CASE NO.: Appeal (crl.) 330 of 2008 PETITIONER: Kishor Kirtilal Mehta & Ors RESPONDENT: Vijay Kirtilal Mehta & ors DATE OF JUDGMENT: 18/02/2008 BENCH: ALTAMAS KABIR & LOKESHWAR SINGH PANTA JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 330 OF 2008
@ S.L.P. (CRIMINAL) NO.357 of 2007
Altamas Kabir, J.
1. Leave granted.
2. By a Deed of Trust dated 5th July, 1978, one
Kirtilal Manilal Mehta, the late father of Kishor
Kirtilal Mehta, the appellant No.1 herein, created
a Trust known as Lilavati Kirtilal Mehta Medical
Trust and appointed Kishor Kirtilal Mehta,
Mrs.Charu Kishor Mehta the appellant No.2 and Mrs.
Rekha Haresh Sheth, the sister of the appellant
No.1, as Permanent Trustees thereof. The said
Trust established the Lilavati Hospital which is
a highly-reputed hospital in Mumbai and is
considered to be one of the best hospitals in
India today.
3. Clause 17 of the Trust Deed stipulates that as
far as possible only members of the Settlor’s
family are to be appointed as Trustees. However,
the respondent No.1, Vijay Kirtilal Mehta, the
elder brother of the appellant No.1 and son of the
Settlor, was neither appointed as a Permanent
Trustee nor as a Trustee by the Settlor when the
Trust was created. According to the appellants,
it was at the instance of the appellant No.1 that
the respondent No.1 was appointed as a Trustee on
22nd July, 1990, for a period of five years, as
provided under the Trust Deed. The case of the
appellants is that since the Trust Deed further
stipulates that except for Permanent Trustees all
other Trustees could be appointed for a term of
five years only and for a maximum of three terms,
the respondent No.1 ceased to be a Trustee after
the expiry of the third term on and from 22nd July,
2005.
4. According to the appellants, Mrs.Charu Kishor
Mehta, the appellant No.2, thereafter issued a
notice on 5th April, 2006, for holding a meeting of
the Trustees in order to fill up the vacancy
caused by the cessation of the respondent No.1 as
a Trustee of the aforesaid Trust. Mrs. Rekha
Haresh Sheth did not attend the meeting held on 8th
April, 2006, but addressed a letter to the
appellant No.2 through her advocate enclosing a
copy of the Minutes of a meeting of the Trust
purported to have been held on 22nd July, 1995,
wherein Mr. Vijay Kirtilal Mehta, the respondent
No.1, was shown to have been re-appointed as a
Permanent Trustee. The Minutes also indicated that
the appellants, Kishore Kirtilal Mehta and Mrs.
Charu Kishore Mehta, had signed the said Minutes.
The appellants denied having signed the said
Minutes and questioned the genuineness of the same
and contended that the said Minutes had been
fabricated in order to circumvent the Resolution
adopted by the Permanent Trustees on 8th April,
2006, declaring the cessation of the trusteeship
of the respondent No.1.
5. In any event, by his letter dated 8th April,
2006 the respondent No.1 asked the appellant No.2
not to hold any meeting on 8th April, 2006,
pursuant to her notice dated 5th April, 2006. The
appellants were also informed that Niket Mehta,
son of the respondent No.1, had been appointed a
Permanent Trustee and the respondent No.1 had been
re-appointed as a Permanent Trustee.
6. From the materials on record it appears that
in regard to the Minutes of the meeting of the
Trustees allegedly held on 21st July, 1995, a
Change Report was filed with the office of the
Assistant Charity Commissioner, Mumbai, on 10th
April, 2006, to record the cessation of
trusteeship of Prashant Kishore Mehta and the re-
appointment of Rajiv Kishore Mehta as Trustee of
the above Trust.
7. Certain other facts subsequently surfaced from
correspondence addressed by the Heads of the
different departments of the Lilavati Hospital to
the appellant No.2 which led to the filing of a
complaint by the appellant No.1 before the
Economic Offences Wing of the Bombay Police on 3rd
May,2006, against the Lilavati Hospital Trust and
others for having allegedly committed offences
punishable under Sections 120-B, 465, 467, 468,
471, 474 and 420 of the Indian Penal Code.
8. Since, according to the appellants, no action
was taken by the Economic Offences Wing of the
Bombay Police on the basis of the complaint dated
3.5.2006, the appellant No.1 filed a complaint
before the Additional Chief Metropolitan
Magistrate (4th Court), Girgaum, Mumbai, on
13.5.2006, being CC No.24/M/2006, against the
respondent No.1 and others under Section 120-B,
465, 467, 468, 471 and 420 of the Indian Penal
Code alleging that the accused persons had
committed forgery and had fabricated various
documents and records of the Trust, including the
Resolution alleged to have been adopted by the
Trustees on 22.7.1995. By an order dated
22.5.2006 the learned Magistrate directed the
Gamdevi Police Station to investigate into the
allegations contained in the complaint filed by
the appellant No.1 under Section 156(3) of the
Code of Criminal Procedure. The Gamdevi Police
Station registered First Information Report MECR
No.5/2006 on 27.5.2006 on the basis of the said
complaint.
