Civil Appeal No 707 of 1988
From the Judgment and Order dated 131087 of the Bombay High Court in A No 969 of 1984
SB Bhasme and AS Bhasme for the Appellant
Dr YS Chitale and RS Nariman for the Respondent No 16
Mrs Karanjawala and Ms Meenakshi Arora for the Caveator
The following order of the Court was delivered O R D E R Special leave granted against Respondent No 16 in so far as relief claimed against Respondent No 16
The Charity Commissioner of State of Maharashtra has approached this Court by way of Special leave in order to seek redress in respect of the observations made by the Division Bench of the High Court casting reflections on the conduct of the officials of the organization and in regard to their competence to decide matters in their quasi judicial capacity
He has also sought a direction against Respondent No 16 who is present by caveat
We are constrained to observe that the High Court might well have avoided casting reflections against the Deputy Charity Commissioner who was merely discharging his quasi judicial functions under the Bombay Public Trusts Act
He should have been permitted to discharge his functions in regard to the issues arising before him in the light of his own independent perspective
The 951 observations made by learned Single Judge by the very nature of things were of a tentative nature as the learned Single Judge was deciding the matter arising out of an interlocutary proceeding
In fact the observations made by the learned Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court
Besides an appeal to the Division Bench was pending
Under the circumstances taking a view which was different from the view reflected in the judgment of the learned Single Judge on the part of the Deputy Charity Commissioner could by no stretch of imagination be said to have been made in scant regard of the judgment of the High Court
Nor could it ever have been construed as exhibiting disrespect for the High Court
The Division Bench went far too far in observing to the effect that what the Deputy Charity Commissioner had done in discharging his quasi judicial functions would constitute contempt of Court
Learned Deputy Charity Commissioner was entitled to take his own view subject to his decision being questioned in accordance with law before the High Court
The observations made against the Deputy Charity Commissioner were therefore altogether uncalled for and unfair
We therefore direct that these observations be treated as non existent
We wish to make it clear that the Deputy Charity Commissioner has not been amiss or at fault in the smallest respect in taking the view which commended itself to him and which he was at full liberty to take under the law
We wish to place on record that nothing said in the judgment of the Division Bench in Appeal No 969 of 1974 should be construed as a reflection on the learned Deputy Charity Commissioner
We are also of the view that the observations made in regard to the mode of recruitment to the office in question were also uncalled for and should be treated as non existent
In the facts and circumstances of the case the Division Bench might will have permitted the Charity Commissioner to be substituted for the appellant before the Court for he was merely making sincere endeavour in the discharge of his official duties to protect the interest of the charity as he was duty bound to do so as to be true to his office
We have heard the learned counsel for the Respondent No 16 in regard to the relief claimed against him
Both counsel are agreeable to the directions which follow
The status quo in regard to the property in question shall be maintained and Respondent No 16 shall not get executed or obtain a sale deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of by the 952 Assistant Charity Commissioner or by the Appellate Authority if any appeal is carried
The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court which have given rise to the present Special Leave Petition
We express no opinion on merits in regard to the effect of the relevant clauses of the Will as indeed we cannot do
The Assistant Charity Commissioner will dispose of the matter pending before him with expedition preferably within the outside limit of six months
The matter shall stand disposed of accordingly
GN Appeal disposed of


Summary:
 A trust with the settler her son and two others as trustees was created
Part of the trust property included a large house
Respondents in Criminal Appeal No 658 of 1986 were employed as Secretary and Manager of the trust between 1976 and June 1981
On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers in conspiracy with one of the trustees son of the settler and his wife had created documents showing tenancy in respect of a flat of the large house forming part of the trust property in favour of the aforesaid trustee s wife summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC
The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused but sustained the order of the Magistrate against the other two accused appellants in Civil Appeal No 657 of 1986
931 Appeals against the aforesaid order were filed in this Court both by the two accused whose prosecution was not quashed as also the complainant
On behalf of the accused appellants it was contended that the trust deed authorised the trustee to look after the affairs of the trust but the tenancy in favour of the trustee s wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income that there was no mens rea involved for initiating criminal proceedings and at the most it amounted to a civil wrong and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out
On behalf of the complainant it was urged that in view of section 53 of the  it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence and an opportunity should be given to the complainant to establish his case by leading evidence and that no objection could be taken at the preliminary stage
Allowing the appeal of the accused and dismissing the appeal of the complainant the Court  HELD When a prosecution at the initial stage is asked to be quashed the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence
It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue
This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and therefore no useful purpose is likely to be served by allowing a criminal prosecution to continue the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage
934G H 935A A case of breach of trust may be both a civil wrong and criminal offence
But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence
The instant case is one of that type where if at all the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting
935B C 932 Having regard to the relevant documents including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee s wife does not claim any interest in the tenancy the criminal case should not be continued
The criminal proceedings against the appellants accused are quashed
934F 935C D