Madhukar S/O Amruta Patil And 2 ... vs Parashram S/O Yeduji Sonune And ...
2017 Latest Caselaw 8379 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
              Criminal Application [APL] No. 265 of 2014


 1.      Madhukar son of Amruta Patil
         aged about 61 years,
         occupation - Service,
         Secretary, Rajmata Jijauu
         Shikshan Prasarak Mandal,
         M.R.N.F. -529,
         resident of Dudha,
         Tq. & Distt. Buldana.

 2.      Sakharam son of Patilba Sonune,
         aged about 81 years,
         occupation - Agriculturist,
         President, Rajmata Jijauu
         Shikshan Prasarak Mandal,
         M.R.N.F. -529,
         resident of Dudha,
         Tq. & Distt. Buldana.

 3.      Sudam son of Dagadu Wagh,
         aged major,
         occupation - Agriculturist,
         Member, Rajmata Jijauu
         Shikshan Prasarak Mandal,
         M.R.N.F. -529,
         resident of Chikhali, Post - Hatedi Bk.
         Tq. & Distt. Buldana.                .....          Applicants


                                 Versus


 1.     Parashram son of Yeduji
        Sonune,
        aged about 76 years,
        occupation - Agriculturist,



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        resident of Dudha,
        Tq. & Distgt. Buldana.

 2.     State of Maharashtra,
        through Police Station Officer,
        Buldana.                                .....     Non-applicants


                               *****
 Mr. R. G. Kavimandan, Adv., for the applicants.

 Mr. Devdatta Deshpande, Adv., holding for Mr. Anand Parchure,
 Adv., for non-applicant no.1.

 Ms. Shamsi Haidar, Addl. Public Prosecutor for non-applicant
 no.2.
                            *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   03rd November, 2017

 ORAL JUDGMENT:

01. The applicants have filed this Criminal Application under

Section 482 of the Code of Criminal Procedure, 1973 [for short, "the

Code"], challenging the order issuing Process against them as well as

the subsequent order by which the Revision Application filed by them

challenging that order came to be rejected.

02. Facts, in brief, are that Rajmata Jijau Shikshan Prasarak

Mandal is a Public Trust registered under the provisions of the

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Maharashtra Public Trusts Act, 1951 [for short, "the said Act"]. The

non-applicant no.1 herein claims to be the founder member as well as

Vice-President of the said Trust. The applicant no.1 is the Headmaster

of the school run by the said Trust. He is the brother-in-law of

applicant no.2. Applicant no.3 is a Member of said Trust. According to

the non-applicant no.1, in Schedule-I of the Public Trust Register his

name has been shown as the Vice-president. There is no change made

in Schedule-I. When information was sought under the provisions of

the Right to Information Act, 2005 by the non-applicant no.1, it was

revealed that the present applicants had furnished a letterhead in

which different persons were shown as being the office-bearers of the

said Trust. The name of one Shri J. P. Lokhande was shown as the Vice-

President. According to the non-applicant no.1, without there being

any change in the names of the office-bearers and without any such

change being accepted, the applicants had got the letter head printed

which was an illegal act. Hence, on 3rd May, 2012, a complaint came

to be filed under Section 200 of the Code. After recording the

statement of non-applicant no.1, the learned Magistrate was pleased

to issue Process under Sections 465 and 120-B of the Indian Penal

Code [for short, "the Penal Code"] . Being aggrieved, the applicants

filed a Revision Application under Section 397 of the Code. By the

impugned order, the Revision Application came to be dismissed.

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03. Shri R. G. Kavimandan, learned counsel for the applicants,

submitted that the applicants were functioning as de facto trustees in

view of order dated 12th June, 1996 passed by the learned Joint

Charity Commissioner in Revision Application No., 18 of 1994.

Subsequent Change Reports were pending between the parties.

Though such Change Reports were not finally accepted, the present

applicants were entitled to act in accordance with those Change

Reports during pendency of proceedings. He referred to the legal

position that the change in the body of the Trust takes effect

immediately and it is not dependent upon the final

acceptance/rejection of the Change Report. Such entitlement was

permissible in view of law laid down in [1] Managing Committee,

Khalsa Middle School & another Vs. Mohinder Kaur [1993 Supp

(4) SCC 26], [2] Ganesh Mahadeorao Thawere Vs. Central Hindu

Military Education Society & another [2007 (6) Mh.L.J. 589], [3]

Chembur Trombay Education Society & others Vs. D.K. Marathe

& others [2002 (3) Bom. C.R. 161], and [4] Vijay Mehta & another

Vs. Charu K. Mehta & others [2008 (5) Mh. L.J. 853]. It was then

submitted that the ingredients of Sections 463 and 465 of the Penal

Code had not been made out. There was no question of applicants

posing as office-bearers of the Trust in view of the fact that they were

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doing so pursuant to the various resolutions passed by the Trust.

According to the learned counsel, even the report which was called

under Section 202 of the Code indicated pendency of disputes before

Trust Authorities and, therefore, no offence, whatsoever, had been

made out. Without considering the settled legal position, the learned

Judge of the Sessions Court passed the impugned order. He also

placed reliance on the decision in Harischandra Krishnarao

Kulkarni Vs. The State of Mah. & another [2014 ALL MR (Cri) 676]

in that regard. He, therefore, submitted that the proceedings deserve

to be quashed.

