S.S. Shinde, J.
1. Both the Criminal Applications take exception to the chargesheet bearing Regular Criminal Case No.35/2016, pending before the Judicial Magistrate First Class, Aurangabad, arising out of FIR bearing Crime M-Case No.I-212/2015 dated 29th July, 2015, registered at City Chowk Police Station, Aurangabad, for the offences punishable under Sections 420, 406, 408, 467, 471 r/w. Section 34 of the Indian Penal Code and Sections 66A and 67 of the Maharashtra Public Trusts Act (for short MPT Act ), therefore, the same are heard together and being disposed of by common judgment and order.
2. According to the applicants, it is alleged in the FIR that the applicants in collusion purchased the land at village Satara in Gat No.243, admeasuring 11 Hector for a consideration of Rs.30,000/-. The amount was collected by them by way of membership contribution of Rs.5,000/- each from the members of Vasantrao Naik Institute for Tribal Development. The land purchased is in the name of Rural Reconstruction Sanstha through applicant Suresh Puri and the sale deed was executed on 3rd June, 1981. It is further alleged that 13 persons from Vasantrao Naik College and other field came together with a view to form an institute with an object to do social work, and registered the trust (No.MH-18-1981 AGD Aurangabad on 29th September, 1981 and its registration No.F-772). It is further alleged that 13 persons collected Rs.5000/- each i.e. Rs.65,000/- in total and handed over the said amount to the applicant Motiraj Rathod. Out of the said amount, 11 Hector 96 R. land was purchased for consideration of Rs.35,000/- in the name of Vasantrao Naik Institute for Tribal Development on 30th May, 1981, vide sale deed No.3006/1981. Lateron a mutation entry in the 7/12 extract is also sanctioned in the name of Vasantrao Naik Institute for Tribal Development. The substance of the complaint in short is that the property purchased to the extent of 11 Hector in the name of the applicant Suresh Puri is purchased from the funds deposited by the members of Vasantrao Naik Institute for Tribal Development, and the said property is not shown as trust property and kept it in the name of Rural Construction Sanstha and the same is sold by the applicant Suresh Puri in the year 2014 to Vasant Dada Sugar Institute, Manjari (Bk.), Taluka Haveli, District Pune, in collusion with accused no.1 Motiraj Rathod. Therefore, according to the complainant, the said act of the applicants amounts to breach of trust, fraud, forgery and cheating and therefore, the complaint is filed against the present applicants, namely Suresh Puri and Motiraj Rathod, who were the Secretary and the President respectively of a registered Public Trust namely Vasantrao Naik Institute for Tribal Development at the relevant time.
3. Since the Kranti Chowk Police Station, Aurangabad, did not take cognizance of the FIR filed by the complainant, the complainant approached the Court of Judicial Magistrate First Class, Aurangabad and filed the complaint bearing M.A.No.1731/2015, seeking directions under Section 156 (3) of the Criminal Procedure Code to register FIR at City Chowk Police Station, Aurangabad, against the present applicants, and also against Vasant Dada Sugar Institute and the Directors of Vasant Dada Sugar Institute. The learned Judicial Magistrate First Class, Aurangabad passed an order and directed the City Chowk Police Station to register the FIR. Accordingly, the City Chowk Police Station, Aurangabad registered a Crime bearing M. Case No.212/2015 for the offences punishable under Sections 420, 406, 408, 467, 471 r/w. 34 of the Indian Penal Code and Sections 66A and 67 of the MPT Act.
4. The learned counsel appearing for the applicants submits that the complainant Avinash Kishan Rathod claiming himself as a social worker residing at Akola District and President of Manav Adhikar, which is a institution appears to be unregistered, has no concern with the land, which is the subject matter of the FIR. It is submitted that the FIR should not have been registered at the behest of the complainant Avinash Rathod.
5. The learned counsel appearing for the applicants submit that the FIR does not disclose any offence. Respondent no.2 has filed the complaint with the sole ulterior motive to harass the applicants and to extract money. The applicants were working together with Vasantrao Naik College at Aurangabad and with bona fide intentions to do the social activities came together and other 11 eminent persons from various field of Aurangabad City decided to form an institute and met on 11th January, 1981. The meeting was conducted and minutes of the meeting were reduced into writing. Thereafter, 13 persons gathered together on 10th May, 1981. However, till that time, the land was not purchased by the trust/institute. It is decided in the said meeting that the applicants shall make endeavour to raise amount by way of donations. It is submitted that on 30th May, 1981, the land from village Satara bearing Gat No.243 amdeasuring 11 Hectors 96 R. is purchased by executing sale deed in the name of Vasantrao Naik Institute for Tribal Development Trust, vide sale deed No. 3006/1981 for consideration of amount of Rs.35,000/-. After purchase of the said land, with a view to register the trust to the office of Charity Commissioner at Aurangabad, application was filed. In all there are 13 founder members of the said trust. The applicants, who were appointed as the Secretary and the President of the trust, are founder members. The trust came to be registered on 29th September, 1981 and the name of the trust and properties of trust are shown in schedule-I. One more meeting was held on 14th June, 1981, after collection of funds by Motiraj Rathod, a Resolution was passed extending vote of thanks to applicant Motiraj Rathod for collecting the amount for purchasing the land. The applicant Suresh Puri was the Secretary of the Vasantrao Naik Institute for Tribal Development till 1995. Lateron he remained as member of body of trust till 2012, and thereafter, he became Treasurer of the said trust. In the year 1995, Shri J.K.Pawar became Secretary, who is also one of the founder members of the trust, and one Mr.K.B.Jadhav (retired District Collector) used to look after the entire activities of the trust in the capacity of the President.
