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Bombay High Court

VEDPRAKASH P PANDEYversusSTATE OF MAHARASHTRA AND ORS

Decided
Disposal
Dismissed

Holding

The change of Secretary took effect from the resolution and the accepted Change Report, so the respondent was the Secretary and the magistrate’s order stands.

Summary

The petitioner, Vedprakash P. Pandey, challenged a Metropolitan Magistrate's order that denied his discharge under Section 239 of the CrPC in a case alleging cheating under Sections 416 and 419 of the IPC. The dispute centered on whether Respondent No.3, Jay Prakash P. Mishra, was the Secretary of the Uttar Bharatiya Education Society at the time he allegedly acted against the petitioner. The magistrate observed that the Change Report documenting the change of Secretary had been filed and accepted by the Charity Commissioner, and that under the Bombay Public Trusts Act a change takes effect from the date of the resolution, not from its recording. The High Court relied on precedents that affirmed this principle and held that the respondent was indeed the Secretary when the alleged acts occurred. Consequently, the court found no ground to interfere with the magistrate’s order and dismissed the writ petition.

Issues considered

  • Whether the non‑filing of a Change Report with the Charity Commissioner defeats the claim that the respondent was not the Secretary of the Trust at the relevant time.
  • Whether, under the Bombay Public Trusts Act, a change of office becomes effective only upon recording by the Charity Commissioner.
  • Whether the Metropolitan Magistrate was correct in refusing to grant discharge under Section 239 of the CrPC.
  • Whether documents obtained under the Right to Information Act can be used to establish that the respondent was not the Secretary.

Legislation cited

Subjects

  • Criminal Procedure
  • Section 239
  • Cheating
  • Public Trusts
  • Change Report
  • Bombay Public Trusts Act
  • Writ Petition
  • High Court

Judgment

                                                    10 WP-1187-2024.DOC
skt



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION
                  WRIT PETITION NO. 2262 OF 2024
Vedprakash P. Pandey                                  …Petitioner
            Vs.
1. State of Maharashtra
2. Senior Police Inspector,
Borivali Police Station                               …Respondents
3. Jay Prakash P. Mishra


Mr. Durgesh Rege i/b Subodh N. Pathak, for the Petitioner.
Ms. M.R. Tidke, APP for the Respondent No. 1-State.


                       CORAM:      MADHAV J. JAMDAR, J.
                       DATE :      25th AUGUST, 2026
P. C.:

1.       Heard Mr. Rege, learned counsel appearing for the Applicant

and Ms. Tidke, learned APP appearing for the State.



2.       By this Writ Petition, the challenge is to the legality and

validity of the order dated 30th May, 2018 passed by the learned

Metropolitan Magistrate, 26th Court, Borivali, Mumbai below

application (Exhibit 2) filed by the Respondent No. 3 under

Section 239 of the Code of Criminal Procedure, 1973 seeking

discharge in C.C. No. 2602623/PW/2017 for the offences




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punishable under Section 416 and 419 of the Indian Penal Code,

1860 (“IPC”).



3.    The contents of the charge-sheet are set out in paragraph

No. 5 of the impugned order dated 30 th May, 2018, which reads as

under :-


       “5. I have gone through the charge-sheet. On

       perusal of contents of the charge-sheet informant was

       working as a teacher in the school of Trust.

       Accordingly he was suspended from his service.

       Present informant applied before the School Tribunal.

       Thereafter he was removed from his service. It is not

       disputed that this accused had signed document as a

       Secretary of the Trust. According to contention of

       prosecution since 1987 this accused is acting as a

       Secretary of the Trust. Alleged disputed documents

       were signed by the accused in the year 2008-2009.

       Prior to that the informant not raised any objection.

       According to contention of the informant he called

       information under R.T.I. Act and came to know that




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        Change Report was not submitted to concerned

        authority. Even though Change Report was not

        submitted to concerned authority nothing material is

        on record to show. that at the time of signing said

        document this accused was having intention to cheat

        the   informant.   Furthermore      Change     Report   is

        accepted by the concerned authority with effect from

        the date of resolution.”


4.    Thus, the allegation of Respondent No. 3 – Complainant is

that he has taken action against the Petitioner, who at the relevant

time, was working as a Teacher in Uttar Bharatiya Education

Society at Sharada Estate, Vazira Naka, Borivali (West), Mumbai –

400092 (“the Trust”) purportedly in his capacity as the Secretary of

the Trust. The offence registered under Sections 426 and 419 of

the IPC is based on the allegation that Respondent No. 3 illegally

took action against Respondent No. 3 by representing himself to be

the Secretary of the said Trust. It is submitted by Mr. Rege, learned

counsel appearing for the Petitioner that pursuant to an application

made under the Right to Information Act, the Petitioner obtained

several documents from the office of the Charity Commissioner




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and, upon perusal thereof, found that Respondent No. 3 was not

the Secretary of the said Trust. It is on this basis of said

information the Petitioner lodged the F.I.R.



5.    Perusal of the record shows that since the year 1987, the

Respondent No. 3 has been acting as the Secretary of the Trust.

Learned Metropolitan Magistrate has observed that merely because

Change Report was not submitted to the concerned authority, it

could not be said that accused acted with intention to cheat the

informant. In fact, the material on record shows that the action

against the present Petitioner has been taken by the Respondent

No. 3 in his capacity as Secretary of the Trust in the year 2008 and

2009 and in the yer 2010, Change Report has already been filed

before the Charity Commissioner and the same has been accepted.

The F.I.R. has been lodged on 5th September, 2015.



6.    As per the settled legal position under the provisions of the

Bombay Public Trusts Act, a change takes effect upon the

occurrence of the legally valid event giving rise to such change and

is not dependent upon its subsequent recording by the Charity

Commissioner. In Chembur Trombay Education Society & Ors. v.




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D.K. Marathe & Ors.1, while considering the effect of Section 22 of

the Bombay Public Trusts Act, this court held that a change

brought about in accordance with law takes effect from the date of

the resolution or occurrence of the change and that the

proceedings before the Charity Commissioner are for the purpose

of reporting and recording such change. In the said decision

learned single judge further relied upon the decision of the

Supreme Court in Managing Committee, Khalsa Middle School Vs.

Mohinder Kaur2 .



7.      In the present case, the Change Report has, in fact, has been

accepted. Therefore, even on merits, it cannot be said that, at the

time when Respondent No. 3 took action against the Petitioner in

his capacity as Secretary of the Trust, he was not the Secretary

thereof.




1     2002 (3) Bom CR 161
2     AIR 1993 S.C.W. 3006




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8.    Thus, in these circumstances and under the writ jurisdiction

of this court, no interference in the impugned order is warranted.

Accordingly, the Writ Petition is dismissed.




                                            [MADHAV J. JAMDAR, J.]




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