9. The above complaint was followed by an
application filed by the appellant No.1 on
18.5.2006 under Section 94 of the Code for
issuance of a Search Warrant for search and
seizure of the Minutes of the alleged meetings of
the Board of Trustees as well as the letter dated
21.7.1996 which was alleged to have been forged.
10. Soon thereafter, the appellant No.1 filed Suit
No.2444 of 2006 before the City Civil Court at
Bombay on 30th May, 2006, praying for a declaration
that the Minutes of the meeting alleged to have
been held on 22.7.1995 and the Resolution adopted
therein, were forged and fabricated. Admittedly,
the said suit is still pending disposal.
11. At the time of arguments in respect of the
application for interim reliefs prayed for by the
appellant No.1 in the said suit, the counsel for
the Trust tendered a copy of the Minutes Book of
the Trust containing the Minutes of the meetings
of the Trust alleged to have been held between 31st
January 1993 and 31st March, 1997. According to the
appellants herein, that was the first time that
they had come across the said Minutes Book. It is
the case of the appellants that on examination of
the Minutes Book, which was produced on behalf of
the Trust, they found that the entire Minutes Book
contained forgeries and fabrication. A detailed
affidavit was filed by the appellant No.1 in that
regard. It may be mentioned at this stage that the
prayer made by the appellant No.1 for issuance of
a search warrant was refused by the Magistrate by
his order dated 15.6.2006, inasmuch as, the
investigation under Section 156(3) of the Code was
also in progress.
12. On 19.6.2006 Smt. Rekha Sheth filed an
affidavit in Suit No.2444 of 2006 pending before
the City Civil Court, Bombay, inter alia,
disclosing that she was in possession of the three
original letters dated 21.7.1994. Thereafter, in
connection with the investigation under Section
156(3) of the Code the Gamdevi Police Station
issued a notice dated 24.7.2006 to the appellant
No.1 directing him to produce the following
documents:
i) Minutes Book of the meetings of the
Board of Trustees for the period
31.1.1993 till date,
ii) Resolution passed on 22.7.1995 (3
originals); and
iii) Letter dated 21.7.1995 signed by the
appellants herein and Rekha Sheth (3
originals).
13. Subsequent to the said notice, the respondent
No.1, Vijay Kirtilal Mehta filed Criminal Writ
Petition No.1581 of 2006 before the High Court of
Bombay against the order dated 2.5.2006 passed by
the Additional Chief Metropolitan Magistrate and
also against order dated 24.7.2006 and prayed for
quashing of the said two orders as also the FIR
dated 27.5.2006.
14. The writ petition was listed before the High
Court of Bombay on 27.5.2006 and after hearing the
counsel for the parties the High Court passed an
order directing the respondent No.1 and the
Lilavati Hospital Trust to permit the police
authorities to inspect the documents, impugned by
the appellants, at the premises of the Lilavati
Hospital and to furnish copies thereof to the said
authorities. Interestingly, the appellants herein
who were vitally interested in the subject-matter
of the proceedings, were not made parties in the
Criminal Writ Petition No.1581 of 2006 and
accordingly the appellants moved an application
for intervention on 4.8.2006. Inasmuch as, the
respondent No.1 sent certain selected documents
only directly to the Police Station, the
appellants herein moved an interlocutory
application No.310 of 2006 in the pending criminal
writ petition. The same was listed for hearing on
23.8.2006 and by consent of the counsel appearing
for the parties the High Court appointed the Chief
Examiner of Documents, Government of Maharashtra,
as Court Commissioner to examine the following
documents:
i) Minutes Book of the meeting of the Trust
in respect of the alleged meetings of
the Board of Trustees of the said Trust
between 31.1.1993 to 31.3.1997 running
into 150 pages;
ii) 3 Original letters dated 21.7.1995; and
iii) 3 Original extracts of the Resolution
dated 22.7.1995.
15. Subsequent to the passing of the said order
dated 23.8.2006 the Public Prosecutor moved the High
Court for substitution of the Chief Examiner with
the Additional Chief Examiner and also sought relief
to permit the Commissioner to take the documents in
question to their laboratory for chemical
examination. By its order dated 8.9.2006 the High
Court while confirming its order of 23.8.2006
directed the respondent No.1 to hand over the
original documents as contained in paragraph 4 of
the said order of 23.8.2006 to the Prothonotary and
the Senior Master of the High Court who would then
take the said documents into custody and seal and
dispatch the same by special messenger to the Chief
Examiner of Documents, M.S. at Pune, who was
appointed as the Commissioner by the Court. The
Chief Examiner of Documents was directed not to
part with the documents in any manner and to keep
the same in safe custody and after conducting
required scientific tests on the documents return
the same in a sealed cover by special messenger to
the Prothonotary and the Senior Master of the Court
and to send his opinion within six weeks from the
date of receipt of the documents. On the documents
being received back from the Chief Examiner of
Documents, the appellant would be entitled to
collect the same in the presence of the respondents,
their advocates, the learned Public Prosecutor and
the Investigating Officer.
15. Thereafter, on 10.11.2006 the matter was once
again listed before a Division Bench of the High
Court comprised of the Hon’ble Mr. Justice S.B.
