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2022 DIGILAW 2066 (BOM)

Sheth Dayal Bhimji v. State of Maharashtra

2022-09-14

PRAKASH D.NAIK

body2022
JUDGMENT 1. The petitioners are aggrieved by order dtd. 4/9/2014 passed by learned Metropolitan Magistrate, 17th Court Borivali, Mumbai issuing process under Ss. 420, 120-B, 406, 465, 467, 468, 471, 193, 199 of the Indian Penal Code, order dtd. 3/4/2017 passed by Additional Sessions Judge, Borivali in Revision Application No. 25 of 2015, 33 of 2015 and 34 of 2015 and the impugned proceedings initiated by respondent No.2 in C.C. No. 90/SW/ 2013. 2. The brief facts of the complaint fled by respondent No.2 are as follows: (i) The complainant was tenant of room admeasuring 180 square feet equivalent to 16.72 square meters built up area which was part of Flat No. 2 in building known as "Bai Cooverbai Dayal Bhimji Sanitorium" situated at Kamla Nehru Cross Road No.1, Kandivali (W), Mumbai. (ii) The complainant and his family members were residing in Flat No.1 (Bed room area) in the said building since 1969 and subsequently shifted to Flat No.2 (Living room area). (iii) The complainant's father was working in the said building as gardner. After his death, the complainant started working as gardner in the said building. The building was owned by Charitable Trust "Seth Dayal Bhimji and Cooverbai Widow of Dayal Bhimji Joint Charities" i.e. accused No.4. (iv) The accused No.4 appointed accused No.12 as Manager of accused No.4. Accused No.12 started residing in the said building in room No.1 (kitchen area) in the year 1983 which was partially in possession of complainant. (v) The complainant, accused No.12 and accused No.13 were neighbours since year 1983 to 2009. In the year 2007, accused No.12 approached the complainant and informed him that accused No.4 to accused No.11 have decided to sell the building. Accused No.12 also informed that he is the Manager of the building and he has been authorized by accused No.4 to accused No.11 to negotiate with him. (vi) The complainant informed accused No.12 that he needs accommodation in same premises but accused No.12 stated that it is not possible to get accommodation at same premises since, it is Charitable Trust and the complainant would not get any place in the same premises or at any other place and it is advisable to accept compensation and leave the premises. (vii) The complainant informed accused No.12 that he needs to have meeting with accused Nos.1 to 11. (vii) The complainant informed accused No.12 that he needs to have meeting with accused Nos.1 to 11. However, the accused No.12 informed him that it is not possible to negotiate with accused Nos.1 to 3 since the complainant is tenant of accused Nos. 4 to 11. So the complainant can have meeting only with accused Nos. 4 to 11. The accused No. 12 along with complainant visited accused No.7. He repeated same story. Hence, the complainant accepted the ofer of accused of Accused Nos. 4 to 11 and received compensation of Rs.5.00 lakhs from accused No.1 to 3. (viii) Agreement dtd. 9/6/2009 was executed between accused Nos. 1 to 11 and complainant, it was agreed that the purchaser, although not legally bound to do so, has agreed to pay the lump-sum compensation of Rs.5, 00, 000.00 (Rupees fve lacs only) to the Service Tenant. Accused Nos.1 to 3 had paid part payment of Rs.2, 00, 000.00 (Rupees two lacs only) to the complainant. Thereafter, the balance amount of Rs.3, 00, 000.00 was paid to the complainant and Deed of surrender was executed on 7/8/2009 which was duly registered. The complainant delivered vacant and peaceful possession of the said premises to accused Nos. 1 to 3 in 2009. (ix) In February 2012, the complainant learnt that there was an order passed by learned Charity Commissioner directing Accused Nos. 1 to 11 to take care and responsibility to accommodate tenants in the property. This fact was concealed by accused Nos. 1 to 3 which amounts to nullifcation of the agreement dtd. 9/6/2009 and Deed of surrender dtd. 7/8/2009. The complainant approached Charity Commissioner's Ofce under Right to Information Act and obtained order dtd. 14/5/2009 passed by Charity Commissioner. In the said order it was