.e. private complaint. 14Cri.Appln_4309_2022+210The investigation done so far shows involvement of all theaccused persons prima facie and, therefore, this is not a fit case where weshould exercise our powers under Section 482 of the Code of CriminalProcedure. All applications, therefore, stand rejected. ( MANJUSHA DESHPANDE, J. )( SMT. VIBHA KANKANWADI, J. )agd