Abhimanyu S/O Virbhadra Rasure vs The State Of Maharashtra And Other
2024 Latest Caselaw 26469 Bom

Bombay High Court

Abhimanyu S/O Virbhadra Rasure vs The State Of Maharashtra And Other on 18 October, 2024

2024:BHC-AUG:25707
                                                1                            WP-165-16.odt




                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD


                         CRIMINAL WRIT PETITION NO.165 OF 2016

                Abhimanyu s/o. Virbhadra Rasure,
                Age 78 years, Occu. Business,
                R/o. Masjid Road, Latur,
                Tq. and Dist. Latur                           ..        Petitioner
                                                                   (Original complainant)
                           Versus

                1.   The State of Maharashtra

                2.   Shantvir s/o. Gangadharappa Chaudhary,
                     age 59 years, Occu. Advocate,
                     R/o. Basweshwar Colony, Latur

                3.   Guruling s/o. Vishwanathappa Chaudhary,
                     Age 46 years, Occu. Service,
                     R/o. Deshikendra High School Campus,
                     Sanstha Karyalaya, Latur

                4.   Maharudra s/o. Uttareshwar Rudraksha,
                     Age 42 years, Occu. Service,
                     R/o. College of Engineer,
                     Ambajogai, Tq. Ambajogai, Dist. Beed

                5.   Shivshankarappa s/o. Vaijanathappa Khanpure,
                     Age 75 years, Occu. Pensioner,
                     R/o. Adarsh Colony, Latur,
                     Tq. and Dist. Latur                    ..    (Deceased)

                6.   Sambappa s/o. Trimbakappa Girwalkar,
                     Age 80 years, Occu. Advocate,
                     R/o. Near Panchayat Samittee, Latur,
                     Dist. Latur                                ..      Respondents


                Mr. V. D. Gunale, Advocate for Petitioner/complainant;
                Mr. S. P. Sonpawale, A.P.P. for Respondent No.1/State;
                Mr. S. V. Natu, Advocate for Respondents No.2, 3 and 6/accused;
                Mr. T. G. Gaikwad, Advocate for Respondent No.5
                                     2                           WP-165-16.odt



                                        CORAM : S. G. MEHARE, J.
                                        Reserved on :        26.09.2024
                                        Pronounced on : 18.10.2024

JUDGMENT :

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1. Rule. Rule made returnable forthwith. Heard finally with

consent of the learned counsels for the parties.

2. The petitioner has impugned the order of the learned Chief

Judicial Magistrate (C.J.M.), Latur, passed below Exhibit-93, in

Regular Criminal Case No.439 of 2006, dated 06.05.2010 and the

judgment and order of the learned Additional Sessions Judge,

Latur, passed in Criminal Revision No.91 of 2010, dated

28.09.2015.

3. The brief facts of the case are that the respondents/accused

were the office bearers and trustees of Mahatma Bashweshwar

Education Society. The complaint was lodged against them that

from 1983 to 1992, they in conspiracy and though not the office

bearers accepted the donations from the students for their

admissions to the colleges run by the society and did not deposit it

with the college or society. They had shared those amounts. They

did not enter the donation amount in the account. However, they

manipulated the record for audit. Hence, they have committed the

forgery.

3 WP-165-16.odt

4. The charge sheet has been filed against them for the offence

punishable under Sections 420, 468, and 471 read with Section 34

of the Indian Penal Code and Sections 3, 4 and 5 of the

Maharashtra Educational Institutions (Prohibition of Capitation Fee)

Act, 1987.

5. The respondents/accused had filed the application for

discharge under Section 239 of the Code of Criminal Procedure (for

short, "Cr.P.C."). The learned Chief Judicial Magistrate, Latur

discussed the facts and grounds raised by the respondents and

discharged them. The learned Additional Sessions Judge confirmed

the order of the learned C.J.M.

