1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.286 of 2009 In Criminal Writ Petition No.1581 of 2006 Vijay K. Mehta Applicant Vs. State of Maharashtra & anr. Respondents With Criminal Application No.289 of 2009 In Criminal Writ Petition No.1719 of 2006 Rekha Shah Applicant Vs. State of Maharashtra & anr. Respondents Mr.Amit Desai, Senior Advocate with Mr.Sanjeev Kadam Mr.Atul Daga i/b. M/s. Wadia Gandhy & Co. for applicant in Criminal Application No.286 of 2009. Mr.Sushil Kumar, Senior Advocate with Mr.Sanjay Jain, Mr. Lalit Chauhan, Mr.Aditya Kumar, Ms.Jyoti Shah i/b. M/s. Daru Shah & Co. for applicant in Criminal Application No.289 of 2009. Mr.Mahesh Jethmalani, Senior Advocate with Mr.M.S. Mohite, Mr.Pranav Badheka, Mr.Ranvir Singh, Mr.Shane Sapeco and 2 Mr.Ajija Khatri i/b. Hariani & Co. for Intervenor – respondent. Mrs.M.M.Deshmukh, APP for State. CORAM: B.H.MARLAPALLE & SMT.ROSHAN DALVI,JJ. August 27, 2009. P.C. 1. Heard Mr.Sushil Kumar and Mr.Amit Desai, Senior Counsel for the petitioners and the learned APP for Respondent Nos.1 and 2. Mr.Mahesh Jethmalani, learned Senior Counsel appears for the original complainant. Both these applications pray to defer / suspend / adjourn Criminal Writ Petition No.1581 of 2006 and Criminal Writ Petition No.1719 of 2006 till the Change Report Nos.1565 of 2006 and 1466 of 2006 are disposed off by the Assistant Charity Commissioner. Mr.Sushil Kumar, the learned Senior Counsel invited our attention to the order passed by this Court (S.B.) in First Appeal No.2672 of 2007 on 27th February 2009 and more particularly the observations in para 7 therein which read as under: “The parties, it is agreed shall appear before 3 the Charity Commissioner for receiving directions on 6th March, 2009. On the aforesaid date the Charity Commissioner is requested to pass the necessary orders for assigning the change reports to one of the Assistant Charity Commissioners. The Assistant Charity Commissioner may consistent with the exigencies of his own work endeavour to make an expeditious disposal of the change reports preferably by the end of 30th September, 2009.” 2. It was submitted that the hearing before the Assistant Charity Commissioner as per the abovesaid directions is in progress and parties have submitted documents in support of their respective pleas and the said proceedings are likely to conclude by 30th September 2009. Any observations that may be made by this Court while deciding these two Writ Petitions may affect the pending enquiry by the Assistant Charity Commissioner at this stage and it would be, therefore, in the interest of justice that hearing of these petitions is adjourned till the end of October 2009 by which time the Assistant Charity Commissioner may conclude the proceedings and pass his final order in the Change Reports submitted by the petitioners. In support of these contentions Mr.Sushil Kumar relied upon the decision in the case of Tukaram Annaba Chavan& anr. Vs. 4 Machindra Yeshwant Patil & anr. [(2001) 3 SCC 33] and more particularly the following observations in paragraphs 10 and 11: “10. The controversy raised in the case relates to the election of the Board of Directors of the Modern Education Society, Atpadi, which is registered under the provisions of the Bombay Public Trusts Act, 1950. We were informed by the learned counsel for the parties that the matter is pending before the Assistant Charity Commissioner, Sangli who is to determine the validity or otherwise of the change report submitted by the appellants. On a perusal of the record we find that a contention that in the proceeding relating to the confirmation or otherwise of the change report a contention has been raised that the documents on the basis of which the report has been submitted have been forged and fabricated by the appellants. In all probability that question will also arise for consideration by the authority. 11. In the facts and circumstances of the case, it is our considered view that in the interest of justice and for a fair trial the proceedings in the criminal case should remain suspended till the proceeding pending before the Assistant Charity Commissioner, Sangli is disposed of by him. Accordingly it is ordered that further proceedings in regular Criminal Case No.82 of 1994 pending in the Court of Judicial Magistrate, 1st 5 Class, Atpadi shall remain stayed till disposal of the proceeding in CR (Change Report) No.385 of 1991 by the Assistant Charity Commissioner, Sangli. The appeal is disposed of on the terms aforesaid.” It was submitted by Mr.Sushil Kumar that in the instant case as well the complaint filed against the petitioners in the Court of the Additional Chief Metropolitan Magistrate, Mumbai is based on the premises that the petitioners have forged documents / signatures on 22nd July 1995 and as per the order passed in these petitions the report of the handwriting expert has been received and it states that the signatures are not forged. The said report is likely to be placed before the Assistant Charity Commissioner and any observations made by this Court while deciding these petitions may adversely affect the interest of either of the parties in the said proceedings in respect of Change Reports and in any case those proceeding have been made time bound. He also urged that no prejudice is likely to be caused to the complainants if the petitions are not heard for about two months or so. 3. Mr.Mahesh Jethmalani, the learned Senior Counsel for the complainants on the other hand has opposed the applications 6 and submitted that the petitions were fixed for hearing and final disposal by consent of the parties on the last date i.e. from 21/7/2009 to suit the convenience of the learned counsel for the respective parties. It was also pointed out that despite the order passed on 29/5/2006 for registering MECR No.5 of 2006 consequent to the order passed by the learned Additional Chief Metropolitan Magistrate on 22nd May 2006, the investigation into the complaint has not commenced during the last about three years on some count or the other despite the fact that there is no stay granted by this Court. Mr.Jethmalani submitted that the reliance of the petitioners on the decision in the case of Tukaram Annaba Chavan (Supra) is