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CASE NO.: Appeal (crl.)  811 of 1999

PETITIONER: Nalini Shankaran and Ors

RESPONDENT: Neelkanth Mahadeo Kamble and Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: Dr. ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

                Challenge in this appeal is to the judgment of a learned  Single Judge of the Bombay High Court dismissing the petition  filed under Section 482 of the Code of Criminal Procedure,  1973 (in short the ’Code’). A prayer was made to quash the  order of learned JMFC, Kalyan dated 2.12.1996 and the  proceedings i.e. Criminal Case No.248 of 1991.   The criminal case No. 248 of 1991 was initiated by the  Respondent No.1-Neelkanth Mahadeo Kamble alleging  commission of offences punishable under Sections 418, 409,  166 read with 114 of the Indian Penal Code, 1860 (in short the  ’IPC’). The complainant-respondent No.1 filed the complaint in  his capacity of Chief Managing Trustee of Somvashi Arya  Samaj Trust, the Trust registered under the Bombay Public  Trust Act.  As per the facts given in the complaint, the Trust  owned and possessed certain land within the limits of Kalyan  Municipal Corporation. The accused approached the trust with  the proposal of development of the aforesaid land. As a  consequence, an agreement came to be executed between the  Trust and the accused Nos.1 and 2 on 7.7.1985. Under this  agreement, accused Nos.1 and 2 agreed to construct at their  own cost a multi-purpose community hall with an area of  4,500 sq. ft. as per the specifications given in the agreement.  This hall was to be constructed on an area of about 13,500 sq.  ft. which was to be demarcated and bounded by compound  wall to be constructed by the accused. In consideration  thereof, the accused Nos.1 and 2 were to get all the rights of  development of the remaining land.  Total land was 9952.25  sq. yards. Further, according to the complainant in this  agreement no cash consideration was shown in favour of the  trust and therefore as per the directions given by the Charity  Commissioner, some nominal consideration of Rs.50,000/- or  so was subsequently added by consent of the accused.

In short, it is the case of the complainant that even  though the accused were under legal and contractual  obligation to complete the construction of the community hall  of the size and specifications given in the complaint, they did  not do so initially, sold the construction, earned crores of  rupees and ultimately constructed in place and instead of the  community hall, 10 rooms which do not fulfil the requirements  of the agreement and specifications of the community hall  and, therefore, the accused are guilty of the offences alleged.

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The complainant also alleged that right from the beginning the  intention of the accused was to cheat the Trust and ultimately  they succeeded in cheating the Trust. Their further contention  was that there is no construction of the community hall as per  the agreement and as per the specifications and the 10 rooms  constructed by the accused in lieu thereof cannot be  construed as a community hall. On the basis of these facts,  the complaint was filed. The Magistrate ordered an enquiry  under section 202 of the Code but since police report was not  received in time, the Magistrate ordered issue of process  against the accused Nos.1 to 14 on 25.10.1991 under sections  418, 409, 166 read with 114 of the IPC. It appears that this  order for issue of process was challenged by the accused Nos.  1 to 11 before the additional Sessions Judge, Thane, by filing  Criminal Revision No.206 of 1991 but the Sessions Judge  rejected the same.  Stand before learned Sessions Judge and  High Court by the petitioners was that a compromise had been  effected and, therefore, the proceedings were not to be  continued.    

       The High Court held that the prayer to quash the  proceedings was not to be entertained. The basis for coming to  the said conclusion was that had the complaint not been  by  the Public Trust registered under the Bombay Public Trust Act  but by an individual then the compromise could have certainly  come in the way of prosecuting the accused for cheating; but  the complaint was filed by the Trust through its Managing  Trustee and in the agreement referred to between the Trust  and the accused it has been repeatedly stated that the  accused persons were being given the land for the purpose of  constructing a community hall which will benefit the  community at large. Therefore, signing of the agreement by  some of the trustees of the Trust cannot come in the way of  the complaint which was filed against the accused persons.  

       Learned counsel for the appellants submitted that this  Court had occasion to consider the question of legality of the  compromise and maintainability of a civil suit filed by the  Trust.    In Ravi Construction Co. v. Somvanshi Arya Kshatriya  Samaj and Ors. (2006 (9) SCALE 174) it was, inter alia,  observed as follows:  

"8. Further both the trial court and the first  appellate court categorically observed that the  resolution adopted by all the trustees  including the chief trustee and the advocate  for the trust who was himself a trustee clearly  established that the earlier suit was filed with  the knowledge and consent of all the trustees  and on behalf of all the trustees. Significantly  the trust deed was not produced.  It could  have shown, as rightly contended by learned  counsel for the appellant, that the trust could  be sued or can sue in the name of chief  trustee.  In any event the categorical factual  finding recorded that the suit was filed with  the knowledge and consent of all the trustees  has not been disturbed and in fact no  reference has been made in the impugned  judgment to this aspect.  If the trustees had no  knowledge of the suit they could not have  adopted a resolution for compromise in a  particular mode indicating three alternatives.

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They specifically authorized the chief trustee  and the advocate who was also a trustee to  enter into a compromise.  In that view of the  matter the High Court was not justified in  holding that the suit was maintainable.   

Looked at from any angle the High  Court’s judgment is indefensible and is set  aside. Learned counsel for the appellant  during course of hearing had stated that as a  matter of genuine gesture, the appellant shall  pay to the respondent no.1-trust a sum of  Rs.3,00,000/-. Notwithstanding the fact that  the appeal has been allowed, let the statement  made by learned counsel for the appellant be  translated into reality and the amount be paid  within three months."           

In view of what has been held in respect of the connected  civil suit which was held to be not maintainable in view of the  compromise arrived at by the Trust and the accused persons,  the continuance of proceedings will be sheer abuse of the  process of law. Accordingly, the order of the High Court is set  aside and proceedings in Criminal Case No. 248 of 1991 on  the file of learned JMFC, Kalyan stand quashed.  

       The appeal is allowed.