Shrirang Gopikrishna Agrawal And ... vs State Of Mah And Anr
2016 Latest Caselaw 6965 Bom

                                    1            CRI APPLN_1754.2007.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                      
                 CRIMINAL APPLICATION NO. 1754 OF 2007




                                              
         1.      Shrirang S/o Gopikrishna Agrawal (died)
                 (deleted).




                                             
         2.      Motiram S/o Palturam Agrawal,
                 Age. 70 years, Occ. Business,
                 R/o. Jalna.

         3.      Damodhar s/o Shrikrishan Bhartia (died)




                                    
                 (deleted)                     ..PETITIONERS..

                 VERSUS
                             
         1.      State of Maharashtra.
                            
         2.      J.G. Dorle,
                 Age. 40 years, Incharge Asst.
                 Charity Commissioner Jalna,
      


                 Through Superintendent P.T.R.O.
                 Assistant Charity Commissioner's
   



                 Office, Satkar Complex, Jalna.

         3.  Joint Charity Commissioner,
             Near Baba Petrol Pump, 





             Adalat road, Aurangabad.       ..RESPONDENTS.. 
                                               
                                   ...
               Advocate for Applicants: Mr D S Bharuka
                 APP for Respondent/State: S P Tiwari





                                   ...
                      CORAM : V.K. JADHAV, J.

Dated: December 6, 2016 ...

ORAL JUDGMENT :

1. By this criminal application, the applicants/original

accused has challenged the order of the learned Chief

2 CRI APPLN_1754.2007.odt

Judicial Magistrate, Jalna dated 11th May, 2006 passed

in R.C.C. No.726 of 2005 issuing the process thereby

against the Applicants/Accused for the offence

punishable under Section 41 (c) (2) read with 67 and 83

of the Maharashtra Public Trust Act, 1950 (hereinafter

referred to as 'the Act of 1950') and the judgment and

order dated 15th February, 2007, passed by the learned

Ad-hoc Additional Sessions Judge, Jalna, in Criminal

Revision No.99 of 2006 confirming thereby the order

passed by the learned Magistrate of issuance of process,

as aforesaid.

2. Brief facts, giving rise to the present criminal

application, are as follows :-

The then in-charge Assistant Charity

Commissioner has filed a complaint against the

Petitioners and others for having committed offence

punishable under Section 41(c)(2) read with 67 of the

Act of 1950. The present Applicants and the other

Accused are Members of Agrawal Samaj, Jalna and on

the basis of the complaint filed by one Kachrulal

Dhanuwala, the learned Assistant Charity

3 CRI APPLN_1754.2007.odt

Commissioner has directed an inquiry into the matter. It

has alleged in the said complaint by Mr. Kachrulal that

even though a huge amount was collected on one

occasion during the period from 16 th April, 2005 to 17th

April, 2005, no proper accounting was done and the

amount was misappropriated. Even though the In-

charge inspector has issued a notice, present Applicants

and other accused persons did not appear before him.

Thus on 26th October, 2005, the Charity Commissioner,

Maharashtra State, Mumbai, directed one Mr. Kachre,

Superintendent of office of Complainant, to conduct an

enquiry in the matter and submit a report. Said officer

had conducted an enquiry and submitted the report on

3rd December, 2005. The Joint Charity Commissioner,

Aurangabad, while exercising the powers conferred on

him, has accorded sanction to prosecute the accused for

the offence of breach of the provisions of Section 41 (c)

(2) punishable under Section 67 of the Act of 1950.

Consequently, the In-charge Assistant Charity

Commissioner, Jalna has lodged the complaint before

the Judicial Magistrate First Class, Jalna, against the

present Applicants, who are original Accused Nos. 1, 2

4 CRI APPLN_1754.2007.odt

and 5 and two more. By impugned order dated 11th

May, 2006, the learned Magistrate issued process

against the Applicants and the remaining Accused.

