Allowed

Govind S/O Digambarrao Bagde v. the State of Maharashtra and Anr.

Bombay HC2 Feb 2017WP/254/2015

Case brief

AI extract

What is this about?

The High Court quashed an FIR registered against a college Principal for cheating and criminal breach of trust. The court held the proceeding was an abuse of process due to uncontroverted allegations of mala fide intent and personal grudge, and the Magistrate erred in ordering investigation without assigning reasons.

What did the court decide?

FIR bearing Crime No. 12/2015 registered at Ahmedpur Police Station was quashed and set aside.

Govind S/O Digambarrao Bagde Vs the State of Maharashtra and… — Cheque Dishonour | Bombay HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.254 OF 2015

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Govind Digambar Bagde,
Age: 56 years, Occu. Service as
Principal of Mahatma Gandhi Mahavidyalaya,
Ahmedpur, Tq. Ahmedpur,
Dist. Latur. PETITIONER

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VERSUS

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1. The State of Maharashtra.

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2.Baburao s/o.Apparao Kadam,
Age: 80 Years, Occu.Agril. and
so called General Secretary
of Vichar Vikas Mandal,
Ahmedpur, Tq.Ahmedpur,
Dist. Latur. RESPONDENTS

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...

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Mr.V.D.Gunale, Advocate for the Petitioner
Mr.D.R.Kale, APP for the Respondent/State

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...

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CORAM: S.S.SHINDE &

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 V.K.JADHAV,JJ.

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Reserved on : 24.01.2017
 Pronounced on : 02.02.2017

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JUDGMENT: (Per S.S.Shinde, J.)

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1. Heard.

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2. Rule. Rule made returnable

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forthwith, and heard finally with the consent
of the parties.

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3.This Petition is filed under Article
226 of the Constitution of India and Section
482 of Criminal Procedure Code, praying
therein for quashing and setting aside the
first information report bearing Crime No.
12/2015, registered against the petitioner,
at Ahmedpur Police Station, Ahmedpur, for the
offences punishable under Sections 177, 185,
403, 409, 420 and 464 of the Indian Penal
Code.

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4.It is the case of the petitioner
that he has rendered continuous service as
Senior Lecturer for about 25 years, and
considering his excellent performance,
qualification and experience, he came to be
appointed on the post of Principal. After
resuming the duties as Principal, with his
sincere efforts the results of the
examinations of the students of College are
improved.

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5.In the year 2013, the dispute

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started in the management. Two groups have

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filed their different change reports in the
office of the Assistant Charity Commissioner
claiming that, they are elected members of
the trust. Due to afore-mentioned differences

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between two groups, the petitioner started
receiving threats and there was interference

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in the smooth administration of the College,
even by disturbing staff members by the said
groups. One Mr.Sudhakar Nagargoje and Baburao
Kadam issued letter to the petitioner on
31.10.2014 asking him to sign change report

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and to attend the office of the Assistant
Charity Commissioner for submitting his
consent letter stating that he is giving

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consent to the change report filed by them.

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The petitioner made communication to the
higher authorities and informed about the

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threats received by him from afore-mentioned
persons thereby asking him to give consent to

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the change report filed by them in the office
of the Charity Commissioner else he will face
the criminal prosecution.

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6.It is further the case of the

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petitioner that the group belong to the
aforementioned two persons placed him under
suspension on the ground that the petitioner
is not cooperating them and supporting their
stand. An alleged decision of the afore-
mentioned two persons to place the petitioner
under suspension was without any authority
and in breach of principles of natural
justice and relevant procedure. Respondent
no.2 issued order placing the petitioner
under suspension w.e.f.07.04.2014. The
petitioner, being aggrieved by the said

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order, preferred Writ Petition before the

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Bombay High Court, Bench at Aurangabad.
Simultaneously, the petitioner approached to

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the University Authority raising grievance

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about the said order placing him under

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suspension. The University vide communication
dated 02.05.2014 informed the management i.e.

