Shiva Nath Prasad vs State Of West Bengal And Ors. on 1 July, 2005

JUDGMENT

P.N. Sinha, J.

1. This revisional application under Section 482 of the Code of Criminal Procedure (in short Code), 1973 preferred by the petitioner is aimed at quashing the criminal proceeding being Complaint Case No. C-4693 of 2004 pending before the learned Chief Judicial Magistrate (in short CJM), Alipore under Sections 406/417/420/120B of the Indian Penal Code (in short IPC) filed by Opposite Party (O.P.) No. 2 as complainant and all orders passed in the said case including the orders dated 5th October, 2004 and 29th October, 2004.

2. The petitioner has the support of Mr. R.S. Lodha who is O.P. No. 3 and other O.Ps. and team of legal experts for the petitioner has been led by Mr. Shanti Bhusan, a renowned Jurist of India. On the other hand, the de facto complainant O.P. No. 2 is backed by the Birlas and for them Mr. Ram Jethmalani led the team, another famous Jurist of India. Before I proceed into the merits of the revisional application I think it expedient for the ends of justice and for appraisal of factual matrix and legal principles to mention, in short, the story depicted in the complaint by the complainant. The complaint is a very lengthy one and consists of 91 pages and has been annexed as P-4 with the revisional application and runs from pages 187 to 277. It is not necessary to mention in detail the factual matrix and the allegations disclosed in the complaint. It would serve the purpose, if the gist of the complaint containing important facts and circumstances are mentioned herein.

3. It has been mentioned in the complaint that, the complainant was very close to late Madhab Prasad Birla (MPB) and his wife Priyamvada Debi Birla(PDB) and he joined the M.P. Birla Group in 1977 and was looking after taxation affairs of the said MPB Group. The complainant was also asked to look after affairs of the different charitable institutions of the MPB Group and the five trusts formed by MPB and PDB in the year 1988 and the said trusts are the subject-matter of the complaint. Later on the complainant was made Secretary/ Managing Committee Member/ Trustee of some of the charitable institutions and in that capacity he continued as advisor of MPB Group till middle of 1998. He was requested by PDB in 1998 to join as an Executive and in that capacity he continued till December 31, 2001 when he resigned. During their lifetime both MPB and PDB had decided to leave their estate to charity and with this noble objective they executed mutual Wills twice in the year 1981 and thereafter in the year 1982. Subsequently, in the year 1988 both MPB and PDB had created five mutual and reciprocal trusts to leave the estate covered by the five trusts to charity, out of which three are named as public charitable institutions. Complainant was involved in drafting the deeds and he was also a witness to mutual and reciprocal agreements between MPB and PDB. Both MPB and PDB subsequently nominated charitable institutions in which the properties held by five trusts worth about Rs. 2400 crores would vest. The public charitable institutions which were nominated are Hindusthan Medical Institution (HMI), Eastern India Educational Institution (EIEI) and M.P. Birla Foundation (MPBF). Complainant was appointed Member/ Hony. Secretary of HMI and also Hony. Secretary of MPBF.

4. After the demise of PDB in July, 2004, the complainant came to know that the first accused has claimed the estate of PDB including estate of MPB on the basis of Will made by PDB. As the complainant was fully aware of creation of five trusts out of which three were public charitable institutions, he enquired into the matter and the enquiry revealed that the first accused had criminally conspired with other accused persons and misappropriated properties worth of Rs. 2400 crores vested by five trusts. He also learnt that the accused persons have created false evidence to show that all the five trusts were revoked and dissolved on April 15, 1999, just three days before the alleged Will dated 18th April, 1999 executed by PDB. There was no revocation at all and no deed of revocation was produced before any Court or before the Probate Court. In paragraphs 5 to 7 of the complaint the descriptions of the public charitable institutions and name of other institutions have been described including date of establishment, location of the trusts, properties of the trusts and nature of the activities of such trusts.

5. The second accused was a confident of late PDB and considering the dominance of first accused on PDB after 1995, the second accused shifted his loyalties to the first accused. The third accused is a trustee in all the three public charitable institutions. The fourth accused is a longstanding employee of MPB Group. The second and fourth accused are also witnesses to the letter dated 15.4.03 which was created in pursuance of criminal conspiracy to misappropriate property of public charitable institutions and this letter has been tendered as codicil in this Court in the probate proceeding. The third accused in his biography of MPB expressed the intention of late MPB and PDB both to dedicate their wealth to charity and such decision was taken by them at the abode of Lord Venkateswara at Tirupati and the third accused himself had taken the draft trust deed and also the final draft of trust deed of MPB to the Sankaracharya at Kanchipuram and got it approved by him. The book written by third accused on the biography of MPB was published in the year 1993 and this book establishes the decision of MPB and PDB to dedicate their entire wealth to charity whose value was worth of Rs. 2400 crores.

