4. On receipt of the complaint, respondent No. 3 the Joint Charity Commissioner, Amravati Region, Amravati, called a report from the Charity Inspector. The Charity Inspector submitted a report that the appellant received the consideration amount of Rs. 1,23,503/- towards the sale of "toor dal" and deposited only Rs. 68,503/-. Thus, the appellant has committed misappropriation of Rs. 55,000/-.

5. On receipt of the report, Notices were issued to the appellant as well as respondent Nos. 1 and 2.

6. The appellant contended that amount of Rs. 1,23,503/- was received by him against the sale of "toor dal". He has deposited Rs. 68,503/- and kept Rs. 55,000/- with the consent of the trustees of the sansthan/trust against the expenses incurred by him. He further contended that he insisted to collect the amount from Shri Sawaldas Bhutada who was cultivating the land of the sansthan/trust and, therefore, the false complaint is made.

7. Respondent Nos. 1 and 2 have opposed the contentions of the appellant as the appellant has demanded the amount from said Sawaldas Bhutada.

8. The respondent No. 3 the Joint Charity Commissioner, Amravati Region, Amravati, examined the Charity Inspector as well as the appellant and the respondent Nos. 1 and 2. On the basis of the evidence adduced, the Joint Charity Commissioner held that the appellant has committed the misappropriation by keeping Rs. 55,000/- with him which was the amount of the sansthan/trust and thereby he committed default under Section 41D of the said Act and thereby he was disqualified and suspended as president and trustee of the sansthan/trust.

9. Being aggrieved and dissatisfied with the order passed by the respondent No. 3 the Joint Charity Commissioner, Amravati Region, Amravati, the present appeal is preferred by the appellant on the ground that the Joint Charity Commissioner ignored the fact that the appellant has to recover the amount of Rs. 55,000/- from the sansthan/trust which he has incurred from his own pocket. The removal of the trustee of the sansthan/trust is a very harsh action from which strict proof is necessary. In absence of the proof, the Joint Charity Commissioner passed the order of removal which is illegal, arbitrary, and liable to be set aside.

10. Learned counsel Shri Raju Kadu for the appellant submitted that in view of Section 41D of the said Act, the charges are to be proved beyond reasonable doubt. To prove the charges, strict proof is required. Here, there is no evidence to show that the appellant has committed the misappropriation and, therefore, the order passed by the Joint Charity Commissioner is liable to be set aside and quashed.

11. In support of his contentions, learned counsel Shri Raju Kadu for the appellant placed reliance on following decisions:

1. Totaram Dasuji Rathod and others vs. Atmaram Kisansing Rathod and others, reported in MANU/MH/1944/2019 : 2020 (1) Mh. L.J. 922;

2. Vajubhai Patel and another vs. The Charity Commissioner, Maharashtra State and others, reported in MANU/MH/0670/1990;

3. Shri Mukund Waman Thatte vs. Shri Sudhir Parshuram Chitale and others, reported in MANU/MH/0338/2012 : 2012 (3) ALL MR 604;

4. Shri Dhanraj Natthuji Kale vs. Shri Govindrao Laxmanrao Choudhary, reported in MANU/MH/2167/2011 : 2012 (7) ALL MR 294;

5. Mallikarjuanappa s/o. Sidramappa Bidve and others vs. Joint Charity Commissioner, Maharashtra State, Mumbai and others, reported in MANU/MH/0783/2007 : 2008 (1) Mh. L.J. 148;

6. Santoshkumar s/o. Nandkishor Pande and Ors. vs. Vinaykumar s/o. Sattyanarayan Mishra (Second Appeal No. 360/2012 decided by this Court on 17.10.2012).

12. On the basis of the above catena of decisions, learned counsel Shri Raju Kadu for the appellant submitted that action under Section 41D of the said Act is a harsh action, and, therefore, strict proof is necessary. Unless and until the lapse is proved to be actuated by dishonestly, drastic action of removal would not be warranted.

13. Per contra, learned counsel Shri Anup Dhore for the respondent Nos. 1 and 2 submitted that the appellant himself has admitted during the proceedings before the Joint Charity Commissioner that he kept the amount of Rs. 55,000/- with him. He has not explained the expenses which he has incurred from his own pocket for the sansthan/trust. The Charity Inspector's report shows that he has not deposited the entire consideration amount which he has received from the sale of agricultural produce owned by the sansthan/trust. He has not produced on record the voucher of the expenses. The evidence of the Charity Inspector supported by the admission of the appellant is sufficient to prove the charges against the appellant. In view of that, the appellant was removed from the sansthan/trust as trustee as serious charges were levelled against him and thereby the action initiated by the Joint Charity Commissioner is legal and, therefore, no interference is called for.

14. Having heard learned counsel for the rival parties, point arises for my consideration is:

Whether the order passed by the Joint Charity Commissioner is without application of mind while imposing the punishment of removal against the appellant?

15. Section 41D(1) of the said Act confers powers upon the Charity Commissioner to suspend, remove or dismiss any trustee/trustees of the public trust if he/they is/are found guilty of the act/acts, which is/are mentioned in clauses (a) to (f) therein.