Mhase and the Hon’ble Mr. Justice S.R.Sathe, when
the letter dated 7.11.2006 from the Chief Examiner
of Documents was brought to the notice of the
Court. Since the said letter is the genesis of the
present proceedings before us the same is reproduced
hereinbelow :
“No. HE/1319/HW/PCP/34/06/VVR/06
Office of the Chief State Examiner of
Documents, C.I.D. M.S., Pune
Date : 07 November, 2006
To
The Registrar,
Original Side,
Prothonotary and Senior Master,
High Court, Original Side
Mumbai
Ref. : Your letter No.B/
16143 dated 6.11.2006
Sub. : Misc.Application No.
440/06 in Criminal
Writ Petition 581 of
2006.
Sir,
The additional documents in
this case have been received in this
Office today i.e. on 7.11.2006. As
per the previous order dated 23
August 2006 the signature
(Resolution dated 22 July 95) in the
Blue Register was disputed.
However, the register does not
contain signatures of Sow. C.K.
Mehta. In the present order, 6
documents which were sent previously
are stated to be admitted. It is,
therefore, requested to kindly
communicate as to which signatures
of Shri K.K. Mehta and Sow. C.K.
Mehta are disputed and which
signatures are admitted
specifically so as to enable this
office for the needful.
The Hon’ble Lordship may kindly
be requested to grant a further
period of about 4 week’s time for
examination after receipt of
complete clarification.
Inconvenience caused to the
Hon’ble Lordship is deeply
regretted.
Yours faithfully,
Sd/-
Chief State Examiner of Documents
C.I.D. M.S. Pune
On the said letter being brought to the notice of
the Court the matter was adjourned till
14.11.2006, when, after hearing learned counsel
for the parties, the Division Bench was of the
view that since the order of 23.8.2006 had been
passed with the consent of the parties and was
subsequently reaffirmed by order dated 8.11.2006
and 2.11.2006, it would be appropriate to place
the matter before the original Bench consisting
of the Hon’ble Justice J.N. Patel and the Hon’ble
Justice Roshan Dalvi for clarification of their
Lordships’ order dated 23.8.2006.
16. Thereafter, the matter was taken up by the
latter Bench on 10.1.2007 on the basis of the letter
written by the Chief Examiner of Documents on
7.11.2006, and, by its order of even date, the
Hon’ble Judges passed the order which has been
impugned in the present appeal and reads as follows:
“CRIMINAL APPLICATION NO. 310 OF 2006
IN
CRIMINAL WRIT PETITION NO.1581 OF 2006
Kishor Kirtilal Mehta …Applicant
Vs.
Vijay Kirtilal Mehta & ors. ..Respondents
Mr. M.S. Mohite for the applicant
Mr. S.R.Borulkar, P.P. for the State
CORAM : J.N. PATEL &
ROSHAN DALVI, JJ
DATE : 10TH January, 2007
P.C.
1. The matter has been placed before our
Bench to clarify our order dated 23.8.2006
which was modified by passing further order
on 8.9.2006. The question for seeking
clarification arose because a communication
dated 7.11.2006 was received by the
Registrar of this Court from the
Commissioner appointed by this Court i.e.
the Chief State Examiner of Documents,
C.I.D., M.S. Pune and in which a specific
query has been made that in respect of six
documents which were sent previously to the
Commissioner and stated to be admitted. The
Commissioner wanted to know as to which
signatures of Shri K.K. Mehta and Sow C.K.
Mehta are disputed and which signatures
are admitted specifically so as to enable
his office to do the needful. Though such
a clarification is not required as our
order dated 23.8.2006 is very specific with
reference to the documents which are
required to be examined by the
Commissioner, but what we find is that one
of the intervenor-complainant has stated
that they dispute all the signatures of
Shri K.K. Mehta in the minute book and of
Sow C.K. Mehta in three letters and the
three resolutions and for that reason the
Commissioner need not, for the present,
examine all the signatures on the minutes
book except relating to the resolution
dated 22.07.1995 which is the basis of the
complaint lodged with Gamdevi Police
Station and the three copies of the
resolutions and three letters as observed
in our order and submit his report as early
as possible.
2. Needless to say that the Commissioner
would require specimen signatures of the
parties for the purpose of comparison which
have already been forwarded by order dated
2.11.2006.
Sd/-(J.N. Patel,J.)
Sd/- (Roshan Dalvi,J.)
True copy”
17. Appearing for the appellant, Dr. A.M. Singhvi
submitted that by the impugned order dated
10.1.2007 passed in Application No.310/06 filed in
Criminal Writ Petition No.1581 of 2006, the Division
Bench of the High Court truncated the directions
given in its earlier order dated 23.8.2006 though
indicating that the same was to clarify the said
order of 23.8.2006. Dr. Singhvi submitted that such
purported clarification was necessitated on account
of the letter dated 7.12.2006 addressed by the
Commissioner appointed by the Court to the Registrar
raising certain specific queries in respect of six
documents which had been previously sent to the
Commissioner and stated to be admitted. The High
Court further recorded that by the aforesaid letter
the Commissioner wanted to know as to which
signatures of Shri K.K. Mehta and Sow Charu Kishore
Mehta were disputed and which signatures were
admitted specifically so as to enable his office to
do the needful. He also submitted that the learned
Judges had then altered the contents of their
earlier order dated 23.8.2006 by observing that
since one of the intervenors /complainants had
disputed all the signatures of Shri K.K. Mehta in
the Minutes Book and that of Charu Kishore Mehta in
3 letters and the 3 Resolutions, the Commissioner
was not required for the present to examine all the
signatures in the Minutes Book except those relating
to the Resolution dated 22.7.1995, which is the
basis of the complaint lodged with Gamdevi Police
Station, together with the 3 copies of the
Resolutions and 3 letters as observed in the order
of 23.8.2006 and to submit his report as early as
possible.
