Tukaram Annaba Chavan and Another Vs. Machindra Yeshwant Patil and Another
EmailAppeal: Criminal Appeal No. 162 of 2001
(Arising out of S.L.P.(Crl.)No.947 of 2000)
From the Judgment and Order dated 1.12.99 of the Bombay High Court in Crl.W.P.No.290 of 1999)
(Arising out of S.L.P.(Crl.)No.947 of 2000)
From the Judgment and Order dated 1.12.99 of the Bombay High Court in Crl.W.P.No.290 of 1999)
Petitioner: Tukaram Annaba Chavan and Another
Respondent: Machindra Yeshwant Patil and Another
Apeal: Criminal Appeal No. 162 of 2001
(Arising out of S.L.P.(Crl.)No.947 of 2000)
From the Judgment and Order dated 1.12.99 of the Bombay High Court in Crl.W.P.No.290 of 1999)
(Arising out of S.L.P.(Crl.)No.947 of 2000)
From the Judgment and Order dated 1.12.99 of the Bombay High Court in Crl.W.P.No.290 of 1999)
Judges: D.P. MOHAPATRA & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Jun 02, 2001
Appearances:
Mr. Yashank Adhyaru, Senior Advocate, Mrs. J.S. Wad, Mr. Manoj Wad, Mr. Ashish Wad, Ms. Niharika Bahl, Mrs. Nandini Gore, Mr. Chinmoy Khaladkar, Mr. S.S. Shinde, Mr. S.V. Deshpande, Advocates with him for the appearing parties.
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Section 195(1)(a) – Cognizance – Indian Penal Code, 1860 – Private complaint for offences under Sections 177,181,193,406,465,474, r/w Section 34 – Magis-trate directing issuance of process under Sections 463/34 IPC only – Allegations of forgery and fraud by making false signatures or thumb impressions of certain persons to show presence in meeting of an Education Society and also false ‘no objection certificate’ – On that basis change reports prepared and got registered before Charity Commissioner – Controversy relating to election of Board of Directors of Education Society – Matter pending before Charity Commissioner for determining validity or otherwise. Held that till the decision of Charity Commissioner, proceedings before the Magistrate shall remain suspended. (Paras 10,11)
JUDGEMENT:
D.P. MOHAPATRA, J.
1. Leave granted.
2. We have heard learned Counsel for the parties.
3. We have perused the order dated 1.12.1999 of the Bombay High Court in Criminal Writ Petition No.290/1999 which is under chal-lenge in the present appeal.
4. In this appeal the accused have sought to assail the order dated 2.11.1995 of the Judicial Magistrate, 1st class, Atpadi issuing process against them which was confirmed by the IIIrd Additional Sessions Judge, Sangli, in Criminal Revision Applica-tion Nos.317/95 and 318/95 and by the High Court in the impugned order. The aforementioned criminal case was registered on the private complaint by Dr. Machindra Yeshwant Patil, respondent no.1 herein. Invoking Sections 177, 181, 193, 406, 465, 474 read with Section 34 IPC. The complainant alleged, inter alia, that the accused persons have got affixed bogus/fake signatures/thumb impressions of the members of the educational institution viz. “Modern Education Society”, by themselves or through other per-sons, for the purpose of showing that there was necessary quorum in the General Body Meeting held on 27.9.1984 in which a resolu-tion was purportedly passed to set up a new executive body, and therein accused no.1 assumed the post of Executive President. It was further alleged in the complaint/petition that the accused persons made false signatures or thumb impressions of the persons named therein and got prepared a “no objection certificate” to the effect that they have no objection to delete their names from the managing committee. According to the complainant, as a matter of fact, neither he (complainant) nor any member from the managing committee had affixed his signature or thumb impression on any ‘no objection certificate’. It was also alleged in the complaint petition that the accused persons utilising the afore-mentioned forged and fabricated documents got registered the changes in Change Report No. 384/91 and 385/91 before the Assis-tant Charity Commissioner, Sangli.
5. The learned Magistrate on perusal of the complaint issued process vide order dated 2.11.1995 which reads :
“Read the papers. Heard Mr.A.K.Suphekar, Advocate for complain-ant. Issue process under Section 463 read with Section 34 I.P.C.”
