Bombay High Court
Motiraj S/O Bhajnu Rathod vs The State Of Maharashtra & Anr on 28 September, 2016
Bench: S.S. Shinde
6095.2015Cri.Appln.+.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.6095 OF 2015
Suresh s/o. Bhagwanrao Puri,
Age : 65 years, Occu. Retired Professor,
R/o. Arunodya Colony, Plot No.120,
Satara Parisar, Aurangabad. APPLICANT
VERSUS
1.
State of Maharashtra
Through
P.S. City Chowk, Aurangabad
Tq. Dist. Aurangabad.
2. Avinash s/o. Kishan Rathod,
Age: 32 Years, Occu. Social Worker,
R/o. Suman Sadan Navin Vasti Naik Nagar,
Tq.Barshi Takli, Dist. Akola.
RESPONDENTS
...
Mr.J.V.Deshpande, Advocate for the Applicant
Mr.D.R.Kale, APP for Respondent No.1/State
Mr.V.D.Gunale, Advocate for Respondent No.2.
...
WITH
CRIMINAL APPLICATION NO.6096 OF 2015
Motiraj s/o.Bhajnu Rathod,
Age : 73 years, Occu. Retired Professor,
R/o. Kala Niwas Banjara Colony,
Aurangabad. APPLICANT
VERSUS
::: Uploaded on - 28/09/2016 ::: Downloaded on - 29/09/2016 00:59:17 :::
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2
1. State of Maharashtra
Through
P.S. City Chowk, Aurangabad
Tq. Dist. Aurangabad.
2. Avinash s/o. Kishan Rathod,
Age: 32 Years, Occu. Social Worker,
R/o. Suman Sadan Navin Vasti Naik Nagar,
Tq.Barshi Takli, Dist. Akola.
RESPONDENTS
ig ...
Mr.V.D.Salunke, Advocate h/f. Mr.M.V.Salunke,
Advocate for the Applicant
Mr.D.R.Kale, APP for Respondent No.1/State
Mr.V.D.Gunale, Advocate for Respondent No.2.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 21.09.2016
Pronounced on : 28.09.2016
JUDGMENT: (Per 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,
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Aurangabad, for the offences punishable under
Sections 420, 406, 408, 467, 471 r/w. Section
34 of the Indian Penal Code and Sections 66-A
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
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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
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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
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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
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President of Manav Adhikar, which is a
institution appears to be unregistered, has
no concern with the land, which is the
subject matter of the FIR. It is submitted
that the FIR should not have been registered
at the behest of the complainant Avinash
Rathod.
5. The learned counsel appearing for
the applicants submit that the FIR does not
disclose any offence. Respondent no.2 has
filed the complaint with the sole ulterior
motive to harass the applicants and to
extract money. The applicants were working
together with Vasantrao Naik College at
Aurangabad and with bona fide intentions to
do the social activities came together and
other 11 eminent persons from various field
of Aurangabad City decided to form an
institute and met on 11th January, 1981. The
meeting was conducted and minutes of the
meeting were reduced into writing.
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Thereafter, 13 persons gathered together on
10th May, 1981. However, till that time, the
land was not purchased by the
trust/institute. It is decided in the said
meeting that the applicants shall make
endeavour to raise amount by way of
donations. It is submitted that on 30th May,
1981, the land from village Satara bearing
Gat No.243 amdeasuring 11 Hectors 96 R. is
purchased by executing sale deed in the name
of Vasantrao Naik Institute for Tribal
Development Trust, vide sale deed No.
3006/1981 for consideration of amount of
Rs.35,000/-. After purchase of the said land,
with a view to register the trust to the
office of Charity Commissioner at Aurangabad,
application was filed. In all there are 13
founder members of the said trust. The
applicants, who were appointed as the
Secretary and the President of the trust, are
founder members. The trust came to be
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registered on 29th September, 1981 and the
name of the trust and properties of trust are
shown in schedule-I. One more meeting was
held on 14th June, 1981, after collection of
funds by Motiraj Rathod, a Resolution was
passed extending vote of thanks to applicant
Motiraj Rathod for collecting the amount for
purchasing the land. The applicant Suresh
Puri was the Secretary of the Vasantrao Naik
Institute for Tribal Development till 1995.
Lateron he remained as member of body of
trust till 2012, and thereafter, he became
Treasurer of the said trust. In the year
1995, Shri J.K.Pawar became Secretary, who is
also one of the founder members of the trust,
and one Mr.K.B.Jadhav (retired District
Collector) used to look after the entire
activities of the trust in the capacity of
the President.
6. It is submitted that out of 13
founder members, 5 members died and 3 members
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had already resigned from the membership and
only 5 persons were remained on the body of
trust. The same position continued till 2010.
It is submitted that when Mr.K.B.Jadhav was
President and Mr.J.K.Pawar was Secretary of
the trust, in their tenure only, it was
discussed several times that as the trustees
are not able to achieve the objectives of the
trust, it would be better to amalgamate the
trust with any other body or trust. At the
relevant time the members of the trust came
to know that one of the Institutes namely
Vasant Dada Institute is interested to start
its activity in Marathwada Region and were in
need of land, and therefore, the members
approached the Institute and after initial
talks, it was decided unanimously to
amalgamate the trust in Vasant Dada Sugar
Institute, Manjari (Bk.), Tq. Haveli,
District Pune.
7. It is submitted that the land, which
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is in the name of the applicant - Suresh
Puri, is having status of individual land and
the same is in individual capacity, adjacent
to the land of Vasantrao Naik Institute for
Tribal Development. He sold the land by
executing a registered sale deed dated 11th
February, 2014, vide sale deed No.696/2014 to
Vasant Dada Sugar Institute. As soon as the
land was sold and the property of the trust
was to be amalgamated with the Vasant Dada
Sugar Institute, as the proposal was pending
before the Charity Commissioner, Mumbai for
amalgamation under Section 50 of the MPT Act,
on application moved by Vasant Dada Sugar
Institute, a public notice was issued by the
office of Charity Commissioner, Mumbai, on
18th November, 2014, for calling objections.