misplaced. The investigation has not yet commenced pursuant to the order passed by the learned Additional Chief Metropolitan Magistrate and as and when the investigation commences, it would lead to filing of a report / charge-sheet and at that time if the proceedings before the Charity Commissioner still remain inconclusive, nothing stops the petitioners from submitting an application before the learned Additional Chief Metropolitan Magistrate to stay the proceedings. He has further pointed out that the complainants do not accept the report of the handwriting expert and, therefore, it is required to be proved before the competent 7 Court. The order passed by this Court in First Appeal No.2672 of 2007, though is an order by consent, it cannot be said for certain that the proceedings before the Assistant Charity Commissioner would conclude either by the end of September 2009 or the end of October 2009 and in any case, the aggrieved party by such a decision has a remedy of filing an appeal under Section 22(3) of the Bombay Public Trusts Act, 1950. Mr.Jethmalani referred to the Constitution Bench decision in the case of Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370] and more particularly the following observations and submitted that the applications are required to be rejected and the petitions must proceed for final hearing: “32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the 8 basis of the evidence adduced therein.” 4. Mr.Jethmalani also referred to the subsequent decisions in the case of P. Swaroopa Rani Vs. M. Hari Narayana alias Hari Babu [(2008) 5 SCC 765] and Syed Askari Hadi Ali Augustine Imam and anr. Vs. State (Delhi Administration) and anr. [(2009) 5 SCC 528]. Swaroopa Rani’s case reiterated the well settled position that in a given case civil proceedings and criminal proceedings can proceed simultaneously and whether civil proceedings or criminal proceedings shall be stayed depends on the facts and circumstances of each case. Filing of an independent civil proceeding, although initiated in terms of some observations made by Civil Court, is not barred under any statute. In the case of Syed Askari Hadi Ali (Supra) a three- Judge Bench stated as under: “21. Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case. The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case. 9 22. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible....” 5. On the point of filing of these applications one day prior to the date fixed for hearing of the petitions, it was submitted by Mr.Amit Desai that the proceedings filed under Section 41D of the Bombay Public Trusts Act were pending and, therefore, such application could not be moved immediately after the order dated 27th February 2009 passed in First Appeal No.2672 of 2007. Mr.Mahesh Jethmalani also pointed out that the Change Report based on the resolution passed on 22nd July 1995 has been filed for the first time by the petitioners in the year 2006 and in any case the finding that may be recorded by the Assistant Charity Commissioner while deciding these Change Reports cannot be any bearing on the criminal complaint filed against the petitioners and that complaint will have to proceed on its own merits. 10 6. We have given our anxious considerations to the lengthy arguments advanced by both the parties. It is true that when petitions were circulated before us on 21/72009 it was agreed that they should be heard and decided finally without waiting any further and, therefore, as per the convenience of the parties the petitions were listed on today for final hearing. These applications were circulated yesterday, of course, with the leave of the Court. As per the scheme of the Bombay Public Trusts Act the order passed by the Assistant Charity Commissioner receives its finality only when an appeal thereon is decided and even thereafter nothing stops the aggrieved party approaching this Court (S.B.) and then may be a Letters Patent Appeal before the Division Bench. Thus the finality to the order passed by the Assistant Charity Commissioner is a matter of great uncertainty and it cannot be said for sure that the Assistant Charity Commissioner will be able to conclude these proceedings by the end of September 2009 or by the end of October 2009. The opinion submitted by the handwriting expert on the issue of signatures is required to be proved before the competent Court and in any case the findings to be recorded by the Charity Commissioner in the pending proceedings on Change Report will 11 have no bearing on the complaint filed against the petitioners as the said complaint is required to be decided on its own merits and on the basis of the evidence that may be adduced. When the petitioners themselves have invoked our extraordinary jurisdiction under Article 226 of the Constitution read with the inherent powers under Section 482 of the Criminal Procedure Code for quashing of MECR No.5 of 2006 as well as the order passed by the learned Additional Chief Metropolitan Magistrate on 22nd May 2006, the petitioners’ applications to adjourn the final hearing of the petitions is uncalled for. We have also noted that the application under Section 41D of the Bombay Public Trusts Act has been filed on 17/11/2006 and the pendency of the said application cannot be accepted to be a reason in support of these applications moved so belatedly. The record also indicates that the investigation to be undertaken by the concerned police station was not stayed and despite the same the investigation has not yet commenced though a period of three years has gone by. We, therefore, do not find any justification in the prayer made in these applications. Hearing of the petitions for final decision by itself cannot cause any prejudice to either of the parties. The prayer for adjournment is founded on the basis of the handwriting expert’s report which is 12 disputed by the complainants and in these circumstances, we are not impressed by the reasons set out in support of the motion for adjournment till the conclusion of the change report proceedings pending before the Assistant Charity Commissioner. 7. In the premises, there is no justification to entertain these applications and the same are rejected. (SMT.ROSHAN DALVI,J.) (B.H.MARLAPALLE,J.)