Bombay High Court
Mansingh Balasaheb Pawaar And Others vs The State Of Maharashtra And Another on 15 September, 2025
2025:BHC-AUG:24646
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.451 OF 2024
WITH
CRIMINAL APPLICATION NO.2560 OF 2025
MANSINGH BALASAHEB PAWAAR AND OTHERS
VS
THE STATE OF MAHARASHTRA AND ANOTHER
Mr. A. P. Mundargi, Senior Counsel i/b Mrs. Rashmi Kulkarni,
Advocate a/w Mr. Subir Sarkar, Advocate for the petitioners
Mr. Rahul Joshi, Advocate for the respondent No.2
Smt. Chaitali Choudhari-Kutti, APP for the respondents/State
CORAM : KISHORE C. SANT, J.
RESERVED ON : 25th JULY, 2025
PRONOUNCED ON : 15th SEPTEMBER, 2025
P. C.
1. Heard the parties.
2. This petition is taken up for final disposal at the
stage of admission with the consent of the parties.
3. The petitioners are the President and members of
one trust namely Shri Chatrapati Shivaji Shikshan Prasarak
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Mandal. Respondent No. 1 is the State. Respondent No. 2 is the
complainant.
4. The petitioners have approached this court
challenging an order dated 23-11-2023 passed in Cri. Revision
Application No. 87/2018 by the learned Additional Sessions
Judge, Aurangabad thereby confirmed an order dated 24-01-
2018 passed below Exh.1 in Cri. M. A. No. 410/2015 by the
learned JMFC, Kannad issuing process for the offences
punishable under Sections 406, 420, 468 r/w 120-B of the IPC.
5. The facts, in short, for the purpose of deciding this
petition are as under:
6. That the petitioners are the members of the trust
namely Chhatrapati Shivaji Shikshan Prasarak Mandal, Kannad.
A scheme of the said Trust was framed in 1989, by judgment of
the learned Joint Charity Commissioner, Aurangabad. Some of
the petitioners are trustees since then.
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7. Respondent No. 2-member of the said trust filed a
complaint stating that in 1972, the society with the approval of
the Town Planning Department got layout sanctioned in the land
belonging to the trust survey No.40/2. In the said layout 84
plots were shown. Remaining land was shown as open space. All
84 plots were sold. Thereafter again 22 more plots were
demarcated in the open space bearing Nos. 85 to 106 and those
also came to be sold. Some portion was shown as green zone. It
is alleged that plots are sold without obtaining previous sanction
from the Charity Commissioner under section 36 of the
Maharashtra Public Trust Act. It is alleged that Ori. accused No.
1 is the Director since 1990 and since 1994 he is the Secretary
looking after the business of the society. The original accused
Nos. 2 to 9 are the Directors. Accused No. 10 is the member of
the society. Accused No. 13 is the Clerk in the school run by the
society. It is further alleged that again 28 plots bearing Nos. 107
to 134 were demarcated. Accused Nos. 1 to 9 again sold those
plots to persons close to them. It is alleged that by this, they
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have committed an act of breach of trust, cheating and forgery.
No papers were supplied of these plots Nos. 107 to 134. It is,
thus, alleged that all the persons are responsible for the said
transaction and therefore, are guilty of the offences alleged.
8. The learned JMFC, Kannad recorded a verification
and gone through documents and thereafter called report under
section 202 of the Cr. P. C. from the Police Station, Kannad. The
police recorded statements of various persons and submitted a
report. It is recorded in the report that a Civil Suit bearing
No.600/2015 is pending in respect of these plots. The learned
Magistrate, thereafter issued a process. Said order came to be
challenged by the present petitioners by filing a revision. The
learned Sessions Judge rejected the revision observing that the
learned Magistrate has issued process by considering the enquiry
report under section 202. The petitioners appear to be office
bearers. Their statements are considered. It is considered that
the purchasers happen to be relatives of the Directors. It
recorded conclusion that 20 unauthorized plots bearing Nos.
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107 to 126 were illegally sold by making alteration in the
original layout plan and later on, plots were regularized. So far
as contention of the petitioners that they were not the office
bearers at the relevant point of time and had no knowledge. The
court observed that it can be only by holding trial.
9. The learned Senior counsel vehemently argued that
no ingredients of any of the offences are present against the
petitioners. The trust owns Survey No. 40/2, adm. 16.5 Acres.
