2024:BHC-AUG:25707 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.165 OF 2016 Abhimanyu s/o. Virbhadra Rasure, Age 78 years, Occu. Business, R/o. Masjid Road, Latur, Tq. and Dist. Latur .. Petitioner (Original complainant)

Versus

1. The State of Maharashtra

2. Shantvir s/o. Gangadharappa Chaudhary, age 59 years, Occu. Advocate, R/o. Basweshwar Colony, Latur

3. Guruling s/o. Vishwanathappa Chaudhary, Age 46 years, Occu. Service, R/o. Deshikendra High School Campus, Sanstha Karyalaya, Latur

4. Maharudra s/o. Uttareshwar Rudraksha, Age 42 years, Occu. Service, R/o. College of Engineer, Ambajogai, Tq. Ambajogai, Dist. Beed

5. Shivshankarappa s/o. Vaijanathappa Khanpure, Age 75 years, Occu. Pensioner, R/o. Adarsh Colony, Latur, Tq. and Dist. Latur .. (Deceased)

6. Sambappa s/o. Trimbakappa Girwalkar, Age 80 years, Occu. Advocate, R/o. Near Panchayat Samittee, Latur, Dist. Latur .. Respondents Mr. V. D. Gunale, Advocate for Petitioner/complainant; Mr. S. P. Sonpawale, A.P.P. for Respondent No.1/State;

Mr. S. V. Natu, Advocate for Respondents No.2, 3 and 6/accused;

Mr. T. G. Gaikwad, Advocate for Respondent No.5 CORAM : S. G. MEHARE, J. Reserved on : 26.09.2024 Pronounced on : 18.10.2024 JUDGMENT :-

1. Rule. Rule made returnable forthwith. Heard finally with consent of the learned counsels for the parties.

2. The petitioner has impugned the order of the learned Chief Judicial Magistrate (C.J.M.), Latur, passed below Exhibit-93, in Regular Criminal Case No.439 of 2006, dated 06.05.2010 and the judgment and order of the learned Additional Sessions Judge, Latur, passed in Criminal Revision No.91 of 2010, dated

28.09.2015.

3. The brief facts of the case are that the respondents/accused were the ofÏce bearers and trustees of Mahatma Bashweshwar Education Society. The complaint was lodged against them that from 1983 to 1992, they in conspiracy and though not the ofÏce bearers accepted the donations from the students for their admissions to the colleges run by the society and did not deposit it with the college or society. They had shared those amounts. They did not enter the donation amount in the account. However, they manipulated the record for audit. Hence, they have committed the forgery.

4. The charge sheet has been filed against them for the offence punishable under Sections 420, 468, and 471 read with Section 34 of the Indian Penal Code and Sections 3, 4 and 5 of the Maharashtra Educational Institutions (Prohibition of Capitation Fee)

Act, 1987.

5. The respondents/accused had filed the application for discharge under Section 239 of the Code of Criminal Procedure (for short, “Cr.P.C.”). The learned Chief Judicial Magistrate, Latur discussed the facts and grounds raised by the respondents and discharged them. The learned Additional Sessions Judge confirmed the order of the learned C.J.M.

6. Mr. Gunale, the learned counsel for the petitioner has vehemently argued that both Courts erred in law in discharging the respondents/accused. The reasons for discharge are not legal, correct and proper. He submits that the application under Section 156(3) of the Cr.P.C. was filed and then the first information report was registered. There were statements from the students and parents supporting allegations of accepting donations by the respondents as bribes for their admissions. However, those material facts were ignored. Referring to the findings of the learned C.J.M., he would submit that the learned C.J.M. considered the documents filed by the respondents which were not part of the investigation report and chargesheet. While framing the charge the Court has to examine the record and the documents attached to the report under Section 173 of the Cr.P.C. However, the learned C.J.M. erred in recording the findings on the basis of the documents filed by the respondents that the respondents along with one M.S.Bidve were removed from the trusteeship under Section 41-D of the Maharashtra Public Trusts Act. It appears from the s