6. Mr. Gunale, the learned counsel for the petitioner has

vehemently argued that both Courts erred in law in discharging

the respondents/accused. The reasons for discharge are not legal,

correct and proper. He submits that the application under Section

156(3) of the Cr.P.C. was filed and then the first information report

was registered. There were statements from the students and

parents supporting allegations of accepting donations by the

respondents as bribes for their admissions. However, those

material facts were ignored. Referring to the findings of the

learned C.J.M., he would submit that the learned C.J.M. considered

the documents filed by the respondents which were not part of the

investigation report and chargesheet. While framing the charge 4 WP-165-16.odt

the Court has to examine the record and the documents attached

to the report under Section 173 of the Cr.P.C. However, the learned

C.J.M. erred in recording the findings on the basis of the

documents filed by the respondents that the respondents along

with one M.S.Bidve were removed from the trusteeship under

Section 41-D of the Maharashtra Public Trusts Act. It appears from

the said copy of the order of the learned Charity Commissioner

that the allegations were levelled against them for collecting

donations. In the circumstances, the Court can look into the said

judgment in view of the admitted facts of the judgment by both

parties. He would further submit that the learned C.J.M. has also

exceeded the jurisdiction in observing that the documents referred

by the complainant are not related to the trust. Nobody had issued

receipts. The forged receipts were produced by Mr. Girwalkar. It is

a matter required to be proved and it cannot be said at this stage,

whether the receipts are genuine or forged. If those documents are

produced on record those ought to have been considered as

sufficient material for framing charge.

7. He further argued that there was sufficient material before

the Court to believe that the respondents had misused their

position and collected huge donations from the students for their

admission. There was also evidence from the staff that the

accused asked them to collect the donations. He further argued

that the Court ignored the documents recovered from the house of 5 WP-165-16.odt

the respondents which had a connection with the crime. Same

way, the Revisional Court also did not consider the errors pointed

out to it and weighed the documents as if it was a trial. It is also

argued that the learned Revisional Court, without any basis,

decided the evidentiary value of the documents and illegally

presumed that those were not sufficient to believe that the

respondents had committed the alleged offence. The learned

Revisional Court erroneously expressed the view that the police

report as well as documents attached with the chargesheet with

charges levelled against them were groundless. He also erred in

law in considering the documents placed by the present

respondents which was impermissible. He relied on the following

cases:-

i) State of Anti-Corporation Bureau, Hyderabad and another vs. P. Suryaprakasam, 1999 Supreme Court Cases (Cri) 373;

ii) State of Orissa vs. Debendra Nath Padhi, (2005) 1 Supreme Court Cases 568;

iii) Central Bureau of Investigation vs. V.C. Shukla and others, (1998) 3 Supreme Court Cases 410;

  iv)         Mallikarjunappa Sidramappa Bidve & Ors. vs.
              Joint   Charity   Commissioner       &   ors.,   2008(1)
              Bom.C.R. 172;

He prayed to allow the petition and set aside both impugned

orders.

6 WP-165-16.odt

8. Per contra, the learned counsels for the respondents would

further submit that during the alleged period, they were never

holding the position to extract the money. There were no

allegations of accepting the donations. The involvement of

respondents No.2 and 3 in committing wrong acts is baseless. The

complaint was silent about trusteeship against Mr Girwalkar,

accused No.6. He would submit that the allegations levelled

against the respondents are general. Therefore, it is difficult to

believe that they were involved in the alleged crime. There were

no allegations against respondent No.2. There is absolutely no

witness stating that they had received donations. Considering the

allegations levelled against the respondents, the offence under

Section 420 of the Indian Penal Code is not made out. There was

nothing to believe that respondent No.2 had committed forgery.

9. Referring to the order of the Revisional Court in paragraph

No.28, he would further submit that even if the allegations are

accepted as it is, no offence is made out against the Clerk. The

allegations were vague. There was no manipulation in the

accounts. Referring to page No.40 of the chargesheet, he would

submit that those were the notes of payment but not the donation

amounts. When Mr Bidve was removed from the trusteeship on

the basis of identical allegations, the complainant had no

explanation why he was not arraigned as an accused. He prayed to

dismiss the petition.