18. In support of his aforesaid submission, Dr.
Singhvi referred to paragraph 4 of the said order
dated 23.8.2006 whereby the Chief Examiner of
Documents, Government of Maharashtra, had been
appointed as the Commissioner with directions to
examine the documents to be produced by the
respondent No.1 herein in original, namely;
i) Minutes Book running into 150 pages
for the period 31.1.1993 till
31.3.1997;
ii) All the three original letters dated
21.7.1995; and
iii) All 3 original extracts of Resolution
dated 22.7.1995.
19. Dr. Singhvi urged that the said directions did
not restrict the examination of the Minutes Book
only to the Resolution dated 22.7.1995 to which the
impugned order dated 10.01.2007 had been confined.
He urged that the directions given in paragraph 4
had to be read with paragraph 7 of the order which
provided that the parties could assist the Hand-
writing Expert in identifying the documents from the
Minutes Book which were required to be examined by
him. The directions also provided that so far as
items 2 and 3 were concerned, all the 3 original
letters and Resolutions were required to be
examined. Dr. Singhvi contended that paragraph 7 of
the order made it very clear that the parties would
be entitled to identify not only the Resolution
dated 22.7.1995, but all such other documents in the
Minutes Book which were required to be examined by
the Hand-writing Expert. Dr. Singhvi urged that by
the impugned order the width of the initial order
was sought to be narrowed down only to the
Resolution of 22.7.1995.
20. Dr. Singhvi reiterated the stand taken on
behalf of the appellants in Suit No.2444 of 2006
before the City Civil Court at Bombay, instituted by
the appellant No.1 herein, wherein the Minutes Book
of the Trust containing the minutes of the meetings
of the Trust purported to have been held between
31.1.1993 to 31.3.1997 was produced. Dr. Singhvi
also reiterated that according to the appellants
that was the first time that they had come across
the said Minutes Book and by looking into the same
they found that the entire Minutes Book contained
forgeries and fabrication. He submitted that it is
in that context that a prayer had been made by the
appellant No.1 before the Additional Chief
Metropolitan Magistrate (4th Court), Girgaum,
Mumbai, under Section 94 of the Code of Criminal
Procedure for issuance of a search warrant for
search and seizure of the said Minutes Book, but the
same had been refused by the Magistrate on
15.6.2006 on the ground that investigation under
Section 156(3) of the Code in connection with CC
No.24/M/2006 was also in progress.
21. In this regard, Dr. Singhvi brought to our
notice the photocopies of the recording of the
Minutes in the Minutes Book with regard to the
meetings purported to have been held on 31.1.1993
and on other dates where the appellant No.1 was
shown to be present, although, according to him, he
was not present at such meetings. From the said
minutes of the meeting held on 31.1.1993 and from
various other minutes, including that of the meeting
alleged to have been held on 3.5.1993, wherein the
expression ‘Mumbai’ had been used, although, at the
said point of time, the usage of the expression
‘Bombay’ was still prevalent and had not been
substituted by the expression ‘Mumbai’. He submitted
that the same would prima facie establish that the
said Minutes had been fabricated at a much later
date when the State started using the expression
‘Mumbai’ in place of ‘Bombay’. Dr. Singhvi
submitted that it is in such context that an
examination of the entire Minutes Book for the
period in question became necessary and was
contemplated in paragraphs 4 and 7 of the order
dated 23.8.2006, and by virtue of the impugned order
dated 10.1.2007, the entire purpose of proving the
fabrication of the Minutes Book had been rendered
infructuous.
22. Dr. Singhvi also contended that the letter of
7.11.2006 addressed by the Commissioner appointed by
the Court to the Prothonotary and Senior Master of
the High Court, merely required a clarification that
since the Resolution dated 22.7.1995 did not contain
the signature of Charu Kishore Mehta and in the
order of 23.8.2006 these documents had been
previously stated to be admitted, it was necessary
to know which signatures of Shri K.K. Mehta and Sow.
Charu Kishore Mehta were disputed and which
signatures were admitted specifically, so as to
enable his office to do the needful. Dr. Singhvi
submitted that in the impugned order of 10.1.2007
the High Court observed that since all the
signatures of the said two persons were disputed,
the Commissioner should confine his examination only
to the signatures as appearing in the Resolution
dated 22.7.1995, thereby truncating the scope of
the earlier order dated 23.8.2006.