6. It is submitted that out of 13 founder members, 5 members died and 3 members had already resigned from the membership and only 5 persons were remained on the body of trust. The same position continued till 2010. It is submitted that when Mr.K.B.Jadhav was President and Mr.J.K.Pawar was Secretary of the trust, in their tenure only, it was discussed several times that as the trustees are not able to achieve the objectives of the trust, it would be better to amalgamate the trust with any other body or trust. At the relevant time the members of the trust came to know that one of the Institutes namely Vasant Dada Institute is interested to start its activity in Marathwada Region and were in need of land, and therefore, the members approached the Institute and after initial talks, it was decided unanimously to amalgamate the trust in Vasant Dada Sugar Institute, Manjari (Bk.), Tq. Haveli, District Pune.
7. It is submitted that the land, which is in the name of the applicant Suresh Puri, is having status of individual land and the same is in individual capacity, adjacent to the land of Vasantrao Naik Institute for Tribal Development. He sold the land by executing a registered sale deed dated 11th February, 2014, vide sale deed No.696/2014 to Vasant Dada Sugar Institute. As soon as the land was sold and the property of the trust was to be amalgamated with the Vasant Dada Sugar Institute, as the proposal was pending before the Charity Commissioner, Mumbai for amalgamation under Section 50 of the MPT Act, on application moved by Vasant Dada Sugar Institute, a public notice was issued by the office of Charity Commissioner, Mumbai, on 18th November, 2014, for calling objections. It is further submitted that before execution of sale deed of 11 Hector, which is own property of applicant Suresh Puri, Vasant Dada Sugar Institute has published a notice on 28th August, 2013, to ensure that there are no any objections to purchase of the said property. In reply to the said notice, an objection was raised in daily Punya Nagari news paper on 12th September, 2013, by one Ashok Raibhan Rathod claiming himself to be the Secretary of Shri Bhagwan Baba Puri Rural Reconstruction Pratisthan. It is submitted that the Secretary of the trust, who proposed and forwarded the Resolution of amalgamation in the year 2015, has filed proceeding under the Maharashtra Land Revenue Code before the Sub-Divisional Officer, Aurangabad and challenged the Mutation Entry of disputed property i.e. 11 Hector of applicant sold in the name of Vasant Dada Sugar Institute Manjari (Bk.).
8. It is submitted that at the time of purchasing the property by the applicant Suresh Puri in the year 1981, he offered partnership to applicant Motiraj Rathod and both of them invested for purchase of the said property, though there is no express agreement in between both the applicants. The applicant Suresh Puri has paid the sale proceed of his share and it is referred in the sale deed executed by the applicant Suresh Puri in favour of Vasant Dada Sugar Institute. As such there is no concealment of transaction and nothing was suppressed. There was no question of dishonest intention and wrongful gain in selling the said property. It is submitted that for attracting the provisions of Section 420 of the IPC, there must be an intention of deceiving a person fraudulently or dishonestly to deliver any property to any person. In fact, the property is purchased by the applicant Suresh Puri on 30th June, 1981 in his individual capacity. It is submitted that the land to the extent of 11 Hector 96 R. was purchased by Vasantrao Naik Institute for Tribal Development Trust and 11 Hector land was purchased in the individual capacity, and therefore, there is no question of any inducement by the applicant Suresh Puri. It is submitted that the property was purchased on 30th May, 1981, and Vasantrao Naik Institute for Tribal Development came to be registered on 29th September, 1981. The property to the extent of 11 Hectors 96 R. shown in the Schedule-I of Vasantrao Naik Institute for Tribal Development is the property of the trust and remaining 11 Hector purchased from the same Gat Number is in the individual capacity of the applicant Suresh Puri. It is submitted that even if the allegations in the FIR are read in its entirety, no offence is disclosed. The material collected by the Investigating Officer, which is part of the charge sheet, is not sufficient to proceed for trial, and therefore, the present application for quashing the FIR/Chargesheet deserves to be allowed. As per the procedure under Section 32 of the MPT Act, it is mandatory for the registered trust to maintain accounts and its audit along with balance sheet of each year on 31st March and it is required to be submitted to the office of the Charity Commissioner as prescribed under Section 33 of the MPT Act. The Rules are provided in the MPT Act and as per Rule 16A and 17, the record is available with the office of the Charity Commissioner and there is nothing to show that Rs.60,000/- were collected. Though it is stated by the complainant in his complaint that he is interested person and represents Banjara community , it is submitted that the Vasantrao Naik Institution is not established only for particular community. Respondent no.2 is not interested person and if at all he is interested person, he has to first approach the office of the Charity Commissioner under Section 19 of the MPT Act, and thereafter, enquiry will be conducted in respect of allegations and purchase and sale of the land by the applicant Suresh Puri. The complainant ought to have opted for procedure under Section 50 of the MPT Act, because the dispute is purely of civil nature pertains to the transfer of the property legally or illegally which can be resolved in the Civil Suit, but respondent no.2 did not opt for the said remedy. The complaint is filed with mala fide and ulterior motive to harass the applicants.
9. It is further submitted that Resolution, which is part of the chargesheet, would show that both the applicants are founder members of the Vasantrao Naik Institute for Tribal Development, the object of which is for the welfare of the tribal. The name of the society was proposed to be Vasantrao Naik Institute for Tribal Development and it was decided to purchase the land for the said society by collecting the funds. If all the resolutions are perused prior to purchase of land and after purchase, there is no reference of another unregistered trust or society by name Rural Construction Sanstha, as alleged by the complainant. In the year 2012, Vasantrao Naik Institute for Tribal Development decided to amalgamate the trust with Vasant Dada Sugar Institute, Manjari. The then trustee of Vasantrao Naik Institute for Tribal Development has passed the Resolution dated 6th October, 2012 and 24th October, 2012 and it is stated in the said Resolution that the property of trust is only 11 Hectors 96 R. and there was no objection of any of the trustees to such proclamation and the procedure of amalgamation of trust with Vasant Dada Sugar Institute. The complainant is no way concerned with the trust, there is no documents to show that Rural Reconstruction Society has any concerned or nexus with the registered Vasantrao Naik Institute for Tribal Development, and if at all according to the complainant, the property is of trust, then there is remedy to the complainant to approach the Charity Commissioner and Civil Court.
