Bombay High Court
Vasant Maroti Pawar And Anr vs The State Of Maharashtra And Anr on 3 August, 2017
Bench: T.V. Nalawade
Criminal W.P.No.352/2008
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.352 OF 2008
1. Vasant s/o Maroti Pawar,
Age 60 years, Occu. Agri. &
The Secretary of Shanteshwar Shikshan
Samiti, Sastur, Tq. Lohara,
District Osmanabad.
2. Kallappa s/o Irrappa Mali,
Age 61 years, Occu. Retired,
Head Master, Shanteshwar
Vidhyalaya, Sastur, Tq. Lohara,
District Osmanabad ... PETITIONERS
(Original Accused)
VERSUS
1. The State of Maharashtra
through Police Station, Lohara,
Tq. Lohara, Dist. Osmanabad.
2. Baburao s/o Malikarjun Dalal,
Age 56 years, Occu. Agri.,
R/o Sastur, Tq. Lohara,
District Osmanabad ... RESPONDENTS
(Resp. No.2 Orig. Complainant)
.....
Shri V.D. Gunale, Advocate for petitioners
Shri R.V. Dasalkar, A.P.P. for respondent No.1/ State
Shri V.R. Dhorde, Advocate for respondent No.2
.....
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Criminal W.P.No.352/2008
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CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
DATE : 3rd August, 2017
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. This petition is filed to quash the order passed by
Judicial magistrate, First Class, Omerga, under Section 156(3) of
the Code of Criminal Procedure in Criminal M.A. No.85/2008 and
to quash the F.I.R. registered on the basis of this order.
Respondent N.1 is the State of Maharashtra and respondent No.2
is original complainant.
2. Undisputed facts in between the parties are that, Shri
Shanteshwar Shikshan Samiti, Sastur, is the registered Trust as
well as Society, and the said Trust is having its common rules
and regulations. Scheme of the Trust was framed by Assistant
Charity Commissioner in the year 2001 for smooth functioning of
the Trust. The said Trust runs school namely Shanteshwar
Vidhyalaya, Sastur, Taluka Lohara, District Osmanabad, which is
recognized school by the Government and receives grant-in-aid
from the Government. As per rules and regulations, the
managing Committee of the school consists of minimum 7 and
maximum 15 trustees. Head Master of the school is ex-officio
Criminal W.P.No.352/2008
trustee of the Trust. The term of the managing Committee is for
five years and members of the managing Committee are to be
elected in general body meeting. President, Vice President,
Secretary and Treasurers are the office bearers of the managing
Committee. It is also not disputed that, petitioner No.1 was
founder member of the said Trust and President of first Board of
Trustees appointed by Assistant Charity Commissioner,
Osmanabad. It is not disputed that, petitioner No.2 was Head
Master of the school at the relevant time of the occurrence. As
per the scheme of the Trust, the Bank Account of the Trust can
be operated by the signature of any two persons out of
Chairman, Secretary or Treasurer of the Trust.
3. The complainant filed Criminal complaint against the
petitioners on the ground that in the year 2004 to 2005, the
Education Society/ Trust received Rs.1,72,500/- towards non-
salary grants under three different cheques dated 18/10/2005.
Though petitioner No.1 was ordinary member of the Trust, he
signed the cheques along with petitioner No.2 to deposit the
above said non-salary grants in the account of Education Society
maintained at Osmanabad District the Central Co-operative Bank
Ltd., Branch Sastur and unauthorisedly spent that amount
though there was no such direction of the Trust.
Criminal W.P.No.352/2008
4. After filing of the complaint, instead of taking
cognizance of the offence, the learned Judicial Magistrate, First
Class, Omerga passed following order :
"Read complaint. Heard Advocate for
complainant. However as offence punishable
u/s 420, 468 r/w 34 of I.P.C. are cognizable,
therefore detail investigation is necessary.
Hence Police Inspector of P.S. Lohara is
directed to submit report u/s 156(3) of Cr.P.C.
after investigation by registering the offence."
5. on the basis of this order, above said crime was
registered against the petitioners and, therefore, this petition
arises.