23. Dr. Singhvi referred to Civil Appeal No.1575 of
2007 which had arisen out of suit No.1997 of 2006
pending before the City Civil Court, Mumbai, wherein
appellant No.2, Charu Kishore Mehta, was the
plaintiff. The said suit had been filed in respect
of one of the four Resolutions passed by the Board
of Trustees of the Lilavati Kiritilal Mehta Medical
Trust on 29.4.2006 resolving that she should not
interact or communicate with employees and/or
consultants of the Lilavati Hospital and Research
Centre and/or the Trust save and except through the
Board of Trustees of the Trust, and the employees
and the consultants were also informed that they
were not to take into account any instructions
directly given by Mrs. Mehta to them. Dr. Singhvi
submitted that while granting leave in respect of
the said appeal this Court had by order dated
26.3.2007 come to a conclusion that there was
serious dispute between the parties, which could
ultimately cause serious difficulties in the
running of the hospital which was under the
management of the Trust. Accordingly, as a temporary
measure, this Court directed that Dr. Narender
Trivedi, Vice-President of the hospital and Dr. K.
Ramamurthy, Senior Consultant of the hospital, would
be in charge of the hospital and of the day to day
running of the Hospital and Research Institute. This
Court also directed that the two Administrators
would take all decisions relating to the
administration of the hospital and give a report to
the Board of Trustees every two weeks. By a
subsequent order dated 20.8.2007 this Court replaced
Dr. K. Ramamurthy, as Administrator on his
expressing his inability to continue to function as
an Administrator due to ill-health and he was
replaced by Mr. Justice A.A. Halbe, a retired Judge
of the Bombay High Court, as Joint Administrator
along with Dr. Narendra Trivedi.
24. According to Dr. Singhvi, a Contempt Petition,
being No. 125 of 2007, was, thereafter, filed in
respect of the final order passed by this Court
disposing of the appeal on 26.3.2007. While
considering the contempt application, this Court
was informed that the suit filed by the appellant
No.2 in the Civil Court, Bombay, had already been
dismissed by a Judgment and Order dated 24.9.2007.
However, while dismissing the suit, the trial court
had continued the order appointing the Joint
Administrators for a period of 10 weeks or until
further orders of this Court, whichever was earlier.
This Court directed the said order to continue for a
further period of 10 weeks from 24.9.2007, subject
to any interim or final order that might be made in
the appeal from the order dismissing the suit or any
collateral proceedings. The contempt petition was
also dismissed as withdrawn.
25. Dr. Singhvi submitted that in the report filed
by Justice Halbe, as one of the Joint Administrators
of the Trust, various irregularities were pointed
out indicating that there were acts of
misappropriation, misfeasance and malfeasance by
Trustees Vijay Mehta and Dushyant Mehta and that
huge amounts belonging to the Trust had been
siphoned off by them. Various details of such
alleged misappropriation have been indicated in the
Report and the ultimate figure given by the Joint
Administrator was computed as Rs.258,90,00,000/-.
26. What Dr. Singhvi tried to convey was that not
only had the Trust been completely mismanaged, but
that the Trust funds were being misappropriated by
the respondent No.1 and some of the other Trustees.
Dr. Singhvi submitted that in the light of the
Report filed by Justice Halbe, in his capacity as
one of the Joint Administrators, it was all the more
expedient not to restrict the examination of the
Minutes Book to the Resolution dated 22.7.1995
alone, as has been done by the Bombay High Court in
the order impugned in this appeal, but to allow such
examination in respect of the other Resolutions
contained in the Minutes Book as well, as was
originally intended by the order dated 23.8.2006.
27. The first objection taken by Mr. Ranjit Kumar,
learned Senior Counsel for the respondents, to Dr.
Singhvi’s submissions, was that since the criminal
complaint was pending before the Magistrate and only
a direction had been given under Section 156(3) of
the Code of Criminal Procedure, it was not open to
the complainant to indicate the manner in which the
investigation was to be undertaken. He also
submitted that the complaint had originated only
after inspection of the Minutes Book had been shown
to the appellant No.1 herein in Suit No.2444 of
2006, filed by the said appellant before the City
Civil Court at Bombay, praying for a declaration
that the Minutes of the meeting alleged to have been
held on 21.7.95 and the Resolution adopted therein
were forged and fabricated.
28. Mr. Ranjit Kumar also submitted that the
petition filed by the appellant No.1 under Section
94 of the Code of Criminal Procedure for issuance of
a search warrant had been dismissed by the learned
Magistrate on 15.6.2006.
29. Mr. Ranjit Kumar urged that the reference made
in the order of 23.8.2006 regarding production of
the Minutes Book running into 150 pages for the
period from 31.1.1993 till 31.3.1997 had to be read
and co-related with paragraph 7 of the order in
which the parties were allowed to assist the Hand-
writing Expert in identifying the documents from the
Minutes Book relating to the Resolution dated
22.7.1995 which was directed to be made available to
the Commissioner appointed by the Court for his
examination and verification.
30. Referring to the copy of the Minutes of the
meeting of the Board of Trustees dated 31.1.1993,
3.5.1993 and copies of other minutes produced by Dr.
Singhvi, Mr. Ranjit Kumar submitted that Dr.
