1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRMINAL APPLICATION NO. 609/2011 The State of Maharashtra thr. Station House Officer, Rural, Yavatmal ..vs.. Dema Haribhau Khadse and 3 ors. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S. S. Doifode, A.P.P. for applicant. Ms. Sandhya Maniyar, Advocate for non applicants. CORAM : M.N.GILANI, J. DATE : NOVEMBER 25, 2011. 1. This is an application by the State questioning the judgment and order dated 10.11.2010 passed by Chief Judicial Magistrate, Yavatmal in Criminal Appeal No. 34/2006, whereby the learned Additional Sessions Judge, acquitted accused nos. 2 to 5 of an offence punishable under Section 420 read with section 34 of the Indian Penal Code. 2. In the year 1999, non applicant nos. 1 to 4 (Original accused nos. 2 to 5) have established a college at Rui-Wai, Dist. Yavatmal to impart Diploma in Education and Degree in Education. For that, a wide publicity was given inviting the students to take admission in D. Ed and B. Ed. Courses. In response to the advertisement, 40 students were admitted. From each student, Rs.17,000/- (Rs. Seventeen Thousand Only) were 2 collected towards fees. It was subsequently learnt that the college had no recognition to conduct D.Ed. and B. Ed. courses. Therefore, a First Information Report came to be lodged and on that basis offence under Section 420 read with Section 34 of the Indian Penal Code was registered with Police Station, Yavatmal (Rural). After investigation, chargesheet came to be filed. The learned Chief Judicial Magistrate, Yavatmal framed and explained charge of the offence to the accused-non applicant nos. 1 to 5 including original accused no.1-Nagorao (since dead). The prosecution examined eight witnesses. After considering the evidence, the learned Chief Judicial Magistrate held that the offence of cheating has been proved against them. He, therefore, proceeded to convict them for the said offence and sentenced each of them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 5000/-. Aggrieved by this order, Criminal Appeal No. 34/2006 came to be preferred. The learned Additional Sessions Judge did not agree with the findings recorded by the learned Chief Judicial Magistrate and, therefore, reversed the findings and acquitted the non applicants. 3. Heard Mr. Doifode, learned A.P.P. for the applicant- State and Ms. Sandhya Maniyar, learned counsel for non applicants-accused. 3 4. It is not disputed that the accused persons established a college to impart Diploma in Education and Bachelors Degree in Education at Rui-Wai and for that also circulated pamphlets. It is also not disputed that about 40 students had taken admission in response to the advertisement. The students were made to pay fees and even examinations were conducted. In that light of matter, prima facie, ingredients of Section 420 read with section 34 of the Indian Penal Code are attracted. 5. The defence put forth by non applicants-accused that the students knew from the very inception that the College was yet to be recognized prima facie would not take out case from the ambit of Section 420 of the Indian Penal Code. They were accused persons who opened the college despite the fact that there was no recognition. Then they admitted the students and this was went on for two years. Ultimately, no recognition muchless retrospective recognition was accorded. Under these facts and circumstances, it appears that arguable points are involved. Hence, leave as prayed for is granted. Appeal : Admit. 6. Ms. Sandhya Maniyar, learned counsel for the non applicants, accepts notice on behalf of the non applicants-accused. Hence, action under section 390 of the Code of Criminal 4 Procedure is dispensed with. Accused persons shall furnish PR Bond in the sum of Rs.10,000/- (Rs. Ten Thousand Only) and one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Yavatmal. JUDGE kahale