It is further submitted that before execution
of sale deed of 11 Hector, which is own
property of applicant Suresh Puri, Vasant
Dada Sugar Institute has published a notice
6095.2015Cri.Appln.+.odt
on 28th August, 2013, to ensure that there are
no any objections to purchase of the said
property. In reply to the said notice, an
objection was raised in daily 'Punya Nagari'
news paper on 12th September, 2013, by one
Ashok Raibhan Rathod claiming himself to be
the Secretary of Shri Bhagwan Baba Puri Rural
Reconstruction Pratisthan. It is submitted
that the Secretary of the trust, who proposed
and forwarded the Resolution of amalgamation
in the year 2015, has filed proceeding under
the Maharashtra Land Revenue Code before the
Sub-Divisional Officer, Aurangabad and
challenged the Mutation Entry of disputed
property i.e. 11 Hector of applicant sold in
the name of Vasant Dada Sugar Institute
Manjari (Bk.).
8. It is submitted that at the time of
purchasing the property by the applicant
Suresh Puri in the year 1981, he offered
partnership to applicant Motiraj Rathod and
6095.2015Cri.Appln.+.odt
both of them invested for purchase of the
said property, though there is no express
agreement in between both the applicants.
The applicant Suresh Puri has paid the sale
proceed of his share and it is referred in
the sale deed executed by the applicant
Suresh Puri in favour of Vasant Dada Sugar
Institute. As such there is no concealment
of transaction and nothing was suppressed.
There was no question of dishonest intention
and wrongful gain in selling the said
property. It is submitted that for attracting
the provisions of Section 420 of the IPC,
there must be an intention of deceiving a
person fraudulently or dishonestly to deliver
any property to any person. In fact, the
property is purchased by the applicant Suresh
Puri on 30th June, 1981 in his individual
capacity. It is submitted that the land to
the extent of 11 Hector 96 R. was purchased
by Vasantrao Naik Institute for Tribal
6095.2015Cri.Appln.+.odt
Development Trust and 11 Hector land was
purchased in the individual capacity, and
therefore, there is no question of any
inducement by the applicant Suresh Puri.
It is submitted that the property was
purchased on 30th May, 1981, and Vasantrao
Naik Institute for Tribal Development came to
be registered on 29th September, 1981. The
property to the extent of 11 Hectors 96 R.
shown in the Schedule-I of Vasantrao Naik
Institute for Tribal Development is the
property of the trust and remaining 11 Hector
purchased from the same Gat Number is in the
individual capacity of the applicant Suresh
Puri. It is submitted that even if the
allegations in the FIR are read in its
entirety, no offence is disclosed. The
material collected by the Investigating
Officer, which is part of the charge sheet,
is not sufficient to proceed for trial, and
therefore, the present application for
6095.2015Cri.Appln.+.odt
quashing the FIR/Charge-sheet deserves to be
allowed. As per the procedure under Section
32 of the MPT Act, it is mandatory for the
registered trust to maintain accounts and its
audit along with balance sheet of each year
on 31st March and it is required to be
submitted to the office of the Charity
Commissioner as prescribed under Section 33
of the MPT Act. The Rules are provided in the
MPT Act and as per Rule 16-A and 17, the
record is available with the office of the
Charity Commissioner and there is nothing to
show that Rs.60,000/- were collected. Though
it is stated by the complainant in his
complaint that he is interested person and
represents 'Banjara community', it is
submitted that the Vasantrao Naik Institution
is not established only for particular
community. Respondent no.2 is not interested
person and if at all he is interested person,
he has to first approach the office of the
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Charity Commissioner under Section 19 of the
MPT Act, and thereafter, enquiry will be
conducted in respect of allegations and
purchase and sale of the land by the
applicant Suresh Puri. The complainant ought
to have opted for procedure under Section 50
of the MPT Act, because the dispute is purely
of civil nature pertains to the transfer of
the property legally or illegally which can
be resolved in the Civil Suit, but respondent
no.2 did not opt for the said remedy. The
complaint is filed with mala fide and
ulterior motive to harass the applicants.
9. It is further submitted that
Resolution, which is part of the charge-
sheet, would show that both the applicants
are founder members of the Vasantrao Naik
Institute for Tribal Development, the object
of which is for the welfare of the tribal.
The name of the society was proposed to be
Vasantrao Naik Institute for Tribal
6095.2015Cri.Appln.+.odt
Development and it was decided to purchase
the land for the said society by collecting
the funds. If all the resolutions are perused
prior to purchase of land and after purchase,
there is no reference of another unregistered
trust or society by name Rural Construction
Sanstha, as alleged by the complainant. In
the year 2012, Vasantrao Naik Institute for
Tribal Development decided to amalgamate the
trust with Vasant Dada Sugar Institute,
Manjari. The then trustee of Vasantrao Naik
Institute for Tribal Development has passed
the Resolution dated 6th October, 2012 and 24th
October, 2012 and it is stated in the said
Resolution that the property of trust is only
11 Hectors 96 R. and there was no objection
of any of the trustees to such proclamation
and the procedure of amalgamation of trust
with Vasant Dada Sugar Institute. The
complainant is no way concerned with the
trust, there is no documents to show that
6095.2015Cri.Appln.+.odt
Rural Reconstruction Society has any
concerned or nexus with the registered
Vasantrao Naik Institute for Tribal
Development, and if at all according to the
complainant, the property is of trust, then
there is remedy to the complainant to
approach the Charity Commissioner and Civil
Court.
10. The learned counsel Mr.V.D.Salunke
appearing for the applicant in Criminal
Application No.6096/2015 submits that the
complainant is no way concerned with the
property. He is not aggrieved person or
interested person. The trust is registered
under the MPT Act. The only members can be
considered as interested person. It is
submitted that 11 Hector 96 R. property was
purchased for the benefit of the trust and
remaining 11 Hector land was purchased in the
individual capacity by the applicant Suresh
Puri. It is submitted that the complaint
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should not have been registered since the
complainant has no locus to file such
complaint. The filing of frivolous complaint
is abuse of process of law. If the
allegations in the FIR and the documents
along with charge-sheet are considered in its
entirety, no offence is made out against the
applicants, and therefore, framing of charge
and proceeding with the trial will be
exercise in futility and therefore keeping in
view the parameters laid down in the case of
State of Haryana Vs. Bhajanlal1 the FIR /
charge-sheet deserves to be quashed.