10. The learned counsel Mr.V.D.Salunke appearing for the applicant in Criminal Application No.6096/2015 submits that the complainant is no way concerned with the property. He is not aggrieved person or interested person. The trust is registered under the MPT Act. The only members can be considered as interested person. It is submitted that 11 Hector 96 R. property was purchased for the benefit of the trust and remaining 11 Hector land was purchased in the individual capacity by the applicant Suresh Puri. It is submitted that the complaint should not have been registered since the complainant has no locus to file such complaint. The filing of frivolous complaint is abuse of process of law. If the allegations in the FIR and the documents along with chargesheet are considered in its entirety, no offence is made out against the applicants, and therefore, framing of charge and proceeding with the trial will be exercise in futility and therefore keeping in view the parameters laid down in the case of State of Haryana Vs. Bhajanlal (AIR 1992 SC 604) the FIR / chargesheet deserves to be quashed.
11. It is submitted that since the dispute is purely of civil nature, the complainant can approach the Civil Court or the Charity Commissioner. In support of the said contention, the learned counsel Mr. V.D.Salunke pressed into the service exposition of law in the case of Inder Mohan Goswami Vs. State of Uttaranchal (AIR 2007 SCW 6679)and also in the case of Zandu Pharmaceuticals Works Limited Vs. Sharaful Haque (AIR 2004 SCW 6185). He also invites our attention to the judgment of the Supreme Court in the case of State of Maharashtra Vs. Laljit Rajshi Shah and others (2000 (3) Bom.C.R. 240), in support of his contention that there are audits of the accounts and also enquiry contemplated under the provisions of the Maharashtra Cooperative Societies Act and said Act is self contained Code made for dealing with specific offence, the complaint filed by the complainant was not maintainable. Therefore, relying upon the pleadings in the petition, grounds taken therein and annexures thereto, the learned counsel appearing for the applicants submits that the petitions deserve to be allowed.
12. The learned counsel appearing for respondent no.2 i.e. original complainant submits that he belongs to Banjara community and he is interested for the welfare of the said community. The institution Vasantrao Naik Institute of Tribal Development, Aurangabad, is registered for the welfare of the Banjara community. He is the State President of Human Right Commission Helpline, New Delhi, which is registered society working for protection of human rights. He is active social worker. After getting the knowledge from the members of the community and other members of the said trust, respondent no.2 collected all the information from the various sources by visiting the various offices. He has collected the documents from the office of the Charity Commissioner, Assistant Charity Commissioner, Revenue Authorities and from the office of the Sub Registrar, Aurangabad. He has made applications to the various authorities pointing out the fraud played by the present applicants. He has also lodged the complaint with the police, but no cognizance has been taken by the police authorities, therefore, he was required to file complaint with the Judicial Magistrate First Class, Aurangabad. The Magistrate, after going through the complaint and the documentary evidence which were placed along with the complaint, found prima facie case against the applicants for the said offences under Sections 420, 406, 408, 467, 471 r/w. 34 of the IPC and under Sections 66A and 67 of the MPT Act and directed to submit the final report within statutory period vide order dated 24th July, 2015.
13. In pursuant of the said order, the police have registered the offence against the applicants namely Suresh Puri and Motiraj Rathod on 29th July, 2015, by registering Crime bearing No.I-212/2015. The Investigating Officer has conducted detailed investigation and collected the huge record connected with the offences including the record of the trust from the Assistant Charity Commissioner, record from Revenue Authorities and after completion of the investigation, submitted chargesheet which is more than 600 pages. The police have recorded the statement of the various persons and authorities and submitted chargesheet against both the applicants in the Court of learned Judicial Magistrate First Class, Aurangabad. On perusal of the entire investigation papers, it clearly reveals that the applicants have committed the said offences and therefore the full-fledged trial against them for the said offences is necessary. In the full-fledged trial, the evidence can be led and scrutinized. In support of contention that respondent no.2 is interested person, the learned counsel appearing for the complainant pressed into service exposition of law in the case of Shree Gollaleshwar Dev and Ors. Vs. Gangawwa Kom Shantayya Math and Ors. (AIR 1986 SC 231)and submits that in that case the Supreme Court held that the definition of expression person having interest in trust under Section 2 (10) of the Bombay Public Trusts Act was wide enough to include beneficiaries of a temple, math, wakf and also trustees. He further submits that Delhi High Court has taken a view in the case of Rajiv Gandhi Ekta Samiti Vs. Union of India and another (2000 Cri.L.J. 2002)that any one can set or put the criminal law in motion, and therefore, it is not necessary that the member of the trust only should file the complaint / FIR.