stated that "purchaser has to take care and responsibility to accommodate the tenants in the property". (x) The other documents obtained from the Charity Commissioner Ofce under Right to Information Act refects that accused No.13 Smt. Nayna Vishnu Dave is the tenant of Flat No.1 and accused No.12 is the tenant of the Flat No.2 whereas material fact is that accused No.13 was never the tenant of Flat No.1. The accused No.12 forged the documents in respect of rent receipt of Flat No.1 and incorporated the name of his wife i.e. accused No.13 by deleting name of accused No.12. (xi) The complainant had obtained deed of surrender dtd. The accused No.12 forged the documents in respect of rent receipt of Flat No.1 and incorporated the name of his wife i.e. accused No.13 by deleting name of accused No.12. (xi) The complainant had obtained deed of surrender dtd. 7/8/2009 which was duly registered with the ofce of Sub-Registrar, Goregaon (W), Mumbai. It was executed between accused Nos. 1 to 3 and accused No.12 against Flat No.1 which refects the name of tenant Mr. Vishnu P. Dave (accused No.12) whereas, rent receipt submitted to Charity Commissioner against Flat No. 1 shows tenant name as Smt. Nayna Dave. Accused No.12 deleted his name from rent receipt and incorporated name of his wife to create dual claim before the Charity Commissioner. It is the case of forgery, cheating, criminal breach of Trust. (xii) Accused had acted hand in gloves with each other to cheat the present complainant. Accused had also cheated Government Authority. (xiii) The complainant is rightful tenant of Flat No.2. Accused No.12 portrayed himself as tenant of Flat No.2 and prepared rent receipt of Flat No.2 by taking undue advantage of his position as Manager of Trust. (ix) The complainant is bonafde tenant of accused Nos.4 to 11. Accused Nos.4 to 11 have supported the contention of complainant in respect of rightful tenancy. This fact was brought to the notice of accused Nos.1 to 3. Complaint was made to police. Cognizance was not taken. Hence, private complaint was fled. 3. Learned Advocate for the petitioner submitted as follows:- (i) It is an abuse of process of law to prosecute the petitioners for the alleged ofences. (ii) The complainant has suppressed vital facts. (iii) The dispute is purely of civil nature. The order issuing process refects non application of mind. It is cryptic. (iv) There is no evidence to show that the petitioners has acted in connivance with accused No.12. (v) The complainant is educated person. He is party to the agreement executed between the Trust and the complainant dtd. 9/6/2009. He had agreed to accept the compensation of Rs.5, 00, 000.00. Compensation was accepted. Deed of surrender was executed between parties in 2009. The complaint is fled in 2012. (vi) The allegations that the complainant was kept in dark about the order of Charity Commissioner is false. The documents on record would indicate that the petitioners have not acted in connivance with accused No.12. Compensation was accepted. Deed of surrender was executed between parties in 2009. The complaint is fled in 2012. (vi) The allegations that the complainant was kept in dark about the order of Charity Commissioner is false. The documents on record would indicate that the petitioners have not acted in connivance with accused No.12. (vii) The act of forgery has been attributed to accused No.12. The alleged alteration in rent receipt was allegedly committed by accused No.12 for the beneft of accused No.13. Accused Nos.12 and 13 are husband and wife. (viii) The learned Magistrate has mechanically issued process. The order of the Sessions Court refects nonapplication of mind. The respondent no.2 is an advocate by profession. He voluntarily accepted the compensation from Accused No.1 to accused No.3 after executing agreement and surrender agreement. (ix) The complainant had written letters to the Trust that accused No.12 deleted the name of complainant and committed the ofence of forgery. The petitioners cannot be held responsible for the ofence of forgery. (x) The demand of respondent No.2 is for compensation. He has fled suit wherein he has not claimed any relief against the petitioners and