11. It is submitted that since the
dispute is purely of civil nature, the
complainant can approach the Civil Court or
the Charity Commissioner. In support of the
said contention, the learned counsel
Mr. V.D.Salunke pressed into the service
exposition of law in the case of Inder Mohan
1 AIR 1992 SC 604
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Goswami Vs. State of Uttaranchal2 and also in
the case of Zandu Pharmaceuticals Works
Limited Vs. Sharaful Haque3. He also invites
our attention to the judgment of the Supreme
Court in the case of State of Maharashtra Vs.
Laljit Rajshi Shah & others4, in support of
his contention that there are audits of the
accounts and also enquiry contemplated under
the provisions of the Maharashtra Co-
operative Societies Act and said Act is self
contained Code made for dealing with specific
offence, the complaint filed by the
complainant was not maintainable. Therefore,
relying upon the pleadings in the petition,
grounds taken therein and annexures thereto,
the learned counsel appearing for the
applicants submits that the petitions deserve
to be allowed.
12. The learned counsel appearing for
2 AIR 2007 SCW 6679
3 AIR 2004 SCW 6185
4 2000 (3) Bom.C.R. 240
6095.2015Cri.Appln.+.odt
respondent no.2 i.e. original complainant
submits that he belongs to Banjara community
and he is interested for the welfare of the
said community. The institution Vasantrao
Naik Institute of Tribal Development,
Aurangabad, is registered for the welfare of
the Banjara community. He is the State
President of Human Right Commission Helpline,
New Delhi, which is registered society
working for protection of human rights. He
is active social worker. After getting the
knowledge from the members of the community
and other members of the said trust,
respondent no.2 collected all the information
from the various sources by visiting the
various offices. He has collected the
documents from the office of the Charity
Commissioner, Assistant Charity Commissioner,
Revenue Authorities and from the office of
the Sub Registrar, Aurangabad. He has made
applications to the various authorities
6095.2015Cri.Appln.+.odt
pointing out the fraud played by the present
applicants. He has also lodged the complaint
with the police, but no cognizance has been
taken by the police authorities, therefore,
he was required to file complaint with the
Judicial Magistrate First Class, Aurangabad.
The Magistrate, after going through the
complaint and the documentary evidence which
were placed along with the complaint, found
prima facie case against the applicants for
the said offences under Sections 420, 406,
408, 467, 471 r/w. 34 of the IPC and under
Sections 66A and 67 of the MPT Act and
directed to submit the final report within
statutory period vide order dated 24th July,
2015.
13. In pursuant of the said order, the
police have registered the offence against
the applicants namely Suresh Puri and Motiraj
Rathod on 29th July, 2015, by registering
Crime bearing No.I-212/2015. The
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Investigating Officer has conducted detailed
investigation and collected the huge record
connected with the offences including the
record of the trust from the Assistant
Charity Commissioner, record from Revenue
Authorities and after completion of the
investigation, submitted charge-sheet which
is more than 600 pages. The police have
recorded the statement of the various persons
and authorities and submitted charge-sheet
against both the applicants in the Court of
learned Judicial Magistrate First Class,
Aurangabad. On perusal of the entire
investigation papers, it clearly reveals that
the applicants have committed the said
offences and therefore the full-fledged trial
against them for the said offences is
necessary. In the full-fledged trial, the
evidence can be led and scrutinized. In
support of contention that respondent no.2 is
interested person, the learned counsel
6095.2015Cri.Appln.+.odt
appearing for the complainant pressed into
service exposition of law in the case of
Shree Gollaleshwar Dev and Ors. Vs. Gangawwa
Kom Shantayya Math and Ors.5 and submits that
in that case the Supreme Court held that the
definition of expression 'person having
interest in trust' under Section 2 (10) of
the Bombay Public Trusts Act was wide enough
to 'include beneficiaries of a temple, math,
wakf and also trustees. He further submits
that Delhi High Court has taken a view in the
case of Rajiv Gandhi Ekta Samiti Vs. Union of
India and another6 that any one can set or
put the criminal law in motion, and
therefore, it is not necessary that the
member of the trust only should file the
complaint / FIR.
14. It is submitted that applicant
Suresh Puri is also involved in other
criminal cases. He is involved in a criminal
5 AIR 1986 SC 231
6 2000 Cri.L.J. 2002
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case for the offence punishable under Section
376 of the IPC. He was also placed under
suspension by the University. He had indulged
in several illegal activities. He has
illegally sold the property belonging to the
trust, which was purchased by the trustees of
the said trust from their contribution and
donations given by public at large, and
particularly from the community for which the
said trust is registered. Said trust is
registered with certain aims and objects, and
to achieve said objects the property was
purchased. However, by preparing the false
documents the applicant Suresh Puri and
another applicant Motiraj Rathod, who are
trustees of the said trust, without notice
and knowledge to other trustees and members
of the trust sold the property. Shri
Janardhan Kisanrao Pawar, who is also
trustee, has raised the objection before
various authorities including Assistant
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Charity Commissioner, Tahsildar and Sub
Divisional Officer about the illegal
transaction of sale. It is submitted that
the applicants Suresh Puri and Motiraj Rathod
by misrepresenting that the said property is
the self acquired property and belonging to
the applicant Suresh Puri, and he has
purchased the same from his own fund and he
is absolute owner and possessor of the said
property, sold the said property by playing
fraud. Not only that but applicant Suresh
Puri has prepared a false affidavit on oath,
with the help of his daughter, who is
practicing advocate, by playing fraud on the
said trust and also by cheating the members
of the communities for the benefit of which
said trust is created and established. The
said valuable property of the trust having
market value about 80 to 90 crores is sold to
Vasant Dada Sugar Institution, Pune by
executing sale deed by the applicant Suresh
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Puri and applicant Motiraj Rathod by showing
incorrect market value i.e. Rs.6 crores 60
Lacs, of the said land, and got distributed
the said amount between them. Not only that
but remaining property of 11 Hector 96 R.
from the same Gat Number, they are trying to
transfer in the name of Vasantdada Sugar
Institute, Pune by filing application under
Section 59A (2) of the MPT Act before the
learned Charity Commissioner, Bombay, by way
of amalgamation of Vasantrao Naik Institute
for Tribal Development, Aurangabad in said
Institute. If the property was self acquired,
there was no question of filing of an
application under Section 50A (2) for
amalgamation with Vasantdada Sugar
Institution, Pune. Thus the present
applicants by playing the fraud with ill
motive, ill intention and to deceive the
trust i.e. Vasantrao Naik Institute for
Tribal Development, Aurangabad and the
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society and more particularly to the
communities for which the said trust was
created for charitable purpose to protect the
interest of Banjara community, illegally sold
the property to the extent of 11 Hector.
