Gujarat High Court

Anantrai Mohanlal Mehta vs State Of Gujarat on 14 October, 2021

Bench: Gita Gopi

    R/CR.MA/346/2015                                 CAV JUDGMENT DATED: 14/10/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/CRIMINAL MISC.APPLICATION NO. 346 of 2015


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? ----

2      To be referred to the Reporter or not ?                          YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                                ----

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution             -----
       of India or any order made thereunder ?

========================================================== ANANTRAI MOHANLAL MEHTA & 1 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2 JAIVIK UDAY BHATT(7319) for the Respondent(s) No. 2 MR UDAY H BHATT(6457) for the Respondent(s) No. 2 MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the

==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 14/10/2021

CAV JUDGMENT

1. RULE. Learned APP Mr. Pranav Trivedi waives service of

notice of rule on behalf of respondent No.1-State and Mr. Jaivik

Uday Bhatt, learned advocate waives service of notice of rule

on behalf of respondent No.2.

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2. The petition has been filed under section 482 of the Code

of Criminal Procedure for quashing and setting aside the FIR

bearing C.R. No. I - 153 of 2014 registered with Kamlabaug

Police Station, Porbandar, for the offences punishable under

Sections 406, 504, 506(2) and 114 of the Indian Penal Code.

2.1 The petitioner has stated that earlier too, on the same

set of facts and the allegations, the complaint was filed by the

respondent No.2, and after inquiry, the Police Inspector of

Kamlabaug Police Station, Porbandar, has submitted detailed

report on 13.12.2014 and the respondent No.2 was informed

about the report vide communication dated 16.12.2014.

3. The FIR dated 28.12.2014 filed by respondent No.2.

Arjanbhai Gigabhai Khistariya stated that he was doing the

work of agriculture and construction, and since last two and

half year, he is serving as a Secretary in Navyug Education

Society at Porbandar which is having office at Ghedia School

Building, Ravaliya Plot at Porbandar. The petitioner No.1 -

Anantrai Mohanlal Mehta is the President of Navyug Education

Society, Shri Bhagubhai Devani is the Vice President, Shri

Manishbhai Takwani is the secretary of the said trust and

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petitioner No.2 - Shri Nirav Pareshkumar Mehta is also

rendering services as a trustee of the said trust. It has been

stated that about six other persons are the Committee

Members of the said trust, namely, Shri Kasambhai Yusufbhai

Aamdani, Shri Dipak Anantrai Mehta, Shri Rakesh Velji Vithlani,

Shri Dharmesh Nathalal, Shri Hasmukh Gokaldas Popat and

Shri Premji Kanji. The respondent No.2 states that about eight

schools are under Navyug Education Society namely (1) K.H.

Madhvani College (2) M.D. Science College (3) Navyug

Vidyalaya (4) Lakhani School Science College (5) Baluba Girls

School (6) Dedhiya Rajpara School (7) Sagar School and (8)

Anant Kuvarba Balmandir, Ghediya School Building, Porbandar.

The management of the schools are undertaken by the

trustees of the committee.

3.1 The respondent No.2 has alleged that, during his term in

service, he had found some irregularities in the management

and therefore he had moved application to the concerned

authorities. He states that, as per the facts, Kalidas Madhavji

died leaving behind no children and his wife, Rambhaben also

had no heirs or any children and he has stated that the will of

Rambhaben made in the year 1993 does not bear any

reference of Navyug Education Society nor there was any

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agreement of having two trustees as the representatives of the

permanent donors, inspite of that fact, it is alleged that

Anantrai Mehta and Nirav Mehta - the present petitioners are

working as trustees of the said trust, which, as per his belief, is

unconstitutional and therefore complainant considers that the

trust is running unauthorisedly. The complainant states that

he was included in the body of the office bearers but was kept

in dark about the irregularities of the said trust. The

complainant alleges that the petitioners have committed

breach of trust.

3.2 It is alleged that on 31.03.2014 a circular was prepared

without informing the complainant, about the meeting to be

held on 07.04.2014 at 5:00 clock at Navyug Education Society,

Porbandar, for giving honorarium to the trustee. The

respondent No.2 has alleged that, in fact, there was no such

meeting held on 07.04.2014, nor prior to that no meeting was

held by the office bearer, and as per his information, no such

resolution was passed of the even date. He alleges that the

said circular was placed before him for his signature, but he

declined to sign the said circular, as he found that it was

against the rules. He also found that the private expenses of

the trustees were debited from the account of the trust and

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the fees which was collected for the development of the

students were utilised for their personal benefit.

