Date : 07/02/2012 1.00. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners - original accused to quash and set aside the impugned First Information Report being CR No.I-68 of 2009 registered with Nadiad (West) Police Station for the offences punishable under sections 420, 467, 468, 469, 471, 477, 120(B) of Indian Penal Code. 2.00. That the respondent No.2 herein – original complainant has lodged the impugned First Information Report being CR No.I-68 of 2009 registered with Nadiad (West) Police Station for the offences punishable under sections 420, 467, 468, 469, 471, 477, 120(B) of Indian Penal Code, alleging inter- alia that a forged and concocted Resolution of Gayatri Kelavani Mandal (hereinafter referred to as “the Trust” for short), a Trust registered under the Bombay Police Act, dtd.16/3/2006 was produced before the Assistant Charity Commissioner and by producing such a forged Resolution and other documents / Affidavits, the Change Report came to be accepted by the Assistant Charity Commissioner. It is the case on behalf of the complainant in the impugned First Information Report that as such no such change has taken place and no such meeting of the Trust was convened on 16/3/2006 and no such Resolution was passed as alleged to have been passed in the meeting alleged to have been held on dtd.16/3/2006, under which the accused Nos.2 and 3 were appointed as trustees of the Trust and accused No.3 was appointed as the Managing Trustee of the Trust. Being aggrieved by and dissatisfied with the impugned First Information Report, the petitioners herein – original accused have preferred the present petition under section 482 of the Code of Criminal Procedure.
3.00. Mr.Jayant Panchal, learned advocate appearing with Mr.Maulin Pandya, learned advocate appearing on behalf of the petitioners has vehemently submitted that as such the impugned First Information Report is nothing but abuse of process of law and court and as certain complaints have been made by the petitioners against the respondent No.2 herein – original complainant and his brothers with respect to the mismanagement and financial irregularities of the trust, the impugned First Information Report has been filed just with a view to harass the petitioners.
3.01. Mr.Jayant Panchal, learned advocate appearing on behalf of the petitioners has further submitted that in fact one of the trustees named Vijaysinh Ajutsinh Dabhi has filed an affidavit and the said affidavit was affirmed before the Assistant Registrar, City Civil Court, Ahmedabad and that he was identified by one advocate. Therefore, it is submitted that the allegation that the signature of the said Vijaysinh Ajutsinh Dabhi in the affidavit which was affirmed before the Assistant Registrar, City Civil Court, Ahmedabad, is forged one and/or the said Vijaysinh Ajutsinh Dabhi has not put his signature in the affidavit affirmed before the Assistant Registrar, City Civil Court, Ahmedabad cannot be believed.
3.02. Mr.Jayant Panchal, learned advocate appearing on behalf of the petitioners has further submitted that as such even earlier order passed by the Assistant Charity Commissioner in the Change Report pursuant to the Resolution passed by the Trust in its meeting held on 16/3/2006 is challenged by said Vijaysinh Ajutsinh Dabhi before the Charity Commissioner with an application for condonation of delay and the Charity Commissioner - appellate authority will be in a position to look into the allegations made in the impugned First Information Report and therefore relying upon the decision of the Hon'ble Supreme Court in the case of Tukaram Annaba Chavan and another Versus Machindra Yeshwant Patil and another, reported in AIR 2001 S.C. 994, it is requested to stay the further proceedings and/or further investigation of the impugned First Information Report till an appropriate decision is taken by the Joint Charity Commissioner / Charity Commissioner in an appeal against the acceptance of the Change Report which was submitted on the basis of the Resolution of the Trust, which was convened on 16/3/2006.
4.00. Present petition is opposed by Mr.Shalin Mehta, learned advocate appearing on behalf of the respondent No.2 – original complainant. He has submitted that as such the accused persons have forged and concocted Resolution dtd.16/3/2006 on the basis of so-called meeting of the Trust convened on 16/3/2006, which was never convened at all and the said forged Resolution has been produced before the Charity Commissioner for Change Report. He has further submitted that not only that, but the said Change Report was submitted along with the affidavit of one Vijaysinh Ajutsinh Dabhi, one of the Trustees and it is alleged that the said Vijaysinh Ajutsinh Dabhi has not signed / affirmed the affidavit and has not submitted any application before the Charity Commissioner for Change Report. He has further submitted that there are specific averments and allegations in the impugned First Information Report making out a prima facie cognizable offences for the offences punishable under sections 420, 467, 468, 469, 471, 477, 120(B) of Indian Penal Code, which are further required to be investigated by the investigating officer. Submitting accordingly it is requested not to exercise powers under sec.482 of the Code of Criminal Procedure and not to quash and set aside the impugned First Information Report at the threshold and without further investigation.