6. The accused persons, appellants herein, challenged the said order by filing revision petition before the Sessions Judge which were dismissed by the IIIrd Additional Sessions Judge, Sangli vide order dated 2.2.1999.
7. On perusal of the order passed by the High Court it appears that the main ground of challenge against the order issuing process was that in the facts and circumstances of the case a complaint of the nature could be lodged only by the Charity Commissioner as provided under Section 195(1)(a) of the Code of Criminal Procedure, and therefore, the private complaint filed by the complainant could not be entertained. The High Court de-clined to accept the contention. The observations in paragraph 12 of the judgment which bring forth the reasoning of the High Court read as follows:
“Whatever may be the nature of the complaint, the learned Magistrate has issued the process only on that part of the complaint which was concerning the events prior to the filing of the pro-ceeding before the Assistant Charity Commissioner. Those allega-tions in paragraphs 4 and 5 of the complaint were concerning Section 463 of I.P.C. and as far as that part is concerned, the learned Magistrate was within his powers in entertaining the complaint on behalf of a private party. That part of the com-plaint was not concerning anything happening before the Assistant Charity Commissioner. As far as the happening before the Assis-tant Charity Commissioner is concerned, that is recorded in paragraph 6 of the complaint which would invite the application of Section 177 and 181 of I.P.C. and in which case the complaint will have to be necessarily lodged by the Charity Commissioner as required by Section 195(1) (a) of I.P.C.”
8. The learned Counsel for the appellants strenuously urged that the complaint filed by the respondent is a composite one contain-ing allegations of interpolations/fabrications of the documents before initiation of proceedings which is now pending with the Assistant Charity Commissioner, Sangli and also allegations regarding use of the said documents in the said proceedings. In these circumstances, according to the learned Counsel, Section 195(1) (a) is clearly attracted.
9. The learned Counsel appearing for the respondent, on the other hand contended that the Additional Sessions Judge and the High Court have committed no serious illegality in declining to interfere with the order passed by the learned Magistrate issuing process to the appellants.
10. The controversy raised in the case relates to the election of the Board of Directors of the Modern Education Society, Atpadi, which is registered under the provisions of the Bombay Public Trusts Act, 1950. We were informed by the learned Counsel for the parties that the matter is pending before the Assistant Charity Commissioner, Sangli, who is to determine the validity or otherwise of the Change Report submitted by the appellants. On perusal of the record we find that a contention in the proceeding relating to the confirmation or otherwise of the Change Report, a contention has been raised that the documents on the basis of which the report has been submitted have been forged and fabri-cated by the appellants. In all probability that question will also arise for consideration by the authority.
11. In the facts and circumstances of the case it is our consid-ered view that in the interest of justice and for a fair trial the proceedings in the criminal case should remain suspended till the proceeding pending before the Assistant Charity Commis-sioner, Sangli is disposed of by him. Accordingly it is ordered that further proceedings in regular criminal case no.82/1994 pending in the Court of Judicial Magistrate 1st Class, Atpadi shall remain stayed till disposal of the proceeding in C.R.( Changed Report) No.385/91 by the Assistant Charity Commissioner, Sangli. The appeal is disposed of on the terms aforesaid.
1. Leave granted.
2. We have heard learned Counsel for the parties.
3. We have perused the order dated 1.12.1999 of the Bombay High Court in Criminal Writ Petition No.290/1999 which is under chal-lenge in the present appeal.