During period 1972-1975, 84 plots were sold. Additional 22
plots were sold till 1978. He submits that for some of the period
even father of the complainant was trustee for the year 1984-
1989 and 2000-2004. He was also a Vice-President of the trust
for a period from 2008-2011. Now, the complaint is filed in
2015. The said transfers have already been regularized. The
allegations are not specific. There was already a complaint filed
in the year 2011 with the very same allegations. Said complaint
was rejected. From the report of the police, it is clear that there
is no specific allegation against any of the petitioners. It was
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necessary to make specific allegations so far as forgery is
concerned. There is no principles of vicarious liability applicable
in the criminal law unless statutes provide specifically. Sections
406 and 420 of the IPC cannot go together. Making allegations
are not sufficient to attract the offence. The learned trial court,
thus, failed to apply its mind properly. The learned Sessions
Judge also failed to appreciate the submission and has passed
the order which requires to be quashed and set aside.
10. The learned Advocate for the respondent Mr. Joshi,
opposed the petition. He strenuously submits that the
respondent being member of the trust has filed a complaint. The
complaint makes out a case for investigation. When a case is
made out for investigation, it was necessary for the court to
direct the police to carry out an investigation under section 156
(3). The complaint is made against all the trustees. It is clear
from the record that the plots were demarcated. The layout was
prepared and first 88 plots were sold. However, there is no
proper procedure followed for demarketing new plots and those
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are sold illegally. All the plots are sold clearly in violation of
Section 36 as no permission is ever obtained by the trust before
disposing off the plots. Looking to the facts that some of the
purchasers of the plots happens to be relatives of the trustees
clearly shows that there are malafide. By doing such activities
the applicants thereby have caused unlawful loss to the trust. He
has invited attention to the copies of allotment letters annexed
alongwith the affidavit-in-reply and mutation entries. He further
submits that though the plots were sold for consideration, the
audit does not reflect receipts of amount from the transactions.
He, thus, prays that the petition deserves to be dismissed.
11. The learned APP also supports the impugned order.
It is submitted that no interference is required at the hands of
this court while exercising the jurisdiction under Article 227 of
the Constitution of India. He also prays for appropriate orders.
12. During the course of the argument the learned senior
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advocate for the petitioners relied upon the following
judgments:
1. Mohammed Ibrahim and others Vs State of Bihar and
Another1
2. Delhi Race Club (1940) Ltd and Others Vs State of Uttar
Pradesh and Another2
3. Rex Vs John Mc Iver3
4. R. Kalyani VS Janak C. Mehta and Ors4
5. S. M. S. Pharmaceuticals Ltd. Neeta Bhalla and Ors5
6. Sham Sunder Ors. Vs State of Haryana6
13. In the case of Mohammad Ibrahim (supra) the
Hon'ble Apex Court considered the ingredients of section 415. In
the said case, it was not a case of the complainant that any of
the accused tried to deceive him either by making false or
misleading representation or any other action or omission, nor
was it his case that the accused induced him aby any fraudulent
or dishonest intention making him deliver any property. It is
held that no offence of cheating was made out.
14. In the present case also this court finds that it is not
1 (2009) 8 SCC 751
2 2024 SCC OnLine SC 2248
3 1936 SCC OnLine Mad 11
4 (2009) 1 SCC 516
5 AIR 2005 SC 3512
6 AIR 1989 SC 1982
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the case of the respondent-complainant that he is cheated. It is
only his case that the petitioners have sold some of the plots
belonging to the trust to other persons.
15. In the case of Delhi Race Club (supra) the Hon'ble
Apex Court considered the ingredients of the criminal breach of
trust. It was ultimately held that continuation of the proceeding
would be an abuse of process of law, if no ingredients are
present. The casual approach of the courts below in issuing
notice is not appreciated. It is further held that while dealing
with private complaint, it is duty of the Magistrate to
meticulously examine the contents of the complaint to
determine whether offence of cheating or criminal breach of
trust is made out. It is observed that both the offences of
cheating and breach of trust cannot go together.
16. In the case of Rex (Supra) the full bench of Madras
High Court considered the word 'entrusted' as appearing in
section 406 of the IPC. In the case of R Kalyani (Supra) it is
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considered that allegations in the FIR were for commission of
the offence under general statute. A vicarious liability can be
fastened only when provision of statute provides such and not
otherwise by creating legal fiction.
17. In the judgment of Shyam Sundar (supra) the
Hon'ble Apex court considered the criminal liability under penal
provision and not a civil liability. It is held that penal provision
must be strictly construed in the first place. There is no vicarious
liability in criminal law unless the statute takes that also within
its fold. Considering above the proceeding was held to be an
abuse of process of law. Conviction and sentence of appellants
Nos. 1, 2 & 4 in that case was set aside.
18. In the case of S. M. S. Pharmaceuticals Ltd. the court
considering the provision of N. I. Act for dischonour of cheque, it
is held that no one can be held criminally liable for an act of
another. However, it is held that it is subject to exception on
account of specific provision made in the statute like section 141
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of the N. I. Act.