Thus, the applicants have committed serious
illegal act to gain crores of rupees by
selling property of the trust.
15. It is submitted that total land to
the extent of 22 Hector 96 R. was purchased
by two different sale deeds; one sale deed is
in the name of Vasantrao Naik Institute for
Tribal Development, Aurangabad and another
one is for National Institution of Rural
Reconstruction. The trustees of Vasantrao
Naik Institute for Tribal Development,
Aurangabad had decided to register the
National Institution of Rural Reconstruction
and purchase the property. Subsequently the
said society i.e. National Institution of
Rural Reconstruction could not register.
6095.2015Cri.Appln.+.odt
Therefore, the property which was purchased
in the name of the said institution was
decided to be entered in the name of
Vasantrao Naik Institute for Tribal
Development, Aurangabad by passing various
resolutions by the then Managing Committees,
since the properties were purchased from the
membership fee and donations given by the
trustees/members of Vasantrao Naik Institute
for Tribal Development, Aurangabad. However,
the applicants Suresh Puri and Motiraj
Rathod, who are members of the Vasantrao Naik
Institute for Tribal Development, Aurangabad,
with collusion sold the property to the
extent of 11 Hector of the said trust,
showing that they are absolute owners of the
said property, and the said property is
purchased by them from their own income and
same is their private property, by keeping
the other members and the trustees in dark.
After getting the knowledge of the sale
6095.2015Cri.Appln.+.odt
illegal transaction, immediately respondent
no.2, who is the social worker and working
for the interest of Banjara Community lodged
the FIR. The concerned Investigating Officer
has thoroughly investigated into the said
matter and filed the charge sheet of 656
pages. There is sufficient material on record
to prove the guilt of the applicants. The
applicants have committed the serious
offences and it is not the case of quashing
the FIR/charge-sheet. There is sufficient
material on record for proving the commission
of offence by the applicant Suresh Puri.
Applicant Suresh Puri has deceived the public
at large by selling the property of the
institution showing that the said property is
his own property, and received the amount in
crores of rupees. The very purpose of
registration of said institution is defeated
and the property which is purchased by the
said institution from the donations and
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collections given by the people of the
Banjara community is sold by the applicant
Suresh Puri for his personal gain.
16. From the documents collected by the
Investigating Officer, which is part of the
charge-sheet clearly show that the property
in question was purchased for the society by
its members and the same was not private
property of the applicant Suresh Puri. On
perusal of the sale deeds itself show that
the property is purchased for the said trust
and it was not individual property and
therefore no more evidence is necessary to
prove the status of that property. Not only
that but several resolutions are passed by
the said trust to register the said property
as the trust property in the record of the
Charity Commissioner. Such applications were
also made by the then trustees and those were
not prosecuted. Even the mutation is also
sanctioned by the revenue authorities in the
6095.2015Cri.Appln.+.odt
name of the said trust. Even the resolutions
were also passed by the trustees that another
society is not registered in whose name 11
Hector land is purchased with an object to
construct the houses for the poor people of
the community. However, the said society was
not registered and subsequently it was
decided that the said land i.e. 11 Hector is
to be recorded in the name of original trust
i.e. Vasantrao Naik Institute for Tribal
Development, Aurangabad. The said
resolutions, which are duly signed by the
applicants Suresh Puri and Motiraj Rathod,
are part of the charge sheet, and therefore,
in view of said resolutions, they are not
entitled to say that it is their individual
property, and they are absolute owner and
they have purchased the said property from
their own funds, and they have right to sell
the said property. Even investigating agency
has collected the receipts of the payment
6095.2015Cri.Appln.+.odt
made by the various members of the trust
which is purchased in the year 1981 for Rs.
65,000/- i.e. 22 Hector 96 R., from one
Rangnath Parkhe and his sons. An agreement
to sell, registered sale deeds are the part
of the record of the charge sheet. The
investigation agencies have recorded the
statements of family members of the original
land owner, who have stated that the said
property was sold to the said trust. There is
sufficient material to show that the property
is belonging to the said society and not
individual property of the applicant Suresh
Puri.
17. It is submitted that the said trust
is not formed or registered by the applicant
Suresh Puri only, but all the members of the
community came together and they elected body
of eminent persons. From perusal of copy of
the resolution, which is part of the charge-
sheet it is clearly reveals that the amount
6095.2015Cri.Appln.+.odt
was raised for purchasing the land by way of
donations. The properties sold by the
applicants belonging to the trust is sold by
them for private gain in collusion with each
other, with fraudulent intention to cheat not
only the members of the trust but the people
from the Banjara community. The said offence
is an offence against the society and public
at large which is cognizable in nature and
therefore the said needs to be tried before
the trial Court.
18. The learned counsel further submits
that the trust was registered for the
interest of the persons from the Banjara
community to provide them educational
facilities and for their development. Even
the property was purchased for construction
of the houses to the poor people of the
community. One of the founder members
Mr.J.K.Pawar has also filed an application
for intervention. He has also filed
6095.2015Cri.Appln.+.odt
application with the authorities so as to
take action against the applicants for their
fraudulent act to cheat the members of the
society and sale the property of the trust
for their own benefit. The learned counsel
invites our attention to the copies of the
resolutions and the documents placed on
record which is part of the charge-sheet and
submits that those resolutions will
unequivocally indicate that both the
properties were purchased for the benefit of
the trust as well as the National Institution
of Rural Reconstruction. The trustees of the
proposed Sanstha and the trustees of the
Vasantrao Naik Institute for Tribal
Development, Aurangabad, are one and same.