Being aggrieved by the same, Applicant No. 3 herein

alone preferred Criminal Revision No.99 of 2006 and the

learned Ad-hoc Additional Sessions Judge, Jalna vide

judgment and order dated 15th February, 2007,

dismissed the said revision. Hence, this criminal

application.

3. The learned counsel for the applicant submits

that, during the pendency of the present criminal

application, the applicant nos. 1 and 3 died. Thus,

matter abates against them and their names be deleted

from the array of the applicants forthwith.

4. The learned counsel for the applicant submits

that, the applicants on 27.1.2005 filed an application

before the Assistant Charity Commissioner, Jalna under

section 41 (c) of the Act of 1950 for grant of permission

for collecting the donation for the aforesaid programme

of Provincial Convention and Parichay Sammelan at

5 CRI APPLN_1754.2007.odt

Jalna. Learned counsel submits that the Assistant

Charity commissioner by order dated 28.1.2005 has

granted permission in terms of the provisions of Section

41-C of the Act of 1950 with certain directions. Said

permission is produced on record and the same is

marked as Exh.D page 27 which is not disputed by the

other side. In terms of the said permission, the

applicants have been directed to get the accounts

audited through the registered auditor and further

directed to submit the previous year report, if any,

alongwith the names and addresses of the office

bearers. It was further directed that, printed receipts are

necessarily to be issued for collection of the donations

and maintain expenditures vouchers. Learned counsel

submits that, it has no where mentioned in the said

permission that, the applicants should submit the

report within 15 days after completion of said

programme for which permission to collect donation in

terms of section 41-C of the Act of 1950 was granted.

The learned counsel submits that, on the basis of

certain complaints, though inquiry was initiated

during the course of the said inquiry, the applicants

6 CRI APPLN_1754.2007.odt

have submitted the report of registered auditor

pertaining to the account maintained by the applicants

in respect of said programme, however, inquiry officer

has added many things in the inquiry report even

though registered auditor had not observed and

remarked any irregularity in the account maintained by

the applicants so far as event for which permission was

sought from the authority under the provisions of 41-C

of the Act of 1950 is concerned. Learned counsel

submits that, Jt. Charity Commissioner has not at all

given reference to the report submitted by the registered

auditor and further observed that the applicants have

failed to file copy of the balance sheet and duly audited

income and expenditures to the Assistant Charity

Commissioner, Jalna. Learned counsel submits that,

said observations in the sanction order is contrary to

the record. Learned counsel submits that, even on

perusal of the inquiry report, which has been produced

on record before this Court by the respondent-original

complainant, it appears that, inquiry officer himself has

admitted that the entire amount collected by way of

donations shown in the audit report and further

7 CRI APPLN_1754.2007.odt

applicants have obtained approval of General Body

meeting of Agrawal Samaj of income and expenditure for

the said event. Learned counsel submits that, the

Courts below have given undue weightage to the

observations made by the Inquiry Officer which is

contrary to the record and reports submitted by the

registered auditor. Learned counsel submits that, the

impugned order thus liable to be quashed and set aside.