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respondent no.2, that the petitioner is the
Principal of the said College and the
University has approved his appointment and
he is working, therefore, the order placing
him under suspension without prior permission
from the University is illegal, and even
appointment of Shri R.D.Bhamure as an
Incharge Principal is also illegal.

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It is further the case of the

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petitioner that respondent no.2 and his
followers wants to remove the petitioner by

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hook or crook from his post since he is not

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following their directions. It is further the
case of the petitioner that without following
procedure,respondentno.2dismissed

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petitioner from the service by an order dated
19.11.2014. The University and also the Joint
Director of Education was communicated about
such dismissal order.

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7.Being aggrieved by the said order,

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the petitioner approached the Grievance
Committee constituted under the University
Act. The said Committee summoned both the
sides and after hearing the parties, vide its
communication dated 02.01.2015, informed
respondent no.2 that without prior permission
of the University, the Disciplinary Authority
cannot suspend teacher, and therefore,
petitioner’s services will have to be treated
as continuous and he is working on the post
of Principal till date.

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8.It is further the case of the

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petitioner that being unsuccessful in
dislodging the petitioner from the post of
Principal, respondent no.2 filed complaint
before the Judicial Magistrate First Class,

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Ahmedpur, on 12.01.2015, alleging that the
petitioner was residing in the premises
situate in the Campus of College since
01.10.2009 to 16.11.2013, and even then he

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has drawn the house rent from the Public
Exchequer to the tune of Rs.4,48,109/- for
the afore-mentioned period, and thus he has
committed offence punishable under Sections
177, 183, 403, 409, 420 and 464 of the Indian
Penal Code. The said complaint was registered
as Misc.Criminal Application No.24/2015, and
the learned Judicial Magistrate First Class
directed the police to investigate the
complaint under Section 156 [3] of the
Criminal Procedure Code by issuing directions
by its order dated 21.01.2015. It is further

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the case of the petitioner that without
investigation the said complaint, the FIR
came to be registered against the petitioner
on 22.01.2015. Hence this Petition for
quashing the FIR.

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9.The learned counsel appearing for

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the petitioner submits that the petitioner is
falsely implicated in the crime No.12/2015.

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The complainant has no locus standi to file

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the said complaint, since his status as
office bearer of the respondent trust is
pending for approval with the office of the
Assistant Charity Commissioner. The police
authorities without making any investigation
straightway registered the offence against
the petitioner, who is the Principal,
working in the reputed College with
unblemished service record. It is further
submitted that so far as the allegation of

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using of premises belonging to the society by
the petitioner is concerned, the said College
is having the classes of Senior College as

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well as Junior College as well as Common
Entrance Test [CET]. There are two Hostels in
the premises of the said College. The classes

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of 11th, 12th standard and CET are being
conducted in the night hours also. There is a
big computer lab in the premises, however,
there was theft of near about 12 computers
from the premises. The Principal is required

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to attend and supervise even the night
classes also upto 11.00 p.m. Those classes

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are being attended by the girl students also,
therefore petitioner was required to stay in
the College premises itself upto 11.00 p.m.
every day. Considering such responsibility of
the petitioner, the management by passing a
Resolution in its meeting dated 31.05.2013
decided to provide the accommodation to the
petitioner just like rest room, so that it
will be convenient to the Principal to attend
the College at night hours to monitor
conducting of classes in the college and also

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to ensure the security of girl students. It
is specific case of the petitioner that the
decision of the management to provide two
rooms to the petitioner for temporary period

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for aforesaid purpose in the interest of the
students studying in the college cannot be
interpreted or construed to mean that college
has provided residential accommodation on

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regular basis befitting the status of the
post of Principal on which petitioner is
working.

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10.It is further the case of the

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petitioner that on request made by the
management, the petitioner used the said
accommodation for temporary period for afore-
stated purpose, though it was not having
necessary facilities.

