( 1 ) Cri.W.P.732.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 732 OF 2009 Umakant Basvanappa Chansheeti .. Petitioner Versus The State of Maharashtra and another ..Respondents ... Mr.Vikas S.Tanwade,Advocate for petitioner Mr.V.D.Rakh A.P.P.for respondent No.1 Mr.V.L.Dhoble,Advocate for respondent No.2 ... CORAM : A.V.NIRGUDE,J. DATED : 18TH MARCH, 2010 PER COURT:- 1] The present Writ petition is filed against the order passed by the Additional Sessions Judge, Osmanabad allowing the revision petition filed by the respondent- complainant. 2] The facts leading to the litigation are as under- . The respondent/complainant lodged the Criminal case against the petitioner in the Court of Chief Judicial Magistrate Osmanabad, alleging offences punishable under sections 209,420,409,468 ( 2 ) Cri.W.P.732.09 and 471 of the Indian Penal Code. It was his case that, the present petitioner filed certain applications/pursis before the learned Assistant Charity Commissioner in certain pending cases for change report (Application made under section 22 of the Bombay Public Trust Act) on or about 14.01.1997, 25.02.1997 and 27.02.1997, although he was not authorized to make such submissions. They alleged that, the petitioner-accused earlier to 14th January,1997 was the Secretary of the Charitable and Educational Institution Trust. During his tenure, as Secretary, prior to 1997, as representative of the Trust he had filed certain applications seeking changes (Application made under section 22 of the Bombay Public Trust Act). While the cases were still pending, the petitioner accused submitted his resignation on or about 8th December, 1996. The Managing Committee of the Trust accepted the resignation on 11th January 1997, in the meeting which the petitioner-accused attended. . Despite of this, as said above, on subsequent three occasions the petitioner/accused made representation before the learned Assistant Charity Commissioner that he was still the ( 3 ) Cri.W.P.732.09 Secretary of the Trust and filed certain applications, which resulted into dismissal of change reports. Thereafter, the Trust went in appeal against such order and incurred loss etc. The complaint was lodged alleging the offences as mentioned above. 3] The learned Magistrate of the Trial Court sent the case for investigation to the concerned Police Station, and they filed charge-sheet against the petitioner-accused. At appropriate time, the petitioner-accused moved an application for discharge, which came to be allowed. Against which the State preferred revision and the same came to be allowed. 4] Having regard to the facts discussed above, following questions would arise- 1] Whether the office of the Assistant Charity Commissioner conducting the enquiry under section 22 of the Bombay Public Trust Act, a “Court of Justice” defined in Section 20 of the I.P.C.? 2] Whether an offence of cheating seems to have been committed? 3] Whether the petitioner/accused apparently committed an offence of forgery? ( 4 ) Cri.W.P.732.09 5] Having regard to the nature of inquiry contemplated under section 22 of the Bombay Public Trust Act, there is no doubt that the A.C.C acts as Judge who is empowered by law 'to act Judicially alone' while deciding such application. Section 20 of the I.P.C. reads as under:- 20. ”Court of Justice”.- The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. 6] Having regard to the definition in juxtaposition to the nature of the inquiry contemplated under section 22 of the Bombay Public Trust Act, I have no doubt that the Assistant Charity Commissioner acts as Judge empowered by the law to Act judicially. The answer to this question is in the affirmative. 7] Apparently, the petitioner/accused did not cheat the complainant, in this case when he made representation to the Assistant Charity Commissioner that, he was still the Secretary of the Trust. The definition of cheating reads as under:- Cheating:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so ( 5 ) Cri.W.P.732.09 deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to “Cheat”. 8] No doubt, the petitioner-accused apparently made a false representation to the Assistant Charity Commissioner that he was still the Secretary of the Trust, and one may say that thereby he deceived him, but it can not be said that on deceiving the Assistant Charity Commissioner, the petitioner-accused induced the Assistant Charity Commissioner to deliver any property or to do anything which he would not do, if he were not so deceived and his act did not cause damage or harm to the Assistant Charity Commissioner. 9] The learned APP appearing for the State, however, asserted that the orders, which the Assistant Charity Commissioner passed after getting deceived by the petitioner-accused, apparently caused harm to the complainant. As said above, the such orders which the Assistant Charity Commissioner passed, pursuant to the representations made by the petitioner/accused ( 6 ) Cri.W.P.732.09 went against the interest of the complainant and the complainant was constrained go in appeal and thereby incurred the expenses. He said, this would also fall within the meaning of cheating. He further asserted that, the word, ”that Person” used in section 415 of the Indian Penal Code, should not be interpreted restrictively. I am afraid, this argument is not acceptable, because the legislative intent is clear from plain reading of the provisions. So, this apparently does not amount to an offence of cheating. In my view the petitioner/accused can not be charged under section 420 of the Indian Penal Code. He can not be even charged under section 468, 471 of the Indian Penal Code, because these offences are relating to the offence of cheating. The ld Assistant Charity Commissioner would alone be entitled to decide whether the document- pursis/representation made by the appellant- accused deserves further action contemplated under S.195 of Cr.P.C. etc. 10] The appellant /accused also can neither be charged under section 409 of the Indian Penal Code because there is no inducement of Assistant Charity Commissioner as contemplated under section ( 7 ) Cri.W.P.732.09 403 of the Indian Penal Code. 11] The last question is whether the petitioner- accused can be charged under section 465 of the Indian Penal Code. In my view, there is scope to attract the charge under section 465 of the Indian Penal Code, because he knowingly filed applications/pursis before the Assistant Charity Commissioner signing such documents as the Secretary of the Trust, though he knew that he was not the Secretary of the Trust. Apparently, the provisions of section 464 of the Indian Penal Code, in my view, are attracted to such acts. So, the Writ petition deserves to be partly allowed. 12] The respondent-State shall be entitled to charge the petitioner accused under section 209 and 465 of the Indian Penal Code. 13] The observations made in this order are prima facie in nature and shall not influence the learned Magistrate trying the case. Sd/- [A.V.NIRGUDE,J.] MTK/ok ( 8 ) Cri.W.P.732.09