14. It is submitted that applicant Suresh Puri is also involved in other criminal cases. He is involved in a criminal case for the offence punishable under Section 376 of the IPC. He was also placed under suspension by the University. He had indulged in several illegal activities. He has illegally sold the property belonging to the trust, which was purchased by the trustees of the said trust from their contribution and donations given by public at large, and particularly from the community for which the said trust is registered. Said trust is registered with certain aims and objects, and to achieve said objects the property was purchased. However, by preparing the false documents the applicant Suresh Puri and another applicant Motiraj Rathod, who are trustees of the said trust, without notice and knowledge to other trustees and members of the trust sold the property. Shri Janardhan Kisanrao Pawar, who is also trustee, has raised the objection before various authorities including Assistant Charity Commissioner, Tahsildar and Sub Divisional Officer about the illegal transaction of sale. It is submitted that the applicants Suresh Puri and Motiraj Rathod by misrepresenting that the said property is the self acquired property and belonging to the applicant Suresh Puri, and he has purchased the same from his own fund and he is absolute owner and possessor of the said property, sold the said property by playing fraud. Not only that but applicant Suresh Puri has prepared a false affidavit on oath, with the help of his daughter, who is practicing advocate, by playing fraud on the said trust and also by cheating the members of the communities for the benefit of which said trust is created and established. The said valuable property of the trust having market value about 80 to 90 crores is sold to Vasant Dada Sugar Institution, Pune by executing sale deed by the applicant Suresh Puri and applicant Motiraj Rathod by showing incorrect market value i.e. Rs.6 crores 60 Lacs, of the said land, and got distributed the said amount between them. Not only that but remaining property of 11 Hector 96 R. from the same Gat Number, they are trying to transfer in the name of Vasantdada Sugar Institute, Pune by filing application under Section 59A (2) of the MPT Act before the learned Charity Commissioner, Bombay, by way of amalgamation of Vasantrao Naik Institute for Tribal Development, Aurangabad in said Institute. If the property was self acquired, there was no question of filing of an application under Section 50A (2) for amalgamation with Vasantdada Sugar Institution, Pune. Thus the present applicants by playing the fraud with ill motive, ill intention and to deceive the trust i.e. Vasantrao Naik Institute for Tribal Development, Aurangabad and the society and more particularly to the communities for which the said trust was created for charitable purpose to protect the interest of Banjara community, illegally sold the property to the extent of 11 Hector. Thus, the applicants have committed serious illegal act to gain crores of rupees by selling property of the trust.
15. It is submitted that total land to the extent of 22 Hector 96 R. was purchased by two different sale deeds; one sale deed is in the name of Vasantrao Naik Institute for Tribal Development, Aurangabad and another one is for National Institution of Rural Reconstruction. The trustees of Vasantrao Naik Institute for Tribal Development, Aurangabad had decided to register the National Institution of Rural Reconstruction and purchase the property. Subsequently the said society i.e. National Institution of Rural Reconstruction could not register. Therefore, the property which was purchased in the name of the said institution was decided to be entered in the name of Vasantrao Naik Institute for Tribal Development, Aurangabad by passing various resolutions by the then Managing Committees, since the properties were purchased from the membership fee and donations given by the trustees/members of Vasantrao Naik Institute for Tribal Development, Aurangabad. However, the applicants Suresh Puri and Motiraj Rathod, who are members of the Vasantrao Naik Institute for Tribal Development, Aurangabad, with collusion sold the property to the extent of 11 Hector of the said trust, showing that they are absolute owners of the said property, and the said property is purchased by them from their own income and same is their private property, by keeping the other members and the trustees in dark. After getting the knowledge of the sale illegal transaction, immediately respondent no.2, who is the social worker and working for the interest of Banjara Community lodged the FIR. The concerned Investigating Officer has thoroughly investigated into the said matter and filed the charge sheet of 656 pages. There is sufficient material on record to prove the guilt of the applicants. The applicants have committed the serious offences and it is not the case of quashing the FIR/chargesheet. There is sufficient material on record for proving the commission of offence by the applicant Suresh Puri. Applicant Suresh Puri has deceived the public at large by selling the property of the institution showing that the said property is his own property, and received the amount in crores of rupees. The very purpose of registration of said institution is defeated and the property which is purchased by the said institution from the donations and collections given by the people of the Banjara community is sold by the applicant Suresh Puri for his personal gain.
16. From the documents collected by the Investigating Officer, which is part of the chargesheet clearly show that the property in question was purchased for the society by its members and the same was not private property of the applicant Suresh Puri. On perusal of the sale deeds itself show that the property is purchased for the said trust and it was not individual property and therefore no more evidence is necessary to prove the status of that property. Not only that but several resolutions are passed by the said trust to register the said property as the trust property in the record of the Charity Commissioner. Such applications were also made by the then trustees and those were not prosecuted. Even the mutation is also sanctioned by the revenue authorities in the name of the said trust. Even the resolutions were also passed by the trustees that another society is not registered in whose name 11 Hector land is purchased with an object to construct the houses for the poor people of the community. However, the said society was not registered and subsequently it was decided that the said land i.e. 11 Hector is to be recorded in the name of original trust i.e. Vasantrao Naik Institute for Tribal Development, Aurangabad. The said resolutions, which are duly signed by the applicants Suresh Puri and Motiraj Rathod, are part of the charge sheet, and therefore, in view of said resolutions, they are not entitled to say that it is their individual property, and they are absolute owner and they have purchased the said property from their own funds, and they have right to sell the said property. Even investigating agency has collected the receipts of the payment made by the various members of the trust which is purchased in the year 1981 for Rs. 65,000/- i.e. 22 Hector 96 R., from one Rangnath Parkhe and his sons. An agreement to sell, registered sale deeds are the part of the record of the charge sheet. The investigation agencies have recorded the statements of family members of the original land owner, who have stated that the said property was sold to the said trust. There is sufficient material to show that the property is belonging to the said society and not individual property of the applicant Suresh Puri.
17. It is submitted that the said trust is not formed or registered by the applicant Suresh Puri only, but all the members of the community came together and they elected body of eminent persons. From perusal of copy of the resolution, which is part of the chargesheet it is clearly reveals that the amount was raised for purchasing the land by way of donations. The properties sold by the applicants belonging to the trust is sold by them for private gain in collusion with each other, with fraudulent intention to cheat not only the members of the trust but the people from the Banjara community. The said offence is an offence against the society and public at large which is cognizable in nature and therefore the said needs to be tried before the trial Court.