3.3 It is alleged that petitioners - the President of the trust -

Anantrai Mohanlal Mehta and the trustee Nirav Pareshkumar

Mehta would draw the cheques in favour of different

institutions and would recover the same for their own personal

use. The complainant states that he has retained the records

as evidence, and on 25.10.2014 he had given an application

in writing and had asked for certain documents from one

Pritiben Gandhi, Accountant of M.D. Science College, calling for

the records alongwith vouchers of miscellaneous expenses of

M.D. Science College and other vouchers and thus he has

received the copy of vouchers from Serial No.1 to 335.

3.4 It is also alleged in the FIR against the present petitioners

that though there being no provisions in the constitution of

Navyug Education Society for suspending or dismissing of any

employee of the Educational Institutions, managed by the

society, inspite of that, the petitioner, being the President of

the trust, has dismissed three Principals namely Shri Purohit,

Principal of Navyug Vilay, Shobnaben Samani, Principal of

Baluba Girls Vidyalaya and Principal Shri Ramdati of Madhvani

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College misusing the circular. It is alleged in the FIR that he

has objected for the same and therefore had not signed the

circular.

3.5 The respondent No.2 further stated in the FIR that on

28.08.2014 he has send a requisition to the clerk Hardikbhai

Modha of Navyug Education Society calling him for

information from the date of his appointment as a Secretary till

date of the requisition of all the proceedings undertaken by

both the trustees in his absence and or any circular or

resolution passed by the society. As per FIR, the said records

are the minutes books from 11.8.2011 to 13.10.2012,

resolution book agenda from 5.8.2011 to 1.10.2012, resolution

book from 12.01.2008 to New Minute Book Agenda from

01.10.2012 to 30.09.2012, and as per the contents of the FIR,

the original records are with him, and has stated before the

police that, as and when required for investigation, he was

ready to present before the police.

3.6 It is also alleged that the petitioners in the preceding

year had given admission to the students in M.D. Science

College by taking money from the parents of the students and

had taken away the record of the college, which, according to

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him, is the illegal act of the petitioners. It is also further alleged

that both the petitioners - trustees are intending to encash the

Fixed Deposit amount of Rs.55.00 lakhs being the

compensation which has been given to the science college by

the Government for the land acquired by the Government for

the purpose of road. The respondent No.2 alleges fear, threats

and intimidation on his life at the hands of the petitioners.

According to the respondent No.2, both the petitioners had

committed the act of illegality against the rules of the society

and in connivance has committed the offence of breach of

trust.

4. Mr. Ashish Dagli, learned advocate for the petitioners has

submitted that the complaint filed by the respondent No.2 is

an abuse of process of law. He has submitted that the matter

pertains to the administration of the trust; it is managing the

educational institutions. That the accounts of the trust are

audited and regularly submitted to the Charity Commissioner,

and if any illegality is found with the management of the

school and the colleges then it is the Charity Commissioner

who could take action against the trust and the trustees under

the Gujarat Public Trusts Act, 1950.

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4.1 It has been submitted by Mr. Ashish Dagli, learned

advocate that the petitioners are related to each other as

grandfather and grandson. Referring to the report of the

police dated 12.12.2014 Inward No. 5300 of Kamlabaug Police

Station, Porbandar City, learned advocate Mr. Dagli for the

petitioners submitted that, prior to the impugned FIR, the

respondent No.2 had given many applications to the police

station, the police has noted all those applications in the

report, and after the inquiry, the police had found that the

allegations made against the petitioners are not proved and

has further observed that the inquiry is being conducted by

Charity Commissioner, Porbandar, and if at all any evidence

could be found then the proceedings would be initiated for the

breach of trust in accordance to the trust law; thus,

considering the facts, the applications were opined to be filed.

