Bhagwat S/O Shrirang Soat And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 8170 Bom

                                                          Cri.Appln.6036/2016
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO. 6036 OF 2016

1.      Bhagwat s/o Shrirang Soat,
        Age 56 years, Occu. Agri.,

2.      Shivkanya w/o Bhagwat Soat,
        Age 47 years, Occu. Household

3.      Sham s/o Bhagwat Soat,
        Age 27 years, Occu. Service

4.      Vishal s/o Bhagwat Soat,
        Age 29 years, Occu. Service

5.      Hanmant s/o Jaywanta Pawar,
        Age 45 years, Occu. Labour

        R/o Tandulwadi, Taluka and
        District Latur                             .. Applicants

                Versus

1.      The State of Maharashtra

2.      Maheshkumar s/o Panditrao
        Dhaigude,
        Age 36 years, Occu. Agri.,
        R/o Kale Galli, Latur
        At present R/o Takali (Bk),
        Taluka and District Latur                  .. Respondents

Mr V.D. Sapkal and Mr S.S. Panale, Advocates for applicants
Mr V.M. Kagne, A.P.P. for respondent no.1
Mr V.B. Godbharle, Advocate for respondent no.2



                               CORAM : S.S. SHINDE AND
                                       A.M. DHAVALE, JJ

                               DATE OF RESERVING
                               THE JUDGMENT : 6th September 2017

                               DATE OF PRONOUNCING
                               THE JUDGMENT : 13th October 2017




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                                                                        Cri.Appln.6036/2016
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JUDGMENT (Per A.M. Dhavale, J.)

1. Accused nos.1 to 5 under Section 482 of Cr.P.C. seek quashing

of F.I.R. at C.R. No.274/2016 registered at Latur Police Station against

them under Sections 467, 468, 420, 471 read with sec.34 of Indian

Penal Code. The second prayer is for quashing of order of Lakayukta

dated 14.7.2016 on complaint filed before him by respondent no.2

2. Heard learned Advocate Mr V.D. Sapkal for the applicant, Mr

V.M. Kagne, learned A.P.P. for State and Mr V.D. Godbharle, learned

Advocate for respondent no.2

3. F.I.R. dated 7.8.2016 lodged by respondent no.2 Mahesh

Dhaygude against the applicants is in respect of misappropriation of

funds of a trust Vitthal-Rukhmini temple by the accused, who are

trustees of the trust. There is also allegation regarding

misrepresentation before the Joint Charity Commissioner that the

temple is situated in Takli as well as Tandulwadi, when it is actually

situated only in Takali. Incidentally, accused no.1 is Sarpanch of

Tandulwadi and other members are also from Tandulwadi, who are

wrongly shown as residents of Takali to get themselves appointed as

trustees. The misappropriation alleged is one in respect of amount of

Rs.5,99,062/- received on 2.7.2007 for construction of protection wall,

which was shown to be constructed, but actually not constructed. The

second is in respect of getting approval for construction of well and

other construction during the period from 2005 to 2008. The funds

received were not properly utilised and inferior quality of work of Nali

and road was done and no gate was constructed, still the amount was

received.

Cri.Appln.6036/2016

4. The application and arguments of learned Advocate Mr Sapkal

disclose following grounds for quashing :

(I) Same allegations were made in application R.C.C. No. 481/2014

filed before Chief Judicial Magistrate, Latur under Section 156 (3) of

Cr.P.C. In the said case, the learned Judicial Magistrate, First Class,

Court No.3, Latur issued process only against accused no.1. Thus, this

is analogous to second F.I.R. It is also claimed that respondent no.2

had made similar complaint to the Collector and after due enquiry by

the Engineers of Zilla Parishad, report was submitted that the grants

were sanctioned only after verifying the complaint of construction and

the quality thereof.