6. For the purpose of carrying of their pious intention both MPB and PDB created two mutual Wills in the year 1981 under which in the event of death of one, all his or her property will devolve on the other and after the death of the second entire property would go to the charity. Subsequently, they executed another set of mutual Wills on 13th July, 1982 dedicating their estate to charity. In 1988 both MPB and PDB decided to commit their corporate assets and part of other movable assets to charity and accordingly they created five trusts which had the effect of vesting in their lifetime their corporate assets and part of other movable properties in the three public charitable institutions. The jewellery belonging to them were allocated to their female relatives. Out of the five trusts four were created by PDB between February 4, 1988 to February 25, 1988 and MPB created the trust on February 25, 1988. In the presence of complainant as witness to the trust deeds and at the time of execution of five trusts, both MPB and PDB had agreed to leave the remainder estate to charity. Both of them also communicated about creation of five trusts to Sri R.K. Choudhury, the legal advisor of MPB and PDB. The second and the third accused mutually agreed that remainder of the estate would go to charity. In presence of complainant both MPB and PDB made it clear at the time of execution of trust deeds that the five trusts would not and could not be revoked by either of them unilaterally. Mr. R.K. Choudhury, advisor of MPB and PDB at that time had advised on the creation of trusts and he was a witness to their oral agreement.

7. From January, 1989 the health of MPB started deteriorating and both MPB and PDB wanted that nomination of beneficiaries to the five trusts must be executed forthwith. Under the final draft nominations, the three daughters of K.K. Birla were nominated to receive jewellery of PDB and MPB and the three public charitable institutions were nominated to get the balance assets including corporate assets. Late MPB died on 30th July, 1990. After the death of MPB, late PDB wanted the nominations which were agreed between her and MPB to be executed forthwith. After all the ceremonies were completed, on September 10, 1990 immediately after 40th day of death of MPB, late PDB executed the nominations agreed between them with the pious wish as was agreed in draft nominations finalised prior to death of MPB. In presence of complainant and second accused, Sri R.K. Choudhury had explained to PDB that the legal effect of agreed nominations was that she could not hand over the companies named in the complaint in paragraph 19. Paragraph 20 of the complaint deals with the properties settled in favour of Hindusthan Medical Institution, Eastern India Educational Institution and M.P. Birla Foundation from the said five trusts. Current market value of the property settled in favour of public charitable institutions is approximately Rs. 2400 crores and it does not include properties valued at Rs. 1500 crores owned by charitable societies prior to this settlement in their favour. Accordingly, on 10.9.90 PDB made nominations to the second schedule of each of the five trusts in favour of the public charitable institutions and the nominations were made at her residence at ‘Madhukunj’ at Birla Park at 17B, Gurusaday Road, Calcutta. The nominations were communicated and known to all the trustees of five trusts including the second and third accused.

8. After death of MPB and after 1995 the first accused started showing great intimacy with PDB and started giving her company, attending to her business and even personal matters. Maintaining tradition of the Birla family norms, the other branches of Birla family members maintained close relation with PDB but, they refrained from interfering with affairs of MPB Group. This paved the way for the first accused to grab vacant space in PDB business and convince PDB that he wanted to devote his later life only to charity.

9. One of the highly trusted and confidential person of MPB and PDB was Mahabir Prasad Sharma, an employee of MPB Group and family concerns for nearly five decades. Since 1966, M.P. Sharma was working as Secretary of MPB and after death of MPB in 1990, M.P. Sharma worked as Secretary to PDB.

10. In the second/third week of April, 1999 the first accused had begun planning and designing to mislead PDB into signing documents and papers which would have the effect of misappropriating and vesting the properties which were dedicated to public charitable institutions. On 18th April, 1999 which was a Sunday, the first accused separately called three persons at Birla Park residence of late PDB and persuaded each one of them by false representation and fraud to attest a document purported to be signed by PDB. Subsequently, it was disclosed that the said document was a Will by which all the property of MPB and PDB under the five trusts which were irrevocably vested in three public charitable institutions namely HMI, EIEI and MPBF were diverted from charity and became the personal wealth of first accused. It amounted to massive fraud on PDB and on the five trusts and, constituted criminal breach of trust on public charitable institutions.

