Allowed

Mohammad Khaja Mounuddin S/O Vaziruddin v. Ahemad Mohiyuddin Alias Ahemad Hakam Vajiruddin and Another

Bombay HC5 Sept 2013APPLN/2969/2013

Case brief

AI extract

What is this about?

The High Court of Bombay at Aurangabad quashed a criminal proceeding order directing police investigation under Section 156(3) Cr.P.C. The court held that allegations of trust mismanagement were better addressed under the Public Trusts Act and lacked prima facie material for criminal prosecution.

What did the court decide?

The order directing investigation under Section 156(3) Cr.P.C. (RCC No.780/2013) is quashed and set aside; the rule is made absolute.

Mohammad Khaja Mounuddin S/O Vaziruddin Vs… — Pension and Retirement Benefits | Bombay HC (2013)

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CR.APLN.2969/2013

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.2969 OF 2013

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Mohammad Khaja Moinuddin s/o
Vaziruddin, Age 66 years,
Occu. Business,
r/o Plot No.64, Dilras coloney,
Aurangabad.

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...APPLICANT/ ACCUSED

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VERSUS

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1.Ahemad Mohiyuddin alias Ahemad
Hakam s/o Vajiruddin, age 75 years,
Occu. Social work, r/o Ravindra
Coloney, Khamar Iqbal Road,
Aurangabad.

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2. The State of Maharashtra Through P.I. City Chowk Police Station, City Chowk, Aurangabad.

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...RESPONDENTS

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...

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Mr. S.S.Kazi, Advocate, for the applicant.
Mrs.R.K.Laddha, APP for respondent State.
Mr.Khizer Patel, Advocate for respondent no.1.

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...

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CORAM: K.U.CHANDIWAL AND A.I.S.CHEEMA, JJ.

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 DATE : Sept. 5th, 2013

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***

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ORAL JUDGMENT: (Per K.U.Chandiwal, J.)

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1.Heard extensively.

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2 CR.APLN.2969/2013

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2.Rule. Rule made returnable forthwith by
consent of the learned Counsel for the parties.
Heard finally.

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3.Feeling aggrieved by the order passed by
the learned Judicial Magistrate, First Class,
16th Court, Aurangabad, dated 30th May, 2013,
directing investigation in terms of Section
156(3) Cr.P.C., the applicant / accused is before
this Court.

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4.The applicant with others assert to be
trustee in Sikandarali Wajd Memorial Trust. Over
a period and efflux of time, few of the trustees,
namely, Kazi Saleem, Abdul Azeem, Zulfikar
Hussain, Dr.Mazhar Mohiyoddin, Vyankatrao Jadhav
are no more and, by virtue of the orders of the
learned Deputy Charity Commissioner, Aurangabad,
dated 21.8.2012, their names have been deleted
from Schedule I.

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5.Respondent no.1 claims to be a whistle
blower, a social worker, feels that the
applicant,withoutanylegalauthority,
mismanaged affairs of the trust, misappropriated
monies, divested the same to his near and close
relations, by cheques. Respondent no.1 says that
there was forgery of the documents, and cheating.
He also asserts, a conspiracy between the
applicant and other persons, however, not named

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CR.APLN.2969/2013

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in the complaint petition.

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6.It is not in controversy that affairs of
Sikandarali Wajd Memorial Trust are controlled
under Bombay Public Trusts Act, being PTR No.F.
1513 of Aurangabad.

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7.The allegations in the complaint
petition, read from any angle, more lean to
demonstrate that the complainant was propagating
his personal agenda against the applicant. Had
he any genuine interest in the matter as a
whistle blower, to protect the Trust, he had
efficacious remedies in terms of Section 41 of
the Bombay Public Trust Act before the learned
Charity Commissioner. Any representation or
application moved to the authorities, if informs
of any actionable material, even suo motu action
can be initiated by the competent authorities.
However, without resorting to such legal
remedies, an innovative approach of filing
criminal complaint, with its adverse impact on
the applicant and other trustees, is initiated.

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8. Rejection of change report by the
learned Deputy Charity Commissioner dated
21.8.2012 is questioned in an appeal.
Therefore, it cannot be said that such rejection
of change report has reached finality. The
operation of Bank account by the applicant was

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4 CR.APLN.2969/2013

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under a valid resolution of the trustees. None
of the trustees, so far, have come forward to
object to such operation. It is not a case of
any trustee that they were under duress or
pressurized to sign on dotted line or on already
prepared papers. The trustees are already
consciously aware of their legal subsisting
rights to knock, against the applicant, before
learned Charity Commissioner.