5.00. Mr.Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has submitted that the averments and allegations made in the impugned First Information Report do constitute prima facie offences which are further required to be investigated by the investigating officer. He has further submitted that immediately after lodging of the impugned First Information Report, petitioners herein have approached this Court and stay against the further investigation has been granted by this Court and therefore, the concerned investigating officer could not further investigate the impugned First Information Report. Therefore, it is requested not to exercise powers under section 482 of the Code of Criminal Procedure and not to quash and set aside the impugned First Information Report at this stage.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.00. Having heard the learned advocates appearing on behalf of the respective parties and considering the averments and allegations made in the impugned First Information Report, it appears that there are specific averments and allegations in the impugned First Information Report with respect to forging and/or concocting the Resolution dtd.16/3/2006 and on the basis of which, a Change Report was submitted before the Charity Commissioner and the name of the beneficiaries were recorded in the PTR of the Trust as trustees of the Trust. Therefore, whether such a meeting alleged to have been convened on 16/3/2006 was in fact convened or not and whether any Agenda was published for such a meeting or not, all are questions which are required to be investigated by the investigating officer during the course of the investigation. It is required to be noted that under the resolution dtd.16/3/2006 original accused No.3 was elected as Managing Trustee of the Trust, however, admittedly even according to the original accused No.3 also, her father Ajitsinh Dabhi acted as a Managing Trustee of the Trust till he died in the year 2008. Nothing is on record to show that the original accused No.3 has ever posed herself as Managing Trustee of the Trust subsequently despite the so-called Resolution dtd.16/3/2006 and only subsequently when the aforesaid Change Report was produced in the subsequent proceedings before the Charity Commissioner and earlier Resolution dtd.16/3/2006 and the Change Report on the same was relied upon by the petitioners herein, the respondent No.2 herein – original complainant came to know about the forging of the so-called resolution dtd.16/3/2006, which according to the complainant is forged concocted, as according to the complainant – respondent No.2 herein, no such meeting was convened on 16/3/2006. Even the alleged Affidavit of one of the another trustee, Vijaysinh Ajutsinh Dabhi is also required to be investigated by the investigating officer during the course of the investigation, as it is alleged that the said Vijaysinh Ajutsinh Dabhi whose affidavit was produced before the Charity Commissioner for Change Report on the basis of the alleged Resolution dtd.16/3/2006, has never filed such an affidavit. Even the advocate who has identified the signature of Vijaysinh Ajutsinh Dabhi and Vijaysinh Ajutsinh Dabhi is also required to be examined by the investigating officer during the course of the investigation. Under the circumstances, when there are specific averments and allegations in the impugned First Information Report making out prima facie cognizable offences for the offences punishable under sections 420, 467, 468, 469, 471, 477, 120(B) of Indian Penal Code which are required to be further investigated by the by the investigating officer, this is not a fit case to exercise powers under section 482 of the Code of Criminal Procedure and to quash and set aside the impugned First Information Report at the threshold and without further investigation.
7.01. Now, so far as the reliance placed by the learned advocate appearing on behalf of the petitioners upon the decision of the Hon'ble Supreme Court in the case of Tukaram Annaba Chavan and another (supra) and request to stay the further proceedings / investigation of the impugned First Information Report, till the Charity Commissioner takes an appropriate decision in the appeal against the order passed by the Charity Commissioner on the Change Report on the basis of the Resolution dtd.16/3/2006, which is alleged to have been forged one, are concerned, it is to be noted that in the case before the Hon'ble Supreme Court, a Criminal Case was pending and in the present case even there is no investigation at all and the investigation is yet to be carried out by the investigating officer. Even otherwise, in the facts and circumstances of the case, the Hon'ble Supreme Court has passed the order and in the said decision also there is no absolute proposition of law laid down by the Hon'ble Supreme Court that whenever any proceedings are pending before the authority, Criminal Proceedings must be stayed. There are number of contrary decisions of the Hon'ble Supreme Court wherein the the Hon'ble Supreme Court has observed and held that Civil and Criminal proceedings are independent proceedings and both the proceedings may go on independently. The allegations with respect to forging the Resolution dtd.16/3/2006 and even the signature of Vijaysinh Ajutsinh Dabhi in the affidavit are required to be investigated only by the investigating officer during the course of investigation, which is yet to be carried out and the aforesaid aspects cannot be said to be the subject matter of the investigation of the Charity Commissioner. Under the circumstances, the aforesaid decision relied upon by the learned advocate appearing on behalf of the petitioners would not be of any assistance to the petitioners herein – original accused.
8.00. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith.
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[M.R. SHAH, J.] At this stage a request is made by the learned advocate appearing on behalf of the petitioners to stay the execution, operation and implementation of the present judgement and order and to extend the interim relief, granted earlier.
Considering the peculiar facts and circumstances of the case and considering the fact that though the impugned First Information Report has been filed in the year 2009, because of the stay, no investigation could be carried out by the investigating officer, the prayer is rejected.
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[M.R. SHAH, J.]