19. The learned advocate for the respondents relied
upon the following judgment:
1. Partha Nayak Vs State of Orissa7
2. Lajwati @ Bimla Vs State of Haryana and others8
3. Madhav and others Vs State of Maharashtra9
4. Nupur Talwar Vs CBI and others10
5. Sonu Gupta Vs Deepak Gupta and others11
5. Jagdish Chintaman Khodke Vs State of Maharashtra and
others12
20. In the case of Partha Nayak (supra) the Orissa High
Court held that it is not necessary for the court to give detailed
reasoning on the merits of the case so as to find out if the
allegations and charges are true or not. The court has to apply
its judicial mind and test the material on record.
21. In the case of Lajwati @ Bimla (Supra) the learned
Magistrate was satisfied whether there is sufficient grounds for
proceeding against the accused and not that the evidence should
7 2024 (46) RCR Cri. 287
8 2014 (1) RCR Cri. 929
9 2013 (3) Mh. L. J. Cri. 526
10 2012 (3) RCR Cri. 595
11 2015 (2) RCR Cri. 33
12 2017 ALL MR Cri 620
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be sufficient to convict the accused or even primafacie case for
framing of the charge.
22. In the case of Madhao and others (supra) it is held
that whether the learned Magistrate orders investigation by the
police before taking cognizance under Section 156(3) and
receives the report. He can act on the report and discharge the
accused or straightway issue process against the accused or
apply his mind in the complaint filed and take action under
section 190 of the Code.
23. In the case of Nupur Talwar (supra) the Hon'ble
Apex Court considered the provision of section 204 of the Cr. P.
C. It is discussed that section does not mandate the learned
Magistrate to explicitly state reasons for issuance of summons. It
only provides that if the learned Magistrate is of the opinion of
taking cognizance of an offence and there is sufficient ground
for proceeding, summons may be issued. Thus, it is only to see
that whether there is any material making out sufficient case for
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issuance of summons. It is further discussed that it is necessary
to see as to whether foundational facts make out a case to take
cognizance. There is no dispute about said proposition. In this
case, what needs to be seen is as to whether a case is made out
to issue process on the basis of facts stated in the complaint. In
the said case, the Hon'ble Court observed that the learned
Magistrate had given detail reason in his order issuing process.
24. In the case of Sonu Gupta (Supra) the Hon'ble Apex
Court considered provision of section 204 and 190 of the Cr. P.
C. It is held that when prima facie case is made out while taking
cognizance of the offence then merits of the defence version not
to be considered at that stage of taking cognizance.
25. In the case of Jagdish Khodke (Supra) this court held
that examination of complainant and formal verification need
not be in detail. Recording of verification is sufficient
compliance of section 200 of the Cr. P. C.
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26. In the present case this court has to see as to
whether a case is made out to issue process against the present
petitioners. From the allegations itself it is seen that allegations
are in respect of the transfer of the plots in favour of the
persons. Allegations are that the plots from land belonging to
the trust are sold without permission of Charity Commissioner
under section 36 of the Maharashtra Public Trust Act. The
allegations are not specific against any of the persons shown as
accused in the complaint. So far as initial 84 plots are
concerned, there is no complaint by the complainant.
27. On hearing the parties, this court finds substance in
the argument of the learned senior counsel that in the complaint
no case of vicarious liability is made out. Allegations are that
when these petitioners were trustees of the trust, plots are sold.
No specific role is attributed to any of the petitioners. There is
nothing to indicate that as to how each of the petitioner is liable
for criminal action. It is also pointed out that proceedings are
going on before the Joint Charity Commissioner in respect of the
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selling of the plots. It is also seen that for some time even father
of the informant/complainant was office bearers of the trust.
28. Coming to the order of issuance of process, it shows
that learned Magistrate has considered the complaint,
verification, report of the police under section 202 of the Cr. P. C.
and documents on record. The court also saw the map of survey
No. 40/2, allotment letters and other documents relating to the
society on record. It is further recorded that prima facie it
appears that allegations are made out and there is sufficient
ground to proceed against accused Nos. 1 to 13 and thus process
is issued.
29. Considering the submissions of the learned senior
counsel that sections 406 and 420 cannot go together and these
are mutually exclusive. This court finds that the learned
Magistrate has committed an error in issuing summons under
both these sections. Though the learned Magistrate has stated
about police report, however, police report is not specific and
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does not specifically speak as to which of the accused is
criminally liable. The learned Sessions Judge in the revision has
also failed to appreciate all these things and maintained the
order passed by the learned Magistrate. This court, thus, finds
that the said order deserves to be set set aside. Hence, the
criminal writ petition stands allowed in terms of prayer clauses-
(B),(C) & (D).
30. The criminal writ petition stands disposed off.
31. In view of disposal of the criminal writ petition,
pending criminal applications, if any do not survive and stand
disposed off.
[KISHORE C. SANT, J.]
VishalK/criwp451.24
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