(iI) It is argued that Lokayukta had no jurisdiction to entertain the

complaint of respondent no.2 dated 11.6.2014 since the judicial

proceeding was going on in respect of the same crime. Still

Lokayukta took cognizance on 5.4.2016 and issued directions dated

14.7.2016. to the Police Officer A.P.I. Mr Bavkar to record detailed

complaint of respondent no.2 and to take cognizance, if any

cognizable offence was disclosed and register the offence. He was

directed to make enquiry into the allegations. The applicants had

applied for intervention but their application was rejected. Later, on

9.2.2017, in view of the registration of F.I.R. and the investigation in

pursuance thereto, the Lokayukta took a decision that the village was

not within the territorial jurisdiction of M.I.D.C. Police Station, Latur

and investigation should be handed over to economic wing and he

Cri.Appln.6036/2016

was not going to take action under Section 10 (1) of the Maharashtra

Lokayukta and Upa-Lokayukta Act, 1971.

(III) Mr Sapkal learned Advocate for applicant submitted that the

Police were not inclined to take cognizance or register F.I.R., as there

was no substance in the allegations. There was no order against

accused no.2 to 5 passed by competent Court, still due to intervention

by the Lokayukta, the F.I.R. came to be registered.

5. Learned Advocate Mr Godbharle for respondent no.2 referred to

Viswasrao Chudaman Patil vs Lok Ayukta, State Of

Maharashtra, 1985, Mh.L.J. 54 and submitted that respondent no.2

has made allegations and not grievance and, therefore, bar of Section

8 (1) (b) of the Maharashtra Lokayukta and Upa-Lokayukta Act, 1971

was not attracted. The applicants have no locus standi to challenge

the action of the Lokayukta. He submitted that the present complaint

is in respect of diferent allegations than those made in the earlier

F.I.R.

6. The points for our consideration with our findings are as

follows :

(I)      Whether Lokayukta acted beyond his

         jurisdiction and whether his order

         dated 14.7.2016 deserves to be quashed?           .. In the affirmative





                                                                        Cri.Appln.6036/2016


(II)    Whether F.I.R. at C.R.No.274/2016 against

        the applicants is second F.I.R. or

        inherently improbable and deserves

        to be quashed ?                                         .. Partly in the
                                                                   affirmative


                                        - REASONS -

7. Point No.1 : In Viswasrao Chudaman Patil vs Lok Ayukta, State

Of Maharashtra (cited supra), the scheme of Lokayukta is considered

and the various provisions therein are interpreted. The powers of

Lokayukta under Section 7 and the restrictions under Section 8 of the

Act are also considered. In short, the Lokayukta gets jurisdiction when

(I) there is complaint of grievance or the allegations against public

servant; and (II) the Lokayukta forms opinion about existence of

maladministration by public servant to initiate enquiry against any

public servant. Bar of Section 8 (1) (b) reads as follows :

"8 (1) (b) If the complainant has or had any remedy by way of proceeding before any tribunal or court of law:

Provided that, the Lokayukta or an Upa-Lokayukta may conduct an investigation notwithstanding that the complainant had or has such a remedy if the Lokayukta or, as the case may be, the Upa-Lokayukta is satisfied that such person could not or cannot, for sufficient cause, have recourse to such remedy."

In Viswasrao Patil's case (cited supra), it is laid down that bar of

Section 8 (1) (b) of the Act is applicable to only grievance and not to

the allegations.

Cri.Appln.6036/2016

8. Since the Lokayukta has not been joined as a party, without

making a deep probe into his powers, duties and restrictions, we hold

that as per Section 8 (5) (b) of the Maharashtra Lokayukta and Upa-

Lokayukta Act, 1971 shall not investigate any complaint involving the

allegations, if the complaint is made after the expiry of three years

from the date on which the action complained against is alleged to

have taken place. The only exception is when sufficient cause is

made out for not making complaint within time, the Lokayukta shall

investigate the allegations or grievance made against public servant.

