Suresh Manoharlal Dhariwal vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9903 Bom

                                                          cri.wp.1085.16.odt
                                        1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO.1085 OF 2016 

          Suresh Manoharlal Dhariwal,
          Age : 55 years, Occu : Business,
          R/o : Jalgaon Road, Jamner,
          Tq. Jamner, Dist. Jalgaon.                                            
                                          PETITIONER 
                 VERSUS 

          1.       The State of Maharashtra 
                   Through Jamner Police Station,
                   Dist. Jalgaon. 

          2.       Krushna Dyandev Bankar
                   Age : 54 years, Occu : Profession
                   R/o : Dhanpushpa Colony,
                   Waki Road, Jamner, Tq. Jamner,
                   Dist. Jalgaon.
                                               RESPONDENTS 
                                   ...
          Ms. Surekha P. Mahajan, Advocate for the Petitioner 
          Mrs.Dipali S. Jape, APP for Respondent No.1- State. 
          Mr. Girish V. Wani, Adv. for Respondent No.2.
                                   ...
                           CORAM:  S.S.SHINDE & 
                                    MANGESH S. PATIL,JJ. 

Reserved on : 20.11.2017 Pronounced on : 21.12.2017

JUDGMENT: (Per S.S.Shinde, J.):

Rule. Rule made returnable forthwith

and heard finally with the consent of learned

counsel appearing for the parties.

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2. This Petition is filed praying

therein, to quash and set aside the FIR

No. 92/2016 registered with Jamner Police

Station, Dist. Jalgaon under sections 420,

403, 406 dated 30.6.2016.

3. Learned counsel appearing for the

petitioner submits that, the petitioner is

the trustee of the trust viz:-Jamner Taluka

Education Society, Jamner, Dist. Jalgaon

(Hereinafter referred to as "the said

trust"). The said trust passed Resolution

No.5 on 22nd July, 2005, unanimously for

purchasing the land for extension of the

college building for running D.Ed., B.Ed. and

B.Pharmacy courses. In view of the said

Resolution No.5, the sale deeds in respect of

land Gut Nos.20/1A and 20/1B from Mouje

Takli (B), Tq. Jamner, for consideration of

Rs.7,12,500/- each, came to be executed

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firstly between the President of the said

trust and Shri Padmakar Daulat Sonar and

secondly between the President and

Smt.Pramilabai Sudhakar Saraf on 14th

September, 2005. The consideration amount of

the said transaction has been paid through

account payee cheques of the said trust from

time to time and the transaction was

completed on 15th September, 2005. So also,

there is audit conducted of the said trust

for the year 2005-2006 and in the audit

report, the entry of the said transaction is

appearing.

4. Learned counsel submits that, the

offences alleged against the petitioner in

the first information report are false and

politically motivated. The complainant is

neither the member nor trustee of the said

trust and therefore, he has no locus to file

the first information report, and it is the

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Charity Commissioner, who is competent under

the Maharashtra Public Trusts Act, 1950 to

file the criminal complaint against the

trustees of the trust, if it is found that

the trustees are not taking proper care of

the trust, and if there is any

misappropriation etc. It is submitted that,

there is delay in lodging the first

information report, as the transaction took

place in the year 2005 and the first

information report is lodged in the year

2016. Apart from above, the petitioner has

co-operated with the investigating machinery

and has submitted all the relevant documents

to the authority.

5. Learned counsel appearing for the

petitioner further submits that, if the

allegations in the first information report

are taken at their face value and read in its

entirety, the alleged offences are not

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disclosed against the petitioner. It is

submitted that, there is no inducement by the

petitioner so as to attract the ingredients

of Section 420 of the Indian Penal Code. So

also neither there is any criminal breach of

the trust nor any dishonest misappropriation

of the property, and the entire transaction

is between the trust and the land owners.

Therefore, learned counsel submitted that,

none of the sections mentioned in the first

information report are attracted qua the

petitioner.

6. Learned counsel appearing for the

petitioner submits that the ingredients of

Sections 420, 406 and 403 of the Indian

Penal Code are not attracted, and therefore,

the first information report deserves to be

quashed. Learned counsel appearing for the

petitioner in support of her contention that,

the dispute is of civil nature, and

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therefore, the criminal complaint is not

tenable and also the third party cannot file

the complaint in sale transaction, has placed

reliance on the judgment in the case of

Mohammed Ibrahim and others V/s State of

Bihar and another1. In support of the

contention that, at the time of quashing the

first information report, the Court has only

to look at uncontroverted allegations in the

complaint, learned counsel has placed

reliance on the exposition of law by the

Supreme Court in the case of Rishipal Singh

V/s State of U.P. and another 2. It is further

submitted that, if the allegations in the

first information report do not disclose the

alleged offences, in that case, the first

information report deserves to be quashed. In

support of this contention, learned counsel

appearing for the petitioner has placed

reliance on the judgment in the case of

1 (2009) 8 SCC 751 2 2014 AIR SCW 3810

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Mr.Jitendra Nathmal Joshi @ Sharma V/s The