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11.The petitioner has taken premises on

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rent basis in the town, and simultaneously he
was staying in the accommodation provided by

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the College for temporary period for
monitoring classes conducted beyond college
working hours so as to help out the students

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to prepare for common entrance test.
Respondent no.2 and his followers made

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complaint to the Joint Director of Education
as well as the Director of Higher Education
alleging that the petitioner is using the

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accommodation of the College free of cost and
simultaneously he has drawn the house rent
from the Government for the period from

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01.10.2009 to 16.11.2013. On such complaint
made by the respondent no.2 without calling

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any explanation from the petitioner or
without providing any opportunity of being
heard to him, the Joint Director of Higher
Education, Nanded Region issued the
communicationtothepetitioneron

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24.01.2014, asking the petitioner to deposit
the house rent and travelling allowances

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which was drawn by him from 01.10.2009 to

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16.11.2013 in the account of Government. The
petitioner submitted his detail explanation
on 10.02.2014 to the Joint Director of Higher

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Education. In his explanation, he has
specifically pointed out that on the request
of management, he was staying in the College
premises to monitor conducting of the classes

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and to ensure security of the girl students.

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In fact, there are no constructed premises in
the College campus to provide residential
accommodation on regular basis to the
Principal. He also pointed out to the
authorities that he is already staying in the
rental premises in the town and his family is
staying there since from his appointment. He

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has also placed on record the rent note
issued by the owner of said premises in which
he stayed with his family. He, therefore,
stated in his reply that there is no question
of refund of House Rent Allowance [HRA] and
Traveling Allowance [TA] to the Government.

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He also pointed out that due to the dispute
in the management, the false complaints are
made against him with a view to harass him,
therefore the directions issued by the said
authority to deposit Rs.4,48,109/- may be
recalled.

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12.It is further the case of the
petitioner that, the Joint Director issued

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communication on 17.05.2014 addressed to one
of the complainant Dadasaheb Babasaheb
Deshmukh, who was working on daily wages in
the College. By said communication, it was
made clear that the petitioner is having the
accommodation in the town on rent basis and
he has submitted the rent receipts to the
authority. In such situation, it is difficult
to hold that the petitioner was residing with
his family in the college campus in two
rooms. Even then the petitioner was directed
to refund the HRA and TA by the Joint
Director of Education by communication dated
22.09.2014. There was no alternative left
with the petitioner due to withholding of his
salary by the said authority, under
compellingcircumstanceshestarted

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depositing the amount in installments.

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13.The learned counsel submits that

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the petitioner has deposited entire amount as

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directed by the Joint Director of Education
in the public treasury. It is submitted that
there is no cheating or fraud or criminal
breach of trust on the part of the petitioner

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as alleged by the petitioner, but due to the
false complaint by the rival group of the
management to the Joint Director, such
directions were issued for refund of HRA and
TA. It is submitted that the petitioner has
decided to challenge the order passed by the

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Joint Director of Education, directing him to
deposit amount of Rs.4,48,109/- by initiating
appropriate proceedings. It is submitted that

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filing of the complaint by the respondent no.
2 and registering FIR on the basis of the
said complaint is abuse of process of law,
inasmuch as respondent no.2 was not competent

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to file such complaint, and secondly
allegation in the FIR / complaint are with
vengeance and palpably false. It is submitted
that due to lodging of said FIR with

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frivolous allegations against the petitioner,
injury is caused to his reputation.

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14.The learned counsel appearing for
the petitioner pressed into service

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exposition of law by the Supreme Court in the case of State of Haryana V/s Bhajan Lal¹ and submitted that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

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wreaking vengeance on the accused and with a view to spite him due to private and personal grudge . The learned counsel also invites our attention to the various documents placed on

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record which prima facie shows that as a
matter of fact the petitioner is residing in
the premises of one Advocate Mr.P.D.Kadam and

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to that effect rent receipts are placed on

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record. He further submits that, the
petitioner has placed on record other

1 AIR 1992 SC 604

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documentswhichwouldprimafacie

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demonstrate that the allegations made against the petitioner by respondent no.2 are tainted with mala fide , since the petitioner did not agree to give consent before the Assistant Charity Commissioner for the change report submitted by respondent no.2. Therefore, the learned counsel appearing for the petitioner submits that the Petition deserves to be allowed.