11. The three persons who were cheated by the first accused in attesting the alleged Will are as follows :

i) Sri P.L. Agarwal

ii) Dr. Madan S. Vidya

iii) Sri Mahabir Prasad Sharma.

12. In the first half of April, 1999 late PDB declared to M.P. Sharma that in view of her bad health and uncertainty of life she was determined to carry out her husband’s desire in the matter of their wealth going to charity. She also disclosed that the first accused was keen on seeing to it that the charitable intentions of both husband and wife were immediately given effect to and some document was being prepared to effect that intention. Sri Sharma was later told by the first accused to put his signature on a document signed by PDB which he represented had the effect of giving the property to charity. The first accused did not show contents of the document to Sri M.P. Sharma but, only showed him the last page which was the space for signature. At that time there were signatures of two more persons on the said document, namely the signatures of Dr. Madan S. Vaidya and P.L. Agarwal. Mr. Sharma put his signature believing the representation made to him by the first accused that he was signing a document created by PDB transferring property to charity. The first accused had also obtained the signature of Dr. Madan S. Vaidya in similar manner by falsely representing to him that the document he was signing was one by which PDB was bequeathing her entire estate to charity.

13. P.L. Agarwal is a partner of Khaitan & Co., Solicitors and Advocate and he was a witness to the mutual Wills of 1982 and those Wills were drafted by Khaitan & Co. P.L. Agarwal and first accused were friend since college days and P.L. Agarwal noticed the sudden change in the first accused. On 18th April, 1999 at the instance of first accused he went to Birla Park when the said accused told him that PDB had already signed a Will giving all her property to charity in accordance with 1982 Wills and, the only change she had made in the new Will was that the first accused had been appointed as an additional executor and trustee in addition to other executors named in the Will of 1982. PDB was not present before Mr. Agarwal and the first accused made some excuse for absence of the lady. Relying on the assurance of his old friend, the first accused, Mr. P.L. Agarwal signed in the document without reading the contents of it and without insisting presence of PDB or for her confirmation. He pointed to the first accused that PDB must sign in his presence or confirm her signature to be her when he attested, the first accused said that the Will merely reaffirmed the charitable bequest made earlier and casualised the whole issue. From the evidence of the other two witnesses it appears that PDB has told the other two witnesses that she was executing a document on the advice of first accused to leave the entire property of her to charity and they should do as the first accused directed them to do. None of the three alleged witnesses signed in presence of the other nor any one of them signed in the said document in presence of PDB herself.

14. PDB expired on 3rd July, 2004 and even when the mourning was going on, on 7th July, 2004 the first accused sent an affidavit to residence of P.L. Agarwal for signing. He did not appear or sign before any Oath Commissioner, Notary or Magistrate. The affidavit sent to him was not accompanied by a copy of Will. The truth dawned on him when he came to know on 13th of July, 2004 that the representation which the first accused had made on 18th April, 1999 was false and fraudulent representation and that by the said Will the estate of MPB and PDB instead of going to charity had gone as personal property of first accused and his son. Similarly, Dr. Madan S. Vaidya subsequently realised that by fraudulent representation the first accused obtained his signature over the Will.

15. PDB was maintaining very poor health and she was examined at London by different doctors and there was transplantation of her kidney and there were other treatment on her in different parts of body including lower abdomen and both knees at Lister Hospital, London. From 1995, she had to move in a wheel chair while on travel and during such ill-health she was mentally upset and it was her practice at that time to sign papers and documents without reading contents thereof. The alleged Will was so drafted that a trusting person like PDB who blindly trusted the first accused would readily believe on a perfunctory reading that the document was actually one in favour of charity. Four years after the execution of the Will dated 18.4.99 an unusual document appear to have been created by the first accused conspiring with the second and fourth accused to legitimize the fraudulent Will. In order to lend supporting evidence to the alleged Will an alleged letter dated 15.4.03, later on called a codicil, was contrived to fortify the bogus Will and none of which had been referred in the purported Will dated 18th April, 1999. It is surprising that the directions in this document is diametrically opposite to the pious wish in the form of direction contained in the mutual trust to which MPB and PDB were parties. The motive behind the creation of the codicil is obviously to support the alleged Will of 1999 and to afford some defence to the accused to a charge of fraud and forgery.

