RAMESH KISANRAO KOTHALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard Shri Shelat, advocate for the applicant and Shri Dhote, A.P.P. for the respondent.

(2.) This is an application under section 482 of Cr.P.C. read with articles 226 & 227 of the Constitution of India. The criminal proceedings in Criminal Case No.72/2005 are pending in the court of Judicial Magistrate 10th Court Nagpur against applicant. Said proceedings have been commenced on the report of one Rajendra Gayadin Gangotri, through P.S.I. Lade of Police Station Hingna. The offences alleged against the applicant are under section 420 read with section 34 of I.P.C. The other accused seems to be one Baburao Dahat prosecuted under said proceedings. It may be stated that it is the case of the prosecution that this accused has misrepresented and cheated the government to secure grants for the school managed by him. The mention of details of the allegations of the prosecution is not necessary. Suffice it to say that on the complaint, the investigation was carried out and after due investigation, the said charge sheet was submitted.

(3.) Learned counsel for the applicant Shri Shelat has submitted that all the deficiencies in the school of the applicant were complied with in view of rules under Secondary School Code. He was penalized for all these irregularities. The matter is quite old and 13 years have been passed since then. When the applicant is penalised for the irregularities committed in the school as provided under the rules of Secondary School Code and there is no financial loss to the government and everything has been recovered with penalty, offence of cheating should be deemed to have been compounded. He has also submitted that there is necessity of culpability in the mind of the complainant and then only the prosecution case will stand. He has relied on the observations of the Apex Court in 2003 Cri.L.J. 3041 [Hira Lal Hari Lal Bhagwati ..vs.. C.B.I. New Delhi] wherein it was held that the offence of cheating was not established when the alleged accused had no fraudulent or dishonest intention and the matter has been compromised between the department with the aid of necessary rules. He has also relied on the observations of the Apex court in 2005(3) SCC 670 [Suresh ..vs.. Mahadevappa Shivappa Danannava and another] to contend that when the dispute between the parties is of civil nature and does not prima faice disclose the commission of alleged offence under section 420 of I.P.C. the complaint has to be dismissed, so also it can be dismissed on the ground of laches or inordinate delay on the part of the complainant. He has further relied on the decision of the Apex Court in (2004)2 SCC 731 [K.C. Builders and another ..vs.. Assistant Commissioner of Income Tax] to submit that there should be an existence of fraudulent intention at the time of making promise or misrepresentation itself. Mere failure of the accused to keep up the promise is not sufficient to prove the existence of such intention right from the beginning. In short it is the submission of the learned counsel that the matter has been settled by the Education Department in respect of the irregularities in the school of the applicant and when penalty as per rules of Secondary School Code , has been imposed by the authorities who were competent to impose the penalty, in compliance with the rules, the prosecution can not survive. Further the applicant had no dishonest intention or element of cheating while securing the grants from the government and therefore, the report and the criminal proceedings initiated on the basis of the said report i.e. impugned charge sheet is not sustainable at law and it is liable to be quashed and set aside.