Both the applicants have played fraud, and
the applicant Suresh Puri sold 11 Hector land
by executing sale deed in the name of the
Vasantdada Sugar Institution, Pune, by
cheating the members of the trust and members
6095.2015Cri.Appln.+.odt
of the Banjara community and also there is
breach of trust inasmuch as they were
requested to deal with the properties being
trustee of the said trust for the benefit of
the trust and also members of the Banjara
community. It is submitted that the applicant
Suresh Puri posing that the property to the
extent of 11 Hector is his own property sold
it to the Vasantdada Sugar Institution, Pune
and thereby deceived and cheated the members
of the trust and also the members of the
Banjara community and another applicant
Motiraj Rathod, who is co-accused made a show
by objecting for the sale of the said
property by the applicant Suresh Puri. If the
said property was belonging to the applicant
Suresh Puri, then there was no question of
filing of an objection by the applicant
Motiraj Rathod, who is co-accused. If the
property was owned by the applicant Suresh
Puri in his individual capacity, there was no
6095.2015Cri.Appln.+.odt
question of obtaining consent of the
applicant Motiraj Rathod on the sale deed of
11 Hector land which is executed in favour of
Vasantdada Sugar Institution, Pune. The
applicant Suresh Puri and applicant Motiraj
Rathod in collusion with each other by
deceiving and cheating with dishonest
intention, sold the property of the trust
representing that the said property was their
own property and collected huge amount in
crores of rupees and used the same for
personal gain. One Mr.Ashok Raibhan Rathod,
who is member of the Banjara Community, has
also raised objection for selling the
property, but his objection was not
considered and the sale deed was executed.
19. It is submitted that by
misrepresentation the applicants obtained
signature of J.K.Pawar on the proposal for
amalgamation of the said trust with
Vasantdada Sugar Institution, Pune. After
6095.2015Cri.Appln.+.odt
noticing mischief played by the applicant,
the said J.K.Pawar has filed an objection
before the Charity Commissioner as well as
Sub Division Officer and raised objection to
the mutation sanctioned in favour of the
Vasantdada Sugar Institution, Pune. It is
submitted that the property was not purchased
in the year 1981 in the partnership of the
applicant Suresh Puri and applicant Motiraj
Rathod. However, the said property was
purchased in the name of the Vasantrao Naik
Institute for Tribal Development. The
property was purchased by two separate sale
deeds i.e. 11 Hector 96 R. and 11 Hector
total 22 Hector 96 R. by paying consideration
of Rs.65,000/- from the funds of the members
of the Banjara community, who have donated
the said funds. There are resolutions which
are placed on record showing that the then
President K.B. Jadhav made efforts by passing
those resolutions to enter the said property
6095.2015Cri.Appln.+.odt
i.e. 22 Hector 96 R. in the name of the said
trust.
20. The learned counsel invites our
attention to the various resolutions and
submits that the present applicants have
signed those resolutions which show that the
entire property from Gat No.243 to the extent
of 22 Hector 96 R. has been treated as
property of the trust and the Rural
Reconstruction Sanstha. It is submitted that
the application of the applicant Suresh Puri
for pre-arrest bail was rejected by the High
Court and also by the Supreme Court. The
applicant Suresh Puri was directed to
surrender. Thereafter, applicant Suresh Puri
was released on bail on condition to deposit
the amount of Rs.6.60 lacs. The learned
counsel invites our attention to the
resolutions and minutes of the proceedings of
the said trust dated 11th January, 1981, 10th
May, 1981, 14th June, 1981, 22nd April, 1981,
6095.2015Cri.Appln.+.odt
25th June, 1995 and 13th June, 1996 and submits
that it was resolved by way of passing those
resolutions that total land 22 Hector 96 R.
are the properties of the said trust. In the
minutes of the meeting dated 20th April, 1994
the clarification was given that instead of
purchasing 60 Acres land in the name of one
institution, it is better to purchase the
land in the name of two different
institutions and therefore it was purchased
in the names of two different institutions.
The minutes of meeting dated 13th July, 1996,
shows that it was resolved to manage both
institutions. The said minutes are duly
signed by the applicants Suresh Puri and
Motiraj Rathod. The letter was addressed to
the Tahsildar requesting him to record
disputed land admeasuring 11 Hector in the
name of Vasantrao Naik Institute for Tribal
Development, Aurangabad. The copy of the
letter issued by the applicant Motiraj Rathod
6095.2015Cri.Appln.+.odt
i.e. co-accused to the office of the Charity
Commissioner shows that he has admitted that
it is trust property but it was rocky land
and its cultivation is not possible. All
these documents clearly shows that since
beginning said land was intended to be
purchased for the institution and not for the
benefit of any individual. It was purchased
out of the funds contributed by the founder
members and by the donations given by other
persons and not from the individual income as
claimed by the applicants. The documents
clearly show that the members of the trust
were made to believe that it is trust
property. Even if it is assumed that it was
self acquired property of the applicant
Suresh Puri from his own funds, in that case
there was no need to obtain signature of
applicant Motiraj Rathod as consenting part
to the said sale deed and pay him Rs.3.30
lacs.
6095.2015Cri.Appln.+.odt
21. The learned counsel also invites our
attention to the memorandum of understanding
between applicants namely Suresh Bhagwan Puri
and Motiraj Bhajnu Rathod dated 10th February,
2014, wherein in clause (3) it is stated that
the property which is mentioned in the said
memorandum of understanding belongs to the
society, and therefore, it cannot be said
that the property to the extent of 11 Hector
is individual property of Suresh Bhagwan
Puri.
22. The learned APP appearing for
respondent - State invites our attention to
the charge-sheet and also accompaniments of
the charge-sheet and submits that the
Investigating Officer has collected the
sufficient material which would clearly
demonstrate that the land, which was
purchased to the extent of 22 Hector 96 R.
was purchased for the benefit of the trust
6095.2015Cri.Appln.+.odt
and also Rural Reconstruction Sanstha to
construct the houses to the member of Banjara
community. The applicants Suresh Puri and
Motiraj Rathod have played fraud, cheated the
other members of the trust and people of the
community and also there is breach of trust
since they were asked to look after the said
property, however, the property i.e. 11
Hector was sold by them. Therefore, he
submits that both the applications deserves
to be rejected.
23. We have heard the learned counsel
appearing for the parties at length. With
their able assistance, perused the averments
in the application, annexures thereto and in
particular the investigation papers including
the charge-sheet and its accompaniments made
available for the perusal of this Court by
the learned APP for the respondent - State.
24. According to the learned counsel
6095.2015Cri.Appln.+.odt
appearing for the applicants, 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
6095.2015Cri.Appln.+.odt
Development and Rural Reconstruction Society
is for the welfare of the members from the
Banjara community. Therefore, we are not
prepared to accept the contention of the
applicants that the complaint filed by the
respondent no.2 was not maintainable.
25.
Upon careful perusal of the copies
of documents / accompaniments of the charge-
sheet, it appears that the Investigating
Officer has collected the number of documents
running it to around 600 pages including
various resolutions passed by the trustees,
which would clearly show that the entire land
to the extent of 22 Hector 96 R.