16. The second accused appears to have master minded and created documents, being balance sheets of five trusts as at April 15, 1999 but made more than a year later in June, 2000 to show that five trusts were revoked just three days prior to the creation of the alleged Will. The documents made in June, 2000 showed that just three days before the execution of the Will dated 18.4.99, i.e. on 15.4.99 there was a purported revocation of the five trusts by PDB. Sri R.K. Choudhury, who was one of the first trustees of the three of the five trusts never resigned and was never aware about revocation of the trusts on 15.4.99. The complainant believe that there could be no revocation either orally or in writing on 15th April, 1999 or at any time later including later than June 27, 2000 when the conspirators first communicated to a third party, namely the Income Tax Department about purported revocation of the trusts. The evidence of such revocation is a letter dated 27.6.2000 allegedly signed by PDB to the Joint Commissioner of Income Tax, Calcutta informing that five trusts had been dissolved on 15.4.99 and all the assets had been transferred to her as sole beneficiary. In the different affidavits filed in this Court in the probate proceeding the first accused has totally suppressed existence of five trusts. On the contrary, the first accused in his affidavit had stated that PDB got the properties from late MPB as his heir under the Hindu Succession Law, which is a complete lie as all the properties comprised in five trusts.

17. In committing the abovementioned criminal acts the second, third and fourth accused share the common intention with the first accused of dishonestly destroying public charitable property and converting it into personal asset of first accused and also suppressed all evidence relating to the five trusts. It is clear that all the accused entered into a criminal conspiracy, the ultimate object of which is to misappropriate the assets impressed with the charitable trust and convert the assets to their own use.

18. All the accused persons ought to have known that so far as the MPB trust is concerned without considering the mutuality implications PDB had no power to revoke the same. It could only be revoked by late MPB. So far as four trusts created by PDB are concerned, Clause 19 of the trust deed confer on her express power of revocation, but such revocation could not take place without declaration of a new trust by the settlor in respect of trust fund. Moreover, revocation of trust would not affect any act done by the trustees in execution of the trust.

19. A trustee becoming a party to the revocation of irrevocable trust is doubly dishonest and guilty of criminal breach of trust. By filing balance sheet of five trusts under a covering letter dated 27.6.2000 the second accused has sought to create evidence of the dissolution of trust and thereby aided and abetted misappropriation of property belonging to public charitable institutions. All the accused are trustees of one or more of the public charitable institutions. The accused persons using their dominant position on the five trusts as well as three public charitable institutions illegally revoked the five trusts and misappropriated properties of three public charitable institutions. All the three witnesses of the alleged Will did not read the Will since they trusted the first accused. In an affidavit dated 16.7.04 filed in the probate proceeding the first accused annexed a statement disclosing the properties belonging to late PDB to which he staked a claim under the alleged Will of 1999. Those properties include all the properties which has vested in three public charitable institutions. The first accused did not disclose before this Court in the probate proceeding that the two alleged witness to the Will have repudiated their signature and the affidavit they had given in support of it, though the first accused had in his hands their setters of repudiation of their signature.

20. The accused persons are guilty of conspiring together to commit criminal breach of trust and cheating. They have also cheated PDB by false representation to sign the purported Will of 18.4.99 divesting the properties from charity and converting it to the personal property of first accused. The accused persons accordingly committed offence under Sections 406/420/467 read with Section 120B of IPC read with Section 204 of IPC. The first accused was in a fiduciary position qua the public charitable institutions inasmuch as he is a trustee of all three of them and is guilty of an offence under Section 406 read with Section 511 of IPC. Accordingly, the complainant filed the complaint before the learned CJM, Alipore praying for issue process against the four accused persons under Sections 406/420/467/417/204 read with Sections 120B of IPC and also filed a separate application praying for issue of search warrant for seizure of relevant documents.

21. It appears that after receiving the complaint learned Magistrate perused the same and took cognizance of the alleged offence and examined the complainant and another witness Mahabir Prasad Sharma under Section 200 of Code, and thereafter, going through the complaint and statement of witnesses and documents issued process against all the four accused persons under Sections 406/417/420 read with Section 120B of IPC by order dated 5.10.04. The learned Magistrate on 29.11.04 did not pass any order over application filed by accused No. 4 under Section 205 of the Code and deferred the matter and also fixed date of hearing of the said application as well as appearance of other accused persons and show-cause by the accused as to why prayer for search warrant filed by the complainant shall not be allowed against them. Thereafter, the accused No. 2 has moved this Court in this revisional application praying for quashing the said proceeding and the orders passed by the learned CJM.