4.2 Learned advocate Mr. Dagli for the petitioners submitted

that inspite of this fact about the report, being informed to the

respondent No.2 on 16.12.2014, by suppressing this material

fact the impugned FIR came to be lodged. Mr. Dagli, learned

advocate submitted that the police was making inquiry, has

referred in the report to the will dated 11.02.1993 registered

at Sub-Registrar Office, Porbandar, at Serial No. 4019, and the

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appointment by Rambhaben on 19.10.1988 made in a writing

on a stamp paper of Rs.10/- and the police has also referred to

those communication of the trust to the Charity Commissioner.

As per the report, the statement of both the petitioners were

recorded by the police and the police had also recorded the

statement of Rajesh Tulsibhai Lukka Luhana, Accountant and

Hiteshbhai Hirabhai Ramdani, rickshaw driver and had found

that all the allegations made against the petitioners by the

respondent No.2 were false.

4.3 Learned advocate for the petitioners further submitted

that, as per the provisions of Section 83 of the Bombay Public

Trusts Act, 1950, no prosecution can be conducted against the

trustee without the previous sanction of the Charity

Commissioner. He further submitted that the entire record of

the trust is kept by the complainant himself; the very purpose

of retaining the documents is for an oblique purpose and the

motive is to make effective change in the same as per his

desire and to see that any how he can escape from criminal

liability which is likely to arise in the event of investigation

allowed to be made further in respect of department

proceedings initiated by the respective trustees against the

erring officers of the Schools and Colleges. It is submitted that

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an affidavit is also filed by one Hardik Modha, serving in

Navyug Education Society and one Pritiben Gandhi, serving as

an Accountant in the M.D. Science College to support the fact

that all the important documents of the trust are with the

respondent No.2, which learned advocate Mr.Dagli suggested

is a criminal act.

4.4 Mr. Dagli, learned advocate for the petitioners further

submitted that the Memorandum of Association of Navyug

Education Society registered under the Societies Registration

Act has come into operation with the certificate of registration

granted under the Act way back in the year 1988 with the very

object of imparting education. The petitioners are the trustees

under the authority given by Rambhaben, and since the year

1993, the petitioner No.1 is taking care of properties of

Rambhaben. The will of Rambhaben is registered before the

Sub-Registrar Officer at Porbandar. Learned advocate for the

petitioners submitted that the respondent No.2 has got himself

joined in the trust as Secretary since last two and half year

prior to the complaint with the very intention to remove the

petitioners from the trusteeship and self impose himself by

maliciously taking the control of the management of the trust.

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5. Mr. Jaivik Bhatt, learned advocate appearing for the

respondent No.2 submitted that the FIR at the initial stage

should not be quashed and the inherent powers under Section

482 of the Cr.P.C. must be invoked sparingly. It is submitted

that there are allegations of forgery with respect to will of

Rambhaben; the petitioners have no authority to be the

trustees of the trust and the allegations are made of

misappropriation and cheating, and thus, submitted to reject

the application.

6. Mr. Pranav Trivedi, learned APP appearing on behalf of

the respondent No.1-State that the complainant has made

allegation of cheating against the present petitioners, who,

according to the complainant, cannot be the office bearers of

the trust and have wrongly imposed themselves as trustees of

Navyug Education Society. Learned APP submitted that

further investigation would disclose the alleged offences and

necessary corroborative document could also be collected by

the Investigating Officer.

7. The FIR has been lodged by suppression of material facts

which was to the knowledge of the complainant. Earlier too,

he had preferred about four applications before Kamlabaug

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Police Station. Those all applications were given for inquiry by

Police Inspector, Kamlabaug Police Station, Porbandar City, and

under his direction the inquiry was handed over to PSI Shri

D.M. Jadeja. The report of Police Inspector Shri A.L. Acharya of

Kamlabaug Police Station clearly specifies that the police

during the inquiry had collected the copy of will and other

necessary documents. The police had inquired from the

Assistant Charity Commissioner Shri P.R. Chauhan, who had

informed the police that the Charity Commissioner is entitled

to undertake the proceedings under Sections 36, 37, and 39 of

the Bombay Public Trust Act 1950, and the letter dated

27.11.2014 by Outward No. 4560 of 2014 has been addressed

by Joint Charity Commissioner, Rajkot, to the Assistant Charity

Commissioner for process towards the allegation of corruption

and new appointments. The Police Inspector of Kamlabaug

Police Station has specified in his report that the orders have

been passed for further proceedings and such inquiry is to be

conducted by the office of Charity Commissioner, Porbandar,

and the Police Inspector was informed that if there would be

any criminal act or false document or evidence, then the

complaint would be initiated by the office of Charity

Commissioner, Porbandar and Rajkot. The Police Inspector

came to the conclusion that there was no evidence to the

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allegation and if any breach of provisions of law is found

during the inquiry of the Charity Commissioner, Porbandar,

then necessary proceedings is required to be initiated by the

Charity Commissioner's office.

