Gujarat High Court
Kaushikbhai Kantilal Dave vs State Of Gujarat on 14 November, 2025
NEUTRAL CITATION
R/SCR.A/11200/2025 ORDER DATED: 14/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 11200 of 2025
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KAUSHIKBHAI KANTILAL DAVE & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2
MR. ROHAN N MAJMUDAR(14000) for the Applicant(s) No. 1,2
MR. ANVA ANTANI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 14/11/2025
ORAL ORDER
1. By filing the present petition under Article 226 of the Constitution of
India, the petitioners herein have prayed for the following reliefs: -
"8. B. YOUR LORDSHIPS be pleased to issue appropriate writ, order or
direction and be pleased to quash and set aside order dated 05/07/2025, passed
by Hon'ble 6th Additional Sessions Judge ay Ahmedabad, Rural, passed under
Exhibit 10 passed in connection with 7 in Criminal Revision Application No.
128/2021) Criminal Case No. 10950/2018 which has remained pending before
the Ld. 7th Additional Chief Judicial Magistrate, Mirzapur, Ahmedabad-Rural,
C. YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction
and be pleased to quash and set aside the order dated 08/09/2021, passed by Ld.
7th Additional Chief Judicial Magistrate, Mirzapur, Ahmedabad-Rural, in
connection with Criminal Case No.10950/2019 (in Criminal Rev. Appl.
No.128/2021) which has remained pending before the Ld. 7th Additional Chief
Judicial Magistrate, Mirzapur, Ahmedabad-Rural in the interest of justice and
equity;
D. By way of interim order be pleased to stay the further criminal proceedings
of Criminal Case No. 10950/2019 which has remained pending before the Ld.
7th Additional Chief Judicial Magistrate, Mirzapur, Ahmedabad-Rural, in the
interest of justice and equity.
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E. YOUR LORDSHIPS be pleased to pass such other and further order as the
nature and circumstances of the case may be required."
2. The facts and circumstances giving rise to file the present petition are
such that an offence being CR. No.I-134 of 2018 came to be registered with the
Ghatlodiya Police Station, Ahmedabad City against the present petitioners and
the other co-accused for an offence punishable under Sections 406, 420 and
120(B) of the IPC. The concerned Police authorities after conclusion of
investigation, submitted a charge-sheet to the concerned competent Court.
Thereafter, the petitioners herein have submitted an application under Section
239 of Cr.P.C. claiming to be discharged from the offence in question to the
Court of learned Additional Chief Judicial Magistrate, Ahmedabad Rural. The
said application was dismissed by the learned Trial Court vide Order dated
08.09.2021. The petitioners herein had challenged the said Order by filing
Criminal Revision Application No.128 of 2021 in the Court of learned
Principal District and Sessions Judge, Ahmedabad Rural. The said revision
application was also dismissed by the learned Sessions Court vide Judgment
and Order dated 05.07.2025. Being aggrieved by and dissatisfied with both the
aforesaid orders, the petitioners herein have filed the present petition
challenging those orders.
3. Learned Advocate appearing for the petitioners submitted that the
learned Trial Court could not have taken the cognizance in the offence in
question in the absence of any sanctioned being issued by the office of the
Charity Commissioner under Section 83 of the Gujarat Public Trusts Act, 1950
(hereinafter to be referred to as 'the Act'). He further submitted that there is a
specific provision under Section 83 of the Act necessitating the sanction from
the office of the Charity Commissioner and no such sanction being issued by
the office of the Charity Commissioner. No cognizance could have been taken
against the petitioners for the offence in question. He further submitted that the
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only role attributed to the petitioners in the present offence is to the effect that
they had drawn cheque of Rs.14 lakhs in favour of the third co-accused. None
of the present petitioners have availed any financial benefit out of the present
offence. He further submitted that the third co-accused had been assigned the
work of construction and for that the tender of the said co-accused had been
accepted for the amount of Rs.37,49,917/-. Pursuant to the said tender being
accepted, the said co-accused had carried out partial construction and the
amount of Rs.14 lakhs was paid to him through a cheque which was drawn by
the present petitioners. Thereafter, in the absence of the permission for
construction from the local authority, the work of construction was stalled. The
petitioners herein cannot be said to have committed any offence having regard
to these facts. He further submitted that the petitioners herein have been
charge-sheeted for committing the offence under Section 406 and 420 of IPC.
As per the settled legal position, the offence punishable under Sections 406 and
420 cannot go together, and therefore, the petitioners herein cannot be charged
for the offence punishable under these Sections simultaneously. Learned
Advocate appearing for the petitioners further submitted that there was a
resolution passed by the body of the Public Trust for payment of the amount of
Rs.14 lakhs to the third co-accused and the Chairman of the Trust had apprised
the members of the Trust in its general meeting dated 25.03.2025. He,
therefore, submitted to quash and set aside the orders impugned in the present
petition. Learned Advocate appearing for the petitioners has sought to rely
upon the judgment of the Co-ordinate Bench of this Court passed in case of
Anantrai Mohanlal Mehta Versus State of Gujarat reported in 2021 (0)
AIJEL-HC 243908.