04. Shri Deshpande, learned counsel for the non-applicant,

supported the impugned order. According to him, the non-applicant

no.1 was the Vice-president and his name was shown in Schedule-I of

the Public Trust Register. Even if the Change Reports were pending,

the same did not entitle the applicants to have the letterhead printed

and pose themselves as well as some other trustees to be office-

bearers of the Trust. The learned Magistrate rightly issued Process

under Section 465 read with Section 120-B of the Penal Code. The

Sessions Court also considered the entire controversy and maintained

the order of the learned Magistrate. It was, therefore, submitted that

no interference was called for in that regard.

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Ms. Shamsi Haidar, learned Addl. Public Prosecutor for the

non-applicant no.2, supported the impugned order.

05. A perusal of the Complaint filed by the non-applicant no.1

indicates that he is the founder member as well as Vice-President of

the Trust. The entries in Schedule-I of the Public Trust Register as

maintained reflects this position. No subsequent Change Reports have

been accepted. While seeking information from the Trust under the

Right to Information Act, 2005, on 30th August, 2010 a letter head

was submitted which indicated the name of one Jankiram Lokhande as

the Vice-president. This letter head was got printed without any

authority and in an illegal manner. The statement of the non-applicant

no.1 as recorded reiterates this position and on that basis, Process was

issued for the offences punishable under Sections 465 and 120-B of the

Indian Penal Code.

06. Before considering the challenges as raised, it would be

relevant to consider the legal position in the matter of effect of a

change being recorded in the Public Trust Register. In Managing

Committee, Khalsa Middle School [supra], it was held that the change

as effected in the Rules and Regulations of the Society therein ought to

be treated as having come into effect from the date the amendment

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was carried out and not from the date when the same was approved.

The ratio of this decision has been followed by learned Single Judge in

Chembur Trombay Education Society & others [supra] and it has been

held that any change in the constitution of the managing committee of

a trust registered under the said Act that is brought about in

accordance with law would come into effect from the date of the

resolution of the Trust and not from the date when the same is

approved by the authority concerned. Thereafter, the Division Bench

in Ganesh Mahadeorao Thawre [supra] considered the aforesaid

judgment of learned Single Judge and approved the same.

Thus, the legal position that is now settled is that a change

under the provisions of the said Act takes effect from the date the

resolution in that regard is passed and it does not come into operation

unless and until such change is approved.

07. Under Section 463 of the Penal Code, whoever makes a

false document with intent to cause damage or injury to the public or

any person, commits forgery. Section 464 of the Penal Code specifies

what amounts to making a false document while Section 465 specifies

punishment for forgery. In Mohammed Ibrahim & others Vs. State

of Bihar & another [ (2009) 8 SCC 751], while considering the

provisions of Section 464 of the Penal Code, the Honourable Supreme

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Court in paragraph 14 observed thus:-

"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:

1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or

(b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a "false document", if (I) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."

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08. In the present case, as per the report submitted by the

Police Authorities, by virtue of an order dated 12th June, 1996 passed

by the learned Joint Charity Commissioner, an ad hoc arrangement was

made for managing the affairs of the Trust till the concerned Change

Reports were decided. This position continued and in that backdrop it

is the claim of the applicants herein that pursuant to the resolutions

passed, they were holding the posts as indicated in the alleged letter

head. Thus, while it is the case of the non-applicant no.1 that in

absence of any such change being effected, the applicants could not

have shown any other persons as the office-bearers of the Trust,

according to the applicants, by virtue of the change as effected, they

were entitled to do so in view of the aforesaid legal position.

The provisions of Section 464 of the Penal Code when

construed in the backdrop of the complaint, it cannot be said that the

ingredients thereof stand attracted. If on the basis of the legal position

as prevailing with regard to the point of time when a change in the

formation of the body of trustees comes into effect, the applicants

have portrayed themselves as holding various posts in the Trust which

change according to the non-applicant no.1 has not yet been

approved, it cannot be said that there has been any dishonest or

fraudulent preparation of the letter-head resulting in an offence under

Section 465 of the Penal Code being committed. The entire premise

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on which the complaint is based is on the absence of the change being

accepted before which the letter-head was prepared. The Process as

issued is by ignoring the aforesaid legal position and hence a case has

been made out for exercise of jurisdiction under Section 482 of the

Code. These challenges though raised before the Sessions Court have

not been taken into consideration in their proper perspective. The

impugned judgment is, therefore, liable to be set aside.

09. As an upshot of the foregoing reasons, the following order is

passed :-

ORDER

[1] The orders dated 13th March, 2013 and 24th July, 2013 issuing Process in Misc. Criminal Case No. 162 of 2012 by the learned Judicial Magistrate First Class, Buldhana, as well as the order dated 14th March, 2014 by the learned Principal District Judge, Buldhana, in Criminal Revision No. 82 of 2013 are set aside.

[2] Misc. Criminal Case No. 162 of 2012 stands

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quashed.

[3] The Criminal Application stands allowed.

Judge

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