1 cri-wp-410-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 410 OF 2011 Shree Swayambhu Rameshwar CHS (PROP) Through its Chief Promoter .. Petitioner Vs. State of Maharashtra and ors. .. Respondents Mr. S.P. Kadam i/by Mr. K. M. Mhatre for petitioner. Mrs. P.P. Shinde, APP for State. Mr. S.V. Kotwal i/by Ms. Reena Salunkhe for respondent no.2. Mr. Satish Borulkar a/w Kunal Cheema i/by Omkar Kulkarni for respondent no.4. Mr. Vaibhav Nagvekar i/by Judicare Law Associates for respondent no.5. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. June 22, 2011. P.C. 1. We have heard Mr. Kadam with Mr. Mhatre the learned counsel for the petitioner which claims to be a proposed Co-operative Housing Society. The short grievance raised in this petition is against the 2 cri-wp-410-11 communication dated 24/12/2010 and by which the Senior Inspector of Police, Kalachowki Police Station, Mumbai informed the Chief Promoter of the petitioner – proposed society that the complaint dated 30/10/2006 was substantially of civil nature and, therefore, there was no case made out to register the crime so as to proceed with the investigation for an offence or offences. 2. It appears that the tenants in the property of the Trust, namely, Haji Issuf Mohd. Suleman’s Botawala Charities Trust and the trustees had moved an application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 before the Charity Commissioner for seeking sanction to sell the property (plot of land). The application was registered as Application No. J-4/56 of 2002. The present respondent no.2 in his capacity as Chief Promoter of the petitioner submitted an application before the Charity Commissioner and objected. However, he submitted a letter of consent dated 18/12/2002 before the Charity Commissioner stating that as per the Resolution dated 18/7/2002 the proposed society/petitioner has no objection for sale of the property to Chaitya Developers. When some of the members of the petitioner – proposed society came to know about the consent given by respondent no.2, they filed an application on or about 3 cri-wp-410-11 3/5/2003 before the Charity Commissioner and pointed out that the letter dated 18/12/2002 was required to be discarded. However, ultimately, by his order dated 29/5/2003, the Charity Commissioner passed his order and granted sanction for sale of the property to M/s. Chaitya Developers. It is further clear from the record that on or about 17/10/2005 the petitioner – proposed society filed an application before the Charity Commissioner to review his earlier order. The fact remains that the order dated 29/5/2003 passed by the Charity Commissioner was not challenged by the petitioner before any competent higher forum. 3. More than three years later i.e. on 30/10/2006 a complaint came to be addressed to the Home Minister and a copy of the same was forwarded to various police authorities, including the Sr. P.I. of Kalachowki Police Station. It is submitted by Mr. Kadam, the learned counsel for the petitioner that the impugned communication dated 24/12/2010 is illegal and when a case of an offence was made out, it was necessary for the said police station to register a crime and proceed with the investigation. 4. We have perused the complaint dated 30/10/2006. The complaint states that the earlier Chief Promoter i.e. respondent no.2 4 cri-wp-410-11 misused his powers and gave no objection in favour of M/s. Chaitya Developers and while doing so he had kept the tenants in dark. The complaint further states that respondent no.2 has committed the offence of criminal breach of trust. The order passed by the Charity Commissioner on 29/5/2003 has considered the application submitted by the petitioner on or about 3/5/2003 and, therefore, the only remedy available to the petitioner was to challenge the said order passed by the Charity Commissioner. On the face of these obtaining circumstances, we do not find any error with the communication dated 24/12/2010 and the petitioner ought to be left with the civil remedy that may be available in law. At this point of time, there is no case made out to cause interference and direct the police to register a crime. 5. Hence, the petition is rejected. 6. This order will not come in the way of the petitioner to initiate appropriate alternative proceeding. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)