Criminal Writ Petition No.358 of 2008

4th July, 2008

Petitioner Counsel: Mr. AMOL DESHPANDE
Respondent Counsel: Mrs. T. D. KHADE

Cases Cited:
Lalji Haridas Vs. State of Maharashtra, AIR 1964 SC 1154 (V 51 C 145) [Para 9]
Smt. Maharaji Vs. Rama Shanker [Para 9]
Tukaram Annaba Chavan Vs. Machindra Yehwant Patil, AIR 2001 SC 994 [Para 9]
C. P. Kotwal Vs. Ali Ashad, 2003 ALL MR (Cri) 1212=2003(3) Mh.L.J. 810 [Para 9]

JUDGMENT

JUDGMENT :- On 19th July, 2007, this Court admitted the Writ Petition and ordered interim stay to continue.

2. Heard.

3. The respondent no.1 herein filed Criminal Case No.142 of 2002 before the Judicial Magistrate First Class, Akola, in which he has made a grievance that complaint submitted by him to the Police on 30th January, 2002 has not been enquired into.

4. The complainant further made a grievance that in Change Report proceedings initiated by the accused persons before the Asstt. Charity Commissioner in relation to Public Trust Registration No.F-1421, the accused, with common intention, committed a fraud and with dishonest intention to misappropriate the property of Trust, have shown, by writing a false proceeding, that a meeting has been held and both the accused with common intention have submitted a change report under Section 22 of Bombay Public Trusts Act before Asstt. Charity Commissioner at Akola on 15th May, 1998.

5. The Complainant also alleged in para 3 of the complaint as follows :-

"(3) That along with the change report, both the accused with common intention submitted a consent letter and no objection letters having a signature of the trustees. However, in both these the name of the complainant is appearing but he has not signed both the letters. His signature come to be forged by both the accused. Not only this but at the foot note the certificate came to be issued by accused no.1 certifying that all the listed persons have signed before him. In fact the accused and thereby committed the offences of cheating with forgery by making false signature of the complainant."

(quoted from page 53 of the writ petition paper-book).

6. After completing the enquiry, the charge-sheet is filed for offence under Sections 177, 420, 468, 406 read with Section 34 of Indian Penal Code.

7. According to petitioner, though the said charge is under Sections referred to therein, in fact, it is an offence under Section 195 of Indian Penal Code.

8. According to learned Advocate for the petitioner, the alleged false evidence is given before Asstt. Charity Commissioner, which is a Court, and said Court has to file the complaint.

9. Learned Advocate for the petitioner has relied upon following judgments in support of his submissions :-

(1) Lalji Haridas Vs. The State of Maharashtra & another (AIR 1964 SC 1154 (V 51 C 145),

(2) Smt. Maharaji & ors. Vs. Rama Shankar & another (1983 Cri.L.J. 24),

(3) Tukaram Annaba Chavan & another Vs. Machindra Yehwant Patil (AIR 2001 SC 994), and

(4) C. P. Kotwal Vs. Ali Ashad & ors. (2003(3) Mh.L.J. 810 : [2003 ALL MR (Cri) 1212]).

10. It shall suffice to rely upon the Judgment at Serial No.3 above in case of Tukaram Annaba Chavan & another Vs. Machindra Y. Patil. Contents of para 8 of the said judgment are the clear-cut dictum on the law, which read as follows :-

"8. The learned counsel for the applicants strenuously urged that the complaint filed by the respondent is a composite one containing 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."

11. In view of above and in view that the facts are obvious, there is no room to have any second opinion of the matter. The complaint was not maintainable right from its filing to the police, then before the Magistrate, then order under Sub-section (3) of section 156 and the enquiry based thereon and filing of charge-sheet as the complaint ought to be lodged by Court and not by a private party.

12. In the result, Rule is liable to be made absolute, and is made absolute, and Order dated 9th February, 2005 passed by Chief Judicial Magistrate, Akola, and Charge-Sheet No.194/2002 dated 26th February, 2002 filed by the Investigating Officer and Police Sub-Inspector, Police Station, Civil Lines, Akola, are quashed and set aside, and Criminal Case No.660 of 2002 is dismissed.

Petition allowed.