8. The fact of report of Police Inspector of Kamlabaug

Police Station was informed to the complainant on 16.12.2014,

inspite of that the complainant, by suppressing this material

fact, on 28.12.2014 lodged the FIR. Ordinarily no deprecating

remarks would be required to be made against the

Investigating Officer, but, this Court fails to understand that

when a report has been filed by the police station of no

offence then under what circumstances with the same set of

allegations and facts would another complaint be entertained

by the same police station. The impugned FIR shows that the

complaint was before Deputy Suptd. of Police, Porbandar City

Division, and the report which has been placed after the

inquiry; on all four complaints of the complainant is of

Kamlabaug Police Station which falls under Porbandar City; the

report was addressed to Suptd. of Police, Porbandar, on

12.12.2014. Thus, the office of Suptd. of Police, Porbandar, was

in receipt of the report, as the same stands fortified by

communication from the office of Suptd. of Police, Porbandar,

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to the complainant on 16.12.2014. Such approach of the

police department requires to be deprecated. The

investigation is a field which is absolutely undertaken by the

executive through police department monitored by the State.

This Court fails to understand that though the report was

received on 12.12.2014 and the complainant was informed on

16.12.2014 of no culpability in the matter and when the office

of Charity Commissioner, Porbandar, is seized of the matter

and when the complainant was advised to take relief from the

Charity Commissioner's office, Porbandar, inspite of that fact

why the FIR came to be lodged on 28.12.2014. This is an

absolute abuse of the process of law. The investigation into a

criminal offence must be free from bias, every individual

would expect police conduct to be fair, and investigation

impartial, it should not give rise to apprehension in the mind of

complainant or accused that action of police is with an ulterior

motive. The complainant cannot be permitted to use the

police machinery to harass people and use the police

department as a tool to sub-serve his own oblique motive. The

complainant has raised issue regarding the will of Rambhaben,

but, as observed in the report of the police the will of

Rambhaben was registered in Sub-Registrar Office on

11.02.1993; the said facts were notified before the Charity

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Commissioner, and as per the report, on 19.09.1998

Rambhaben had executed a writing for the appointment of

representatives to the trust. The statement of the petitioner

No.1 was recorded by the police, and according to the police,

four schools/colleges are under the management of Navyug

Education Society Trust, Porbandar, and the school being the

public property, the said property will be used for the

development of the school and the matters connected to the

education and for their better administration, the deceased

Rambhaben during her life time and as her husband Kalidas

had died childless, she had executed a will in the year 1993 for

the use of her property for public purpose, and as per the

report, the said will was executed in favour of the petitioner

No.1, and since 1993 the petitioner No.1 is looking after the

property of Rambhaben, and at the time when the police

report was forwarded, he was the president of the trust and as

stated in the report he was the trustee of the said trust; the

report further shows that the complainant had joined as a

Secretary on 05.11.2012. It was alleged that the Board of

Trustees were avoiding the management since 1993 of the

school which is public property and the complainant has made

allegation of wrong appointments and corruption against the

petitioners and that the petitioners have self-imposed

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themselves on the trust.

