1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.03.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD).No.1033 of 2011 And M.P.(MD).N0.1 of 2010 1. M.Thiruppathi 2. Vandiyoor Sri Nachiyarammal Kattalai Represented by its Managing Trustee M.Thiruppathi ... Petitioners Vs. 1. The Inspector of Police Karupayurani Police Station Silaiman Circle Madurai District 2. The joint Commissioner HR & CE, Madurai – 1 ... Respondents PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to allow this Petition and call for the records thereby quash the charges framed in C.C.No. 478 of 2010 on the file of the Judicial Magistrate No.2, Madurai. For Petitioner : Mr.S.Ramesh for Mr.V.Raghavachari For 1st Respondent : Mr.Kumarasean State Public Prosecutor for Mrs.S.Devasena Govt. Advocate (Crl. Side) For 2nd Respondent :Mrs.S.Maladevi O R D E R This Criminal Original Petition has been filed by the petitioners seeking to quash the charge sheet filed in C.C.No. 478 of 2010 pending on the file of the Judicial Magistrate No.2, Madurai. Heard /Mr.S.Ramesh, for Mr.V.Raghavachari, learned counsel https://hcservices.ecourts.gov.in/hcservices/ 2 appearing for the petitioners and Mrs.S.Devasena, learned Government Advocate (Criminal Side) appearing for the first respondent and also Mrs.S.Maladevi, learned counsel appearing for the second respondent. 3. The learned counsel for the petitioners would submit in his argument that the complaint has been lodged against the petitioners by the second respondent/ HR & CE Board that the petitioners have followed the provisions of Hindu Religious Charitable and Endowment Board Act for selling the properties belonging to the said trust, in which, the petitioners are also one of the trustees. He would also submit that the investigation was done even amidst the filing of the petition by the petitioners in Crl.O.P.(MD).No. 7325 of 2010 for quashment of the FIR and the charge sheet has also been filed and therefore, the petitioners have necessarily to file this Petition for quashment of the charge sheet. He would further submit in his argument that the petitioners are the Hereditary Trustee of Sri Nachiyarammal Kattalai, Vandiyur, Madurai North Taluk of Madurai District and the Deputy Commissioner of Hindu Religious and Charitable Endowment Board passed an order in O.A.No. 31967 of 2011, dated 04.04.1967, framing the scheme for the administration of the trust, but the said order has not been published in any Government Gazette and therefore, it cannot have any effect of binding on the petitioner or the petitioner's trust. He would further submit that by virtue of the said scheme, the second respondent is stated to have superintendence over the trust of the said property and therefore, he would request that any property belonging to the said trust should be sold after getting permission of the second respondent. He would further submit in his argument that since the other scheme framed by the HR & CE Board itself, is not sustainable then there is no question of any compliance of the HR & CE Act and therefore, the petitioner is advised to file a Petition for quashment of the charge sheet. He would further submit in his argument that admittedly the trust created in ancient days, was purely of private nature and there could not be any framing of scheme. As per Government Order in G.O.Ms.No. 4520, in which the government Order in G.O. 275 has been referred to require the publication of any scheme framed by the second respondent board, but it was not done so. It is also a violation of Rule 27 made in the Rules of the HR & CE Rules. He would further submit in his argument that the trust being a private trust, but it was brought under the governance of the HR & CE Board cannot have any superintendence over the said trust. He would further submit in his argument that the Joint Commissioner of the said board cannot also act as a trustee of the said trust. He would cite Judgment of this Court made in M.C.Karthikeyan Vs. the Joint Commissioner and others reported in 1998 1 LW P-148 and relied upon the passage mentioned in Paragraph 3. He would also cite yet another Judgment of this Court reported in 1990 1 LW Page 144 for the principle that the petitioner being the trustee cannot be impleaded on his individual capacity for taking any action. He would further submit that unless the trustees are impleaded as a party no valid https://hcservices.ecourts.gov.in/hcservices/ 3 order could be passed by the Courts for that he has relied upon the Judgment of the Hon'ble Apex Court in 2006 1 SCC 141. Therefore, he would also submit that the power deed has been executed by the petitioners in his personal capacity and not as a trustee and even the provisions of HR & CE Act is not applicable to the petitioners' trust, the petitioners cannot be held liable for any commission of crime. Therefore, he would request the Court to quash the proceedings taken against him in C.C.No. 478 of 2010. 