Karnataka High Court
Parijanashram Swamiji vs Kailaje on 20 November, 1985
Equivalent citations: ILR1986KAR417
ORDER Kudoor, J.
1. This Revision Petition is by the accused in C.C. No. 5199.84 on the file of the Chief Metropolitan Magistrate, Bangalore City. It is directed against the order dated 18-8-1984 passed by the chief Metropolitan Magistrate, Bangalore City, directing issue of process to the accused for offences punishable under Sections 409, 420 and 465 I.P.C.
2. The matter arises in this way :
The respondents in this revision, who will be hereinafter referred to as the complainant's, have filed a complaint before that Malleswaram Police against all these accused alleging the during the period between 1979 and 1980, the 1st accused, the ex-Matadhipathi of Chitrapur Mutt and Ex-officio Chairman of the Board of Trustees of Sree Pandurangaswamy Ashrama Trust along with the other accused committed breach of trust by misappropriating the gold and silver articles of the Trust worth about Rs. 8 to 10 lakhs. On the basis of the complaint filed by them, the Malleswaram Police, registered a case in Cr. No. 485/82 under Section 409 I.P.C ; submitted an F.I.R. to the jurisdictional Magistrate on 16-10-1982 and took up investigation. During the investigation, the Police seized number of documents pertaining to the Trust. The Police, after conducting the investigation, submitted a 'B' final report by reporting that the dispute was one of civil nature on. 23-4-1983. The police had also issued notice to the complainants intimating them their filing 'B' report treating the case as one of civil nature. Thereupon the complainants have presented a joint complaint-petition under Section 200 read with Section 190 of the Code of Criminal Procedure, 1973 (the Code) on 24-5-1983 before the Chief Metropolitan Magistrate, Bangalore City. The Magistrate recorded the sworn statement of both complainants. Thereafter, having considered the complaint petition, the sworn statement of the complainants and also the documents seized and the mahazar drawn by the police during the investigation of Cr. No, 485/82, the Magistrate passed the impugned order on 18-8-1984 directing issue of process against all the accused for the offences under Sections 409, 420 and 465 I.P.C. It is the correctness of this order that is sought to be assailed in this Revision Petition.
3. Sri R. B. Deshpande, Learned Advocate appearing for the accused, presented three points for consideration. Firstly, he contended that a joint complaint is not envisaged under the provisions of the Code and as such the complaint presented by the complainants in this case is legally erroneous and the proceedings initiated by the Magistrate on the basis of the complaint is also erroneous and not in accordance with law. Secondly, he contended that the allegations made against the accused in the complaint and in the sworn statement of the complainants do not make out any of the offences alleged against the accused. They disclosed at best civil a dispute between the parties and as such the criminal prosecution initiated against the accused is wholly illegal and unwarranted. Thirdly, he contended that the procedure followed by the Magistrate in looking into the documents seized and the mahazar drawn by 'the police during the investigation of the criminal case registered on complaint filed by the complainants, is wholly illegal and beyond his jurisdiction, as they clearly fall outside the scope of enquiry under Chapter XV of the Code.
4. Per contra, Sri B. Gopalaiah, Learned Advocate appearing for the complainants contended that there is no prohibition under the Code for filing a joint complaint, that at best it would amount to an irregularity and not an illegality and it does not vitiate the proceedings, that there is no substance in the contention that the averments made in the complaint taken along with the sworn statement of the complainants disclose only a civil dispute, that the material placed before the Magistrate do support the view taken by the Magistrate that there was sufficient ground to proceed against the accused and that the Magistrate was right in relying upon the documents seized and the Mahazar prepared by the police during the investigation of the crime registered on the basis of the complaint filed by the complainants.
5. In the light of the rival contentions, canvassed in this case, the short points that arise for decision are these :
(1) Whether a joint complaint is envisaged under the Code ?
(2) Whether the dispute between the parties is of a civil nature ?
(3) Whether the procedure followed by the Magistrate is not in accordance with law?