4. Learned APP has opposed the present petition contending that the
amount of Rs.14 lakhs was paid to the third co-accused by the present
petitioners before the work of construction had commenced. He further
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submitted that the statement of the Chairman of the Trust was recorded during
the course of investigation wherein he had categorically stated that no
resolution for paying the amount of Rs.14 lakhs in advance was passed by the
Trust nor any such instruction had been issued to the petitioners. Thus, the
learned Trial Court has found a strong prima-facie case against the petitioners
for committing the present offence which had been confirmed by the learned
Sessions Court in criminal revision application. He, therefore, submitted to
dismiss the present petition.
5. Heard learned Advocates for the parties. The offence referred to
hereinabove was registered against the petitioners and the other co-accused. In
the FIR registered against them, it is the case of the prosecution that the tender
of the co-accused Pratik Raval for construction of the second floor of the
building of the Trust was accepted for the amount of Rs.37,49,917/-. The
present petitioners in collusion with the said Pratik Raval had hatched a
conspiracy for committing the present offence and the petitioners herein had
misused the authority given to them by the Trust and had drawn the cheque of
Rs.14 lakhs on the Bank of India, the account of Trust in favour of the said
Pratik Raval though the said Pratik Raval had not commenced the work of
construction assigned to him. It is also the case of the prosecution that the
petitioners herein had not taken the office bearers of the Trust in confidence
before issuing the cheque in question nor any such resolution had been passed
by the Trust. Thus, the petitioners herein along with the other co-accused had
committed the offence of cheating, misappropriation and criminal breach of
trust. It is the case on the part of the petitioners that in the absence of the
sanction from the office of the Charity Commissioner under Section 83 of the
Act, no cognizance of an offence could have been taken by the concerned
Court. Section 83 of the Act reads as under :-
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"83. No prosecution for an offence punishable under this Act, shall be
instituted without the previous sanction of the Charity Commissioner."
6. The bare perusal of the Section 83 of the Act makes it clear that the
sanction from the office of the Charity Commissioner would be required only
for the purpose of prosecution for an offence punishable under the provisions
of the Act. Section 66 of the Act provides for the offences and penalties under
the Act. Admittedly, the petitioners herein are not alleged to have committed
any offence punishable under the provisions of the Act. The petitioners herein
are alleged to have committed an offence punishable under Section 406, 420
and 120(B) of the IPC, and therefore, in the opinion of this Court, no sanction
from the office of the Charity Commissioner under Section 83 of the Act would
be required in the present case.
7. As discussed earlier, it is the case of the prosecution that the petitioners
herein had issued the cheque of Rs.14 lakhs in favour of the third co-accused
without even having started the work of construction. If the observations made
by the learned Trial Court in its impugned order are seen, it is observed that the
petitioners herein had assured the Trust in the year 2016 that the necessary
permission for construction had already been issued by the Ahmedabad
Municipal Corporation (AMC) and the permission was only required to be
collected from the office of the AMC. It was on the basis of the said assurance
that the process of tender was carried out by the Trust. The learned Trial Court
has relied upon the statement of witness Rashmikant Joytashankar Trivedi for
making these observations. The further inquiry with the office of the AMC
revealed that no plans were submitted to the office of the AMC for obtaining
construction permission. The material available on record prima-facie indicates
the intention on the part of the petitioners since the very inception. The learned
Advocate appearing for the petitioners has argued that the Chairman of the
Trust had provided the information of the construction in question in the
general meeting of the Trust which was held on 25.03.2017. Learned Advocate
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has also produced a copy of the minutes of the said meeting. The Investigating
agency appears to have recorded the statement of the Chairman of Trust during
the course of investigation wherein he has categorically stated that no
instructions for payment of Rs.14 lakhs to the third co-accused were given by
him to the petitioners. From the material available on record, it can be said that
there is sufficient material on record to connect the petitioners with the offence
which would make them liable to face prosecution for the same. Therefore,
these facts would rendered no assistance to the petitioners.
8. Learned Advocate for the petitioners has sought to rely upon the
judgment of this Court in case of Anantrai Mohanlal Mehta (Supra). In the
said judgment, the Co-ordinate Bench of this Court had ordered to quash the
FIR lodged against the petitioner therein mainly on the ground that the FIR
suffered from the suppression of material facts. Additionally, in the FIR it was
alleged that the accused had committed irregularities in maintaining the
accounts of the Trust. It was under those circumstances that this Court had held
that the office of the Charity Commissioner had powers to take action under
Section 37 and 38 of the Act. It is also required to be noted that under Section
32 of the Act, it is the duty of every trustee of the Trust to keep regular
accounts and failure to do so, is an offence punishable under the provisions of
the Section 66 of the Act. It was under those circumstances that this Court had
found the sanction under Section 83 of the Act necessary. The petitioners herein
are not alleged to have not maintained the accounts of the Trust regularly.
Therefore, this judgment would be of no help to the petitioners. Having regard
to these aspects, the present petition is dismissed.
(M. R. MENGDEY,J)
RAVI OZA