22. Mr. Shanti Bhusan, learned Senior Counsel appearing for petitioner first of all submitted that the complainant has no interest at all in the subject-matter. The complainant was associated with M.P. Birla Group and later on PDB upto April, 2000. The entire averments or contents of the petition of complaint consisting of 91 pages would indicate that the complainant has no knowledge at all in the instant matter. Everywhere it has been described by the complainant as either ‘appears’ or ‘seems’ etc. and, it clearly establishes that the complainant has no knowledge at all in the matter and state of affairs that took place after he resigned from the said Birla Group. The complainant himself did not suffer any loss or damage and the properties did not belong to him and being so he had no authority or locus standi to lodge the complaint.

23. Mr. Ram Jethmalani, learned Senior Counsel appearing for the complainant O.P. submitted that locus standi or authority of complainant or competency of complainant to file complaint is not at all a relevant factor in criminal case. No member of other Birla family knew about creation of trusts and members of Birla family are not at all competent to file the complaint. The complainant was the Secretary of all the three charitable institutions for which trust deeds were made and, he is the only person who has knowledge in the instant matter and also knowledge and intention of MPB and PDB to leave all their properties to charitable trust after their death. Authority, competency or locus standi of complainant is not relevant at all in criminal matter. Whether the complaint was filed by the complainant is mala fide or, whether it was a bona fide action of complainant, that can be considered at the time of trial and not at this stage. In support of his contention Mr. Jethmalani cited the decision , A.R. Antulay v. Ramdas Sriniwas Nayak and Anr.

24. After hearing the submissions of the learned Senior Counsels of the parties and perusing the contents of revisional application as well as the facts disclosed in the petition of complaint, I am of opinion that, locus standi, competency or authority to file a private complaint at this stage cannot be questioned. Every citizen of India has right to set the law in motion either by lodging First Information Report (FIR) or lodging complaint before competent Court, if the said citizen finds that any offence has been committed by a person or persons concerning human body or property. In the instant case, the allegations as disclosed in the petition of complaint are that late MPB and PDB before the Lord Venkateswara at Tirupati decided to divest all of their properties into charitable institutions or trusts out of which three were meant for public charitable institutions. If it appears that some persons have converted properties of public charitable institutions into their personal property such a citizen, who has knowledge about such charitable institutions or derived some benefit from the education or medical institutions receiving grant on the authority of such trusts, has authority to lodge complaint before competent Court of Law to question whether by such act any offence has been created by the person or persons who have converted properties of public charitable institutions into their personal property. It is not necessary that complaint must be filed by the aggrieved person. Except as otherwise provided in Sections 195 to 199 of the Code any person can file a complaint [Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu and Anr. 1991 Cr.LJ 1419]. There are other decisions in this respect though they are not related to private complaint and these are concerning FIR. In , Surjit Singh alias Gurmit Singh v. State of Punjab, it was held by the Supreme Court that FIR need not be given by eye-witness. The condition which is sine qua non for recording FIR is that there must be an information and that information must disclose a cognizable offence. In the present complaint it has been disclosed that three charitable institutions were made beneficiaries in respect of some properties and complainant was the Secretary and trustee of those charitable institutions. Complainant, therefore, has prima facie authority to lodge complaint against accused persons as one of them being a trustee has made conspiracy to transfer properties of charitable institutions as his personal property.

25. The decision in A.R. Antulay (supra) cited by Mr. Jethmalani is quite apposite in this case. It was held by the Supreme Court that.

Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision…. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Cr. PC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless’ contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omissidn made punishable by any law for the time being in force [See Section 2(n), Cr. PC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offenders…. Punishment of the offender in the interest of society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.

26. In view of the above discussion, the objection raised by Mr. Shanti Bhusan for the petitioner relating to locus standi, competency or authority of complainant to lodge the complaint is not acceptable in this case and this point is decided against the petitioner and, I am of opinion that in a criminal proceeding locus standi to lodge complaint is not a guiding factor. This point can be decided in the trial itself on the basis of evidence, materials on record and circumstances. This is not a ground to thwart the criminal proceeding at its very initial stage started against the petitioner.