4. The learned State Public Prosecutor on behalf of the Government Advocate (Crl. Side) appearing for the first respondent would submit in his argument that the complaint has been lodged against the petitioner and others, who have sold the properties belonging to the trust as well as the buyers knowing fully well that it is belonging to the trust and the sale, without the permission of the second respondent is not valid and the persons who had indulged in buying the said property and thereby the trust created on the petitioners as well as the bar made against the third parties to buy the properties without the permission of the second respondent and therefore, the case has been registered and proceeded further. He would submit that the case is purely based upon the documents and supplementary and oral evidence and therefore, the charge sheet has been filed on the basis of the evidence gathered and accordingly, the petitioner was ranked as A-5 in the charge sheet for the offences committed under Sections 120(b), 409, 406, 420 and 465, 468 and 471 of IPC. He would further submit in his argument that the petitioner himself is claiming to be the trustee of the said trust and admittedly, the HR & CE Board has got jurisdiction to have Superintendence over the said trust even from the year 1967 and it cannot be now turned round and said that the HR & CE Board has no power to lodge a complaint. She would also submit that the petitioner was at a spree to sell the properties belonging to the trust in connivance with the purchaser for low value and had enriched himself and therefore, the said crimes are different subject for trial. She would also submit that whether the HR & CE Board has got Super evidence or not can be decided only by a Civil Court or in a writ proceedings before this Court and not in this Petition. Moreover, the petitioner has subjected himself to various proceedings before the HR & CE Board and he cannot come turned round and say that the HR & CE Board has no jurisdiction over the trust properties. She would further submit that all these points could be considered only in the course of trial and this Court cannot go into a roving enquiry regarding the requisite for constituting the offence and also the maintainability of the complaint given by the second respondent. She would further submit that all the defence raised by the petitioner could be agitated in the trial which is offing. She would further submit that the ground raised by the petitioner without the power deed was executed at his individual capacity is not sustainable because the properties comprised in the power deed are belonging to the trust. Therefore, he would request the Court to dismiss the petition in-limine. https://hcservices.ecourts.gov.in/hcservices/ 4 5. The learned counsel appearing for the second respondent would submit in her argument that the document regarding the maintainability of the complaint given by the second respondent is not sustainable because the scheme framed by the Deputy Commissioner of HR & CE Board has been done in accordance with law and the petitioner himself has subjected himself to the governance of HR & CE Board all these years and now he cannot turn round and say that it is not valid for want of any publication in the official gazette. He would further submit that the trust properties have been shown in the property list maintained by the Department for Superintendence and Nachiyarammal Trust would also come under the said category. For that she would produce the order passed by the Commissioner in Na.Ka.No. 1598/05/A2, dated 21.04.2007. She would point that in the said order, the Nachiyarammal Kattalai, Vandiyur, Madurai North Taluk of Madurai District, is enlisted in Serial No.9 of Madurai District among other temples and trust. She would further submit that the petitioner has validly governed by the provisions of Section 34 of the HR & CE Act, after framing of scheme before the Commissioner, but he has entered into so many sale agreements through execution of power deed and had received money for the said proposed sale and has misappropriated the same. Therefore, she would further submit that it is a fit case in which the second respondent takes action criminally against the trustee, who erred from his duties as a trustee by committing fraud, cheating, misappropriation of money and criminal breach of trust. She would further submit that the petitioner has filed the petition for quashment of the charge sheet filed in C.C.No. 478 of 2010 is not sustainable and therefore, it is liable to be dismissed. 6. I have given anxious consideration to the arguments advanced on all the sides. 