7 WP-165-16.odt

10. Mr. Gunale, learned counsel has replied that the receipts and

entries of the record were produced. The police have recorded the

statements of the students as well as their parents about payment

of the donations. It is prima facie evident that the respondents

were receiving the donations. The findings of the Joint Charity

Commissioner on the removal, could not be considered as grounds

to discharge the respondents. The order of the Joint Charity

Commissioner had no relevance to the present crime. The

complaint was an independent remedy under criminal law. The

Charity Commissioner had no power tso punish the wrongdoers.

Therefore, both Courts wrongly held that it was an admissible

document.

11. The learned counsel for the applicant raised the first ground

that both Courts erred in relying on the documents filed by the

accused while deciding the application under Section 239 of the

Cr.P.C., only the report under Section 173 of Cr.P.C., and

documents should be considered to form an opinion whether that

material is sufficient to frame the charge or not.

12. Section 239 of the Cr.P.C. provides that if, upon considering

the police report and the documents sent with it under section 173

and making such examination, if any, of the accused as the

Magistrate thinks necessary and after giving the prosecution and

the accused an opportunity of being heard, the Magistrate 8 WP-165-16.odt

considers the charge against the accused to be groundless, he

shall discharge the accused, and record his reasons for so doing.

13. Section 240(1) of the Cr.P.C. provides that if, upon such

considering examination, if any, and after hearing, the Magistrate

is of the opinion that there was a ground for presuming that the

accused had committed the offence, such Magistrate is competent

to try and which, in his opinion, could be adequately punished by

him, he shall frame in writing a charge against the accused.

14. A conjoint reading of the above two sections, makes it clear

that if the Magistrate, upon considering the report and the

documents sent to him under Section 173 of the Cr.P.C., thinks

necessary, is of the opinion that the charge against the accused is

groundless, he shall discharge the accused, and record his reasons

for so doing. However, before passing such an order he may

examine any accused and give an opportunity to both sides.

However, upon considering the material, the Magistrate is of the

opinion that there are grounds for presuming that the accused had

committed an offence for which he could be adequately punished

by him, he shall frame the charge against the accused.

15. The above sections are crystal clear that for framing the

charge and discharging the accused, the Magistrate has to

consider the report and documents submitted with it under Section

173 of the Cr.P.C. The trial court under Section 239 and the High 9 WP-165-16.odt

Court under Section 482 of the Code of Criminal Procedure is not

called upon to embark upon an inquiry as to whether the evidence

in question is reliable or not or evidence relied upon is sufficient to

proceed further or not. However, if upon the admitted facts and

the documents relied upon by the complainant or the prosecution

and without weighing or sifting of evidence, no case is made out,

the criminal proceedings instituted against the accused are

required to be dropped or quashed. The law is well settled that

the Magistrate is not supposed to adopt a strict hypertechnical

approach to sieve the complaint through a colander of the finest

gauzes for testing the ingredients of offence with which the

accused is charged. Such an endeavour may be justified during

the trial but not during the initial stage.

16. Considering the above sections, the Court while deciding the

application for discharge or framing the charges is not supposed to

test the evidentiary value of the documents and evidence placed

before it as if it is a trial. The Court has to assess the prima facie

evidentiary value of the material sufficient to form an opinion that

either the accusation against the accused is groundless, and if not,

he should frame the charge. The opinion of the trial Court should

be on the basis of the material and evidence with the report under

Section 173 of the Cr.P.C. that the accused might have committed

the offence. At the time of framing of the charges, the probative

value of the material on record cannot be gone into, and the court 10 WP-165-16.odt

is not expected to go deep into the matter and hold that the

material would not warrant a conviction. The court is required to

evaluate the material and documents on record with a view to find

out if the facts emerging therefrom, taken at their face value,

disclose the existence of all the ingredients constituting the

alleged offence.

17. It is trite that at the stage of considering an application for

discharge, the court must proceed on the assumption that the

material that has been brought on the record by the prosecution is

true and evaluate the material in order to determine whether the

facts emerging from the material, taken on its face value, disclose

the existence of the ingredients necessary to constitute the

offence. [State by the Inspector Police Chennai vs. S. Selvi

and another, (2018) Cr.L.J. SC 1422]

18. The Honourable Supreme Court, in the case of State of

Anti-Corporation Bureau, Hyderabad and another vs. P.

