1 Cri.WP No.14/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.14/2010. Saahadeo s/o Kondaji Chaudhari, Age: 55 Yrs., occu. Service, R/o Darshan Lane No.2, Shivaji Nagar, Sangamner, District Ahmednagar. - PETITIONER VERSUS 1) The State of Maharashtra, 2) Bhaskar Nivrutti Fapale, Age: 40 Yrs., occu. Agril. R/o Lingdev, Tq. Akole, District Ahmednagar. - RESPONDENTS ***** Mr.VJ Dixit, Sr.Counsel h/for Mr. LV Sangit, Advocate for Petitioner; Mr.KS Patil, APP for State. Mr.SK Shinde, Adv. For Respondent No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 18th March, 2011. ORAL JUDGMENT: . Heard. Rule was issued on 20th October, 2 Cri.WP No.14/2010 2010. 2) The petitioner(Accused No.6) impugns the judgment and order dated 25th August, 2009 recorded by the learned Additional Sessions Judge, Sangamner in Criminal Revision No.8/2009, confirming issuance of process by the learned Judicial Magistrate First Class, Akole, below Exhibit-1 in Misc. Application No.115/2007 – RTC No. 192/2008 dated 30.09.2008. 3) The petitioner was inducted as a trustee of "Ramdas Nayak Sarva Seva Sangh Shikshan Sanstha, Lingadev" (for short, the said trust), by virtue of Resolution No.4 dated 3rd July 2004. The allegations of the complainant are, a fabricated audit report was prepared for the period 1st April, 1999 to 31st March, 2004 through auditor Shri Balaji Pensalwar. This was, by manipulation of earlier record. According to the complainant, he was a president of said trust but record was changed. Based on directions, investigation in terms of Section 156(3) Cr.P.C. was carried. The police officer tendered a report against the then Secretary – Prakash Korde alone and has exonerated other accused, including the present petitioner/accused no.6. 4) Being aggrieved by such exercise of the 3 Cri.WP No.14/2010 Investigator, the complainant respondent no.2, approached the learned JMFC, vide Exhibit-13, under protest, for issuing process against the left-over accused. Pursuant to such application, the learned JMFC recorded statement of the complainant (Respondent no.2) and Gopinath Nivrutti Hadwale, Head Master of the School; Karbhari Rambhau Jadhav, in support of the complaint. As stated above, based on these three statements, the learned Judge opined that all the accused persons collusively prepared the false audit report to show that since 1999-2004, expenses of the trust were borne by the accused persons. Involvement of all the accused was, prima facie, indicated in the order. 5) The learned Sessions Judge, while confirming the order in revision, observed that, the learned JMFC has considered the record and the material prima facie show involvement of the accused and the conclusion arrived at by learned JMFC does not suffer from any illegality, and dismissed the revision on 25.8.2009. 6) At the instance of learned Sr.Counsel for the petitioner and Mr. Shinde, for Respondent No.2, I have verified the statements of above referred two witnesses, so also the statement of the complainant; The case of preparation of bogus 4 Cri.WP No.14/2010 audit is dated 29.4.2005. There is no whisper anywhere in the complaint or in the statement of the two witnesses that the accused no. 6/petitioner was actively involved in preparation of the false audit report or its submission to the office of the Charity Commissioner. Needles to add, that the auditor Balaji Penshalwar was vocal in indicating that the statements, signatures and the stamps on the audit report, are fabricated, they do not bear his signatures. The investigator found that it was predominantly by accused no.1, who mastermind manufacture of the record. At the same time, he did not find actionable material against other accused. Investigator had verified the record of the trust including respective signatures, he had recorded statements of the witnesses and reached to the prima facie above conclusions. 7) Taking into consideration these aspects, I find the learned JMFC went on the tangent by observing, preparation of audit report could not be an act of a single person, thereby suggesting involvement of the petitioner/accused. This was, with all certainties, a weal mark to the character of the accused/applicant, without there being any primary evidence to castigate him in the same line as of secretary. The observations of the learned Sessions Judge did not touch to 5 Cri.WP No.14/2010 the root of the matter or primary aspect. A sweeping statment was made by Karbhari Jadhav about involvement of all the accused. There was, to repeat, nothing to suggest at any stage, after induction dated 3rd July, 2004, the petitioner/accused was instrumental in preparing the false audit report. He could not be held responsible for events prior to his nomination as a trustee. All the papers were under the signature of Prakash Korde and not by the present petitioner/accused. Statement of Gopinath Hadwale, Head Master, reflects the situation, as he was more concern with well-being of the institution, did not attribute anything against the petitioner/accused. 8) Mr.Shinde, learned Counsel submits that the brain behind all the illegalities is the petitioner/accused. This may be correct, however, finds short of primary record to illustrate that there was any stretch of depth in the approach of the petitioner in preparation of the audit report. 9) The position of law, in exercising extra-ordinary powers of this Court, is highlighted by the Apex Court in identically placed matter of M/s Pepsi Foods Ltd. Anr. Vs. Special Judicial Magistrate and Ors., - AIR 1998 6 Cri.WP No.14/2010 SC 128. In the said case, summons were issued to the accused in criminal case, and the Hon'ble Lordships observed in paragraph 28 as under, - "28.Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 10) The Hon'ble Lordships have informed in paragraph 21 and 22 as under, - "21.It is settled that High Court 7 Cri.WP No.14/2010 can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and 8 Cri.WP No.14/2010 under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to." 11) The Hon'ble Apex court by the Judgment of three Hon'ble Lordships in the matter of Indar Mohan Goswami Vs. State of Uttaranchal reported in 2008 1 SCC (Cri.), have observed in para 25, as under, - "The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests 9 Cri.WP No.14/2010 specifically laid down in the Statute itself.” 12) Inherent power under Section 482 Cr.P.C. can be exercised : (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." 13) Reverting again to the factual matrix, I find, the criminal prosecution initiated by the Repsondent no.2 is to stifle his other claims and to have a spite against the petitioner/accused no.6. The prosecution against the accused/petitioner is certainly an abuse of powers involving interference by this Court. Hence, the order under challenge are quashed and set aside. The process issued against the petitioner/accused on 30.09.2008, naturally is, hereby quashed. Rule is made absolute in the aforesaid terms to the extent of the petitioner – Sahadeo s/o Kondaji Choudhari. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/