demanded compensation of Rs.32, 40, 000.00 from accused Nos.1 to 3. (xi) As per the order of Charity Commissioner, the responsibility was given to accused No.1 to accused No.3 to take care of the tenant. The petitioners are not vicariously liable for the ofence of forgery, cheating and criminal breach of Trust committed by other. (xii) The petitioners have not played any role in the commission of ofences. The report under Sec. 202 of Cr.P.C. refers to the fact that forgery was committed by accused No.12 by deleting name of respondent No.2. The deed of surrender was executed six months after the order of Charity Commissioner. (xii) Learned advocate for the petitioner has relied upon the following decisions "- (a) Chunduru Siva Ram Krishna and Anr. Vs. Peddi Ravindra Babu and Anr., (2009) 11 SCC 203 . ; (b) Keki Hormusji Gharda And Ors. Vs. Mehervan Rustom Irani and Anr., (2009) 6 SCC 475 . ; (c) R. Kalyani Vs. Janak C. Mehta and Ors., (200) 1 SCC 516 ; (d) G. Sagar Suri And Anr. Vs. State of U.P. and Ors. (2000) 2 SCC 636 . (e) GHCL Employees Stock Option Trust Vs. India Infoline Limited, (2013) 4 SCC 505 . ; (f) Sunil Bharti Mittal Vs. ; (c) R. Kalyani Vs. Janak C. Mehta and Ors., (200) 1 SCC 516 ; (d) G. Sagar Suri And Anr. Vs. State of U.P. and Ors. (2000) 2 SCC 636 . (e) GHCL Employees Stock Option Trust Vs. India Infoline Limited, (2013) 4 SCC 505 . ; (f) Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609 . ; 4. Learned advocate for respondent No.2 submitted as follows:- (i) On the basis of averments in the complaint, the documents annexed to the complaint, verifcation statement and report under Sec. 202 of Cr.P.C., the learned Magistrate has issued process. The order of issuing process need not be elaborate. The Sessions Court had rejected Revision Applications by assigning reasons. Prima facie ofences are made out against petitioners. (ii) There is sufcient evidence to show involvement of the petitioners in the commission of ofences. They have acted in connivance with other accused. (iii) The defence of the accused cannot be considered at this stage, it would be matter of evidence. (iv) The order passed by Charity Commissioner is to the knowledge of petitioners, who are the members of Trust. While agreement was executed in 2009 between the purchaser of the premises and the Trust as well as complainant, there is no reference to order passed by Charity Commissioner. In the event, it was brought to the knowledge of the petitioners that the Charity Commissioner has directed the purchaser to take care of service tenant/respondent No.2, he would not have signed the agreement and executed surrender deed. He would not have accepted compensation amount. (v) Respondent No.2 was misled and convinced that he has no right in the property being tenant and hence he should accept the compensation and vacate the premise. (vi) The ofence is serious in nature. The report under Sec. 202 of Cr.P.C. supports the case of the complainant. The accused were involved in commission of ofence of forgery. The accused No.12 has forged rent receipt and inserted name of his wife to claim dual beneft and to deprive respondent No.2 of his right. The accused needs to be prosecuted for the ofences. The forgery of documents is committed by accused No.12. The petitioners cannot feign ignorance about forgery of claim of accused No.12. The documents on record supports the allegations in the complaint. The accused needs to be prosecuted for the ofences. The forgery of documents is committed by accused No.12. The petitioners cannot feign ignorance about forgery of claim of accused No.12. The documents on record supports the allegations in the complaint. Reliance is placed on afdavit in reply fled by respondent No.2 opposing reliefs sought in the petition. (vii) The advocate for respondent No.2 has relied upon the decision of the Supreme Court in the case of Narayan Malhari Thorat Vs. Vinayak Deorao Bhagat and Anr. delivered in Criminal Appeal No. 1487 of 2018. The respondent No.2 has fled compilation of various decisions during previous hearings. 