In the present case, accused nos.1 to 5 were trustees of a public trust.

The main allegations are against them. There was no allegation

against the Police as such. What is more material is that the

allegations made by respondent no.2 related to a period of more than

six years prior to the date of complaint. In view of this we find the

Lokayukta had no jurisdiction to investigate into the allegations in

respect of events, which took place more than three years back unless

he, for reasons to be recorded in writing hold that the complainant

had sufficient cause for not making complaint within time. In the

present case, the complainant has nowhere stated so nor the learned

Lokayukta has observed existence of such sufficient cause. On this

ground alone, the Lokayukta should abstained himself from taking any

cognizance or making investigation.

9. In CH. Rama Rao Vs. Lokayukta and ors., (1996) 5 SCC

304, it is laid down that when any complaint of maladministration is

received, Lokayukta has right to hold preliminary verification before

embarking upon the investigation. He has to form a prima facie

Cri.Appln.6036/2016

opinion that conduct of regular investigation was justified. Such

preliminary verification has to be done in private and with due regard

to confidentiality. Obviously, at this stage, the public servant against

whom the complaint is made has no right to appear and make

representation, but if Lokayukta decides to hold investigation, he is

bound to give opportunity to the aggrieved person to comment on

such complaint. Only after giving reasonable opportunity to the public

servant, the Lokayukta can submit a report to the government.

10. Besides, in the matter like this, where the competent courts are

established for providing redressal to the aggrieved party and such

Court might have received any complaint and some orders might have

passed, it is responsibility of the Lokayukta to make a proper

preliminary verification and use judicial restraint so that there should

not be conflicting orders.

11. We hold that taking of cognizance and issuing of directions by

the Lokayukta in a case more than six to eight years old was contrary

to the provisions of law and, therefore, the direction of Lokayukta

dated 14.7.2016 deserve to be quashed.

12. On comparison of the impugned F.I.R. at C.R.No.274/2016 and

earlier written complaint dated 23.5.2014 in the light of arguments

advanced, we find that some allegations are common in both. In

impugned F.I.R. the following allegations are made :

Cri.Appln.6036/2016

(I) The applicants who are residents of Tandulwadi have

personated as residents of Takli and when Vitthal-Rukhmini temple is

situated on land Gat No.188 and 189 from Mauje Takli, very much

away from the border of Takli, the address is shown as situated at

Tandulwadi and Takli and all the residents of Tandulwadi were taken

up as trustees by producing false residence certificates of Takli.

(II) On 2.7.2007, construction of a protection wall from the funds of

the government was shown and funds of Rs.5,99,062/- were received

and appropriated when actually no such wall was constructed.

(III) The applicants got sanctioned construction of well and

construction of other work in the temple premises. The construction

of Dharmashala, road and drainage was of inferior quality. No gate

was constructed, however, the funds received for such work were

received by the applicants.

13. R.C.C. No.481/2014 filed before Chief Judicial Magistrate, Latur

transferred to Judicial Magistrate, First Class Court no.3, Latur shows

allegation no.I and allegation no.II against the same accused in

respect of the same period. This complaint dated 25.7.2014 is not

only prior in time but the learned Judicial Magistrate, First Class, Latur

has taken cognizance of offence under Section 465 of Indian Penal

Code against accused nos.1 and 6 only by order dated 22.1.2015. The

complaint against applicants no.2 to 5 was dismissed. The said order

has not been challenged. The present complaint in respect of the

same allegations, which were taken in R.C.C.No.481/2014, is not

Cri.Appln.6036/2016

maintainable. It amounts to second F.I.R. In this regard, we rely on

the judgment of T.T. Antony Vs. State of Kerala, (2001) 6 SCC

181, and Amitbhai Anilchandra Shah Vs. CBI, (2013) 6 SCC 348.

As held in these cases, the fresh complaint in respect of not only the

same allegations, but also other allegations, which arise out of the

same transaction is also barred.

