Bombay High Court
Avinash Gurupad Balkundi & Ors vs State Of Mah & Anr on 24 November, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 724 OF 2005
1. Avinash S/o Gurupad Balkundi (Died)
(Deleted).
2. Sugandh S/o Prasad Shinde,
Age. 65 years, Occu. Treasurer,
R/o. 7, Moreshwar Apartment,
Shivaji Nagar, Dasak, Nashik.
3. Rev. Narendra S/o Rangnath Shinde,
Age. 60 years, Occu. Vice-President,
R/o. Mission Compound, Behind Post
Office, Manmad, Dist. Nashik.
4. David S/o Valoba Kshetre,
Age. 72 years, Occu. Trustee,
R/o. Kamalkunj Gulabsing Compound,
Station Road, Ahmednagar.
5. Prasad S/o Omrao Amolik,
Age. 68 years, Occu. Trustee,
R/o. St. John Baptist Church,
Near Gondhavani, Shrirampur,
Dist. Ahmednagar.
6. Bhaskar S/o Jakab Salve,
Age. 50 years, Occu. Trustee,
R/o. 3-Punjab colony, Canal Road,
Near Jail Road, Nashik.
7. Shashikant J. Wanjare,
Age. 70 years, Occu. Trustee,
R/o. Christian Colony, Tarakpur,
Ahmednagar.
8. Smt. Margarate Namdeo Mate,
Age. 61 years, Occu. Trustee,
R/o. S.P.G. Mission Compound,
Tarakpur, Ahmednagar.
9. Fransis David John,
Age. 58 years, Occu. Trustee,
R/o. Flat No. 2, Sheetal Dhara
Apartment, Bodhale Nagar,
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Poona Road, Nasik.
10. Miss. Margarate Ramesh Gangurde.
Age. 49 years, Occu. Trustee,
R/o. N-32, H-1-5-6, Shantinagar,
CIDCO, Nashik.
11. Smt. Sharlet Samsung Nade,
Age. 47 years, Occu. Trustee,
R/o. Nade Niwas, Sharanpur,
Nashik. ....Applicants.
Versus
1. The State of Maharashtra.
2.
Rt. Rev. Mr. Pradip Lamuel Kamble,
Age. 50 years, Occu. Bishop of Nasik,
R/o. Bishop House, Outram Road,
Tarakpur, Tq. & Dist. Ahmednagar. ....Respondents.
...
Advocate for Applicant : Mr. P B Shirsath
APP for Respondent No.1: Mr. A.R. Kale
Advocate for Respondent No.2 : Mrs. S.D. Tambat-Dhumal
.....
CORAM : V. K. JADHAV, J.
DATED : 24th NOVEMBER, 2016
ORAL JUDGMENT:-
1. Learned counsel for the applicants submits that during
pendency of this criminal application, applicant No.1 died. In view of
this, since the matter abates against applicant No.1-original accused,
leave to delete his name. Deletion be carried out forthwith.
2. The applicants/original accused seek quashing and setting
aside the order dated 20.09.2004, passed by learned J.M.F.C.
Ahmednagar in S.T.C. No. 2221 of 2004, issuing thereby process
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against the applicants accused for the offence punishable under
Section 500 of I.P.C.
3. Brief facts, giving rise to the present criminal application, are
as follows:-
a) Nashik Diocesan Council is a registered trust, having its office
at Nashik and the applicants are elected members of the said
Trust, whereas respondent No.2 complainant was ex-officio member
of the said Trust, amongst 15 trustees. Respondent No.2
complainant, who was Bishop of the trust and ex-officio member,
without giving any intimation, remained absent in the meetings of
the Board of Trustees, and thus, in terms of bylaw No.14 (c) of the
Trust, respondent No.2-complainant became disqualified.
Consequently, by resolution dated 14.4.2003, the applicants had
unanimously taken a decision and thereby disqualified respondent
No.2 complainant as ex-officio member, Bishop of the Trust. It has
also resolved that since respondent No.2 complainant was
disqualified as trustee, as per clause 14(c) of the Trust, change
report to that effect is to be submitted before the Assistant Charity
Commissioner, Nashik. Accordingly, applicant No.1, being Chairman
of the Trust, has submitted change report in the office of Assistant
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Charity Commissioner, Nashik. On 31.5.2003, though respondent
No.2 complainant was intimated the said fact by speed post, he
continued to act as Bishop of the Trust on the basis of general power
of attorney executed in his favour. Thus, the applicants therefore,
constrained to issue a public notice in daily newspapers to the effect
that the respondent complainant was removed from the office of
trustees in general body meeting. Respondent No.2 complainant has
treated the said publication as defamation and filed complaint before
the J.M.F.C. Ahmednagar, bearing S.T.C. No. 2221 of 2004. By
order dated 20.9.2004, learned J.M.F.C. Ahmednagar, on perusal of
complaint, verification and the documents filed alongwith the
complaint, issued process against the applicants under Section 500
of I.P.C. Hence, this criminal application.
4. Learned counsel for the applicants submits that as per the
bylaws, particularly bylaw No. 14, disqualification of the trustees is
provided. In terms of clause (c) of bylaw No.14, the trustee become
disqualified to continue as a trustee if he remained absent in the
meetings of the Board of Trust successively held at four (04)
occasions, unless leave of absence is sought and executed by
resolution. Learned counsel submits that respondent No.2
complainant remained absent in the meetings dated 26.10.2001,
3.2.2002, 21.4.2002, 16.6.2002, 25.8.2002, 30.11.2002, 29.12.2002,
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12.1.2003, 16.2.2003 and 14.4.2003, without obtaining any leave.
