Sudarshanacharya vs Purushottamacharya & Anr

3. Respondent 1 is the complainant (‘complainant’, for clarity). He filed a complaint in the court of ACJM, Faizabad against the appellant. According to the complainant, the temple of Lord Venkatesh situated in Ayodhya town is managed by a Trust. The appellant is the adopted son of Smt. Hulasmani Devi, the Sarwarkar and President of Vaikunth Mandap Sri Venkatesh Mandir Trust Committee. In short, the case of the complainant, as disclosed in Complaint dated 09/09/1985, is that on 31/08/1973 considering religious nature of the appellant, the appellant was entrusted with several silver and gold articles, jewellery and other articles belonging to the temple so that he may propagate the sect. In December, 1973, the appellant requested that he may be given certain more articles. Accordingly, more articles were given to him. The receipt of first set of articles was given by him but he did not give receipt of second set of articles. The appellant never returned the articles. He misappropriated them and thus committed criminal breach of trust.

4. Certain facts, which can be gathered from the various orders which are on record and from the affidavit of Mr. R.K. Chaturvedi, S.S.P. Faizabad need to be stated. As we have already noted, the complaint was filed on 09/09/1985. On 17/10/1985, the statement of the complainant was recorded. On 25/11/1985, the statement of witness Bashisht Pandey was recorded. On 17/12/1985, the statement of Rakesh Kumar Mishra was recorded. Both these witnesses confirmed the allegations made by the complainant. On 07/03/1986, learned Magistrate took cognizance of the offence and the case was fixed for hearing on 18/06/1988. On 18/06/1988, the complainant took time for producing evidence under Section 244 of the Criminal Procedure Code, 1973 (“the code”, for short). Learned Magistrate posted the matter for hearing on 25/08/1988. But on 25/08/1988, the complainant and his advocate were absent. The appellant’s advocate presented an application for exemption which was accepted. Application preferred by the appellant under Section 245(1) of the Code was fixed for hearing on 26/08/1988. On 26/08/1988, learned Magistrate discharged the appellant under Section 245 (1) of the Code on the ground that the complainant was absent on 25/08/1988, which was the date fixed for production of evidence.

5. The complainant filed Criminal Revision No.91 of 1988 before the Additional Sessions Judge, Faizabad challenging the said order of discharge. Learned Sessions Judge observed that on 07/03/1986, learned Magistrate had summoned the appellant so as to inquire into the charge under Section 406 of the IPC but the appellant did not appear. He finally appeared on 18/06/1988 i.e. after about two and half years. This observation of the Sessions Court indicates that it is the appellant who kept himself away from the court. Learned Sessions Judge further observed that on 27/05/1988, the appellant was released on bail and the case was adjourned to 18/06/1988. On the next date of hearing i.e. on 25/08/1988, the complainant as well as the appellant were absent. The appellant’s advocate gave an application for exemption and also an application under Section 245(2) of the Code for discharge. The Magistrate fixed the hearing on 26/08/1988. On 26/08/1988 the appellant was absent. His advocate field an application for exemption. The complainant was present. He filed two applications. In one application, he sought opportunity to produce evidence under Section 244 of the Code and in the other application, he requested learned Magistrate to take further action only after recording evidence. In his application, the complainant gave reasons for his absence in the court on 25/08/1988. He stated that the date ‘26/08/1988’ was fixed because of advocates’ strike. The Sessions Court observed that if learned Magistrate was of the view that the appellant had to be discharged under Section 245 of the Code, because evidence was not produced, he should have discharged the accused on the same day. He, however, adjourned the case to 26/08/1988. On that day, the complainant was present and he filed two applications. Pertinently, he had requested the Magistrate to allow him to produce evidence and take further action only after recording evidence. The Sessions Court observed that it was not proper for learned Magistrate to pass order on the application of the appellant ignoring applications of the complainant, who was present. No order was passed on the complainant’s applications. The Sessions Court observed that the complainant had taken only two dates to produce evidence. The Sessions Court in the circumstances, by its order dated 17/02/1990 set aside the discharge order and remanded the matter to the trial court with a direction to provide adequate opportunity to the complainant to produce evidence.

8. Affidavit in rejoinder is filed by the appellant denying all the allegations. It is stated in the affidavit by the appellant that the allegations made in 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 appellant. It is further stated that the instant criminal proceedings are manifestly attended with mala fides. The proceedings are instituted with an ulterior motive for wreaking vengeance.

14. We have already noted how the Sessions Court and the High Court have commented on the conduct of the appellant. It is true that from the affidavit filed by Mr. R.K. Chaturvedi, S.S.P., Faizabad, it appears that the complainant was also negligent and casual at some stage. We are prima facie of the view that this observation of Mr. Chaturvedi does not appear to be wholly correct and runs counter to the observations made by learned Magistrate and Sessions Court in this case. Pertinently, the Sessions Court order in which the conduct of the accused has been severely criticized has been confirmed by the High Court. Besides, in this case, we are concerned with the Trust property. Prima facie we find that whenever the case was about to be heard, the appellant tried to put a spoke by filing an application for discharge. The Sessions Court and the High Court had directed that the case should proceed expeditiously or on day-to-day basis. Even by the impugned order, the High Court has directed that the case shall commence on day-to-day basis. The appellant has challenged the said order. Had the appellant not raised repeated challenges, the case would have proceeded and perhaps got over by now. Prima facie conduct of the appellant appears to us to be bad. In the facts of this case, we are unable to come to a conclusion that allowing the proceedings to continue would be an abuse of the process of the court. We are, therefore, not inclined to give any relief to the appellant. Mr. Sanyal has raised two other legal points, one is regarding limitation and the other is regarding the proceedings having already been vitiated on account of death of Smt. Hulasmani Devi, who had executed power of attorney in favour of the appellant. We do not want to express any opinion on these questions. They involve questions of facts. We would leave them open so that the trial court can decide them in accordance with law. It is, therefore, not necessary for us to discuss the other decisions of this court cited by Mr. Sanyal. We must also caution the complainant. It is not possible for us to say that the complainant has also been extremely prompt in prosecuting the case. Since Trust property is involved in this case, the complainant is expected to be alert and vigilant. We deem it appropriate to give him a final chance to prosecute this case. We direct the trial court to take-up the case for final disposal, after receipt of this order by it and dispose it of within a period of four months from that date. We expect the appellant to cooperate with the trial court and not file frivolous applications leading to procrastination. We make it clear that nothing said by us in this order should be treated as our final expression on the merits of the case of the complainant or the appellant. All questions of facts and law are expressly kept open. The appeal is dismissed with the above directions.