5. Learned A.P.P. for the respondent-State submits

that, while granting permission under the provisions of

Section 41-C of the Act of 1950, the learned A.C.C. Has

directed the applicants should submit the accounts and

audit report within 15 days from the completion of the

object specified in the application no.3/2005. Learned

A.P.P. Submits that, said fact was suppressed by the

applicants in the present criminal application. Learned

APP submits that applicants failed to submit audit

report as per the conditions imposed and since office

has received two complaints by one Kacharulal

Dhanwala, inquiry was directed through the office

Superintendent. It was found in the said inquiry that

8 CRI APPLN_1754.2007.odt

the applicants had not maintained the account nor

submitted audit report. The learned APP submits that,

on 11.10.2005 the applicants submitted audit report in

the office. Said report is filed after stipulated period of

15 days. Thus, by order dated 6.12.2005 the then

Assistant Charity Commissioner, Jalna ordered the

report of inquiry to be put up before the Ld. Joint

Charity Commissioner, Aurangabad for consideration

and necessary action. The learned Jt. Charity Charity

Commissioner Aurangabad, while exercising powers

conferred on him under section 83 of the Act of 1950, by

order dated 6.3.2006 has accorded sanction to

prosecute the present applicants for the breach of

provisions of section 41-C (2) punishable under section

67 of the Act of 1950. The learned APP submits that,

the applicants cannot seek any immunity from

prosecution on the ground that they have subsequently

filed audit report. The learned A.P.P. has also accepted

that, even the audit report, if, submitted at the later

time can be accepted by imposing costs. The learned

APP submits that there is no substance in the criminal

application and the same is thus liable to be dismissed.

9 CRI APPLN_1754.2007.odt

Section 41-C of the Act of 1950 reads as under :-

"41C. Persons (other than Public Trusts) collecting moneys, etc. for religious or charitable purpose to inform Charity Commissioner of such collections forthwith etc.:-

(1) Any person, (not being a public trust registered under this Act) collecting any money subscription, donation or other property for religious or charitable purpose shall forthwith

inform the Charity commissioner in writing of such collection and the purpose for which such collection is made.

(2) On receipt of such information, the Charity Commissioner may, on making such inquiry as he deems fit, permit such

collection to be continued subject to such condition as he deems fit, or may, after recording his reasons in writing in that behalf direct such person to stop making such collection

forthwith and require such person to render an account of the collection made by him.

(3) It shall be the duty of every such person to comply with the directions or any order made by the Charity Commissioner under sub-section (2)."

6. It is thus clear that the persons other than Public

Trusts if collecting moneys etc., for any religious or

charitable purpose, required to inform the Charity

Commissioner of such collection forthwith and on

receipt of such information, the Charity Commissioner

may permit such collection to be continued subject to

such condition as he deems fit.

7. In the instant case, the applicants have filed an

application bearing No.3/2005 quoting there in one

event of Parichaya Sammelan of Agrawal Samaj and

10 CRI APPLN_1754.2007.odt

thus, sought permission from the Assistant Charity

Commissioner for the collection of the donation of the

said event to be scheduled on 16.4.2005 and 17.4.2005.

The learned A.C.C. Jalna by order dated 28.1.2005 Exh.

D granted permission with certain condition. Those

conditions reads as under :-

1]. The applicant shall issue printed receipts

for collection of such donations and further maintain expenditure vouchers.

2]. The applicant shall get the accounts audited through the Registered Auditor if

donation exceeds amount of Rs.15,000/-.

3]. The applicants have been directed to submit the last year accounts, if any, and to

further submit the names and addresses of the office bearers of the next year.

8. Further, by way of additional conditions, the

applicants have been directed to submit the accounts

within 15 days after event is completed.