Suryaprakasam (supra) has held that at the stage of the framing

of charge, the Court is required to consider only the police report

and documents sent with it under Section 173 of the Cr.P.C.

Accused has a right of being heard and the Court may examine

him if it thinks necessary. It has been further observed that the

High Court in quashing the proceedings not only looked into the

documents filed by the respondents in support of his claim that no 11 WP-165-16.odt

case was made out against him even before the trial had

commenced, but relied upon them to conclude that no offence was

committed by him. This approach of the High Court is also contrary

to the settled law of the land.

19. The Hon'ble Supreme Court has taken a similar view in the

case of State of Orissa vs. Debendra Nath Padhi (supra), that

at the stage of framing of charge, the trial Court is required to

consider only material produced by the prosecution, no provision

in Cr.P.C. grants to the accused any right to file any documents at

the said stage.

20. The ratio of the above case was that at the time of framing

of the charge or considering whether there is sufficient material to

frame the charge or considering the material and evidence placed

before the Court, is groundless, the Court cannot consider

documents filed by the accused, while deciding the application

under Section 239 of the Cr.P.C.

21. In the case at hand, the findings of both Courts reveal that

they have considered the documents placed on record by the

accused, and relying on those documents, they have formed an

opinion that there is no sufficient material to frame the charges

against the respondents/accused. Both Courts not only considered

the documents of the accused but also weighed and shifted those

documents.

12 WP-165-16.odt

22. Both Courts erred in relying on the documents of the

accused and weighing the documents of the accused.

Consequently, they have erred in law in discarding the material

and evidence produced before the Court under Section 173 of the

Cr.P.C.

23. The argument of the learned counsel for the

respondents/accused based upon the decision in the case of

Central Bureau of Investigation vs. V.C. Shukla and others

(supra) that the correct and authenticated entries in the books of

account not admissible under Section 34 of the Evidence Act are

admissible under Section 9 of the Indian Evidence Act, does not

apply to the case at hand.

24. In the matter of Mallikarjunappa Sidramappa Bidve &

Ors. vs. Joint Charity Commissioner & ors. (supra), it was an

inquiry under Section 41-D of the Bombay Public Trusts Act, 1950.

The ratio laid in that case is altogether different having no

reference to this case. Hence, it would also not assist the accused.

25. The charge sheet submitted by the police reveals a detailed

inquiry. Various witnesses were examined to support the

allegations of misappropriation of the donations. Prima facie, the

documents placed on record with the report under Section 173 of

Cr.P.C. establish the nexus of the respondents/accused with the

crime. On its face value, there are reasonable grounds to believe 13 WP-165-16.odt

that the allegations leveled against them are not false and

incorrect. Some of the documents were also recovered from the

accused. Therefore, the Court is of the view that upon considering

the documents, there were grounds for presuming that the

respondents/accused have committed the offence triable under

Chapter XIX of the Cr.P.C. and the accused may be adequately

punished.

26. For the above reasons, the writ petition deserves to be

allowed. Hence, the order:-

ORDER

i) Criminal Writ Petition is allowed.

ii) The impugned order of the learned Chief Judicial Magistrate,

Latur, passed below Exhibit-93, in Regular Criminal Case

No.439 of 2006, dated 06.05.2010 and the judgment and

order of the learned Additional Sessions Judge, Latur, passed

in Criminal Revision No.91 of 2010, dated 28.09.2015, stand

quashed and set aside.

iii) Rule made absolute in the above terms.

iv) R & P be returned to the trial Court for proceeding with the

matter according to the law.

( S. G. MEHARE ) JUDGE 14 WP-165-16.odt

27. The learned counsel for respondents No.2, 3 and 6/accused

seeks stay to the order. However, considering the length and stage

of the trial, the Court is of the view that it would be unjustifiable to

grant stay. Hence, the request is refused.

( S. G. MEHARE ) JUDGE

rrd