7. The case of the petitioner is that the petitioner being the trustee of a private trust, namely, Nachiyarammal Kattalai, Vandiyur, Madurai North Taluk of Madurai District, is not necessarily to be supervised by the HR & CE Department since the scheme framed by the second respondent in the year 1967 was not published in the official gazette. It is not disputed that the scheme was framed in the year 1967. It was not questioned at the stage when the scheme of trust has been framed by the Deputy Commissioner of HR & CE Board during 1967, and the petitioner himself as a trustee had applied for several instructions, directions and permissions before the HR & CE Board for necessary orders and the HR & CE Board had also passed orders thereon. The said Nachiyarammal Trust is owning vast number of properties and are under supervision of HR & CE Board. It has not been questioned for a longer period and the petitioner had subjected himself to such superintendence. In the said circumstances, the present complaint was preferred by the second respondent that the petitioners have misappropriated the funds received by selling them to various other persons without the knowledge and permissions of HR https://hcservices.ecourts.gov.in/hcservices/ 5 & CE Board and the permission under Section 34 of the Tamil Nadu HR & CE Board is necessary and therefore, the act and omission of the petitioner as trustee has committed offences and therefore, it became necessary for the second respondent to give a complaint. In the said circumstances, we have to see whether the petitioner is entitled for quashment the charge sheet as asked for. The factum of framing of scheme by the HR & CE Board has not been questioned nor set aside either before the writ proceedings or in a civil suit. It is still in existence and frivolous and lawfully sustaining. This Court being the criminal Court cannot go in detail regarding the maintainability of framing of scheme which was done in the year 1967. However, the argument advanced by the learned counsel appearing for the petitioner that the trust has not been made as a party in this proceedings can be looked into. According to the Judgments cited by the petitioners that whenever an order has been passed against the trust, the trust has to be impleaded as one of the parties. No doubt, it is true that in the proceedings whether the trust interests are affected or not, it has become necessary for the impleadment of the trust. As far as this case is concerned, it is purely a criminal proceedings launched against the petitioner and others, who have indulged in disposing the property or damaging the disposing the property belonging to the trust while they are in their official capacity. Therefore, the present proceedings is not against the trust , but against the persons, who erred in performing their function as trustee and thereby committed crimes. No doubt, it is true that the power deed has been executed by the petitioners in favour of the third parties. It has been contended by the petitioners that they have been executed in his personal capacity. It has been argued by the learned counsel appearing for the respondents that the power deed has been executed in respect of the trust properties and not in respect of the personal properties belonging to the petitioner. Therefore, this Court could see that this forum is to see whether the proceedings are sustainable or not on the face of the complaint and other evidence collected by the Investigating Officer on the basis of the complaint. The allegations made against the petitioners as well as the documents produced on its face value considering it that they are unopposed. The allegations would show prima facie case against the petitioners which are serious in nature and the case made out against the petitioners when they are considered as not disputed have to be tested in the trial only. Therefore, these points raised by the petitioners in these quashment proceedings have to be decided only in the trial at the time of examination of the witnesses and not now before this Court. Therefore, this Court does not find any point to order in favour of the petitioner for the quashment of the charge sheet filed in C.C.No. 478 of 2010 pending on the file of the learned Judicial Magistrate No.2, Madurai. 8. For the foregoing discussions, this Court is of the considered view that the claim of the petitioners that the proceedings in C.C.No. 478 of 2010 pending on the file of the learned https://hcservices.ecourts.gov.in/hcservices/ 6 Judicial Magsitrate No.2, Madurai, has to be quashed as there is no substance to go for trial is not at all sustainable. Therefore, the Petition filed by the petitioner seeking for quashment of the charge sheet is dismissed. Consequently, connected Miscellaneous Petition is also closed. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1. The Judicial Magistrate No.2, Madurai 2. The Inspector of Police Karupayurani Police Station Silaiman Circle, Madurai District 3. The joint Commissioner HR & CE, Madurai – 1 4. The Additional Public Prosecutor Madurai Bench of the Madras High Court Madurai +1cc to M/S.S.Maladevi Advocate, Sr.No.11394 +1cc to Mr.V.Raghavachari Advocate, Sr.No.11488 +1cc to Mr.R.Suresh Kumar, Advocate, Sr.No.11436 Crl.O.P.(MD).No.1033 of 2011 And M.P.(MD).N0.1 of 2010 04.03.2011 vsg SMA/07.04.2011/8C/6P https://hcservices.ecourts.gov.in/hcservices/