9. It further appears from the documents submitted

alongwith the affidavit-in-reply filed by the respondent

no.2-original complainant that, on 21.4.2005 and

25.4.2005 one Mr. Kacharulal Dhanwala had filed

complaints before the Assistant Charity Commissioner,

11 CRI APPLN_1754.2007.odt

Jalna about irregularity in the donations collected by

the applicants for the said event and also complained

that no proper accounts are maintained by the

applicants. Consequently, inquiry was directed and

accordingly, the Superintendent of A.C.C. Office, Jalna

has conducted inquiry into the matter. Inquiry report in

respect of those complaints is submitted alongwith the

affidavit-in-reply and marked at Exh.R-3. On perusal of

the same, it appears that, inquiry officer has

acknowledged that registered auditor has submitted the

report in respect of the accounts maintained by the

applicants for the said event. It is further matter of

record that the registered auditor have not observed

anything about any irregularity in the accounts

maintained by the applicants in collection of the

donations for the said event and expenditure incurred

thereof. Even, the Inquiry Officer has accepted that

amount of Rs.9,66,807/- collected by way of donations

shown in the audit report. The Inquiry Officer has also

observed that there is no substance in the allegations

made by the said Kacharulal in this regard. The Inquiry

Officer has observed that, on 11.7.2005 meeting of the

12 CRI APPLN_1754.2007.odt

Agrawal Samaj was called and income and expenditure

of the said event has been approved by the General

Body of Agrawal Samaj. Inquiry officer has merely

shown his suspicion as expenditure vouchers were not

shown to him during the course of inquiry. However, it

appears that, the inquiry officer has not at all

considered the audit report submitted by the registered

auditor. It is the part of the record that auditor has not

noticed any irregularity in the accounts maintained by

the applicants in respect of the said event.

10. In the instant case, the applicants-original

accused have submitted the report of the auditor Exh.H

(page 32). The said Auditor's Report has been referred

by the Inquiry Officer, on whose inquiry report sanction

was accorded by the Jt. Charity Commissioner and

accordingly, the complaint which is subject matter of

the present criminal application was filed before the

learned Magistrate. It cannot be said as an absolute

proposition that under no circumstances can the court

look into the material produced by the defence. This

should be done in very rare case, i.e. where the defence

13 CRI APPLN_1754.2007.odt

produced some material which convincingly

demonstrates that whole prosecution case is totally

absurd.

In the instant case, since the auditor report has

been referred by the inquiry officer, I have gone through

the same minutely. The auditor's report placed on

record alongwith present criminal application. On

perusal of the same, it appears that the auditor has

remarked that all the books, deeds, accounts, vouchers,

other documents on record required by the auditor were

produced before him. Further, it has specifically

mentioned in the income side account that there is

specific entry about donations in cash or kind to the

tune of Rs.7,96,337/-. Further, on the expenditure side,

expenses are mentioned under various heads including

catering expenses, Mandap Lighting decoration,

Memento expenditure, Parichay Book, printing and

stationary, telephone diary, travelling expenses, coin

purchase, goods purchase etc. The inquiry officer has

also given reference to receipt of the amount under

donations as mentioned in the audit report.

14 CRI APPLN_1754.2007.odt

11. It appears that the applicants have not submitted

the accounts within 15 days as directed by the learned

Assistant Charity Commissioner while granting

permission under section 41-C of the act of 1950.

However, it is further a part of record that office of the

Assistant Charity Commissioner, Jalna has accepted

audit report submitted by the applicants and thereafter,

the aforesaid inquiry was concluded. It is not the case

that the office of the A.C.C. Jalna has not accepted said

audit report as filed beyond the period of 15 days. In

terms of provisions of Section 41-C and other

mandatory provisions about the accounts to be

maintained by the Public Trust or the persons other

than Public Trust, there is no violation of the said

provisions as such and the applicants are subjected to

criminal prosecution only for the reason that, the

accounts though duly audited by the registered auditor,

came to be submitted beyond period of 15 days before

the authority concerned.

12. In view of the above observations, in my

considered opinion, whole prosecution case is totally

15 CRI APPLN_1754.2007.odt

absurd and continuation of the prosecution would be

the abuse of the court process. Both the courts below

have not considered this aspect. Even, sanction order

passed by the Charity Commissioner is contrary to the

record maintained by the office of the Assistant Charity

Commissioner, Jalna.

13. In view of this, I inclined to allow this criminal

application. Hence, following order.

ORDER

I. Criminal Application is hereby allowed.

II. The order dated 11.5.2006 passed by the

Chief Judicial Magistrate, Jalna in S.T.C.

No.726/2006 and confirmed by the Adhoc Additional Sessions Judge-2, Jalna in Criminal Revision No.99/2006 are hereby quashed and set aside.

III. The complaint S.T.C. No. 726/2006 is hereby dismissed as against the present petitioners.

IV. Rule is made absolute in above terms.

                       V.          Criminal   Application               accordingly 
                                   disposed of.



                                                       ( V.K. JADHAV, J. )
         aaa/-                                   ...