18. The learned counsel further submits that the trust was registered for the interest of the persons from the Banjara community to provide them educational facilities and for their development. Even the property was purchased for construction of the houses to the poor people of the community. One of the founder members Mr.J.K.Pawar has also filed an application for intervention. He has also filed application with the authorities so as to take action against the applicants for their fraudulent act to cheat the members of the society and sale the property of the trust for their own benefit. The learned counsel invites our attention to the copies of the resolutions and the documents placed on record which is part of the chargesheet and submits that those resolutions will unequivocally indicate that both the properties were purchased for the benefit of the trust as well as the National Institution of Rural Reconstruction. The trustees of the proposed Sanstha and the trustees of the Vasantrao Naik Institute for Tribal Development, Aurangabad, are one and same. Both the applicants have played fraud, and the applicant Suresh Puri sold 11 Hector land by executing sale deed in the name of the Vasantdada Sugar Institution, Pune, by cheating the members of the trust and members of the Banjara community and also there is breach of trust inasmuch as they were requested to deal with the properties being trustee of the said trust for the benefit of the trust and also members of the Banjara community. It is submitted that the applicant Suresh Puri posing that the property to the extent of 11 Hector is his own property sold it to the Vasantdada Sugar Institution, Pune and thereby deceived and cheated the members of the trust and also the members of the Banjara community and another applicant Motiraj Rathod, who is co-accused made a show by objecting for the sale of the said property by the applicant Suresh Puri. If the said property was belonging to the applicant Suresh Puri, then there was no question of filing of an objection by the applicant Motiraj Rathod, who is co-accused. If the property was owned by the applicant Suresh Puri in his individual capacity, there was no question of obtaining consent of the applicant Motiraj Rathod on the sale deed of 11 Hector land which is executed in favour of Vasantdada Sugar Institution, Pune. The applicant Suresh Puri and applicant Motiraj Rathod in collusion with each other by deceiving and cheating with dishonest intention, sold the property of the trust representing that the said property was their own property and collected huge amount in crores of rupees and used the same for personal gain. One Mr.Ashok Raibhan Rathod, who is member of the Banjara Community, has also raised objection for selling the property, but his objection was not considered and the sale deed was executed.
19. It is submitted that by misrepresentation the applicants obtained signature of J.K.Pawar on the proposal for amalgamation of the said trust with Vasantdada Sugar Institution, Pune. After noticing mischief played by the applicant, the said J.K.Pawar has filed an objection before the Charity Commissioner as well as Sub Division Officer and raised objection to the mutation sanctioned in favour of the Vasantdada Sugar Institution, Pune. It is submitted that the property was not purchased in the year 1981 in the partnership of the applicant Suresh Puri and applicant Motiraj Rathod. However, the said property was purchased in the name of the Vasantrao Naik Institute for Tribal Development. The property was purchased by two separate sale deeds i.e. 11 Hector 96 R. and 11 Hector total 22 Hector 96 R. by paying consideration of Rs.65,000/- from the funds of the members of the Banjara community, who have donated the said funds. There are resolutions which are placed on record showing that the then President K.B. Jadhav made efforts by passing those resolutions to enter the said property i.e. 22 Hector 96 R. in the name of the said trust.
20. The learned counsel invites our attention to the various resolutions and submits that the present applicants have signed those resolutions which show that the entire property from Gat No.243 to the extent of 22 Hector 96 R. has been treated as property of the trust and the Rural Reconstruction Sanstha. It is submitted that the application of the applicant Suresh Puri for pre-arrest bail was rejected by the High Court and also by the Supreme Court. The applicant Suresh Puri was directed to surrender. Thereafter, applicant Suresh Puri was released on bail on condition to deposit the amount of Rs.6.60 lacs. The learned counsel invites our attention to the resolutions and minutes of the proceedings of the said trust dated 11th January, 1981, 10th May, 1981, 14th June, 1981, 22nd April, 1981, 25th June, 1995 and 13th June, 1996 and submits that it was resolved by way of passing those resolutions that total land 22 Hector 96 R. are the properties of the said trust. In the minutes of the meeting dated 20th April, 1994 the clarification was given that instead of purchasing 60 Acres land in the name of one institution, it is better to purchase the land in the name of two different institutions and therefore it was purchased in the names of two different institutions. The minutes of meeting dated 13th July, 1996, shows that it was resolved to manage both institutions. The said minutes are duly signed by the applicants Suresh Puri and Motiraj Rathod. The letter was addressed to the Tahsildar requesting him to record disputed land admeasuring 11 Hector in the name of Vasantrao Naik Institute for Tribal Development, Aurangabad. The copy of the letter issued by the applicant Motiraj Rathod i.e. co-accused to the office of the Charity Commissioner shows that he has admitted that it is trust property but it was rocky land and its cultivation is not possible. All these documents clearly shows that since beginning said land was intended to be purchased for the institution and not for the benefit of any individual. It was purchased out of the funds contributed by the founder members and by the donations given by other persons and not from the individual income as claimed by the applicants. The documents clearly show that the members of the trust were made to believe that it is trust property. Even if it is assumed that it was self acquired property of the applicant Suresh Puri from his own funds, in that case there was no need to obtain signature of applicant Motiraj Rathod as consenting part to the said sale deed and pay him Rs.3.30 lacs.
21. The learned counsel also invites our attention to the memorandum of understanding between applicants namely Suresh Bhagwan Puri and Motiraj Bhajnu Rathod dated 10th February, 2014, wherein in clause (3) it is stated that the property which is mentioned in the said memorandum of understanding belongs to the society, and therefore, it cannot be said that the property to the extent of 11 Hector is individual property of Suresh Bhagwan Puri.