State of Maharashtra and another3. In support

of the contention that the Charity

Commissioner is empowered under Sections 41-D

and 41-E of the Maharashtra Public Trusts Act

to deal with the allegations of

misappropriation, and therefore, the first

information report is not maintainable,

learned counsel has placed reliance in the

case of Upnagar Shikshan Mandal and others

V/s State of Maharashtra and others 4

Therefore, relying upon the averments in the

application, annexures thereto and the

grounds taken therein, learned counsel

appearing for the petitioner submits that,

the Petition may be allowed.

7. On the other hand, learned A.P.P.

appearing for the respondent-State, relying

upon the contents of the first information

3 2011 All MR (Cri) 2597 4 2012(1) Mh.L.J. 824

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report and the investigation papers, submits

that, there are specific allegations against

the petitioner in the first information

report. Therefore, he submits that the

further investigation is necessary, since

alleged offences have been disclosed.

8. Learned counsel appearing for

Respondent No.2 submits that, resolution No.5

which has been passed by the trust speaks

about purchase of land for the purposes of

extension of building for opening B.Ed. and

D.Ed. college, but inspite of purchasing the

said land in the year 2005, till today the

said land has not been put to use for which

it has been purchased. It is submitted that,

B.Ed. course and all other courses have

already been started by the said trust long

back, but the said land which has been

purchased for B.Ed. course is not at all put

to use till today. It is submitted that, the

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land is under cultivation and crops are taken

in the said land, however, according to him,

there is no account kept showing the yield,

which has been received from the said land.

He further submits that, the property which

was purchased by Pramila Saraf and Padmakar

Sonar from Kashiram Gadhe in the year 2002

for an amount of Rs.1,40,000/- and the same

property has been purchased by the said trust

on 14th September, 2005 for consideration of

amount of Rs.14,25,000/-. So also, the

adjoining land i.e. land Gut No.20/2

admeasuring 1 Hector 66 Are has been

purchased by the petitioner and his brother

Ishwarlal Manoharlal Dhariwal from Ramdas

Gadhe on 30th January, 2006 for an amount of

Rs.3,00,000/-, and the adjoining land i.e.

land gut No.20/1 admeasuring 1 Hector 65 Are

has been purchased for the trust by the

petitioner for an amount of Rs.14,25,000/-

Therefore, the learned counsel submits that,

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the entire chain of events demonstrates a

clear case of fraud played on the trust and

also how the trust has been cheated by the

present petitioner while working as a

Secretary of the Trust. In support of the

contention that, it is 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, learned counsel has placed reliance

on the exposition of law by the Supreme Court

in the case of A.R. Antulay V/s Ramdas

Shrinivas Nayak5. Therefore, learned counsel

appearing for the petitioner submits that,

the application may be rejected.

9. We have given careful consideration

to the submissions advanced by learned

counsel appearing for the petitioner,

5 1984 AIR (SC) 718

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learned A.P.P. appearing for Respondent-State

and learned counsel appearing for Respondent

No.2. With their able assistance, we have

perused the contents of the first information

report, the averments in the application,

annexures thereto and the reply filed by

Respondent No.2. We have also perused the

investigation papers which are made available

for perusal by learned A.P.P.

10. The gist of allegations in the first

information report is that though the land is

purchased for the purposes of extension of

building for opening D.Ed. and B.Ed. courses

in the year 2005, till date the said land has

not been put to use for which it has been

purchased. Even the N.A. permission of the

said land has not been sought till today.

B.Ed. course and all other courses have

already been started by the trust long back

and the land which was purchased in the year

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2005 is not at all put to use till date. The

land is under cultivation and crops are

taken, however, to the knowledge of the

informant no account is maintained about the

yield received from the land. The land which

has been purchased i.e. gut no.20/1/A was

owned by Padmakar Daulat Sonar, who had

purchased the said land in the year 2002 from

Kashiram Ramchandra Gadhe for an amount of

Rs.70,000/-. So also land gut no.20/1/B,

which has been purchased by the Trust of

which the present petitioner was the

Secretary from Pramilabai Sudhakar Saraf, who

had purchased the said land from Kashiram

Ramchandra Gadhe for Rs.70,000/- in the year

2002. In this way, the property which was

purchased by Pramila Saraf and Padmakar Sonar

from Kashiram Gadhe for an amount of

Rs.1,40,000/- in the year 2002 has been sold

to the trust on 14th September, 2005 for an

amount of Rs.14,25,000/-. Adjoining land i.e.

