1 Cri.Appeal 50/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.50/2010. Balasaheb s/o Rangnathrao Kulkarni - APPLICANT VERSUS The State of Maharashtra & Anr. - RESPONDENTS ***** Mr.SB Ghute Advocate for Applicant; Mr.KM Suryawanshi, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 17th January, 2011. PER COURT : 1) Heard learned Counsel extensively. 2) Quashment of proceedings for an offence under Sections 406 and 409 of Cr.P.C., initiated at the instance of Secretary of Agriculture Produce Market Committee, Mantha (for short, APMC), is sought by the accused/applicant, who was officiating as Ex-Secretary of the APMC. 3) The accused/applicant, being a Secretary of APMC, had earmarked duties to discharge, which also constitute his domain over the official record of APMC. If the accused/applicant is relieved of his charge, it is expected under the 2 Cri.Appeal 50/2010 provisions of law and even under APMC Rules, that he should relieve himself of the official record. No power vests in the accused/applicant after his discharge from the official capacity. The long- drawn feud between applicant/accused and the next incumbent/successor by itself could not be a ground for him to retain the official record, which was of vital importance to the regular and day-to-day activities of APMC. 4) The learned Counsel for the applicant/accused submits that the prosecution for the offence under Sections 406 and 409 of Cr.P.C. is not maintainable. He read ingredients thereof and submits consequently, in terms of the powers vested in this Court under Section 482 Cr.P.C., the prosecution should be quashed. 5) The learned counsel, in order to stress his point, relied upon the judgment of the Hon’ble Supreme Court in the matter of Chandrapalsing and Ors.Vs. Maharaj Singh and Anr. AIR 1982 SC 1238. The Hon’ble Lordships observed, in the complaint filed under Section 200 Cr.P.C., there was not a single word as to what is existing evidence destroyed by the accused individually or conjointly in respect of an offence which was already committed with the intention of screening the offenders. Therefore, 3 Cri.Appeal 50/2010 on the averments of the complainant himself in the complaint, no Court could have taken cognizance of an offence under Section 200 of IPC. The complainant, therefore, in respect of offence under Section 201 of IPC, is liable to be quashed on the ground that there is not even the slight allegation to constitute an offence except mentioning number of sections of the Penal Code. 6) In the matter of Madhavrao Jiwajirao Scindia and Anr. Vs. Sambhajirao Chandrojirao Angre and Ors. - AIR 1988 SC 709, the Apex court was dealing with the situation of breach of trust and exercise of powers under Section 482 Cr.P.C. In that case, the prosecution at the initial stage was sought to be quashed as the matter was resolved between the litigants to do so, such exercise was questioned. 7) In the matter of Alpic Finance Ltd. Vs. P.Sadashivam and Anr.- AIR 2001 SC 1226, the Apex Court dealt with quashment of criminal proceedings in the matter of breach of trust or cheating. It was the case, where the respondent- trust was running a dental college and did not give benefits and dishonestly induced complainant to deliver the property. There was no iota of any willful representation from the institution, i.e. 4 Cri.Appeal 50/2010 dental college no case of fraud was made out in the said proceedings. 8) In the matter of S.N.Palanitkar and ors. State of Bihar and Anr. AIR 2001 2960. The Lordships were also dealing with the effect of Section 203 of Cr.P.C., elaborating the term “sufficient grounds” the Lordships explained, sufficient grounds means, satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. In the matter of Brajo Sunder s/o Krishnapad Banerjee Vs. The State of Maharashtra (2009 MCR 261), the learned Single Judge of this Court considered the effect of sections 406 and 420 and the contents of F.I.R. in the said prosecution and reached to the conclusion that no case was made out. 9) The learned Counsel for the accused/applicant could not inform from the papers that insurgent behaviour of the accused/applicant could be tolerated in spite of several communications to him. He was informed that the official activities of APMC have been stopped due to his taking away the official record. However, the accused/applicant did not mend his ways and consequently, the affairs of 5 Cri.Appeal 50/2010 APMC to launch the prosecution against him. The inter se controversy of the accused/applicant with incumbent, taking proceedings to the court by itself would not be a ground to infer that the accused/applicant had an authority to have domain over the property or to deal with it as per his whims and fancies. The ingredients of Section 405 of IPC make out a case of criminal breach of trust. One of the situation emerged is, dishonestly used or disposes of the property in violation of any direction of law. The intention of the accused/applicant, in retaining the property was in tone and tune to dishonestly disposed of the same, otherwise he had no reason to retain the same without any authority in him. The application made by the accused before the learned JMFC in prosecution 44/2009 (page 81) rebels against him, as he says that he has made available all the papers to the prosecutor. These papers, as are referred by him are post-filing case and could not be prior to lodging of FIR. The delay in lodging the F.I.R. is properly explained as accused was oscillating from handing over the papers from 14.9.2007 to 12.5.2009 and thereafter the APMC or the Secretary of the APMC was forced to prosecute the matter to the concerned police. The Hon’ble Lordships of the Apex Court have clearly indicated, that for quashing the proceedings, to give effect to 6 Cri.Appeal 50/2010 Section 482 Cr.P.C., three situations should be explained in the application, they are – i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. However, these three situations are missing and wanting in the present case. In this view of the matter, the criminal prosecution cannot be said to be used as an instrument of harassment or seeking other benefits from Accused. 10) In the result, the application is sans merit, dismissed. The observations are prima facie in nature. ( K.U.CHANDIWAL ) JUDGE bdv/