22. The learned APP appearing for respondent State invites our attention to the chargesheet and also accompaniments of the chargesheet and submits that the Investigating Officer has collected the sufficient material which would clearly demonstrate that the land, which was purchased to the extent of 22 Hector 96 R. was purchased for the benefit of the trust and also Rural Reconstruction Sanstha to construct the houses to the member of Banjara community. The applicants Suresh Puri and Motiraj Rathod have played fraud, cheated the other members of the trust and people of the community and also there is breach of trust since they were asked to look after the said property, however, the property i.e. 11 Hector was sold by them. Therefore, he submits that both the applications deserves to be rejected.
23. We have heard the learned counsel appearing for the parties at length. With their able assistance, perused the averments in the application, annexures thereto and in particular the investigation papers including the chargesheet and its accompaniments made available for the perusal of this Court by the learned APP for the respondent State.
24. According to the learned counsel appearing for the applicants, the complaint should not have been entertained at the instance of the respondent no.2 since he is not a member of the trust or no way concerned with the affairs of the trust or the Rural Reconstruction Society, and therefore, the entire proceedings based upon such complaint deserves to be quashed. In this respect, it is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary, as has been held by the Delhi High Court in the case of Rajiv Gandhi Ekta Samiti (cited supra). Apart from it, it is brought on record by the respondent no.2 that he belongs to Banjara community. He is a social worker and he is making continuous efforts for the welfare of the said community. One of the objects to form Vasantrao Naik Institute for Tribal Development and Rural Reconstruction Society is for the welfare of the members from the Banjara community. Therefore, we are not prepared to accept the contention of the applicants that the complaint filed by the respondent no.2 was not maintainable.
25. Upon careful perusal of the copies of documents / accompaniments of the chargesheet, it appears that the Investigating Officer has collected the number of documents running it to around 600 pages including various resolutions passed by the trustees, which would clearly show that the entire land to the extent of 22 Hector 96 R. (approximately 60 Acres) was purchased for the benefit of the trust. Upon careful perusal of Isar Pavti (earnest money receipt) which was executed on 18th March, 1981, it clearly appears that applicant Motiraj Rathod, and another applicant Suresh Puri and Baburao Nivrutti Jagtap represented Vasantrao Naik Institute for Tribal Development and on the other side, Rangnath Bhawani, Vishwanath Bhawani, Eknath Bhawani, Kashinath Bhawani executed Isar Pavati in favour of the trust, the total area of land mentioned in the said Isar Pavati is 23 Hector 19 R. from Gat No. 243 situate at village Satara. The consideration amount mentioned in the said Isar Pavati is Rs.65,000/-. It appears that Rs.10,000/- was paid to the land owners as an advance. Thereafter, it appears that there is another document showing that the amount an advance Rs.10,300/- was paid not only by Motiraj Rathod, Suresh Puri, but even by Shri J.K.Pawar, who has filed intervention application in the present proceedings. It further appears that the Investigating Officer has collected various receipts (vouchers) showing donation given by the various members to the proposed Rural Reconstruction Society, Naik Nagar, Aurangabad. It appears that on 10th May, 1981, J.K.Pawar paid Rs.11,000/- towards donation, Asaram Rajaram Jadhav paid Rs.1100/-, Sushila Ravindra Surve paid Rs.2000/- as membership fee, Suresh Puri paid Rs.2000/-, Motiraj Bhajnu Rathod paid Rs.2,000/towards membership fees. Dr.Purushottam Murlidhar Darak also paid Rs.2,000/-. Benjamin Balwantrao Patil paid Rs.2,000/-. Kishansingh Meharsingh Chavan paid Rs.2,000/-. Narayan Shankararo paid Rs.2,000/-. Asaram Rajaram Jadhav paid Rs.2,000/-. Kanhaiyalal B. Jadhav also paid Rs.2,000/-. Ashok Shriniwasrao paid Rs.2,000/- for membership fees/donation.
26. It further appears that the fee is also separately deposited for the proposed Vasantrao Naik Institute for Tribal Development. The fees for membership is deposited by the various members. Therefore, it clearly emerges from the perusal of the said receipts that the various persons deposited Rs.2,000/- towards membership fees of the proposed Rural Reconstruction Society, Naik Nagar, Aurangabad and also proposed Vasantrao Naik Institute for Tribal Development. Therefore, the claim of the applicants that only they have contributed towards donation and purchased the land to the extent of 11 Hector from Gat No.243 does not appear to be correct statement.
27. As already observed, even upon careful perusal of the contents of the sale deed it clearly appears that in the column of purchaser, the name of the Rural Reconstruction Society is mentioned through Suresh Bhagwan Puri. Therefore, there is no slightest doubt that the said sale deed was executed by the Rural Reconstruction Society represented by the applicant Suresh Puri. It is also mentioned in the said sale deed that:
.
28. Therefore, it is abundantly clear that the said land to the extent of 11 Hector which is subject matter of the said sale deed dated 3rd June, 1981 was purchased by the Rural Reconstruction Sanstha through the applicant Suresh Bhagwan Puri. There is also another sale deed wherein the land to the extent of 11 Hector 96 R. was purchased by Vasantrao Naik Institute for Tribal Development, Naik Nagar, Aurangabad through Motiraj Rathod. The sale deed also clearly shows that the purchaser of the land is society and the same land is sold for the society. Upon careful perusal of the document prepared by both the applicants i.e. copy of the memorandum of understanding dated 10th February, 2014, which is part of the investigation papers, it prima facie appears that both the applicants contrary to the various Resolutions have mentioned in the memorandum of understanding that the property to the extent of 11 Hector from Gat No.243 is self acquired property. The relevant portion of memorandum of understanding, reads thus:
/
.
, /
,
.
. .
The contention of the learned counsel appearing for the applicants that, in schedule-I of the trust only the land to the extent of 11 Hector 96 R. is mentioned and not remaining 11 Hector, is a matter for appreciation of the evidence by the concerned Court. The Investigation Officer has collected certain documents showing that the entire land i.e. 22 Hector 96 R. was purchased by the Vasantrao Naik Institute for Tribal Development and Rural Reconstruction Society.