5. The petitioner No.1 is the public Trust. Petitioner Nos.2 to 5 are Trustees of said Trust. The petitioners are impleaded as accused Nos. 4, 5, 9, 7 and 11 in C. C. No. 90/ SW/2013. The complaint is fled by respondent No.2. It is not in dispute that the father of respondent No.2 was working as gardner in the building. After his demise, the respondent No.2 continued to act as gardner in the said building. The respondent No.2 had occupied portion of the fat premises situated in the same building. The Trust decided to sell the property. The application was preferred before the Charity Commissioner under Sec. 36(1)(a) of the Bombay Pubic Trust Act, 1950. Ofce of Joint Charity Commissioner, Mumbai allowed the said application dtd. 14/5/2009. In the said order it was observed that the Trust owns property bearing survey No. 85, admeasuring 7151 sq. yards at Kandivali (w) CTS No. 379-C is part of it. There is a sanatorium over CTS No. 379-C admeasuring 802 sq. meters. It is the ground plus two storied building. The Trusties resolved in their meeting dtd. 22/12/2006 to sell the property. Ofers were invited from interested parties by issuing public notices in news papers. According to the applicants therein, there is no income from the property. The Trust cannot maintain the property. It cannot be used to further objects of the Trust. The decision to sell the property was taken in the meeting dtd. 10/12/2007. The valuer has submitted a report of valuation of the said property at Rs.1, 40, 56, 200.00. The opinion is supported by detailed reasons. The Trusties have taken care to see that they get best ofer, advertisements were given in the newspapers inviting ofers. Pursuant to that four ofers were received. 10/12/2007. The valuer has submitted a report of valuation of the said property at Rs.1, 40, 56, 200.00. The opinion is supported by detailed reasons. The Trusties have taken care to see that they get best ofer, advertisements were given in the newspapers inviting ofers. Pursuant to that four ofers were received. Copies of the ofer were placed on record. The Trustees in their meeting considered the ofers and unanimously accepted the highest ofer of Rs.1, 51, 00, 000.00 given by Amar Enterprises. The copy of minutes of the meeting was placed on record. The oferer issued Rs.1, 55, 00, 000.00. The afdavit is fled by Trustee stating that consideration amount would be utilized for furtherance of objects of the Trust. Trusties are negotiating the purchase of the property in Vasai Taluka and Virar for sanatorium. It was also recorded that the purchaser has to take care and responsibility to accommodate tenants in the property. The ofer is reasonable and fair. Sale is in the interest of the Trust. 6. The agreement was executed on 9/6/2009 between respondent No.2, members of the Trust and purchaser of the property M/s Amar Enterprises. It is not in dispute that the agreement was signed by respondent No.2. The Respondent No.2 was referred to as service tenant. In the agreement, it was mentioned that the service tenant was permitted by Trust to use and occupy for residential purpose room admeasuring 180 square feet built-up area in the fat No.2'A' Wing of the building of the said Trust. The respondent No.2 was residing with his mother, wife and son for the past about ffteen years gratuitously without payment of any rent, compensation, license fee etc. It was further stated that the Trust decided to sell the said property to the purchaser and has consequently terminated the employment of the service tenant and paid him his full service dues in full and fnal settlement of his claim. Purchaser, although not legally bound to do so, has agreed to pay the lump-sum compensation of Rs.5, 00, 000.00 to the service tenant. The service tenant has agreed to remove himself, his family members and belonging from the said premises and quit premises. Thereafter, deed of surrender was executed between respondent No.2 and purchaser M/s Amar Enterprises on 7/8/2009. Respondent No.2 agreed to accept the compensation amount of Rs.5, 00, 000.00. The service tenant has agreed to remove himself, his family members and belonging from the said premises and quit premises. Thereafter, deed of surrender was executed between respondent No.2 and purchaser M/s Amar Enterprises on 7/8/2009. Respondent No.2 agreed to accept