1 LPA.426/2008 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 426 OF 2008 IN WRIT PETITION NO. 7224 OF 2008 Prabodh Mehta ...Appellant Vs. The State of Maharashtra & Ors. ...Respondents. ..... Mr. S.G. Aney, Sr. Advocate withh Ms. D.K. Sinha, Mr. Jay Kansara and Mr. Ashwin Sakolkar i/b VIDHI Partners for the appellant. Mr. A.P. Vanarase, AGP for Respondent No.1 to 3. Mr. Mahesh Jethmalani with Robin Singh, Amin and Aditya P. i/b Thakore Jariwala & Associates, for Respondent No.4. --- CORAM: MOHIT S. SHAH, C.J. S.C. DHARMADHIKARI, J. DATE : 21st JULY, 2010. P.C. 1] This appeal is directed against the Judgment dated 22.10.2008 of the learned Single Judge dismissing the appellant’s writ petition challenging the interlocutory order dated 8.10.2008 passed by the learned Joint Charity Commissioner. By the said order, the learned Joint Charity Commissioner framed the charge against the petitioner under section 41D(1)(f) of the Bombay Public Trusts Act, 1950 (in short ‘the Act’). 2 LPA.426/2008 2] Subsection (1) of the said section provides that the Charity Commissioner may, either on an application of a trustee or any person interested in the trust, or on receipt of a report under section 41B of the Act, may suspend, remove or dismiss any trustee of a public trust, if he is convicted of an offence involving moral turpitude. Subsection (2) that also lays down the procedure for taking such action under subsection (1) that is before taking such action, the Charity Commissioner shall frame charges against the trustee against whom action is proposed to be taken and give him an opportunity of meeting such charges, of testing the evidence adduced against him, and of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefore. Subsection (3) thereof provides that pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspesion. In the facts of the present case, no such order of suspension is passed under sub section (3) of 41D of the Act. 3] Learned Joint Charity Commissioner has framed the charges against the appellant on the basis of judgment of a Foreign Court. The contention raised before the Charity Commissioner, Single Judge mainly pertained to the fact that the Judgment [Judgment No. 5686 dated 6.12.2007] which was produced by the respondent was not genuine as it was not certified according to section 86 of the Indian Evidence Act. It was submitted that the conditions for application of section 86 were not fulfilled. 3 LPA.426/2008 It was further contended that the translation of the Judgment produced before the learned Joint Charity Commissioner did not indicate that the translation was in fact a true depiction of what was decided by the Belgian Court. There is only a certification of the signature of the translator by the Indian Embassy but not of the contents of the translation, and therefore, no charge could have been framed against the appellant on the basis of such documents. 4] The defence of the private respondent was that the appellant had not denied the fact that he had committed fraud, forgery and money laundering as contended by the respondent in his application filed under section 41D of the Act. 5] The learned Joint Charity Commissioner held that the translation of the jidgment of the foreign court was admissible in the evidence and that charge was required to be framed on the basis thereof. 6] The writ petition filed by the appellant challenging the above order of the learned Joint Charity Commissioner has been dismissed by the learned Single Judge, with an observation that it may be possible for the appellant to contend at the trial that the presumption regarding the genuineness of these documents cannot be raised under section 86 and that document would then have to be proved in the manner provided under the Indian Evidence Act. However, this would not mean that a charge cannot be framed on the basis of such documents. 4 LPA.426/2008 7] Learned counsel for the appellant has sought to rely upon the decision in the these cases- Govind Kesho Powar Vs. State of Madhya Pradesh & Ors. in Misc. Petn. No.379 of 1953 reported in AIR 1955 Nagpur 236, ‘IILLJ’ 461 and 1893 AC 150 in support of his contention that findings of criminal court in a foreign country cannot be relied upon for the purpose of investigating powers under section 41D(1)(f) of the Act. 8] Learned counsel for the respondent has opposed the appeal and submitted that such contention was not raised before the learned Single Judge. 9] However, we are not inclined to entertain the above challenge sought to be raised by the appellant, because the order upheld by the learned Single Judge is an interlocutory order passed by the learned Joint Charity Commissioner. The judgments relied upon by the appellant do not directly deal with any controversy arising from any provision akin to section 41D(1)(f) of the Act. 10] All the contentions which the appellant seeks to raise would still be available to the appellant at the time of trial before the learned Joint Charity Commissioner. We, therefore, dismiss this appeal with a clarification that we have not gone into the merits of the said controversy and that the learned Joint Charity Commissioner shall decide the matter finally in accordance with law without being influenced by the observations made in the impugned orders. 5 LPA.426/2008 At this stage, the learned counsel for the appellant prays that ad-interim stay granted during the pendency of the appeal may be continued for some time to enable the appellant to have further recourse as is available in accordance with law. 11] In the facts and circumstances of the case, and more particularly when the order upheld by the learned Single Judge is an interlocutory order, we are not inclined to accede to the request to grant any stay. The prayer is, therefore, rejected. CHIEF JUSTICE S.C. DHARMADHIKARI, J.