Singhvi’s submissions thereupon were misconceived
since the expression ‘Mumbai’ had been in existence,
particularly amongst the Gujarati community in
Bombay, from long before the usage was officially
recognised by the Government of Maharashtra. In
fact, he also referred to a Gujarati newspaper known
as “Mumbai Samachar” which had been in publication
long before the term ‘Mumbai’ came to be officially
used. Mr. Ranjit Kumar submitted that usage of the
word ‘Mumbai’ in some places in the aforesaid
minutes did not automatically establish that they
had been fabricated.
31. Regarding the signature of the Chairman of the
Board of Trustees in the Minutes, Mr. Ranjit Kumar
urged that in normal practice the Minutes could be
signed as and when the Chairman was available and
his signature at a later date did not indicate that
the said Minutes were fabricated.
32. Mr. Ranjit Kumar then referred to the testimony
of Charu Kishore Mehta in Suit No.1997 of 2006
wherein she had examined herself as PW-1. It was
pointed out that in cross-examination Charu Kishore
Mehta admitted that Vijay Kirtilal Mehta, who was
made defendant No.10 in the suit, was the Managing
Trustee of the Trust, though she was not aware of
any meeting having taken place in which he had been
so appointed. She also stated that Vijay Kirtilal
Mehta was the President and Chief Executive Officer
of the Lilavati Hospital, though she did not know
since when he had been appointed in such capacity.
Mr. Ranjit Kumar submitted that Charu Kishore Mehta
also admitted that she was unable to recollect when
Vijay Kirtilal Mehta had been reappointed as a Term
Trustee for the first and second terms. She was
also unable to recollect as to whether Change Report
had at all been submitted to the Charity
Commissioner in respect of such reappointment and
that she also had no knowledge as to when Vijay
Kirtilal Mehta ceased to be a Term Trustee as had
been contended by her.
33. Mr. Ranjit Kumar then referred to the testimony
of Kishor Kirtilal Mehta, who was examined as PW-6,
regarding the souring of relations between him and
Vijay Kirtilal Mehta and that he believed whatever
Mrs. Rekha Haresh Sheth, defendant No.2, had told
him at the meetings of the Trust. PW 6 had deposed
that from what had transpired in the meetings he
fully believed that the said defendant No.2 was not
personally involved in the forgery and the
fabrication of the documents, though subsequently in
the complaint filed by him before the Metropolitan
Magistrate he had also involved her along with other
Trustees in the allegations of forgery of the
Minutes of 22nd July, 1995.
34. Mr. Ranjit Kumar also submitted that the Suit
No.2444 of 2006 was dismissed by the learned Judge,
City Civil Court at Bombay, and one of the issues
involved was whether the plaintiff had been able to
prove that even if the meeting of 29th April, 2006
did take place, it was illegal and suffered from the
various vices set out in the plaint, or at least
some of them, or any of them. He urged that the
learned Judge had returned a negative finding on the
said issue.
35. Reference was also made by Mr. Ranjit Kumar to
a chargesheet filed by the Central Bureau of
Investigation against the appellant No.1 and his son
regarding the manner in which they were alleged to
have deceived people in respect of supply of
diamonds, which was said to be the business being
conducted by the said appellant. He also referred
to the various criminal cases said to have been
filed against the appellant No.1 in order to
establish the criminal antecedents of Appellant
No.1.
36. Mr. Ranjit Kumar lastly submitted that the
Report filed by Justice Halbe did not reflect the
view of the other Joint Administrator and had been
filed voluntarily and singly, without being asked to
do so by the Court.
37. Mr. Ranjit Kumar submitted that the case of
the appellant throughout had been that the Minutes
of the meeting held on 22nd July, 1995, and the
resolution alleged to have been passed therein, were
forged and fabricated and taking advantage of the
letter written by the Chief Examiner of Documents,
CID, the appellant had tried to expand the scope of
the specific order dated 28th August, 2006.
38. Mr. Ranjit Kumar submitted that the
appellants had filed the appeal to embark upon a
roving or fishing enquiry, despite having confined
their claim for inspection to the specific
resolution of 22nd July, 1995, and the same was
therefore, liable to be dismissed.
39. Appearing on behalf of the State, Mr. P.B.
Sawant, learned senior counsel, firstly referred to
the first complaint made by the appellant No.1 to
the Senior Inspector-In-charge, Additional C.P., GB
CB CID EOW, Crawford Market, Mumbai, on 3rd May,
2006, to indicate the scope of the enquiry
contemplated in such complaint. He particularly
referred to paragraphs 3 to 5 of the complaint,
which are reproduced hereinbelow:
“3. Recently, me and my wife have received
from No.2 copy of certain Minutes of
Meeting of Trustees and from Nos.10 to 20
copy of Resolution in the form of true
copy of extract with purports to disclose
as if No.21 Mr. Vijay Kirtilal Mehta is
made a permanent Truestee vide Clause 17
of the Trust Deed as on 22nd July, 1995.
They are alleging that in the said Meeting
me, my wife, No.2 Mrs. Rekha H. Sheth and
Shri Bharat S. Shah were present as
recorded in the purported Minutes at pages
81 to 83.
4. It is needless to add that these
documents are not only forged and
fabricated, but are per se false documents
which contain absolutely incorrect facts
and have been got up with view to support
a false claim with the intention of
defrauding the Truest and me and others by
forging the said Minutes and the
Resolution alongwith my signature. I
maintain and reiterate the no such Meeting
was ever held nor was No.21, Mr. Vijay
Kirtilal Mehta ever appointed as a
permanent trustee as is sought to be
portrayed dishonestly and falsely.