27. Mr. Shanti Bhusan thereafter submitted that out of the five trusts four were created by PDB and one was created by MPB. All the trusts were in fact private trusts and not at all public trusts or charitable trusts. The language used in the trust deeds and construction of all the trust deeds would indicate that all the trusts were revocable. The averment of complainant in the complaint that the trusts were irrevocable are false statements. MPB executed the trust on 25th February, 1988. PDB executed the trusts on 4th February, 1988, 15th February, 1988, 18th February, 1988 and 25th February, 1988. It was alleged that before that in 1981 and 1982 MPB and PDB created mutual Wills and in order to fulfil their aim and object for divesting their properties to public charitable trusts the said trusts were created. The trust deeds can be found in pages 114-134 of volume 2 of the paper book (trust by MPB) and the trust deeds created by PDB can be found in pages 153-178, pages 195-213, pages, 232-251 and pages 271-291 respectively in volume 2 of the paper book. It would be clear that the provisions in all the five trusts are identical. The third preamble of the trust deed at pages 154-155 (volume 2) runs as follows :

And whereas with the object of making proper and adequate provision for the due and proper management, protection and preservation of my certain properties, I am desirous of creating a trust in respect of my aforesaid properties in the manner hereinafter appearing.

28. This preamble shows that the object of the trusts were the proper management, protection and preservation of settler’s personal properties and not to hand over their properties to any public charitable trust or to any charity. The second schedule of the trust deeds clearly indicate that PDB was the sole trustee and she was the sole beneficiary. After death of her husband PDB made nominations. The deed lying at page 96 of paper book volume 2 clearly reveals that by this Will all earlier directions were changed and all the earlier directions were cancelled. PDB had faith and confidence on Mr. Lodha. She signed in the Will herself before registration and it was a registered Will. She put her L.T.I, before the Registration Authority. The affidavit dated 19.8.92 affirmed by PDB lying at page 473 in volume 3 of the paper book shows that she claimed whole property as her own. All the five trust deeds were created for the benefit of private individuals and not for any charitable trusts. The settlers had no intention of entrusting the properties for charitable purpose.

29. He further submitted that value of the properties in the trust deed alleged by the complainant vested in three charitable organisations was Rs. 2400 crores. Perusal of the trust deeds would indicate that very small amounts were directed to be used for charitable purpose or religious purpose under the trust deeds. Under Clause 6(a)(i) of the trust deed of PDB dated 15.2.88, a sum of Rs. 21,000/- per year was directed to be spent for religious and charitable purpose for renovation of old temples. In the trust deed of PDB dated 18.2.88 there was direction for a sum of Rs. 5,000/- only per year to be spent for charitable purpose for the spread of education. In the trust deed dated 25.2.88 of PDB a sum of Rs. 11,000/- per year was directed to be spent for charitable purpose behind medical relief. In the trust deed executed by MPB on 25.2.88 there was no provision for spending any amount per year or per month for any charitable, religious, educational or medical purpose. The construction of the trust deeds, therefore, clearly indicate that primary purpose of the settlers was to create such deeds for their own benefit.

30. Language of the trust deeds would clearly indicate that the settlers had no intention at all to transfer any of their properties to public charitable trusts and the five trust deeds were private trusts and not trust for religious or charitable purpose. In the trustees of Gordhandas Govindram Family Trust, Bombay v. C.I.T., Bombay, , it was held by the Supreme Court that, “The construction of the trust indicates that the trust in question was created primarily for the benefit of members of the family of Gordhandas Govindram Seksaria.” The Supreme Court held that it was clearly a private trust and further held that primary purpose of the settler was to benefit the members of the family and remotely and indirectly to benefit the general public. It is crystal clear from the object of five trusts created by MPB and PDB in the year 1988 that the said trusts were for their own benefit and were not charitable endowments within the meaning of Section 1 of the Indian Trusts Act and were clearly private trusts and provisions of Indian Trusts Act, 1882 are applicable.

31. Mr. Shanti Bhusan submitted further that all the five trust deeds executed in 1988 had a specific revocation clause being Clause No. 19 which runs as follows :

19. That the settler may at any time in her lifetime or by Will revoke and/ or modify all or any of the trusts powers or provisions hereinbefore declared and by the same or other Deed or Will declare such new or other trusts, powers or provisions concerning the Trust Fund as she shall think fit:

Provided that such revocation or modification will not affect any act already done by the trustee (s) in execution of the trust.