6. Heard learned advocate for the petitioners and
learned advocate for respondents. Learned advocate for the
petitioners has drawn our attention towards various resolutions
passed by the managing Committee of the Trust permitting to
spend the non-salary grants towards repair works and other
miscellaneous work. He has also drawn our attention towards
resolution of the Trust regarding acceptance of the resignation of
the then Secretary as well as subsequent appointment of
petitioner No.1 as Secretary of the Trust at the relevant time of
Criminal W.P.No.352/2008
the occurrence. According to learned Advocate for the
petitioners, no wrong has been committed by the petitioners
while signing the disputed cheques or while making expenditure
of non-salary grants amount for the purpose of the school run by
the Trust.
7. Learned Advocates for the respondents supported the
order passed by the Judicial Magistrate, First Class, Omerga.
8. After going through the impugned order passed by
the Judicial Magistrate, First Class, Omerga, we are fully satisfied
that the said order was passed without considering the facts of
the case and without satisfaction of the Court that cognizable
offence is made out against the petitioners. The impugned order
does not reflect such application of mind by the trial Court. The
impugned order is absolutely non speaking and mechanical
order, passed without application of mind. Apex Court had
occasion to consider the validity of such type of order in the case
of Maksud Saiyed Vs. State of Gujarat & ors. reported in
(2008) 5 SCC 668, wherein Apex Court examined the
requirement of the application of mind by Magistrate before
exercising jurisdiction under Section 156(3) and held that, where
a jurisdiction is exercised on a complaint filed in terms of Section
156(3) or Section 200 Cr.P.C., the Magistrate is required to apply
Criminal W.P.No.352/2008
his mind in such a case. The application of mind by Magistrate
should be reflected in order. The mere statement that he has
gone through the complaint, documents and heard the
complainant, as such, will not be sufficient. After going through
the complaint, documents and hearing the complainant, what
weighed with the Magistrate to order investigation under Section
156(3) of the Code of Criminal Procedure should be reflected in
the order, though a detailed expression of his views is neither
required nor warranted. This law is also followed by Apex Court
in Anil Kumar & ors. Vs. M.K. Aiyappa & anr. reported in AIR
2014 SC (Supp) 1801.
9. In view of law settled by Apex Court, the impugned
order passed by Judicial magistrate, First Class, Omerga in
Criminal M.A. No.85/2008 is bad in law and deserves to be
quashed and set aside on this count.
10. Otherwise also, after going through the copies of
resolutions passed in the meeting of managing Committee dated
30/7/2005, it emerges that the resignation of the then Secretary
of the Education Society Shri Dinkar Vyankatrao Suryawanshi
was accepted and in his place, the petitioner No.1 was elected as
Secretary of the Society. The resolutions passed in the meeting
of the managing Committee of the Trust, dated 16/8/2005,
Criminal W.P.No.352/2008
6/10/2005, 23/11/2005, 20/12/2005, 15/1/2006 and 22/3/2006,
show that, the then managing Committee had given approval for
expenditure towards minor repairs of the school and other
miscellaneous expenditure. These all resolutions are signed by
the respondent No.2, who was the then Member of the managing
Committee of the Trust. Therefore, the respondent No.2, who is
the original complainant, was well aware that, at the relevant
time of the occurrence, the petitioner No.1 was the elected
Secretary of the Trust, and with the approval of managing
Committee of the Trust, all the expenditure towards repairs of
the school and for other miscellaneous work were incurred by the
petitioner as well as the then Head Master, who is petitioner
No.2. Therefore, for operating the Bank Account of the Trust,
petitioners cannot be blamed by the complainant (respondent
No.2).
11. In the result, otherwise also, no case is made out
against both the petitioners to proceed against them for the
offences punishable under Sections 420, 467, 468, 471 read with
Section 34 of the Indian Penal Code. In the circumstances, we
hold that the impugned order passed by the Judicial Magistrate,
First Class, Omerga in Criminal M.A. No.85/2008 and the
consequential F.I.R. as well as registration of the Crime
No.6/2008 at Police Station, Lohara deserves to be set aside and
Criminal W.P.No.352/2008
this petition deserves to be allowed as follows :
12. Hence the following order :
ORDER
(i) Criminal Writ Petition No.352/2008 is allowed.
(ii) The order passed by Judicial Magistrate, First Class,
Omerga in Criminal M.A. No.85/2008, dated 1/4/2008
and the F.I.R. registered in Police Station, Lohara
bearing Crime No.6/2008 for the offence punishable
under Sections 420, 467, 468, 471 read with Section 34
of the Indian Penal Code is quashed and set aside.
Criminal M.A. No.85/2008 pending before Judicial
Magistrate, First Class, Omerga is dismissed.
(iii) Rule made absolute in above terms.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