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gut no.20/2 admeasuring 1 H 66 Are has been

purchased by the present petitioner and his

brother Ishwarlal Manoharlal Dhariwal from

Shri Ramdas Gadhe on 30th January, 2006 for an

amount of Rs.3,00,000/-.

11. It clearly appears from the perusal

of the statements of the land owners that,

the petitioner issued the cheques of

different amounts in their favour and asked

them to deposit the said cheques in their

bank accounts, thereafter withdrew the said

cheque amounts from the bank and returned the

same to the petitioner. Accordingly, the land

owners deposited the said cheques issued in

their favour in their respective bank

accounts and after withdrawal of the said

amount, the same was given back to the

petitioner. As stated by the land owners, out

of the said amount/cash, the petitioner

retained the substantial amount with him and

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returned remaining amount/cash to the land

owners towards the consideration of purchase

of land for the trust. Therefore, the

statements of the land owners prima facie

shows that, the petitioner herein is

beneficiary of substantial amount in the

transactions entered between the land owners

on one hand and petitioner on behalf of trust

on the other hand. There is no denial to the

fact that, pursuant to the resolution passed

by the trust in the year 2005, the said trust

has purchased the land from gut no.20/1

admeasuring 1 H 65 Are and within three

months in the year 2006, the same area of

adjoining land from gut no.20/2 admeasuring 1

H 66 Are has been purchased by the petitioner

and his brother for an amount of

Rs.3,00,000/-.

12. The prayer for quashing the first

information report will have to be considered

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keeping in view the exposition of law by the

Supreme Court in the case of State of Haryana

V/s Bhajan Lal6. The Supreme Court in the

said case in para 108 held as under :-

"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-

ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be 6 AIR 1992 SC 604

cri.wp.1085.16.odt

exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding

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against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. If the allegations in the first

information report are carefully perused, it

is not the case that the alleged offences are

not disclosed, or the allegations are

inherently improbable. The Investigating

Officer has collected the copies of the sale

deeds and also recorded the statements of the

land owners and witnesses and also collected

other incriminating material during the

course of investigation.

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14. The contention of the learned

counsel appearing for the petitioner that the

first information report is outcome of

political motivation is not specifically

averred, and to that effect no material

particulars are placed on record so as to

consider the prayer to quash the first

information report on the said ground.

Another contention of the learned counsel

appearing for the petitioner that, Respondent

No.2 has no locus to file such first

information report; the Supreme Court in the

case of A.R. Antulay (supra), has

specifically held that, it is 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.

15. The contention of learned counsel

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appearing for the petitioner that, there is

more than 10 years delay in lodging the first

information report, and already Assistant

Charity Commissioner has conducted the audit

for the relevant year i.e. 2005-2006, and

therefore, the first information report may

be quashed, deserves no consideration.

Respondent No.2 has stated that, he came to

know about the alleged transaction recently

before filing the first information report.

16. Another contention of learned

counsel appearing for the petitioner that

under Sections 41-D and 41-E of the

Maharashtra Public Trusts Act, the Assistant

Charity Commissioner can look into the

affairs of the trust, and if there is

misappropriation, can take appropriate

action, and therefore, the first information

report is not maintainable, deserves to be

rejected. The scope of enquiry by the

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Assistant Charity Commissioner under the said

provisions cannot take the care of the entire

allegations in the first information report.

The contention that the civil remedy is

available, and therefore, the criminal law

cannot be set in motion is also not the

correct position in law. So far as the locus

of Respondent No.2 is concerned, he has

stated in the first information report itself

that, his son is studying in New English

School, Jamner, which is established and run

by the Jamner Taluka Education Society,

Jamner, of which petitioner is trustee. It

appears that, the bail has already been

granted to the petitioner, and therefore,

mere further investigation will not cause any

prejudice to the petitioner. The Supreme

Court in the case of HDFC Securities Limited

and others V/s State of Maharashtra and

another7 and another held thus :-

7 (2017) 1 SCC 640

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"27. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 4-1-2011 passed by the learned Magistrate under Section 156(3) CrPC. The learned counsel appearing on behalf of the appellants after summarising their arguments in the matter have emphasised also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) CrPC requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before

cri.wp.1085.16.odt

the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 CrPC, at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 CrPC should be sparingly used." (Underlines added)

17. In that view of the matter, we are

unable to persuade ourselves to grant any

relief in favour of the petitioner. Hence the

Petition stands rejected. Rule stands

discharged accordingly.

The observations made hereinabove

are prima facie in nature and confined to the

adjudication of the present Writ Petition.

           

           [MANGESH S. PATIL]           [S.S.SHINDE]
                  JUDGE                     JUDGE  
          SGA