14. We find that the present impugned complaint dated 8.8.2016

makes fresh allegations in respect of receiving funds for construction

of Dharmashala, road and drainage and not constructing the gate and

Dharmashala and construction of inferior quality of nala and road.

There is also reference to construction of a well. The investigation

reveals that the well was sanctioned for construction in the temple

premises, but it was constructed by accused no.1 in his own premises.

15. It is argued that the Engineers of Zilla Parishad had carried out

verification and thereafter have submitted report in favour of the

applications to the Collector. In this regard, we do not wish to enter

into appreciation of disputed questions of facts. We make it clear that

when complaint is filed before the Judicial Magistrate, he is sole Judge

to consider the allegations against the accused and the report

submitted by Zilla Parishad Engineers to the Collector will not be

binding on him, but he may consider the same in the light of other

facts.

16. We find that the allegation regarding inferior quality of

construction of road, nali, non-construction of gate, non-construction

Cri.Appln.6036/2016

of well cannot be said to be an act committed in the course of same

transaction. The work of construction of compound wall was

undertaken by accused no.1, who was Sarpanch of Tandulwadi,

whereas the work of construction of road, Nali and Samajik Sabhagrah

was entrusted to Majoor Sahakari Society under different work orders.

The acts of misappropriation, if any, cannot be said to be committed

in the course of same transaction to the earlier misappropriation of

Rs.5,99,060/- was alleged by non-construction of protection wall.

Since it is independent offence, fresh F.I.R. was maintainable.

17. Though the F.I.R. was registered in view of the orders of

Lokayukta, which we have found to be without jurisdiction, we find

that the F.I.R. in respect of fresh allegations, as referred above, is not

barred. The investigation reveals prima facie substance in the

contention that money was received for construction of well in temple

premises, but it was constructed somewhere else. It is, therefore, not

appropriate to quash the F.I.R. in respect of the third allegation.

18. The investigation revealed that initially amount of Rs.15 lakhs

was sanctioned for construction of Samajik Sabhagrah on the land of

trust, but the persons, who donated the land raised dispute and the

construction of Samajik Sabhagrah was not possible. Thereafter

Additional Chief Executive Officer, Zilla Parishad, Latur sought

permission and the Secretary, Village Development and Water

Conservation Department, Mantralaya, Mumbai on 16.12.2008

granted permission for diverting the funds for construction of well,

fitting pipeline and construction of water tank in the premises of

Cri.Appln.6036/2016

temple. The government has approved the said proposal on

18.2.2009. The 7/12 extract shows that the well was constructed in

the field of accused no.1 Bhagwat and not in the premises of temple.

19. We, therefore, hold that the F.I.R. deserves to be partly quashed

in respect of two allegations (I) regarding misappropriation of funds of

Rs.5,99,062/- and other regarding forgery for formation of Trust with

wrong address and getting the applicants of residents of Tandulwadi

appointed by misrepresentation.

20. Thus, the criminal application is partly allowed. The impugned

F.I.R. dated 8.8.2016 at C.R. No.274/2016 is quashed with regard to

the allegations of misappropriation and other offence in respect of

grants of Rs.5,99,062/- received for construction of compound wall

and allegations regarding forgery for formation of trust with wrong

addresses and getting appointment of trustees residents of

Tandulwadi by making misrepresentation before the Joint Charity

Commissioner and the other allegations.

21. The application is allowed in respect of prayer for quashing the

order of Lokayukta dated 14.7.2016 passed on complaint of

respondent no.2 - Maheshkumar Dhaygude bearing

No.LA/COM/1163/2014 (T-3).

23. We clarify that the observations made herein on merits are

prima facie in nature and are restricted for deciding the present

application only.

Cri.Appln.6036/2016

22. Rule is partly made absolute. There shall be no order as to

costs.

       ( A.M. DHAVALE, J.)                   ( S.S. SHINDE, J.)



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