5. I further state that these documents
are part of a pre-planned conspiracy
entered into between all of the above
mentioned persons as they all are
instrumental in creating such fabricated
and backdated documents only to deprive me
and my wife of our legitimate rights and
to create right in favour of No.21. Mr.
Vijay Kirtilal Mehta as permanent trustee,
which do not exist.”
He also referred to paragraph 6 of the first
complaint as also paragraph 6 of the second
complaint before the Additional Chief Metropolitan
Magistrate, 4th Court Girgaum, Mumbai, to indicate
the scope of the complaint which dealt with the
alleged fabrication of the Minutes of the meeting of
the Board of Trustees alleged to have been held on
22nd July, 1995. Paragraph 6 of the first complaint
and paragraph 6 of the second complaint are
reproduced hereinbelow one after the other:-
“6. I maintain that there was no such
Meeting held and this clearly tentamounts
to making a false document and committing
forgery and using and possessing the
forged document knowing the same to be
forged with the intention of committing an
offence of cheating which are all done
pursuant to a pre-planned conspiracy which
involves altering the pages of the Minute
Books and creating bogus Minutes as well
bogus Board Resolutions and extracts
thereof.”
“6. Accused No.2 respondent to the said
notice by her reply dated 7th of April
2006, written by her Advocate Mr. Amol
Inamdar on her behalf, enclosing a copy of
the purported Minutes of a meeting of the
Board of Trustees of the said Trust
allegedly held on 22nd July, 1995, in which
among other things, it was falsely alleged
that Accused No.1 was appointed as a
Permanent Trustee of the said trust aw and
from 2nd July, 1995. My wife Smt. Charu K.
Mehta, gave a copy of the said letter
dated 7th April, 2006 along with its
enclosures to me for my perusal. The said
purported Minutes copies were hand written
and at the foot of the said Minutes, my
purported signature has been forged.
Annexed hereto and marked as Exhibit ‘B’
is a copy of the said forged Minutes
allegedly bearing my signature. I was
taken aback and rudely shocked to see such
Minutes as no such meeting had ever taken
place and neither I have signed any such
Minutes nor was Accused No.1 ever
appointed as a Permanent Truestee of the
said Trust, as falsely alleged. The said
copy of the Minutes per se was forged and
fabricated pursuant to a pre-planning
among the Accused and others to capture
power of the said Trust by ousting me, my
wife and the other Trustee. Neither
myself nor my wife and the said Bharat
Shah, whose presence has been recorded in
the said Minutes were ever present for any
such alleged meeting on then purported
date viz. 22nd July, 1995 or otherwise.”
40. It was lastly submitted by him that on account
of the findings of the High Court in its order of
19th October, 2006 with reference to the letter
written by the Chief Examiner of Documents on 11th
October, 2006, regarding the letter said to have
been sent by the appellant No.1 and the directions
of the Court to disregard the same, no interference
was called for with the judgment and order of the
High Court under appeal.
41. Although, lengthy arguments have been advanced
on behalf of the appellants and the respondents, all
of whom claimed to have an interest in the
management of the Lilavati Hospital, being run by
the Lilavati Kirtilal Mehta Medical Trust, what we
are called upon to decide in the appeal before us is
the scope of the order passed by the Division Bench
of the Bombay High Court on 23.8.2006 in Criminal
Writ Petition No.1581 of 2006 filed by Vijay
Kirtilal Mehta, in regard to the examination of the
documents enumerated in paragraph 4 of the order in
relation to the subsequent order of 10.1.2007
impugned in this appeal.
42. We are, therefore, also required to examine
whether the scope and ambit of the directions
contained in paragraphs 4 and 7 of the aforesaid
order dated 23.8.2006 have in any way been
circumscribed by the subsequent order dated
10.1.2007.
43. As has been observed by the Division Bench of
the Bombay High Court in its order of 23.8.2006, the
subject matter of the writ petition involves the
allegations made on behalf of the writ petitioners
that a meeting of the Board of Trustees of the
Lilavati Kirtilal Mehta Medical Trust had been held
on 22.7.1995 pursuant to which a Resolution had been
adopted in the absence of the writ petitioner and
his wife and that their signatures had been forged
in the said Resolution. Consequently, as part of the
investigation, certain documents were required to be
examined by the Hand-writing Expert. This aspect of
the matter has been highlighted both by Mr. Ranjit
Kumar and Mr. Sawant appearing for the respondent
Trustees and the State of Maharashtra, respectively.
It has accordingly been urged by them that the
directions given in paragraphs 4 and 7 of the said
order of 23.8.2006 will have to be read and
understood in that context only.
44. Such submissions have been made to counter Dr.
Singhvi’s submission that paragraph 4 of the order
did not limit the scope of the examination by the
Hand-writing Expert only to the Resolution dated
22.7.95, but that paragraphs 4 and 7 of the order of
23.8.2006 taken together clearly indicate that the
examination could be undertaken of the entire
Minutes Book itself. It has been urged by him that
it is in such context that the entire Minutes Book
for the period from 31.1.1993 till 31.3.1997 had
been directed to be produced and liberty was given
to the parties to assist the Hand-writing Expert in
identifying the documents from the Minutes Book
which were required to be examined by him and that
the Bombay High Court had erred in altering its
earlier directions and confining the examination
only to the Resolution dated 22.7.1995.