32. Clause 19 makes it clear that Smt. PDB could revoke the trust by executing Will or otherwise. She had revoked the trust by executing the Will dated 18th April, 1999 and on 15th April, 1999, three days before the execution of Will there was revocation of the trusts by her. She herself intimated such revocation to the Income-Tax Department by letter dated 27.6.2000. In view of such state of facts and the deeds and documents it is clear that the trusts were revocable and were in fact the said five trusts were revoked. No oral evidence is permissible in law to be adduced to vary or contradict the written provisions of the deeds in view of bar under Sections 91 and 92 of the Indian Evidence Act, In view of these sections no evidence or oral agreement or statement can be admitted for the purpose of contradicting, varying, adding to or subtracting from the terms mentioned in the written deeds or the terms of the trust deeds so far as the said trust deeds relate to revocation and the Will executed by her.

33. Smt. PDB by her affidavit dated 19.8.92 claimed whole property as her own. In the certificate dated 20.2.91 issued by Khaitan & Co. it was mentioned that Shri Madhab Prasad Birla expired on 30th July, 1990 leaving behind his only sole survivor and successor his wife Mrs. Priyamvada Devi Birla. She, therefore, inherits all the assets, properties and belongings of Shri M.P. Birla. This certificate issued by Khaitan & Co., the solicitor firm of Birlas’ themselves clearly indicate that after death of M.P. Birla all assets, properties and belongings of late M.P. Birla was inherited by Priyamvada Devi Birla. She had, therefore, every right to dispose of the properties according to her wishes and intention.

34. He argued that the alleged mutual Wills created by Shri MPB and Smt. PDB in 1981 and 1982 were of no effect as the settlers themselves subsequently in 1988 by creating five trust deeds made departure from earlier mutual Wills. The background of mutual Wills can be found in Halsbury’s Laws of England, Volume 50 para, 271. In spite of such mutual Wills alleged by the complainant showing intention of late MPB and PDB to leave all their properties in charities and in view of their mutual agreement if the first person makes any alteration, the survivor can also alter the earlier intention. In the instant matter late MPB himself altered his own earlier intention reflected in the mutual Wills in 1988 by executing a deed of trust on 25th February, 1988. Late PDB also created four trusts in February, 1988 and altered their alleged intention reflected in the mutual Wills. The trust deeds created by the settlers namely, late MPB and PDB clearly show departure from earlier Wills and it establishes that the earlier Wills or the mutual Wills all were revoked. Sections 77 and 78 of the Indian Trusts Act deal with extinguishment and revocation of trust. Section 77(d) of the Trusts Act provides that when the trust, being revocable, is expressly revoked, the trust is extinguished. Section 78(b) provides that a trust declared by a non-testamentary instrument or by word of mouth-in exercise of a power of revocation expressly reserved to the author of the trust, the trust may be revoked at the pleasure of the testator. There are other modes of revocation of trust. The trusts created by MPB clearly contain the clause empowering the survivor to make directions to fulfil the intention of late MPB. Thereafter, late PDB during her lifetime made the necessary directions according to wishes of her husband. In view of all the trusts she was the sole beneficiary and she had express power of revocation.

35. Mr. Shanti Bhusan also submitted that in the trust deed of MPB Clause 6(b) contain two parts and here the settler MPB died. Accordingly, the survivor namely his wife PDB though had no power to revoke the trusts of MPB, she had the power to give direction and in fact such directions were given by her. After death of her husband late PDB had the authority to give direction and also to make nomination Whether late PDB had the power to revoke the trust of MPB or not is a matter which can be decided by competent Civil Court. If she made nominations and after giving directions also revoked the trust of her husband it does not attract elements of breach of trust to invite commission of offence under Section 406 of IPC, nor question of cheating arises in order to attract elements of Section 420 of IPC. As all the trusts were revoked by PDB, the trusts were extinguished under Section 77 of the Indian Trust Act and, effect of such extinguishment was that all the properties immediately vested in her as her own property and she had the authority to dispose of all the properties in the manner in which she desired in her lifetime or by her Will. The nominations made by her in Clause 7(a) of the trust deed makes it clear that the nominations are to operate after death of PDB and also could be changed from time to time as the nominations made by her clearly shows by stating that it was in supersession of earlier nominations. Clause 7(a) of the trust deed runs as follows:

7(a). That after the death of the Sole Beneficiary and the said Shri M.P. Birla, income of the Trust and/or the Trust Fund shall be transferred to and/or vested in the beneficiary (ies) mentioned and in the manner prescribed in the second schedule annexed hereto absolutely and for ever.