(approximately 60 Acres) was purchased for
the benefit of the trust. Upon careful
perusal of Isar Pavti (earnest money receipt)
which was executed on 18th March, 1981, it
clearly appears that applicant Motiraj
Rathod, and another applicant Suresh Puri and
Baburao Nivrutti Jagtap represented Vasantrao
6095.2015Cri.Appln.+.odt
Naik Institute for Tribal Development and on
the other side, Rangnath Bhawani, Vishwanath
Bhawani, Eknath Bhawani, Kashinath Bhawani
executed Isar Pavati in favour of the trust,
the total area of land mentioned in the said
Isar Pavati is 23 Hector 19 R. from Gat No.
243 situate at village Satara. The
consideration amount mentioned in the said
Isar Pavati is Rs.65,000/-. It appears that
Rs.10,000/- was paid to the land owners as an
advance. Thereafter, it appears that there
is another document showing that the amount
an an advance Rs.10,300/- was paid not only
by Motiraj Rathod, Suresh Puri, but even by
Shri J.K.Pawar, who has filed intervention
application in the present proceedings. It
further appears that the Investigating
Officer has collected various receipts
(vouchers) showing donation given by the
various members to the proposed Rural
Reconstruction Society, Naik Nagar,
6095.2015Cri.Appln.+.odt
Aurangabad. It appears that on 10th May, 1981,
J.K.Pawar paid Rs.11,000/- towards donation,
Asaram Rajaram Jadhav paid Rs.1100/-, Sushila
Ravindra Surve paid Rs.2000/- as membership
fee, Suresh Puri paid Rs.2000/-, Motiraj
Bhajnu Rathod paid Rs.2,000/- towards
membership fees. Dr.Purushottam Murlidhar
Darak also paid Rs.2,000/-. Benjamin
Balwantrao Patil paid Rs.2,000/-. Kishansingh
Meharsingh Chavan paid Rs.2,000/-. Narayan
Shankararo paid Rs.2,000/-. Asaram Rajaram
Jadhav paid Rs.2,000/-. Kanhaiyalal B. Jadhav
also paid Rs.2,000/-. Ashok Shriniwasrao paid
Rs.2,000/- for membership fees/donation.
26. It further appears that the fee is
also separately deposited for the proposed
Vasantrao Naik Institute for Tribal
Development. The fees for membership is
deposited by the various members. Therefore,
it clearly emerges from the perusal of the
said receipts that the various persons
6095.2015Cri.Appln.+.odt
deposited Rs.2,000/- towards membership fees
of the proposed Rural Reconstruction Society,
Naik Nagar, Aurangabad and also proposed
Vasantrao Naik Institute for Tribal
Development. Therefore, the claim of the
applicants that only they have contributed
towards donation and purchased the land to
the extent of 11 Hector from Gat No.243 does
not appear to be correct statement.
27. As already observed, even upon
careful perusal of the contents of the sale
deed it clearly appears that in the column of
purchaser, the name of the Rural
Reconstruction Society is mentioned through
Suresh Bhagwan Puri. Therefore, there is no
slightest doubt that the said sale deed was
executed by the Rural Reconstruction Society
represented by the applicant Suresh Puri. It
is also mentioned in the said sale deed that:
"या खरदे ीखता आधारे सदरील सस
ं था वर वणणन केलेलया
6095.2015Cri.Appln.+.odt
जििनीची पूणणतया िालक झाली आहे आिण ती तया जििनीचा
पूणण उपभोग घेणयास पात आह"
े .
28. Therefore, it is abundantly clear
that the said land to the extent of 11 Hector
which is subject matter of the said sale deed
dated 3rd June, 1981 was purchased by the
Rural Reconstruction Sanstha through the
applicant Suresh Bhagwan Puri. There is also
another sale deed wherein the land to the
extent of 11 Hector 96 R. was purchased by
Vasantrao Naik Institute for Tribal
Development, Naik Nagar, Aurangabad through
Motiraj Rathod. The sale deed also clearly
shows that the purchaser of the land is
society and the same land is sold for the
society. Upon careful perusal of the
document prepared by both the applicants i.e.
copy of the memorandum of understanding dated
10th February, 2014, which is part of the
investigation papers, it prima facie appears
that both the applicants contrary to the
6095.2015Cri.Appln.+.odt
various Resolutions have mentioned in the
memorandum of understanding that the property
to the extent of 11 Hector from Gat No.243 is
self acquired property. The relevant portion
of memorandum of understanding, reads thus:
सदरील ििळकतीचा िविनयोग ररल िरकनसटर कशन संसथा
औरगं ाबाद या नावाने नयास/सस
ig ं था उभारन सिाजउपयोगी
कायण करणयाचा आिचा िानस होता. ररल िरकनसटर कशन
संसथा, औरगं ाबाद िह संसथा /नयासास जया उदेशासाठी
सथापणयाचे ठरले होते, तया दषीने आवशयक तया सोयी
सुिवधा अभावी िनयोिजत संसथेची उभारणी आमही कर
शकलो नाही. तयािुळे िनयोिजत संसथेचे पंजीकरण न
करणयाचे आमही ठरिवले आहे. तयाबाबत आिचे दि
ु त नाही.
The contention of the learned counsel
appearing for the applicants that, in
schedule-I of the trust only the land to the
extent of 11 Hector 96 R. is mentioned and
not remaining 11 Hector, is a matter for
appreciation of the evidence by the concerned
Court. The Investigation Officer has
collected certain documents showing that the
entire land i.e. 22 Hector 96 R. was
6095.2015Cri.Appln.+.odt
purchased by the Vasantrao Naik Institute for
Tribal Development and Rural Reconstruction
Society.
29. As already observed, there are
various resolutions passed time to time by
the governing council of trust, which shows
that the entire land was purchased by the
trust and the Rural Reconstruction Society
represented by the applicants while
purchasing the said land. It appears that
the members of the trust trusted the
applicants and the land was purchased in
their name, and they were entrusted with the
said property for taking proper care so as to
use it for the benefit of the members of the
trust and also the members of the Rural
Reconstruction Society and also for the
benefit of the members of Banjara Community.