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9.Illegalities or irregularities, referred
by the learned Counsel for the complainant /
respondent no.1, in respect of audited balance
sheets, cannot be gone into at this stage as same
needs to be established at proper destination.
It is not a case that the applicant has put the
morals to mortal but, even prima facie, or
remotely,doesnotindicateofany
misappropriation or forgery or cheating. The
Resolution, or doubt created to the same, not
bearing signature of recipient is, again,
misplaced, as the President has not objected, and
it was a copy that has been signed by the
applicant, as a true copy, for furnishing the
same with Bank. Even if allegations are made
that the Bank officials have joined hands,
however, at this stage, it is immaterial, as
accounts are audited.

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5 CR.APLN.2969/2013

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10.The other limb of submission from the
complainant / Respondent is based on direction of
investigation, the Police have swung in action
and investigation is going on. We have perused
the report tendered by the investigator through
learned A.P.P. dated 22nd August, 2013, as to
what progress in the investigation he has
carried out in the matter. However, it primarily
does not lean to propensity of offense against
applicant.

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11.Learned Counsel for respondent no.1 has
placed reliance to the judgment of the Apex Court
reported in AIR 1992 SC 1930 in the matter of
M/S. Jayant Vitamins Ltd. vs Chaitanyakumar And
Another wherein, on peculiar facts of the said
case, the Apex Court did not approve action of
High Court. It was, particularly, taking recourse
to scope under Section 173(8) of Cr.P.C. No such
case is projected before us.

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The judgment of the Division Bench of this
Court in the matter of Narayandas Hirlalji Sarda
vs. State of Maharashtra reported at 2008 AIR
(Cri) 2737, indeed, deals with the legal position
explained by the Supreme Court in the matter of
Sureshchand Jain vs. State of M.P. and another (
2001 (2) SCC 628). It will not twist the table
of the grievance addressed by the applicant.

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The judgment of the Division Bench of this
Court in the matter of Col. B.S.Khatri vs. State

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6 CR.APLN.2969/2013

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of Maharashtra and another ( 2003 ALL MR (CRI)
1925), proceeds on the point of quashing of
proceedings and relating to genuineness of the
allegations made in the FIR.

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12.The powers of High Court under Section
482 of Cr.P.C. are to be used sparingly - there
should not be any contest on the legal
proposition as has been indicated by the Hon'ble
Supreme Court commencing from the judgment in
the matter of R.P.Kapur v. State of Punjab (AIR
1960 SC 866). The legal position is also
explained by the Hon'ble Supreme Court in the
matter of State of Haryana and others vs.
Ch.Bhajan Lal ( AIR 1992 SC 604). The seven
parameters indicated therein spell out the
situation of exercise of powers by the High
Court.

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In the matter of Inder Mohan Goswami and
another vs. State of Uttaranchal and others ( AIR
2008 SC 251), the three Judges Bench has again
reiterated the legal position.

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In the matter of Pepsi Foods Ltd. and another
vs. Special Judicial Magistrate and others
( (1998) 5 SCC 749), the Supreme Court has said
that if a criminal prosecution is manifested with
latent ideas to harass the adversary and to
ensure personal satisfaction and success of
agenda, warrants quashing in terms of Section 482
of Cr.P.C.

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7 CR.APLN.2969/2013

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13.Scope of revision was also dealt with
by the Division Bench of this Court on 2nd July
2013 in the matter of State of Maharashtra Vs.
Shashikants/oEknathShinde(Criminal
Application No.258/2013 and also in Criminal
Application No.280/2013 in the matter of M/s
Birla Tyres Ltd. Vs. IBC Impex Pvt.Ltd and others
decided on July 8th, 2013 (Nagpur Bench).

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14.Taking conspectus of the facts, even the
complaint petition taken to its logical end, does
not conceive any actionable material to
constitute an offense against the applicant to
face music of Section 156 (3) of Cr.P.C., or
criminal prosecution. Even, un-controverted
allegations would not make out an offense. It was
not that the learned Judge should not have
applied his mind; he is not expected to act as a
postman in the matter. He could have directed
the original complainant to adduce evidence and
should have appreciated the material whether to
take cognizance or whether to direct other
procedure contemplated under the law. The
prayer for action under Section 156(3) Cr.P.C.
itself was bad to which the learned Judge should
not have acted upon.

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In the situation, the prosecution -
questioned in the present Criminal Application -
vide RCC No.780/2013, pending on the file of
learned Judicial Magistrate, First Class, 16th

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8 CR.APLN.2969/2013

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Court, Aurangabad, is quashed and set aside.

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The remedies available to the respondent no.1
before the Charity Commissioner remain un-
bridled.

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Rule made absolute.

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(A.I.S.CHEEMA)(K.U.CHANDIWAL)
 JUDGEJUDGE

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...

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AGP/2969-13crapl

Mohammad Khaja Mounuddin S/O Vaziruddin v. Ahemad Mohiyuddin Alias Ahemad Hakam Vajiruddin and Another

Case brief

What is this about?

What did the court decide?

Mohammad Khaja Mounuddin S/O Vaziruddin v. Ahemad Mohiyuddin Alias Ahemad Hakam Vajiruddin and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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