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15.On the other hand, learned APP
appearing for respondent – State relying upon
the investigation papers submits that the
InvestigationOfficerhascaused
investigation and there appears to be
substance in the allegation leveled against
the petitioner, and therefore, the Petition
may not be entertained.

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16.We have heard the learned counsel
appearing for the petitioner and the learned

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APP appearing for the respondent – State at
length. With their able assistance, perused

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the pleadings and grounds taken in the
Petition, annexures thereto, reply filed by
respondent no.1 and also affidavit in
rejoinder filed by the petitioner and
additional documents placed on record. It is

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not in dispute that pursuant to the notices
issued by the Joint Director of Education,
the petitioner has deposited entire amount as

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mentioned in the letter written by the Joint
Director of Education. It is stated by the
petitioner that he is aggrieved by the said
direction, directing him to deposit the said
amount and he has decided to challenge the
said order.

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17.Be that as it may, we do not express

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any opinion about such direction given by the

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Joint Director of Education or the
petitioner’s contention that such direction
to deposit the amount of Rs.4,48,109/- was

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wholly unwarranted in view of the fact that
the petitioner did stay in the rented
premises for which he had received the rent
from the Public Exchequer. However, fact
remains that the petitioner has deposited
amount of Rs.4,48,109/- as directed by the
Joint Director of Education. An issue whether

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the documents placed on record by the petitioner in the nature of rent receipts can be considered by this Court so as to form prima facie opinion while adjudicating the prayer for quashing the FIR is no longer res integra. The Supreme Court in the case of Anita Malhotra Vs. Apparel Export Promotion Council and another² has held that, though it is not proper for the High Court to consider

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the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed on record by the accused and if it is 2 [2012] 1 SCC 520

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considered that the accusation against her
cannot stand, in such a matter, in order to
prevent injustice or abuse of process, it is
incumbent on the High Court to look into
those document/documents which have a bearing
on the matter even at the initial stage and
grant relief to the person concerned by
exercising jurisdiction under Section 482
Cr.P.C. Therefore, certainly, so as to find
out prima facie case this Court can look into

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such documents. We have perused the order
dated 21.01.2015 passed by the Judicial
Magistrate First Class, which is at page 32

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of the compilation of the Writ Petition,
reads as under:

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Perused complaint. Heard the complainant and his adv.alleged offence are cognizable so this matter be sent to P.I. Police Station, Ahmedpur for investigation u/s.156 [3] offence.

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The Magistrate while passing such

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order has not assigned single reason and
directed investigation under Section 156 [3]

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of Criminal Procedure Code. The Bombay High Court Bench at Nagpur in the case of State of Maharashtra Vs. Shashikant Eknath Shinde³ has

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taken a view that it is mandatory for the
Magistrate to apply his mind to the
allegations made in the complaint and in only

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cases which disclose an offence, the
Magistrate gets jurisdiction to order an
investigation by the police if he does not
take cognizance of the offence. In that view

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of the matter, it was incumbent upon the
Judicial Magistrate First Class at least to
assign brief reasons why he has reached to

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the conclusion to issue directions under
Section 156 [3] of Criminal Procedure Code to
order investigation.

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18.Respondent no.2 is served on

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3 2013 [4] Bom.C.R. [Cri.] 801

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15.09.2015 by regular mode of service, report
to that effect has been received on
29.09.2015. In addition to regular mode of
service, the petitioner has also served
respondent no.2 by private notice / service
and to that effect affidavit of service is
placed on record. However, respondent no.2
has chosen not to cause the appearance either
in person or through advocate. There is no
reply on record on his behalf. Therefore, the
pleadings and grounds taken in the petition
and also documents placed on record by the
petitioner remained uncontroverted on behalf
of respondent no.2.