4. In this appeal the accused have sought to assail the order dated 2.11.1995 of the Judicial Magistrate, 1st class, Atpadi issuing process against them which was confirmed by the IIIrd Additional Sessions Judge, Sangli, in Criminal Revision Applica-tion Nos.317/95 and 318/95 and by the High Court in the impugned order. The aforementioned criminal case was registered on the private complaint by Dr. Machindra Yeshwant Patil, respondent no.1 herein. Invoking Sections 177, 181, 193, 406, 465, 474 read with Section 34 IPC. The complainant alleged, inter alia, that the accused persons have got affixed bogus/fake signatures/thumb impressions of the members of the educational institution viz. “Modern Education Society”, by themselves or through other per-sons, for the purpose of showing that there was necessary quorum in the General Body Meeting held on 27.9.1984 in which a resolu-tion was purportedly passed to set up a new executive body, and therein accused no.1 assumed the post of Executive President. It was further alleged in the complaint/petition that the accused persons made false signatures or thumb impressions of the persons named therein and got prepared a “no objection certificate” to the effect that they have no objection to delete their names from the managing committee. According to the complainant, as a matter of fact, neither he (complainant) nor any member from the managing committee had affixed his signature or thumb impression on any ‘no objection certificate’. It was also alleged in the complaint petition that the accused persons utilising the afore-mentioned forged and fabricated documents got registered the changes in Change Report No. 384/91 and 385/91 before the Assis-tant Charity Commissioner, Sangli.
5. The learned Magistrate on perusal of the complaint issued process vide order dated 2.11.1995 which reads :
“Read the papers. Heard Mr.A.K.Suphekar, Advocate for complain-ant. Issue process under Section 463 read with Section 34 I.P.C.”
6. The accused persons, appellants herein, challenged the said order by filing revision petition before the Sessions Judge which were dismissed by the IIIrd Additional Sessions Judge, Sangli vide order dated 2.2.1999.
7. On perusal of the order passed by the High Court it appears that the main ground of challenge against the order issuing process was that in the facts and circumstances of the case a complaint of the nature could be lodged only by the Charity Commissioner as provided under Section 195(1)(a) of the Code of Criminal Procedure, and therefore, the private complaint filed by the complainant could not be entertained. The High Court de-clined to accept the contention. The observations in paragraph 12 of the judgment which bring forth the reasoning of the High Court read as follows:
“Whatever may be the nature of the complaint, the learned Magistrate has issued the process only on that part of the complaint which was concerning the events prior to the filing of the pro-ceeding before the Assistant Charity Commissioner. Those allega-tions in paragraphs 4 and 5 of the complaint were concerning Section 463 of I.P.C. and as far as that part is concerned, the learned Magistrate was within his powers in entertaining the complaint on behalf of a private party. That part of the com-plaint was not concerning anything happening before the Assistant Charity Commissioner. As far as the happening before the Assis-tant Charity Commissioner is concerned, that is recorded in paragraph 6 of the complaint which would invite the application of Section 177 and 181 of I.P.C. and in which case the complaint will have to be necessarily lodged by the Charity Commissioner as required by Section 195(1) (a) of I.P.C.”
8. The learned Counsel for the appellants strenuously urged that the complaint filed by the respondent is a composite one contain-ing allegations of interpolations/fabrications of the documents before initiation of proceedings which is now pending with the Assistant Charity Commissioner, Sangli and also allegations regarding use of the said documents in the said proceedings. In these circumstances, according to the learned Counsel, Section 195(1) (a) is clearly attracted.
9. The learned Counsel appearing for the respondent, on the other hand contended that the Additional Sessions Judge and the High Court have committed no serious illegality in declining to interfere with the order passed by the learned Magistrate issuing process to the appellants.
10. The controversy raised in the case relates to the election of the Board of Directors of the Modern Education Society, Atpadi, which is registered under the provisions of the Bombay Public Trusts Act, 1950. We were informed by the learned Counsel for the parties that the matter is pending before the Assistant Charity Commissioner, Sangli, who is to determine the validity or otherwise of the Change Report submitted by the appellants. On perusal of the record we find that a contention in the proceeding relating to the confirmation or otherwise of the Change Report, a contention has been raised that the documents on the basis of which the report has been submitted have been forged and fabri-cated by the appellants. In all probability that question will also arise for consideration by the authority.
11. In the facts and circumstances of the case it is our consid-ered view that in the interest of justice and for a fair trial the proceedings in the criminal case should remain suspended till the proceeding pending before the Assistant Charity Commis-sioner, Sangli is disposed of by him. Accordingly it is ordered that further proceedings in regular criminal case no.82/1994 pending in the Court of Judicial Magistrate 1st Class, Atpadi shall remain stayed till disposal of the proceeding in C.R.( Changed Report) No.385/91 by the Assistant Charity Commissioner, Sangli. The appeal is disposed of on the terms aforesaid.