29. As already observed, there are various resolutions passed time to time by the governing council of trust, which shows that the entire land was purchased by the trust and the Rural Reconstruction Society represented by the applicants while purchasing the said land. It appears that the members of the trust trusted the applicants and the land was purchased in their name, and they were entrusted with the said property for taking proper care so as to use it for the benefit of the members of the trust and also the members of the Rural Reconstruction Society and also for the benefit of the members of Banjara Community. By way of executing sale deed by the applicant Suresh Puri in favour of the Vasantrao Naik Institute for Tribal Development posing that 11 Hector property was purchased, is self acquired property, would prima facie attract ingredients of the alleged offences against both the applicants. The documents prepared by the applicants in the nature of memorandum also needs to be appreciated during the course of trial.
30. There is copy of resolution dated 22nd April, 1984, collected during the course of investigation. It appears that the meeting was conducted under the Presidentship of the Motiraj Rathod on 22nd April, 1984, and certain resolutions were passed. The contents of the said Resolution reads thus:
.1 : .
.
, 59
(22 96 )
.
31. The contents of the aforesaid Resolution, which was unanimously passed, would clearly demonstrate that the total land was of concerned society, and said land was not purchased in the individual capacity of the applicants. There is also another Resolution dated 22nd July, 1995, it appears that the meeting was conducted on that day, which was attended by 10 trustees including the applicants. It was informed by the applicants to other members that, Isar Pavti is executed for total 60 Acres land and sale deed is executed in the name of Vasantrao Naik Institute for Tribal Development through Motiraj Rathod to the extent of 30 Acres and remaining land approximately 30 Acres in the name of the National Institute for Rural Development through Suresh Puri, and it was decided that the land which was purchased in the name of National Institute for Rural Development should be entered into the name of the Vasantrao Naik Institute for Tribal Development. Therefore, the contents of the said Resolution would clearly demonstrate that the land to the extent of 11 Hector was not purchased in the individual name by paying total consideration amount by Shri Suresh Puri as claimed by the applicants. It appears that there was further resolution on 6th October, 2012, and it was decided that the total land to the extent of 22 Hector 96 R. to start Vasantrao Naik Sub Centre with the help of Vasantdada Sugar Institute, Manjari Bk, Taluka Haveli, District Pune, be given to said Institute. The correctness of the said resolution is questioned by J.K.Pawar, however, the fact remains that the total land of 22 Hector 96 R. was treated as the land belonging to the said trust. There is also resolution on 13th July, 1996, which also indicates that the entire land was considered is that of the trust.
32. We have carefully perused the copy of Rules and Regulations governing the business of the Vasantrao Naik Institute for Tribal Development, Aurangabad, which is part of the accompaniments of the chargesheet. It appears that as per clause 6 of the said Rules and Regulations, the business and affairs of the Society shall be carried on and managed by the Governing Council. The Governing Council shall be constituted of 21 members. The trustees of the Society shall be the Ex-Officio members of the General Council. Eight members from amongst the Patron Members to be elected at the General Meeting by Patron Members entitled to vote. The 8 elected members and the trustees shall be at liberty to co-opt other members. The clause 7 speaks about the trustees. It is stated that number of trustees shall be 13. Such trustees shall be the trustees of the society for life. It appears that name of applicant Motiraj Bhajnu Rathod stands at serial no.1 and name of applicant Suresh Bhagwan Puri stands at serial no.4. In all there are 13 members. The name of Dr.Purushottam Murlidhar Darakh whose statement has been recorded by the Investigating Officer stands at serial no.3. The name of Janardhan Krishnarao Pawar whose statement has been recorded by the Police stands at serial no.11. It is further stated that the trustees shall collect and receive the income of the trust funds. All investments of the trust funds including deposits, receipts and all deeds and documents of title relating to any of the property of the society shall be kept for safe custody with the trustees or with a Bank approved by the Governing Council. It is also stated that the trustees shall deal with and dispose of all properties of the Society whether movable or immovable, for the time being vested in them and appropriate the income thereof, in accordance with the directions of the Governing Council. No person shall be elected as a Trustee who is not a Founder Member.
33. Therefore, it clearly appears that the present applicants, who are trustees and founder members, were authorized to deal with the immovable property i.e. the land from Gat No.243 to the extent of 22 Hector 96 R. It clearly emerges that the applicants, as founder members and trustees, were supposed to deal with the movable and immovable property in the capacity of the trustees so as to fulfill the objectives of the trust. The memorandum of association is also part of the papers of the investigation and chargesheet. The said Vasantrao Naik Institute for Tribal Development, Aurangabad, is formed with the aims and objects to arrange the various activities for the development of the Nomadic Tribes, Denotified Tribes, Scheduled Tribes, Backward Communities and people from the economically backward class (Tribal members of the Scheduled Tribe, Nomadic Tribes and Denotified Tribes). The aims and objects of the said trust are to carry out the various activities for the benefit of the categories tribes people from the aforementioned tribes / communities and people from the economically backward class. The Rural Reconstruction Sanstha was also formed for the purpose of constructing the houses for the poor persons. The Investigating Officer has recorded the statement of Shri Dr.Purushottam M. Darak on 5th September, 2015.