By way of executing sale deed by the
applicant Suresh Puri in favour of the
Vasantrao Naik Institute for Tribal
6095.2015Cri.Appln.+.odt
Development posing that 11 Hector property
was purchased, is self acquired property,
would prima facie attract ingredients of the
alleged offences against both the applicants.
The documents prepared by the applicants in
the nature of memorandum also needs to be
appreciated during the course of trial.
30. There is copy of resolution dated
22nd April, 1984, collected during the course
of investigation. It appears that the meeting
was conducted under the Presidentship of the
Motiraj Rathod on 22nd April, 1984, and
certain resolutions were passed. The contents
of the said Resolution reads thus:
"ठराव क.1 : आपलया संसथेचया जििनीत पेरणी करणे
बाबत.
आता पावसाळयाचे िदवस जवळ आलयािुळे शेती
पेरणी साठी तयार करन पेरणी करणया िवषयीचा ठराव सस
ं थेचे
अधयक शी िोितराज राठोड यांनी ठराव िांडला. शी
आसाराि गुरजी यांनी या ठरावास पांिठंबा देऊन खुलासा
केला िक, आपलया संसथेची सातारा येथील जिीन एकर 59
(22 हेकटर 96 आर) िह पेरणी साठी तयार करणयास व
6095.2015Cri.Appln.+.odt
पेरणी करन देणाऱयास घयावे. आता पययत जया पदतीने
वरील जिीन देत आलो तयाचं पदतीने याही वषयाणसाठी
पेरणीस देणयात यावे असे ठरले"
31. The contents of the aforesaid
Resolution, which was unanimously passed,
would clearly demonstrate that the total land
was of concerned society, and said land was
not purchased in the individual capacity of
the applicants. There is also another
Resolution dated 22nd July, 1995, it appears
that the meeting was conducted on that day,
which was attended by 10 trustees including
the applicants. It was informed by the
applicants to other members that, Isar Pavti
is executed for total 60 Acres land and sale
deed is executed in the name of Vasantrao
Naik Institute for Tribal Development through
Motiraj Rathod to the extent of 30 Acres and
remaining land approximately 30 Acres in the
name of the National Institute for Rural
Development through Suresh Puri, and it was
6095.2015Cri.Appln.+.odt
decided that the land which was purchased in
the name of National Institute for Rural
Development should be entered into the name
of the Vasantrao Naik Institute for Tribal
Development. Therefore, the contents of the
said Resolution would clearly demonstrate
that the land to the extent of 11 Hector was
not purchased in the individual name by
paying total consideration amount by Shri
Suresh Puri as claimed by the applicants. It
appears that there was further resolution on
6th October, 2012, and it was decided that the
total land to the extent of 22 Hector 96 R.
to start Vasantrao Naik Sub Centre with the
help of Vasantdada Sugar Institute, Manjari
Bk, Taluka Haveli, District Pune, be given to
said Institute. The correctness of the said
resolution is questioned by J.K.Pawar,
however, the fact remains that the total land
of 22 Hector 96 R. was treated as the land
belonging to the said trust. There is also
6095.2015Cri.Appln.+.odt
resolution on 13th July, 1996, which also
indicates that the entire land was considered
is that of the trust.
32. We have carefully perused the copy
of Rules and Regulations governing the
business of the Vasantrao Naik Institute for
Tribal Development, Aurangabad, which is part
of the accompaniments of the charge-sheet.
It appears that as per clause 6 of the said
Rules and Regulations, the business and
affairs of the Society shall be carried on
and managed by the Governing Council. The
Governing Council shall be constituted of 21
members. The trustees of the Society shall be
the Ex-Officio members of the General
Council. Eight members from amongst the
Patron Members to be elected at the General
Meeting by Patron Members entitled to vote.
The 8 elected members and the trustees shall
be at liberty to co-opt other members. The
clause 7 speaks about the trustees. It is
6095.2015Cri.Appln.+.odt
stated that number of trustees shall be 13.
Such trustees shall be the trustees of the
society for life. It appears that name of
applicant - Motiraj Bhajnu Rathod stands at
serial no.1 and name of applicant - Suresh
Bhagwan Puri stands at serial no.4. In all
there are 13 members. The name of
Dr.Purushottam Murlidhar Darakh whose
statement has been recorded by the
Investigating Officer stands at serial no.3.
The name of Janardhan Krishnarao Pawar whose
statement has been recorded by the Police
stands at serial no.11. It is further stated
that the trustees shall collect and receive
the income of the trust funds. All
investments of the trust funds including
deposits, receipts and all deeds and
documents of title relating to any of the
property of the society shall be kept for
safe custody with the trustees or with a Bank
approved by the Governing Council. It is also
6095.2015Cri.Appln.+.odt
stated that the trustees shall deal with and
dispose of all properties of the Society
whether movable or immovable, for the time
being vested in them and appropriate the
income thereof, in accordance with the
directions of the Governing Council. No
person shall be elected as a Trustee who is
not a Founder Member.
33. Therefore, it clearly appears that
the present applicants, who are trustees and
founder members, were authorized to deal with
the immovable property i.e. the land from Gat
No.243 to the extent of 22 Hector 96 R. It
clearly emerges that the applicants, as
founder members and trustees, were supposed
to deal with the movable and immovable
property in the capacity of the trustees so
as to fulfill the objectives of the trust.
The memorandum of association is also part of
the papers of the investigation and charge-
sheet. The said Vasantrao Naik Institute for
6095.2015Cri.Appln.+.odt
Tribal Development, Aurangabad, is formed
with the aims and objects to arrange the
various activities for the development of the
Nomadic Tribes, De-notified Tribes, Scheduled
Tribes, Backward Communities and people from
the economically backward class (Tribal
members of the Scheduled Tribe, Nomadic
Tribes and De-notified Tribes). The aims and
objects of the said trust are to carry out
the various activities for the benefit of the
categories tribes people from the afore-
mentioned tribes / communities and people
from the economically backward class. The
Rural Reconstruction Sanstha was also formed
for the purpose of constructing the houses
for the poor persons. The Investigating
Officer has recorded the statement of Shri
Dr.Purushottam M. Darak on 5th September,
2015.
34. As already observed, Dr.P.M.Darak is
a original founder member and trustee of the
6095.2015Cri.Appln.+.odt
Vasantrao Naik Institute for Tribal
Development, however, it appears that
subsequently he has resigned as a trustee.