45. In order to decide the question arising in this
appeal, we will have to examine the circumstances in
which the criminal writ petition, in which the
orders dated 28th August, 2006 and 10th January,
2007, were passed, came to be filed.
46. In the first complaint made by the appellant
No.1 to the Senior Inspector-In-charge, Additional
C.P., GB CD CID EOW, Crawford Market, Mumbai, on 3rd
May, 2006, the focus was on the alleged fabrication
of the Minutes of the meeting of the Board of
Trustees said to have been held on 22nd July, 1995.
Paragraph 6 of the complaint, which has been
reproduced hereinbefore, categorically alleges that
no such meeting had been held and that the pages of
the Minutes Book had been altered thereby creating
bogus Minutes and bogus Board Resolutions.
47. In the complaint made before the Additional
Chief Metropolitan Magistrate, 4th Court, Girgaum,
Mumbai, it has also been specifically stated that
although in the Minutes of the meeting alleged to
have been held on 22nd July, 1995, the appellant
No.1 and his wife, Charu Kishore Mehta, had been
shown to be present, they were neither present at
the meeting nor have they signed the Minutes as had
been sought to be represented in the Minutes Book.
48. It may be noted that on 22nd May, 2006, the
Additional Chief Metropolitan Magistrate directed
investigation into the complaint filed by the
appellant No.1, under Section 156(3) Cr.P.C. and on
24th July, 2006, pursuant to such order, the Gamdevi
Police Station directed the respondent No.1 to
produce the Minutes Book of the meetings of the
Board of Trustees for the period from 31st January,
1993, till date, together with the Resolution
adopted on 22nd July, 1995 and the letter of 21st
July, 1995 signed by the appellants and Smt. Rekha
Sheth.
49. In the meantime, the appellant No.1 also filed
Suit No.2444 of 2006 on 13th May, 2006, in the City
Civil Court at Bombay for a declaration that the
Minutes of the meeting of the Trustees, alleged to
have been held on 22nd July, 1995, and the
Resolution adopted therein, were forged and
fabricated. Significantly, it was on 21st May, 2006,
during the hearing of the appellant No.1’s prayer
for interim relief in the said suit, that the
Minutes Book of the Trust for the period between
31st July, 1993 and 31st March, 1997, was produced by
the respondent before the Court and according to the
appellants, it was on such occasion that for the
first time they came across the Minutes Book which
on examination was found to be full of forgeries and
fabrications.
50. It may also be noted that the criminal
complaint and the suit were both proceeded with
simultaneously, but the order for examination of the
Minutes Book and the Resolution of 22nd July, 1995
and the letter of 21st July, 1995, were passed by
the Bombay High Court in the proceeding arising out
of the criminal complaint before the Additional
Chief Metropolitan Magistrate. It may, therefore,
be concluded that the directions contained in the
order passed by the Bombay High Court on 23rd
August, 2006, was made on the basis of the complaint
before the Magistrate and not on the basis of what
had been discovered when the Minutes Book had been
produced before the City Civil Court at Bombay in
connection with Suit No.2444 of 2006 filed by the
appellant No.1 herein. In fact, the relief prayed
for in the suit was also limited to a declaration
that the Minutes of the meeting held on 22nd July,
1995 and the Resolution passed therein were forged
and fabricated.
51. It is obvious that certain new materials were
discovered by the appellants after examining the
Minutes Book which had been produced by the
respondent No.1 before the City Civil Court at
Bombay, and the same has inspired the appellants to
claim that the directions given on 23rd August,
2006, by the Bombay High Court covered examination
of the entire Minutes Book and was not only confined
to the Minutes of the meeting held on 22nd July,
1995 and the Resolution subsequently adopted. As
indicated hereinbefore, the High Court was
apparently aware of the aforesaid situation and
thereby limited the examination of the Minutes Book
to the Minutes of the meeting said to have been held
on 21st July, 1995, for the present (emphasis
supplied).
52. In our view, the High Court did not restrict
further examination of the Minutes Book, if
required, but for the purpose of the complaint filed
before the Additional Chief Metropolitan Magistrate,
the High Court seems to have taken the view that the
examination by the Handwriting Expert of the Minutes
of the meeting held on 21st July, 1995, was
sufficient and it ordered accordingly.
53. The matter is still pending before the Bombay
High Court and should any further examination of the
Minutes Book of the Trust be necessary, it will
always be open to the complainant-appellant No.1
herein to apply for such further examination in the
pending proceedings.
54. We, therefore, see no reason to interfere with
the order passed by the Bombay High Court on 10th
January, 2007, which has been challenged in this
appeal, since, in our view, the High Court was
compelled to pass such order on account of the
dispute raised about the authenticity of various
signatures in the Minutes Book purported to be that
of the appellants herein.
55. We accordingly dismiss the appeal, but we also
make it clear that the directions given by the
Bombay High Court in the order of 10th January, 2007
have been made in praesenti and will not in any way
preclude further examination of the Minutes Book.