16. While considering the question, as to whether the appellant, who is found guilty of any of the charges mentioned in clauses (a) to (f) to sub section (1) of Section 41D of the said Act, should be suspended, removed or dismissed without application of mind, the punishment of either suspension, removal or dismissal, as the case may be, must be held to be proved.

17. It is well settled that every lapse or every act of misconduct does not invite the punishment of dismissal. The Charity Commissioner is, therefore, bound to record reasons for imposing a particular punishment.

18. Perusal of the judgment and order passed by the Joint Charity Commissioner and the evidence adduced on record, reveals that after receipt of the complaint of the respondent Nos. 1 and 2, the Joint Charity Commissioner called a report of the Charity Inspector. As per the report, the appellant was the president of the sansthan/trust. He has received Rs. 1,23,503/- as a consideration amount by selling "toor dal". However, he has only deposited Rs. 68,503/- in the account of the sansthan/trust and not deposited remaining amount of Rs. 55,000/- and also not adduced any account for the same. The Charity Inspector had also verified the account with the Bank of Maharashtra of the sansthan/trust. The said bank account also shows that the appellant has only deposited Rs. 68,503/-. The appellant has also not produced the vouchers of the expenses which according to him he had incurred as expenses of the sansthan/trust. The Audit Report dated 28.2.2013, 28.3.2014 of the sansthan/trust also not shows the expenses which was incurred by the appellant. The appellant has also not produced any document to show that he has kept the amount of Rs. 55,000/- as expenses incurred by him by obtaining the consent of the other trustees of the sansthan/trust.

19. Besides the report of the Charity Inspector, the Joint Charity Commissioner examined the appellant as well as the respondent Nos. 1 and 2. The appellant himself has admitted in his evidence that he received the amount of Rs. 1,23,503/- as a consideration amount. However, he has only deposited Rs. 68,503/- and rest of the amount he had kept with him as he had incurred the expenses during the day-to-day activities of the sansthan/trust. Admittedly, the appellant has not adduced any evidence by placing on record any vouchers. During his cross-examination, he admitted that he did not deposit the entire amount of Rs. 1,23,503/- in the account of the sansthan/trust. Thus, the appellant himself has admitted that he has not deposited the said amount which he has received towards the sale consideration. Admittedly, the appellant has also not placed on record any account of the expenses or vouchers to show that he incurred the said expenses.

20. It is well settled that strict proof is required to prove the charges as contemplated under Section 41D of the said Act.

21. In the catena of decisions, on which the appellant placed reliance, also it is held that action under Section 41D of the said Act is a very harsh action. If the trustees are removed from the trust, the charges against them are to be proved very strictly.

22. Keeping in mind the ratio laid down in the aforesaid decisions cited supra, in the present case, the appellant was the president of the sansthan/trust. He admitted that he received amount of Rs. 1,23,503/- as a consideration amount. He also admitted that he has only deposited Rs. 68,503/- and rest of the amount of Rs. 55,000/- he had kept with him as he had spent the amount towards the expenses of the sansthan/trust. When the appellant admits that he kept the said amount as he had incurred the expenses, the appellant has to place on record the account as well as the vouchers to show that he had incurred the expenses by spending his own money, which he has not placed on record. As the appellant himself has admitted that he kept the said amount with him, as he had incurred the expenses, the same is sufficient to prove that the amount was kept by him without passing any resolution. Though he testified that he had kept the said amount with the consent, no resolution passed by the other trustees permitting the appellant to keep the said amount was placed on record. The evidence of Charity Inspector Umesh Shankarrao Lunge and admission of the appellant are sufficient to show that without any authority, the appellant has kept the money with him and no account was produced.

23. The legal position is clear that the charge of malfeasance or misfeasance is serious one. The proceedings are of quasi civil and quasi criminal nature. The proof required to sustain the charge is of high standard. The standard of proof in such proceedings is somewhat more than normally required in cases governed by the preponderance of probability and somewhat less than required in criminal cases beyond reasonable doubt. The imputations reflecting on integrity of trustees have to be fortified by proof of high degree which would be somewhere between standard of proof required in civil proceedings like a suit and criminal proceedings like a trial for offences of criminal breach of trust or that of cheating.

24. Thus, unless the lapse on the part of the trustees is proved to be actuated by dishonestly or active connivance with other trustees, who are guilty of misfeasance or malfeasance, the drastic action under Section 41D of the said Act may not be warranted.

25. Here, in the present case, the appellant himself has admitted the fact that he has kept the said amount without the consent of the other trustees and he has not placed any account in support of the contentions that he incurred the expenses and, therefore, he kept the amount.

26. Thus, the evidence of the Charity Inspector; the admission by the appellant, and in the light of the fact that no account was placed on record, clearly indicates a dishonest intention of the appellant. The appellant was appointed as a trustee and, therefore, imputation reflecting the integrity is to be maintained by the trustees. The responsibility imposed upon them is to take care of the assets of the sansthan/trust. The act of withdrawing or keeping the amount by the trustees of the sansthans/trusts, without any authority, is sufficient to show that the trustees acted by dishonestly and drastic action against such trustees is warranted. The intention of the appellant is clear from his conduct and, therefore, the order passed by the Joint Charity Commissioner cannot be faulted with.

27. In view of the above, the appeal is devoid of merits and liable to be dismissed and the same is dismissed. No costs.

© Manupatra Information Solutions Pvt. Ltd.