Thus, the applicants, by resolution dated 14.4.2003, declared
respondent No.2 original complainant as disqualified to be continued
as ex officio trustee -Bishop and also resolved to submit change
report to that effect before the Assistant Charity Commissioner.
Furthermore, though intimated about the said fact, the respondent
complainant continued to act as Bishop of the Trust on the basis of
general power of attorney, executed in his favour and as such,
applicants thought it fit to issue public notice for the awareness of
public.
5. Learned counsel for the applicants further submits that the
respondent complainant in para 3 and 4 of the complaint has
contended that there was no general body meeting held or no such
resolution passed against him nor he was invited for any general
body meeting. If respondent original complainant wants to dispute
the aforesaid resolution and the change report, in that case, the
proper remedy is to approach the Assistant Charity Commissioner
and to file objection, if any. Even accepting the allegations made in
the complaint, as it is, no case is made out for issuance of process.
Further, in view of 9th exception of section 499 of I.P.C. such
imputation, if made in good faith, is not a defamation since the
applicants, who are duly elected trustees, in order to protect the
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interest of the trust, have made such publication. Learned counsel
submits that the case squarely falls under exception 9 of Section 499
of I.P.C. The impugned order of issuance of process passed by
learned Magistrate thus, is liable to be quashed and set aside.
6. Learned counsel for the applicants, in order to substantiate his
submissions, placed reliance on the following two judgments:-
i)
Parmeshwarlal R. Dalmia & Others vs. Ravindra Prasad
Khetan & Others, reported in 1996(1) ALL MR 424.
ii) Vinodchandra Purushottamdas Shah & Others vs. Shri.
Puspansen Panachand Jhaveri & Others reported in
1996(2) ALL MR 533.
7. Learned counsel for respondent No.2 original complainant
submits that in order to defame respondent No.2 complainant, the
applicants have published false news to the effect that respondent
complainant was removed from ex-officio trusteeship in the general
body meeting and since the said news has been published in daily
newspapers "Dainik Lokmaratha" dated 17.7.2003 and "Dainik
Lokmat" dated 15.7.2003, Ahmednagar edition, the image of
respondent No.2 complainant came to be diminished in the eyes of
Christan community at large and in Ahmednagar district, in particular.
The respondent complainant is Bishop and is responsible person for
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religious activities of Christian community. Thus, publication of libel
against him had tarnished his image and had marred his reputation in
the Christian community. There was no such general body meeting
and no resolution was passed against him. There was no removal of
respondent complainant from the office of ex-officio trustee. The
learned Magistrate has therefore, rightly issued process against the
applicants accused for the offence punishable under Section 500 of
I.P.C. No interference is required. Learned counsel submits that at
present, respondent No.2 complainant is Chairman of the said Trust.
8. I have also heard learned A.P.P. for respondent No.1 State.
9. On careful perusal of bylaws and more particularly bylaw No.
14(c), it is manifest that disqualification of the trustee may occur if the
trustee remained absent in the meeting of the trust successively on
four occasions unless leave of absence is sought and executed by
resolution. In the instant case, the applicants, who are elected
trustees of the said trust, passed resolution dated 14.4.2003
unanimously and accordingly disqualified the respondent original
complainant in terms of bylaw No. 14(c). Respondent No.2
complainant seems to be aggrieved because the applicants issued a
public notice in daily newspapers about the said removal of
respondent No.2 complainant from the trusteeship and according to
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respondent original complainant that has diminished his image in the
eyes of Christian community at large and Christian community at
Ahmednagar in particular.
10. It appears from the copy of resolution that the scheme was
framed as per the directions given by this Court and confirmed by the
Supreme Court. Whether respondent No.2 original complainant
remained absent successively in the meetings of the trust, the said
question is to be determined by the Assistant Charity Commissioner
in pending change report. However, if respondent No.2 complainant,
though intimated about his removal, continued to act as Bishop of
Nashik on the basis of General power of attorney, executed in his
favour by the Trust, and if the applicants made such publication in
order to protect the interest of the trust, the case squarely falls under
9th exception of Section 499 of I.P.C.
11. It is not the case of the respondent original complainant that
the applicants, being trustees, have passed resolution contrary to
bylaw and acted deliberately to prejudice the interest of the
respondent complainant. Learned Magistrate has not applied his
mind while issuing the process under Section 500 of I.P.C. against all
the applicants. Even accepting the allegations made in the complaint
as it is, in terms of 9 th exception of Section 499 of I.P.C,, no case is
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made out against the applicants accused. The impugned order does
not stand and the same is liable to be quashed and set aside.
Hence, I proceed to pass the following order:-
ORDER
I. Criminal application is hereby allowed.
II. The order dated 20.9.2004, passed by learned Judicial
Magistrate, First Class, Ahmednagar, in S.T.C. No. 2221
of 2004 issuing thereby process against the applicants
for the offence punishable under Section 500 of I.P.C. is
hereby quashed and set aside.
III. Criminal complaint bearing S.T.C. No. 2221 of 2004,
pending before learned J.M.F.C. Ahmednagar, is hereby
dismissed against all applicants-accused.
IV. Rule made absolute in the above terms. Criminal
application is accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