9. Section 41-A of the Gujarat Public Trusts Act, 1950, gives

the power to the Charity Commissioner from time to time to

issue directions to any trustee of a public trust or any person

connected therewith to ensure that such trust is properly

administered and the income thereof is properly accounted for

or duly appropriated and applied to the objects and for the

purposes of the trust and Sub-sec.(2) of Section 41-A provides

that it is the duty of every such trustee and person to comply

with a direction issued by the Charity Commissioner. Here in

this case the complainant is the Secretary of the Trust. The

allegations are made regarding of mis-administration of the

trust and allegation of corruption stating that the trustees had

misappropriated income of the trust. The absolute authority is

with the Charity Commissioner to supervise and this absolute

authority to the Charity Commissioner of having power of

inspection and supervision is by way of provision under

Section 37 of the Gujarat Public Trusts Act. The Charity

Commissioner, the Deputy or Assistant Charity Commissioner

or any officer authorized by the State Government by a

general or special order shall have the power - (a) to enter on

and inspect or cause to be entered on and inspected any

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property belonging to a public trust (b) to call for or inspect

any extract from any proceedings of the trustees of any public

trust and [any books of accounts or documents in the

possession, or under the control, of the trustees or any person

on behalf of the trustees]; (c) to call for any return, statement,

account or report which he may think fit from the trustees or

any person connected with a public trust. By way of provisions

of Section 38 of the Gujarat Public Trusts Act, on receipt of a

report of the auditor under Section 34 [or of a report, if any,

made by an officer authroised under Section 37] the Deputy or

Assistant Charity Commissioner to whom the report is

submitted shall require the trustee or any other person

concerned to submit an explanation thereon within such

period as the said authority deems fit. On considering the

report referred to in Section 38 and the accounts and

explanation, if any, furnished by the trustees or any other

person, and after holding an inquiry in the prescribed manner,

the Deputy or Assistant Charity Commissioner shall record his

finding as to whether the trustees or any other person have

been guilty of gross negligence or breach of trust,

misapplication or misconduct which has resulted in loss to the

public trust and make a report to be forwarded to the Charity

Commissioner. Here in this case the complainant was informed

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by Police Inspector, Porbandar City Police Station, of the

provisions of law. He was also informed that the Charity

Commissioner's office was proceeding towards the allegation,

inspite of that fact the complainant has filed the FIR which

appears to be a personal vengeance to settle his score against

the present petitioners.

10. Section 83 of the Gujarat Public Trusts Act, 1950,

specifically provides that there shall be no prosecution for the

offences punishable under this Act without the previous

sanction of the Charity Commissioner. The FIR has been

lodged under Section 406 of IPC. Section 406 of IPC provides

punishment for criminal breach of trust. The matter which has

been disputed is the management of the trust. Whether there

is breach of trust; is for the Charity Commissioner to discern,

such authority lies before the Charity Commissioner by way of

provisions of Sections 37, 38 and 39 of the Gujarat Public

Trusts Act. The impugned FIR is an abuse of process of law. It

has been used as a weapon against the petitioners; it requires

to be quashed and set aside.

11. The complainant had also made allegation under the

provisions of Sections 504 and 506(2) of IPC. The allegation

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appears to be a false alarm; there cannot be any such

intimidation from the side of the petitioners, and prima facie, it

appears that deliberate attempt has been made by the

complainant to lodge such complaint against the petitioners.

12. A three-Judge Bench in State of Karnataka vs. M.

Devenderappa and another, [(2002) 3 SCC 89], had

occasion to consider the ambit of Section 482 Cr.P.C. By

analysing the scope of Section 482 Cr.P.C., Apex Court laid

down that authority of the Court exists for advancement of

justice and if any attempt is made to abuse that authority so

as to produce injustice the Court has power to prevent abuse.

It further held that Court would be justified to quash any

proceeding if it finds that initiation/continuance of it amounts

to abuse of the process of Court or quashing of these

proceedings would otherwise serve the ends of justice.

Following was laid down in paragraph 6:

"6......All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a

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person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

Further in paragraph 8 following was stated:

"8.....Judicial process should not be an instrument of

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oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal."

13. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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

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inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) 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;

(b) 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;

(c) 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;

(d) where the allegations in the FIR 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;

              (e)     where the allegations made in the FIR or





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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 against the accused;

(f) 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;

(g) 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."

14. The complainant has suppressed before the police

concerned of the earlier report of the police of the same

police station, the report is after detailed inquiry towards

all the four complaints of respondent No.2, the police had

undertaken the task of gathering details and evidence, and

recording the statements of relevant person. The report

stated that no offence could be found. The complainant

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was instructed of the steps to be taken by Charity

Commissioner, the complainant being the secretary in the

trust, he was to move the Charity Commissioner who had

the power and authority to ascertain the facts and decide