6. I Shall deal with these points in the order in which they were formulated.
POINT NO. 1 :
7. Sri. R. B. Deshpande, Learned Advocate appearing for the petitioners contended that the provisions under the Code do not envisage any joint complaint. In that view, he has submitted that the Magistrate has fallen into an error in accepting the joint complaint filed by two complainants and proceeded to take action against the accused, Sri Gopalaiah, Learned Advocate, appearing for the complainants submitted that there is no prohibition for entertaining a joint complaint under the Code. He has further contended that even if a joint complaint is not contemplated under the Code, the filing of a joint complaint and acting upon such a complaint would at best amount to an irregularity and not not an illegality vitiating the proceedings. No provision in the Code has been brought to my notice to sustain the contention that a joint complaint is envisaged under the Code. A similiar contention urged before the Madras High Court in Narayanaswamy v. Egappa, 1962 (2) Cr. L.J. 616 was accepted by his Lordship Sadashivam J Dealing with this question, this is what the learned Judge has observed in paragraph 2 of the judgment :
"Under Section 233 Cr. P.C. for each distinct offence of which any person is accused, there should be a separate charge and the exceptions are contained in the subsequent sections. There is no provision in the said section dealing with joinder of charges authorising two or more complainants to file a single complaint. If the authors of the Code of Criminal Procedure contemplated such filing of joint complaints, they would have clearly made provision for them corresponding to Order 1 Rule 1 C.P.C. providing for joinder of plaintiffs in civil suits. On the other hand, the provisions like Section 247 I.P.C., in summons case and Section 259 Cr.P.C in warrant case as to the powers of the Court to dismiss the complaint in the absence of the complainant, clearly indicate that a complaint could be filed by only one person. It has been rightly pointed out by the Learned Advocate for the petitioners that there would be difficulty even in the matter of compounding of the offences by the accused with every one of the complainants in the case of joint complaints."
8. With respect I fully agree with the view expressed by His Lordship Sadashivam, J. In that view of the matter, the objections raised by Sri Deshpande that a joint complaint is not envisaged under the Code has to be upheld.
POINT NO. 2 :
9. In regard to the question whether the dispute between the parties is of a civil nature, we have to look into the averments made in the complaint and also the sworn statement of the complainants recorded by the Magistrate. No doubt, the learned Magistrate has taken into consideration in addition to these materials also the mahazars prepared and the documents seized by the investigating officer during the investigation of the crime registered upon the complaint filed by the Complainants which aspect I shall deal with when I deal with point No. 3.
10. For a just and proper appreciation of the question involved for consideration under this point, it is necessary to advert to some of the facts of the case as alleged in the complaint.
11. The complainants claim that they belong to Saraswath community and the community at large respected and revered His Holiness Anandashram Swamiji who was the spiritual and religious head of the community. The said Swamiji used to receive gifts from people including donations of various articles of gold, silver and precious stones. The gifts and donations thus received were to the tune of approximately Rs. 10 lakhs. Cash donations also were made in the course of years amounting to Rs. 3 lakhs. The 1st accused was the 'Shishya' of His Holiness Anandashrama Swamiji. But he lacked the requisite characteristics to succeed His Holiness. Hence, His Holiness and his supporters formed a Trust called Pandurangashram Trust for the purpose of utilisation of the assets of the Trust. After the demise of His Holiness Anandashrama Swamiji, the 1st accused became the religious head and took over as Matadhipathi of Chitrapur Math and came into possession and control of all the properties owned by His Holiness Anandashrama Swamiji including the valuable liquid assests. The 1st accused began to misappropriate the liquid assets with the help of the other accused. This gave rise to revulsion amongst the community members who began to question the authority and use of the property for personal whims and fancies by the 1st accused. Feeling that the matter may be investigated, A. 1 resigned the post of Mathadipathi and purposely did not nominate his successor. A.1 conniving and conspiring with the other accused, proclaiming that he is the owner and personally responsible for the trust assets, began to squander the property. On these allegations, both the complainants had filed a complaint before the Malleswaram Police. The Malleswaram Police registered a case and conducted investigation. In the course of the investigation, the police seized certain documents, silver and gold and drew up the mahazar for their seizure. After completing the investigation, the Police submitted a final 'B' report stating that the dispute between the parties was of a civil nature. On receipt of a notice from the police stating that the complaint filed by them was treated as a civil dispute and a final 'B' report was filed before the concerned Magistrate, the complainants have filed the present complaint under Section 200 read with Section 190 of the Code on the basis of almost the same allegations as they had made in the complaint lodged before the police styling the complaint as a protest petition against the 'B' report.
12. The Magistrate recorded the sworn statement of both the complainants. It is submitted that reference may be made to the sworn statement of the complainant R.B. Kailaje as it is comprehensive enough for the purpose of the case. He has spoken to in his sworn statement by and large all the allegations made in the complaint. He has stated that the properties of Pandurangashrama Trust originally belonged to Anandashrama Swamiji, Mathadhipathi of Chitrapur Math. The said Swamy donated all the assets to Sri Pandurangashrama Trust, Bangalore. Sri Pandurangashrama Trust was registered on 23-7-1966. The entrustment of the assets of Sri Anandashrama Swamiji to Sri Pandurangashrama Trust was made subsequent to 23-7-1966. The value of the gold and silver coins and other articles is worth about Rs. 8 to 10 lakhs according to the present value. Sri Anandashrama Swamy was holding these assets jointly with R.G. Philar and Dr. G.S. Hattangadi in trust. Immediately after the registration of the trust, the cash assets were credited to the account of the trust. After the death of Sri Anandashrama Swamiji on 16th September, 1966, a Meeting of the Trust was held on 19-9-1966 presided over by the 1st accused who was the Chairman of the Trust. The trust deed provided for acceptence of donations of both moveable and immoveable properties. Sri Anandashrama Swamy was the Chairman of the Trust during his lifetime and thereafter the 1st accused became the Chairman of the Trust who was adopted and initiated by Anandashrama Swamiji of Chitrapur Math in the year 1959 to be his successor. After the death of Sri Anandashrama Swamy, the 1st accused became the Chirman of the Trust.
