Judgment

HEGDE, J.: - These appeals arise from two complaints filed by the Charity Commissioner, State of Gujarat under Section 35 (1) read with Section 66 of the Bombay Public Trusts Act, 1950 (which will hereinafter be referred to as the Act). In those complaints 10 accused were proceeded against. It was said that they were the trustees of two trusts known as "Shree Swaminarayan Mandir" and "Narayan Mandir". The 1st accused in both those complaints was the Acharya, the 10th was said to be the Mahant and the other accused the associated trustees at the relevant time. It was said that all these trustees were appointed under two different schemes framed by the High Court of Bombay. The trial Court convicted the accused but in appeal the High Court of Gujarat acquitted all of them. It held that there is no proof to show that accused 2 to 10 were the trustees of the institutions at the time the alleged offence took place. It allowed the appeal of the 1st accused on the ground that the prosecution has failed to prove the required mens rea on his part. The State of Gujarat and the Charity Commissioner have brought these appeals after obtaining special leave from this Court.

2. In the first complaint the allegation is that the 1st accused withdrew from the trust funds in Samvat year 2014 a sum of Rs. 30277/53 for meeting his income-tax liability and that he reimbursed that amount only in Samvat year 2018. The allegation against the other accused is that they showed the 1st accused to utilize that amount in contravention of the law. In the second complaint the allegation is that the 1st accused withdrew a sum of Rs. 40653/56 P. in the Samvat year 2015 again for meeting income-tax liability and that he reimbursed that amount also in the Samvat year 2018 and that the other accused connived at the contravention of the law by the 1st accused.

3. Accused 2 to 10 pleaded that they were not the trustees of the institutions concerned during the Samvat years 2014 and 2015 and nor were they aware of the withdrawals and as such they are not guilty of any offence. The 1st accused admitted the withdrawals mentioned in the complaints but his case was that the withdrawals were made from his Hathu Khata, a Khata built up by him and his ancestors and he has put back that amount.

4. So far as accused 2 to 10 are concerned there is absolutely no evidence against them. The only witness examined on behalf of the complainant namely the Legal Adviser of the Charity Commissioner did not give any evidence against them. No material was placed before the Court to show that they were the trustees of the trusts in question during the Samvat years 2014 and 2015. This is not a case where a trustee has failed to deposit the amounts in his hands but is a case of unauthorised withdrawals There is no evidence to show that accused 2 to 10 knew about those withdrawals even if we assume that they were the trustees during the Samvat years 2014 and 2015. Hence the case against them must necessarily fail.

5. Now coming to accused No. 1 his case is that he withdrew the amount from his Hathu Khata which Khata according to him is his private Khata. There is no contra evidence. The complainant s witness admitted during his cross-examination that accused No. 1 kept a huge sum with the trust and that no interest was given to him in respect of that amount. It is not possible to come to the conclusion on the basis of the evidence of P. W. 1 that accused No. 1 had 868 withdrawn any amount belong to the trust. In order to prove the case put forward in the complaints, reliance was sought to be placed on a letter said to have been sent by the accused to the Charity Commissioner. The original letter was not produced; only an alleged copy of the same was put on record. No witness has proved the letter said to have been written by accused No. 1, nor is there any evidence to show that the copy produced is a true copy of the letter said to have been sent by accused No 1. We are asked to infer th