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19. The important ground that respondent no.2 has filed criminal complaint with mala fide and / or with ulterior motive for

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wreaking vengeance on the petitioner and with
a view to spite him due to private and
personal grudge i.e. petitioner has refused
to give consent to the change report

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submitted by respondent no.2 in the office of
Assistant Charity Commissioner, remained
uncontroverted on behalf of respondent no.2.

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On similar set of allegation like

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averred in the complaint, the Joint Director
of Education had already taken appropriate
steps and asked the petitioner to deposit an
amount of Rs.4,48,109/-; and accordingly as
submitted by the learned counsel appearing
for the petitioner, the petitioner has

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already deposited the said amount. However,
the petitioner wishes to challenge the
order / directions issued by the Joint
Director of Education, asking him to deposit

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afore-mentioned amount. In our opinion, the
afore-mentioned proceedings initiated by the

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Joint Director of Education are of civil

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nature, and therefore, said proceedings can
be taken to the logical end by the concerned
parties.

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20.At this juncture, it would be

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appropriate to refer the observations of the Apex Court in the case of R.Kalyani Vs. Janak C. Mehta and others⁴ , which reads thus:

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“15. Propositions of law which emerge from the said decisions are:

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(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a

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criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

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(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

4 [2009] 1 SCC 516

254.2015Cri.WP.odt

exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

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(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.

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16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its

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jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.”.

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21.Therefore, keeping in view the

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aforesaid observations of the Supreme Court

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and the fact that the grounds taken in the
Petition remained uncontroverted on behalf of
respondent no.2, and also the Magistrate has

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not assigned any reason to order an
investigation against the petitioner, we are
inclined to allow this Petition and quash the
FIR.

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22.The Supreme Court in the case of

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State of Haryana V/s Bhajan Lal [cited supra]

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in para 108 has laid down categories of cases

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by way of illustration wherein the powers
under Section 482 of Criminal Procedure Code

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can be exercised by the High Court either to

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prevent abuse of process of any Court or
otherwise to secure the ends of justice.
Para 108 of the said Judgment reads as under:

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108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and

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sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

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3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the applicant.

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4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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23.As already observed in the foregoing
paragraphs that, the Joint Director of
Education is making independent enquiry about

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the allegations which are similar to that of

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made in the complaint / FIR, and also the Magistrate has not assigned any reasons which would demonstrate that cognizable offence has been disclosed against the petitioner, and also from reading the averments in the complaint and grounds raised by the petitioner that respondent no.2 with mala

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fide and / or with ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge, remained uncontroverted on behalf of respondent no.2. In our considered opinion, case of the petitioner would be partly covered in afore-mentioned categories 1 and 2 and would be completely covered under category 7.

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24.Therefore, in the peculiar facts and
circumstances of this case, we quash and set
aside the First Information Report bearing
Crime No.12/2015 registered with Ahmedpur
Police Station, Ahmedpur, District Latur, for
the offences punishable under Sections 177,
185, 403, 409, 420 and 464 of the Indian
Penal Code. Hence, the Criminal Writ Petition
stands allowed to above extent. Rule made
absolute in terms of prayer Clause-C. Writ
Petition stands disposed of accordingly.

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25.However, we make it clear that the

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proceedings / action initiated by the Joint
Director of Education against the petitioner,
and pursuant to the directions issued by the
said authority, the petitioner has deposited
the amount of Rs.4,48,109/-, are the matters
to be considered on civil side having civil
consequences and the said direction/action or
challenge to the said directions by the said
authority asking the petitioner to deposit

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the amount would remain unaffected. While
dealing with the said proceeding, neither the
Competent Authority nor the petitioner will

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be entitled to rely upon the reasons assigned
in this judgment or can make reference of the
present proceedings.

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[V.K.JADHAV] [S.S.SHINDE] JUDGE JUDGE

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DDC

Govind S/O Digambarrao Bagde v. the State of Maharashtra and Anr.

Case brief

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Govind S/O Digambarrao Bagde v. the State of Maharashtra and Anr.

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