13. In the year 1978, proceedings were initated in the District Court at Karwar fur the removal of the 1st accused in Misc. Application No. 26/78 in O.S. No. 2/1977, a suit filed by some of the devotees of Chitrapur Math for framing a scheme. The 1st complainant was one of the Respondents in the said suit. The 1st accused informed the Board of Trustees of the Trust at a meeting held on 18-11-1979 which was presided over by him that he was tendering his resignation to the post of Chairman and Trusteeship of the Trust in view of his abdication of the Mathadhipathi of Chitrapur Math. After tendering his resignation, the 1st accused did not return or hand over charge of the trust properties which were in his custody to anyone. The gold and silver articles were removed to Bombay by the 2nd accused at the instance of the 1st accused. The 2nd accused was the trustee of Chitrapur Math and Vice-President of the Standing Committee and Manager of Chitrapur Math. A-3 to A-6 were the trustees of the Trust but they did not take possession of the properties of the Trust after the 1st accused resigned from Chairmanship of the Trust. The 1st accused and A.3 to A.6 had not shown the properties in the account books nor in the balance-sheet except the cash and the plot of land. The 1st complainant before filing the complaint before the police, gave a notice to the 1st accused with copies to A.3 to A.6 demanding them to return the properties to the Trust. He received a reply from them stating that nobody could question them regarding the properties. Thereafter the complainants took action to file a complaint before the police. The police have seized the documents from the executive trustee and also some silver articles as per the list prepared at Shirali of North Kanara District. The police also seized the gold articles and silver articles from Anandashrama at Bombay during the course of the investigation. This is the sum and substance of the sworn statement of the 1st complainant.
14. The allegations made against the accused are that they had misappropriated the liquid assets of Pandurangashrama Trust which originally belonged to Anandashrama Swamiji of Chitrapur Math. Anandashrama Swamiji of Chitrapur Math was the Chairman of the Trust and according to the allegations, he had made over the liquid assets as well as a plot of land at Bangalore in favour of the Trust. After his death, the 1st accused became the Chairman of the Trust. According to the complainants, he had resigned from his Chairmanship of the Trust in the year 1979 and he did not return the liquid assets belonging to the Trust when he resigned from the Chairmanship and misappropriated the same. It is also seen from the sworn statement of the 1st complainant that before filing the complaint, he got issued a notice through his lawyer to A.1 & A.3 to A.6 who were the Chairman and the Trustees of the Trust calling upon them to return the liquid assets belonging to the Trust which were in their possession but the reply he got was that noboby need question them, obviously relating to the demand made by the 1st complainant to return the liquid assets belonging to the Trust. When a demand was made to return the liquid assets belonged to the Trust by the complainants who claim that they are the beneficiaries under the Trust, from A.I and A.3 to A.6, who were in possession of those assets as Chairman and the trustees of the Trust and when they refuted the right of the complainants to ask for the return of those assets, the dispute between the parties essentially assumes the character of one of civil dispute and not constituting any criminal offence. It seems to me from The circumstances of the case and also the tenor of the reply sent to the notice issued by the complainants by A.I and A.3 to A/6 asserting their right over the assets belonged to the Trust and challenging the right of the complainants in asking them to return those properties, if the complainants are still certain of their rights as beneficiaries under the trust and in that capacity they have a right to call upon A.I and A.3 to A.6 to return the liquid assets, they shall have to take recourse to the Civil Courts and cannot vindicate their right in a Criminal Court by initiating criminal proceedings. Having regard to the contentions between the complainants on the one hand and the accused on the other, it seems to me that the dispute between them is of a civil nature.
POINT No 3 :
15. In view of my finding on Point Nos. 1 and 2, I feel it unnecessary to express any opinion on this point for the disposal of this Petition.
16. In the result, for the reasons stated above, the Petition is allowed. The impugned order is quashed and the proceedings initiated on the complaint filed by the complainants are dropped. The complaint stands dismissed.