SURYAKANT S/O DAMODHAR LANDGE Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2017-3-7
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Decided on March 06,2017

Suryakant S/O Damodhar Landge Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

S.S.SHINDE, J. - (1.) Rule. Rule made returnable forthwith and heard finally with the consent of the learned counsel appearing for the parties.
(2.) The brief facts as disclosed in the application, are as under:- (a) The trust namely Shiv Chhatrapati Sarwjanik Wachanalay at Village Undari, Tq. Kaij, Dist. Beed (Hereinafter referred to as "the said Trust") came to be registered bearing registration No. F-707/Beed on 29th August, 1985 under the provisions of Bombay Public Trust Act, 1950 (Hereinafter referred to as "the B.P.T. Act"), and also under the Societies Registration Act, 1960. Respondent No.3 was the President, applicant No.2 6014/16 was the Secretary and applicant no.3 to 7 were the office bearers/members of executive committee of the said trust since the date of its registration up to the year 2007. That, applicant No.1 was appointed as a Librarian of Granthalay by the existing body at the relevant time by following the due procedure of law and by passing resolution dated 4th April, 2001. There was no election conducted of the said trust till the year 2007 and the earlier body was looking after the day today affairs of the said trust. (b) Respondent No.3 was the President of the said trust, however, he was not interested to conduct the elections and also he was never acting for the benefit of trust, on the contrary he was trying to create obstacles in the smooth functioning of the said trust. As there was no election conducted since beginning, though the bylaws of the said trust provides 3 years period for holding the elections of the executive committee, therefore, applicants No. 2 to 7 and others have conducted the election of the above trust and Change Report No. 813 of 2007 was submitted for its approval before the Assistant Charity Commissioner, Beed. As the name of respondent No.3 has been removed from the Executive Committee of the Trust, as per the newly election held in the year 2007 and when Change Report No.813 of 2007 is submitted for its approval to the Assistant Charity Commissioner, Beed, later on respondent No.3 illegally submitted the another Change Report No.1073 of 2007 showing the alleged election of the Executive Committee conducted by his group, and both the Change Reports are pending for its approval before the Assistant Charity Commissioner, Beed. (c) Respondent No.3 without there being any cause has filed application under section 41-E of the B.P.T. Act before Joint Charity Commissioner, Latur seeking injunction against the present applicants raising false allegations against the applicants regarding misappropriation and mis- utilization of the trust fund. The said application came to be rejected by the Joint Charity Commissioner, Latur by its order dated 21 st December, 2012 holding that, there is no material filed on record by respondent No.3 to prove the said allegations. On the contrary the present applicants have placed on record the certified copies of audit report at Exh. 26 upto the year 2010 and also copy of Exh.27 showing details of funds received and the expenditure made by them. The applicant/respondent No.3 herein failed to prove the case for granting injunction by exercising powers under section 41-E of B.P.T. Act. The said order has not been cancelled or set aside by any superior court so far. (d) Respondent No.3/complainant again made some complainant to the Assistant Director of Library Region, Aurangabad and pursuant to that, the enquiry was conducted by the District Granthalay Officer, Beed. The allegation raised by the complainant/respondent No.3 regarding the resolution dated 4th April, 2001 passed by the Executive Committee of the Trust thereby appointing applicant No.1 as a Liberian is/was illegal and further applicant No.1 was taking education at Beed at Sawarkar College and thereafter, Vasant College at Kaij respectively, at the relevant time, and therefore, his appointment was bogus etc was turned down and rejected by the order dated 2nd December, 2015. (e) All the efforts made by the complainant i.e. respondent No.3 by filing false complainants before the Joint Charity Commissioner and the Assistant Director of Librarian for causing harassment to the present applicants are failed, therefore, again he filed the false Criminal Private complainant on 30th August, 2016 under sections 406, 408 and 468 of IPC before the Judicial Magistrate, First Class, Kaij alleging the same allegations which were raised before the Joint Charity Commissioner, Latur by filing application under section 41-E of B.P.T. Act. It has been falsely stated that, the appointment of applicant No.1 is made illegally by applicant No. 2 to 7 in collusion by passing false resolution dated 4th April, 2001. It has been further alleged that, the applicant No.1 was taking the education at the relevant time at Beed and Kaij and attending the College during the period from 2001 to 2004. It has been further alleged that, applicant Nos.1 to 7 in collusion with each other withdrawn the amount of Rs. 72,000/- during the said period by preparing false records. The Judicial Magistrate, First Class, Kaij passed the order on 29 th September, 2016 thereby directing investigation under Section 156(3) of IPC to the Police Station Yusuf Wadgaon. (f) Pursuant to the order passed by the Judicial Magistrate, First Class, Kaij, the concerned police of respondent No.2 straightway registered the First Information Report bearing crime No.156 of 2016 as against the applicants under Sections 406, 408 and 468 of IPC, without making enquiry in the matter. The concerned police have not made any investigation as provided under Section 157 of the Criminal Procedure Code. The concerned police have just reproduced the contents of the private complainant filed by the complainant before the Judicial Magistrate, First Class, Kaij as it is and have falsely registered the above referred crime. The registration of FIR against the applicants on the basis of false allegations which relates back to 15 years back and similar allegations were raised before the Joint Charity Commissioner, Latur and also before Assistant Director Library Region Aurangabad and the same were rejected. The act of concerned police thereby registering the crime against the applicants is abuse and misuse of process of law and powers and same resulted into miscarriage of justice and harassment of applicants unnecessarily. Therefore, the applicants have filed the present Criminal Application for quashing the F.I.R.
(3.) The learned counsel appearing for the applicants submits that, earlier the complaint was filed making same allegations like in the present First Information Report, however, the said complaint came to be rejected. It is submitted that, the informant has no locus to lodge the first information report. The allegations in the first information report are relate back to the period from the year 2001 to 2006. The first information report is belatedly lodged on 4th April, 2016. There is no reason stated in the first information report or there is no plausible explanation offerred on record for inordinate delay in lodging the first information report. Therefore, relying upon the averments in the application and the annexures thereto, the learned counsel appearing for the applicants submits that, the first information report deserves to be quashed.;


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