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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE & SANGITRAO S. PATIL, JJ.
Suresh s/o. Bhagwanrao Puri - Applicant
Versus
State of Maharashtra and Ors. - Respondents
CRIMINAL APPLICATION NO.6095 OF 2015 WITH CRIMINAL APPLICATION NO.6096 OF 2015
Decided On : 28-09-2016
The complaint should not have been entertained at the instance of the respondent No. 2 since he is not a member of the trust or no way concerned with the affairs of the trust or the Rural Reconstruction Society, and therefore, the entire proceedings based upon such complaint deserves to be quashed. In this respect, it is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary, as has been held by the Delhi High Court in the case of Rajiv Gandhi Ekta Samiti (cited supra). Apart from it, it is brought on record by the respondent No. 2 that he belongs to Banjara community. He is a social worker and he is making continuous efforts for the welfare of the said community. One of the objects to form Vasantrao Naik Institute for Tribal Development and Rural Reconstruction Society is for the welfare of the members from the Banjara community. Therefore, Court is not prepared to accept the contention of the applicants that the complaint filed by the respondent No. 2 was not maintainable.
Indian Penal Code, 1860 - Sections 420, 406, 408, 467 and 471-Criminal Procedure Code, 1973, Section 482-Cheating and criminal breach of trust-Grounds for quashing criminal proceedings.-In instant case, Court declined to quash criminal proceedings merely on the ground that an alternate remedy under civil enactment was available.
Indian Penal Code, 1860 - Sections 420, 406, 408, 467 and 471-Criminal Procedure Code, 1973, Section 482-Cheating and criminal breach of trust-Quashing of proceedings.-In instant case, it was held that when there were prima facie materials were available against accused-petitioner, a petition for quashing criminal proceedings could not be entertained.
The Supreme Court in the case of Vijayander Kumar and others v. State of Rajasthan and another, 2014 (2) Mh LJ (Cri) (SC) 331 : (2014) 3 SCC 389 while considering similar argument taken a view that in a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to informant/complainant that itself cannot be a ground to quash a criminal proceeding. Real test is whether allegations in complaint disclose a criminal offence or not. The Supreme Court in the case of Bhaskar Lal Sharma and another v. Monica and others, 2014 (2) Mh LJ (Cri) (SC) 442 : (2014) 3 SCC 383 while considering the scope of Section 482 of the Criminal Procedure Code held that core test that has to be applied before summoning the accused is that the facts stated against accused have to be accepted as they appear on the very face of it. Appreciation, even in a summary manner, of averments made in a complaint petition or FIR is not permissible at the stage of quashment of criminal proceeding. Facts, as alleged, will have to be proved which can only be done in the course of a regular trial.
The Supreme Court in the case of Ravindra Kumar Madhanlal Goenka and another v. Rugmini Ram Raghav Spinners Private Limited, (2009) 11 SCC 529 while considering the scope of Section 482 of the Criminal Procedure Code, has taken a view that while entertaining the prayer for quashing the FIR, when there are prima facie materials available (against accused), a petition for quashing criminal proceedings cannot be entertained. Investigating agency should have freedom to go into whole gamut of allegations and to reach a conclusion of its own. Preemption of such investigation would be justified only in very extreme cases.
S.S. Shinde, J.
1. Both the Criminal Applications take exception to the charge-sheet bearing Regular Criminal Case No. 35/2016, pending before the Judicial Magistrate First Class, Aurangabad, arising out of FIR bearing Crime M-Case No. I-212/2015 dated 29th July, 2015, registered at City Chowk Police Station, Aurangabad, for the offences punishable under Sections 420, 406, 408, 467, 471 r/w. Section 34 of the Indian Penal Code and Sections 66A and 67 of the Maharashtra Public Trusts Act (for short ‘MPT Act’), therefore, the same are heard together and being disposed of by common judgment and order.
2. According to the applicants, it is alleged in the FIR that the applicants in collusion purchased the land at village Satara in Gat No.243, admeasuring 11 Hector for a consideration of Rs.30,000/-. The amount was collected by them by way of membership contribution of Rs.5,000/- each from the members of Vasantrao Naik Institute for Tribal Development. The land purchased is in the name of Rural Reconstruction Sanstha through applicant Suresh Puri and the sale deed was executed on 3rd June, 1981. It is further alleged that 13 persons from Vasantrao Naik College and other field came together with a view to form an institute with an object to do social work, and registered the trust (No. MH-18-1981 AGD Aurangabad on 29th September, 1981 and its registration No.F-772). It is further alleged that 13 persons collected Rs.5000/- each i.e. Rs.65,000/- in total and handed over the said amount to the applicant Motiraj Rathod. Out of the said amount, 11 Hector 96 R. land was purchased for consideration of Rs.35,000/- in the name of Vasantrao Naik Institute for Tribal Development on 30th May, 1981, vide sale deed No. 3006/1981. Lateron a mutation entry in the 7/12 extract is also sanctioned in the name of Vasantrao Naik Institute for Tribal Development. The substance of the complaint in short is that the property purchased to the extent of 11 Hector in the name of the applicant Suresh Puri is purchased from the funds deposited by the members of Vasantrao Naik Institute for Tribal Development, and the said property is not shown as trust property and kept it in the name of Rural Construction Sanstha and the same is sold by the applicant Suresh Puri in the year 2014 to Vasant Dada Sugar Institute, Manjari (Bk.), Taluka Haveli, District Pune, in collusion with accused no.1 Motiraj Rathod. Therefore, according to the complainant, the said act of the applicants amounts to breach of trust, fraud, forgery and cheating and therefore, the complaint is filed against the present applicants, namely Suresh Puri and Motiraj Rathod, who were the Secretary and the President respectively of a registered Public Trust namely Vasantrao Naik Institute for Tribal Development at the relevant time.
3. Since the Kranti Chowk Police Station, Aurangabad, did not take cognizance of the FIR filed by the complainant, the complainant approached the Court of Judicial Magistrate First Class, Aurangabad and filed the complaint bearing M.A.No.1731/2015, seeking directions under Section 156 (3) of the Criminal Procedure Code to register FIR at City Chowk Police Station, Aurangabad, against the present applicants, and also against Vasant Dada Sugar Institute and the Directors of Vasant Dada Sugar Institute. The learned Judicial Magistrate First Class, Aurangabad passed an order and directed the City Chowk Police Station to register the FIR. Accordingly, the City Chowk Police Station, Aurangabad registered a Crime bearing M. Case No. 212/2015 for the offences punishable under Sections 420, 406, 408, 467, 471 r/w. 34 of the Indian Penal Code and Sections 66-A and 67 of the MPT Act.
4. The learned counsel appearing for the applicants submits that the complainant Avinash Kishan Rathod claiming himself as a social worker residing at Akola District and President of Manav Adhikar, which is a institution appears to be unregistered, has no concern with the land, which is the subject m
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