the compensation amount of Rs.5, 00, 000.00. Receipt on record shows that the amount has been accepted by him after the period about three years. The complainant made the grievance on the basis of the order passed by the Charity Commissioner. On 3/6/2012, respondent No.2 addressed letter to the Trusties stating that he was tenant of Flat No.2. He had addressed letter to valuer and asking him as to how the name of Smt. Nayna Dave as tenant in respect to fat No.1 and Mr. Vishnubhai Dave against fat No.2. He was informed that information was provided by the Trust of ofce bearers. By letter dtd. 11/6/2012, respondent No.2 was informed by Trust that they are surprised to read the contents of valuation report. They do not know Smt. Nayna Dave. The question of her being tenant does not arise. The Trust had denied the claim of Smt. Nayna Dave. It was also stated that Trust had appointed Mr. Vishnu Dave as caretaker of the Sanatorium and to properly look after it. He was provided accommodation next to Trust ofce in the building. Over the years Vishnu Dave (accused No.12) had also started using the trust ofce for his personal use. The father of Respondent No.2 has served the Trust honestly for long years. He was also provided accommodation in the room next to the Trust ofce i.e. Flat No.2 and after his demise the Trust has recognised respondent No.2 as rightful tenant of fat No.2. The Trust had never created any tenancy in favour of Smt. Nayna Dave. If any such representations were made to the valuer or to any other person by Vishnu Dave, the same were false. This letter would indicate that the Trust has supported claim of respondent No.2 and recognized him as tenant. It is also pertinent to note that the a grievance was made by respondent No.2 almost three years after the execution of the agreement and surrender deed and acceptance of amount of compensation. Memorandum of understanding was executed on 26/7/2007 between Trustees. This letter would indicate that the Trust has supported claim of respondent No.2 and recognized him as tenant. It is also pertinent to note that the a grievance was made by respondent No.2 almost three years after the execution of the agreement and surrender deed and acceptance of amount of compensation. Memorandum of understanding was executed on 26/7/2007 between Trustees. The respondent No.2 forwarded letter to the Trust on 28/8/2012 stating that the accused No.12 has taken undue advantage of his position and shown his wife's name as tenant of fat No.2. The Trust is requested to correct the mistake. Thus, from the documents it is apparent that there was no complicity of the petitioners being Trust and its members with coaccused to deceive the complainant. After the order of the Charity Commissioner was passed under Sec. 36 (1)(a) of the Bombay Pubic Trust Act, the letter addressed by Trust to respondent No.2 as tenant. The complainant himself has addressed letter to the Trust that accused No.12 has committed forgery by inserting name of his wife in the rent receipt. There is no material on record to show that the petitioners were acting in connivance with accused No.12. It is pertinent to note that respondent No.2 is the educated person. He accepted the amount of Rs.5, 00, 000.00. He is signatory to the agreement dtd. 9/6/2009. He executed surrender deed. 7. The decision relied upon by both sides are decided in the context of the factual aspects of the matter. It is settled law that in the case of abuse of process of law, the Court can exercise powers under Sec. 482 of Cr.P.C. or under Article 227 of the Constitution of India to quash and set aside proceedings. 8. The impugned proceedings in the present case deserves to be quashed and set aside. ORDER (i) The order issuing process dtd. 4/9/2014 passed by Metropolitan Magistrate, 17th Court, Borivali, Mumbai in C.C. No.90/SW/2013 and common order dtd. 3/4/2017 passed by Sessions Judge, Dindoshi, Mumbai in Criminal Revision Application Nos.25 of 2015, 33 of 2015 and 34 of 2015 qua petitioners and proceedings in CC No.90/SW/2013, are quashed and set aside; (ii) Criminal Application No.485 of 2018 is disposed of; (iii) Writ Petition is allowed in above terms and stands disposed of.