34. As already observed, Dr.P.M.Darak is a original founder member and trustee of the Vasantrao Naik Institute for Tribal Development, however, it appears that subsequently he has resigned as a trustee. In his statement, he has stated that the land to the extent of 22 Hector 96 R. belongs to the Vasantrao Naik Institute for Tribal Development and the same was purchased in the year 1981 for Rs.65,000/- from the land owners. Out of said land to the extent of 11 Hector was purchased in the name of Rural Reconstruction Sanstha through Subhash Puri. The purpose for purchasing the said land was to construct the houses for the poor and unemployed landless labourers from the rural area in cheaper and affordable rate, and accordingly, the land to the extent of 11 Hector was purchased for the said purpose and remaining 11 Hector 96 R. land was purchased to achieve the aims and objects of Vasantrao Naik Institute for Tribal Development. The entire land of 22 Hector 96 R. was to be registered in the name of Vasantrao Naik Institute for Tribal Development and to that effect Resolution was passed and the office of Charity Commissioner was communicated accordingly. There is also statement of J.K.Pawar, who is also a founder member of the Vasantrao Naik Institute for Tribal Development. He also contributed Rs.5000/- membership fees. When the Vasantrao Naik Institute for Tribal Development was formed, applicant Motiraj Rathod was appointed as President and Subhash Puri was appointed as Secretary. An eleven Hector land was purchased for the purpose of construction of the houses for the poor and unemployed landless labourers from the rural area in cheaper and affordable rate. He further stated that the resolution was taken in respect of 22 Hector 96 R. land to be registered in the name of Vasantrao Naik Institute for Tribal Development, and accordingly, the office of the Charity Commissioner and also the Tahsildar was communicated.
35. There is also statement of legal representatives of other founder members, who have stated that the said land was purchased for the benefit of the poor person so as to achieve the aims and objects of the Vasantrao Naik Institute for Tribal Development. There is detailed statement of Baburao Deepaji Pawar dated 02.09.2015, he has also stated that Vasantrao Naik Institute for Tribal Development, Aurangabad was formed in the year 1981. Each of the members has contributed Rs.5,000/- and total amount of Rs.65,000/- was collected from 13 members. He has given statement in the capacity of the patron member of the Vasantrao Naik Institute for Tribal Development. He has mentioned the details about the various Resolutions passed by the Committee managing the affairs of the society. He has stated that when the objections were invited for selling the 11 Hector property, the various members have raised objections on the ground that Rural Reconstruction Sanstha is formed for construction of the houses for the poor and unemployed landless labourers from the rural area in cheaper and affordable rate. He has mentioned in his statement the various resolutions and also letters were sent to the office of the Charity Commissioner, Government Authorities. Besides this, there are also statements of the original land owner and his legal representatives stating therein that the land was sold by executing two sale deeds to the Vasantrao Naik Institute for Tribal Development and Rural Reconstruction Sanstha in the year 1981 for the benefit of the Vasantrao Naik Institute for Tribal Development. The total land from Gat No.243 was sold for the benefit of Vasantrao Naik Institute for Tribal Development and land not sold to any individual or for the benefit of the individual.
36. In the light of the discussion in the foregoing paragraphs and upon going through the various documents collected by the prosecution agency, which is now part of the chargesheet, it clearly emerges that the offences alleged against the applicants are disclosed and also the prosecution agency has collected enough material and on the basis of the said documents / material trial can proceed. The Supreme Court in the case of Asoke Basak Vs. State of Maharashtra and Ors. (2010 ALL SCR 2494) observed that for constituting an offence of criminal breach of trust, the following ingredients must be satisfied:
(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
37. In the facts of the present case, in the capacity of the trustee the property was entrusted with the present applicants by the trust and prima facie it appears that they have disposed of that property for own use by posing that the property to the extent of 11 Hector was purchased in the name of Suresh Puri from his own earning. The applicants have created the documents in the nature of memorandum of understanding dated 10thFebruary, 2014 and there are allegations in the FIR which are supported by the documents placed on record that the said document was created with an intention to sell the said property posing that the said property to the extent of 11 Hector is purchased by Suresh Puri from his own source of income and is a self-acquired property of both the applicants, though the property belongs to the said society. It is not necessary for us to elaborate the reasons since the applicants will have to face trial and during trial, the applicants will have opportunity to prove their innocence and the prosecution will have opportunity to prove its case. It is the contention of the learned counsel appearing for the applicants that the dispute is of civil nature and therefore in case if any body is aggrieved by the sale transaction, he /she can approach the Civil Court or to the office of the Charity Commissioner. In this respect, the law is very clear. The Supreme Court in the case of Vijayander Kumar and others Vs. State of Rajasthan and another (2014) 3 SCC 389) while considering similar argument taken a view that in a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to informant / complainant that itself cannot be a ground to quash a criminal proceeding. Real test is whether allegations in complaint disclose a criminal offence or not. The Supreme Court in the case of Bhaskar Lal Sharma and another Vs. Monica and others (2014) 3 SCC 383) while considering the scope of Section 482 of the Criminal Procedure Code held that core test that has to be applied before summoning the accused is that the facts stated against accused have to be accepted as they appear on the very face of it. Appreciation, even in a summary manner, of averments made in a complaint petition or FIR is not permissible at the stage of quashment of criminal proceeding. Facts, as alleged, will have to be proved which can only be done in the course of a regular trial. The Supreme Court in the case of Ravindra Kumar Madhanlal Goenka and another Vs. Rugmini Ram Raghav Spinners Private Limited (2009) 11 SCC 529) while considering the scope of Section 482 of the Criminal Procedure Code, has taken a view that while entertaining the prayer for quashing the FIR, when there are prima facie materials available (against accused), a petition for quashing criminal proceedings cannot be entertained. Investigating agency should have freedom to go into whole gamut of allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases.
38. In the light of the discussion in the foregoing paragraphs, Criminal Applications are devoid of any merits, and hence same stands rejected.
39. It is clarified that the observations/reasons recorded in the judgment are confined to the adjudication of the present Criminal Applications, and the trial Court shall not get influenced by the said observations/reasons during the course of trial.
40. In view of the rejection of the Criminal Application Nos.6095/2015 and 6096/2015, Criminal Application No.4639/2016 and 4643/2016 also stands disposed of.