In his statement, he has stated that the land
to the extent of 22 Hector 96 R. belongs to
the Vasantrao Naik Institute for Tribal
Development and the same was purchased in the
year 1981 for Rs.65,000/- from the land
owners. Out of said land to the extent of 11
Hector was purchased in the name of Rural
Reconstruction Sanstha through Subhash Puri.
The purpose for purchasing the said land was
to construct the houses for the poor and
unemployed landless labourers from the rural
area in cheaper and affordable rate, and
accordingly, the land to the extent of 11
Hector was purchased for the said purpose and
remaining 11 Hector 96 R. land was purchased
to achieve the aims and objects of Vasantrao
Naik Institute for Tribal Development. The
entire land of 22 Hector 96 R. was to be
6095.2015Cri.Appln.+.odt
registered in the name of Vasantrao Naik
Institute for Tribal Development and to that
effect Resolution was passed and the office
of Charity Commissioner was communicated
accordingly. There is also statement of
J.K.Pawar, who is also a founder member of
the Vasantrao Naik Institute for Tribal
Development. He also contributed Rs.5000/-
membership fees. When the Vasantrao Naik
Institute for Tribal Development was formed,
applicant Motiraj Rathod was appointed as
President and Subhash Puri was appointed as
Secretary. An eleven Hector land was
purchased for the purpose of construction of
the houses for the poor and unemployed
landless labourers from the rural area in
cheaper and affordable rate. He further
stated that the resolution was taken in
respect of 22 Hector 96 R. land to be
registered in the name of Vasantrao Naik
Institute for Tribal Development, and
6095.2015Cri.Appln.+.odt
accordingly, the office of the Charity
Commissioner and also the Tahsildar was
communicated.
35. There is also statement of legal
representatives of other founder members, who
have stated that the said land was purchased
for the benefit of the poor person so as to
achieve the aims and objects of the Vasantrao
Naik Institute for Tribal Development. There
is detailed statement of Baburao Deepaji
Pawar dated 02.09.2015, he has also stated
that Vasantrao Naik Institute for Tribal
Development, Aurangabad was formed in the
year 1981. Each of the members has
contributed Rs.5,000/- and total amount of
Rs.65,000/- was collected from 13 members.
He has given statement in the capacity of the
patron member of the Vasantrao Naik Institute
for Tribal Development. He has mentioned the
details about the various Resolutions passed
by the Committee managing the affairs of the
6095.2015Cri.Appln.+.odt
society. He has stated that when the
objections were invited for selling the 11
Hector property, the various members have
raised objections on the ground that Rural
Reconstruction Sanstha is formed for
construction of the houses for the poor and
unemployed landless labourers from the rural
area in cheaper and affordable rate. He has
mentioned in his statement the various
resolutions and also letters were sent to the
office of the Charity Commissioner,
Government Authorities. Besides this, there
are also statements of the original land
owner and his legal representatives stating
therein that the land was sold by executing
two sale deeds to the Vasantrao Naik
Institute for Tribal Development and Rural
Reconstruction Sanstha in the year 1981 for
the benefit of the Vasantrao Naik Institute
for Tribal Development. The total land from
Gat No.243 was sold for the benefit of
6095.2015Cri.Appln.+.odt
Vasantrao Naik Institute for Tribal
Development and land not sold to any
individual or for the benefit of the
individual.
36. In the light of the discussion in
the foregoing paragraphs and upon going
through the various documents collected by
the prosecution agency, which is now part of
the charge-sheet, it clearly emerges that the
offences alleged against the applicants are
disclosed and also the prosecution agency has
collected enough material and on the basis of
the said documents / material trial can
proceed. The Supreme Court in the case of
Asoke Basak Vs. State of Maharashtra & Ors.7
observed that for constituting an offence of
criminal breach of trust, the following
ingredients must be satisfied:
"(a) a person should have been
entrusted with property, or
7 2010 ALL SCR 2494
6095.2015Cri.Appln.+.odt
entrusted with dominion over
property;
(b) that person should dishonestly
misappropriate or convert to his own
use that property, or dishonestly
use or dispose of that property or
wilfully suffer any other person to
do so;
(c) that such misappropriation,
conversion, use or disposal should
be in violation of any direction of
law prescribing the mode in which
such trust is to be discharged, or
of any legal contract which the
person has made, touching the
discharge of such trust."
37. In the facts of the present case, in
the capacity of the trustee the property was
entrusted with the present applicants by the
trust and prima facie it appears that they
have disposed of that property for own use by
posing that the property to the extent of 11
Hector was purchased in the name of Suresh
6095.2015Cri.Appln.+.odt
Puri from his own earning. The applicants
have created the documents in the nature of
memorandum of understanding dated 10th
February, 2014 and there are allegations in
the FIR which are supported by the documents
placed on record that the said document was
created with an intention to sell the said
property posing that the said property to the
extent of 11 Hector is purchased by Suresh
Puri from his own source of income and is a
self-acquired property of both the
applicants, though the property belongs to
the said society. It is not necessary for us
to elaborate the reasons since the applicants
will have to face trial and during trial, the
applicants will have opportunity to prove
their innocence and the prosecution will have
opportunity to prove its case. It is the
contention of the learned counsel appearing
for the applicants that the dispute is of
civil nature and therefore in case if any
6095.2015Cri.Appln.+.odt
body is aggrieved by the sale transaction, he
/she can approach the Civil Court or to the
office of the Charity Commissioner. In this
respect, the law is very clear. The Supreme
Court in the case of Vijayander Kumar and
others Vs. State of Rajasthan and another8
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 Vs. Monica and others9
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
8 (2014) 3 SCC 389
9 (2014) 3 SCC 383
6095.2015Cri.Appln.+.odt
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 Vs. Rugmini Ram Raghav
Spinners Private Limited10 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. Pre-
10 (2009) 11 SCC 529
6095.2015Cri.Appln.+.odt
emption of such investigation would be
justified only in very extreme cases.
38. In the light of the discussion in
the foregoing paragraphs, Criminal
Applications are devoid of any merits, and
hence same stands rejected.
39.
It is clarified that the
observations/reasons recorded in the judgment
are confined to the adjudication of the
present Criminal Applications, and the trial
Court shall not get influenced by the said
observations/reasons during the course of
trial.
40. In view of the rejection of the
Criminal Application Nos.6095/2015 and
6096/2015, Criminal Application No.4639/2016
and 4643/2016 also stands disposed of.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