36. He thereafter submitted that Clause 7(a) of the second schedule do not require that the nomination can only be in favour of some charitable organisation. It is clear that the nominations were to become effective only after the death of the sole beneficiary, PDB and MPB and not during their lifetime. The allegation of complainant that vesting of the”trust properties in favour of nominees took place on 10.9.90, though sole beneficiary PDB was alive, is totally misconceived. Late PDB was entitled to change her mind relating to nominations and she changed her mind and decided to leave all the properties after revoking the trusts. It is clear from the documents as well as the intention of the settlers that the properties which were subject-matter of the trusts particularly four trusts created by PDB did not at any point of time vest in any charitable organisation. After death of MPB the properties of that trust vested on her and after revocation of all the trusts by PDB, the properties vested on her and she disposed of the properties by her Will dated 18.4.99 and in law she had the power to dispose of her properties by executing Will according to her wish and intention. The terms of Clause 6(b) would make it clear that during her lifetime the entire trust fund and income could only be spent and utilised by the trustees for the maintenance of Smt. PDB who was the sole beneficiary so long she was alive and the trustees had no authority to direct utilisation of trust property for any other purpose during her lifetime. It was only after her death that the properties were to be utilised by the trustees in the manner as may be directed by her. These directions were to operate only after her death and not during her lifetime as it is clear from the trust deed of MPB. The facts of the case make it clear that PDB had altered the directions during her own lifetime and decided that it would be best to leave the shares and other properties to a person who enjoyed her trust and confidence so that the companies which were part of M.P. Birla Empire, would continue to run properly to keep the M.P. Birla flag flying high.

37. There was no vesting of any asset in favour of the three alleged charitable institutions. Even from the petition of complaint it is crystal clear that there is admission that a Will was executed by late PDB. There was a codicil also executed by her which supports her intention to execute the Will. There is no particular form of codicil. The petition of complaint clearly reveals that PDB did not like her brothers and other family members and for this reason she reposed entire faith and confidence on Mr. Lodha who assisted her and advised her in all matters to run the M.P. Birla Empire smoothly so that flag of M.P. Birla Empire can fly high.

38. Mr. Shanti Bhusan also submitted that all these matters can be decided by the Probate Court. The Probate Court can decide whether the trust deeds were revocable or not and whether there was valid revocation by late PDB. The Probate Court can also decide whether late PDB was empowered to execute Will by divesting all her properties and properties of her husband being the sole beneficiary. The Probate Court can also decide whether the Will was executed and attested in accordance with law and whether she was physically sound and mentally alert to dispose of all her properties through the Will. If in the Probate Court it is decided that the Will executed by her was genuine and there was no suspicious circumstances and that she was physically fit and mentally alert and capable of understanding the disposition made by her, there would be no ground at all for the complaint to stand. All the allegations made in the complaint relating to alleged offence under Sections 406/417/420/467 of IPC would automatically fail. In view of the provisions of Sections 40 to 43 of the Indian Evidence Act the judgement of Civil Court in such a matter would be binding on the Criminal Court. The judgment in Probate Court would be relevant to decide entire allegations of complainant. The schedule of properties and the value of properties mentioned in the complaint are identical for which Mr. Lodha has filed application for grant of probate. When all allegations are concerning creation of Will and filing of application by Mr. Lodha for grant of probate, the complaint either should be quashed or should be stayed till decision of the Probate Court. The facts in issue in the complaint lodged by Mr. Pansari and the probate case are same and identical. The decision to Civil Court in such a matter would be binding on Criminal Court and finding of Probate Court would become conclusive proof under Section 4 of the Evidence Act. In support of his contention Mr. Shanti Bhusan cited the decisions , Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalai and Anr.; 2001(3) SCC 33, Tukaram Annaba Chavan and Anr. v. Machindra Yeshwant Patil and Anr.; , K.G. Premshanker v. Inspector of Police and Anr. and , Karam Chand Ganga Prasad and Anr. etc. v. Union of India and Ors.; Trustees of Gordhandas Govindram Family Trust, Bombay (supra); , M.S. Sheriff and Anr. v. State of Madras and Ors.; 4 CWN 176, Manjanali Debi v. Ramdas Shome, Halsbury’s Laws of England and Butterworth’s Encyclopaedia of Forms & Precedents, 4th Edition, Volume 23, Form 1:B:1 at page 567-which are form of mutual Wills.

39. On the contrary, Mr. Ram Jethmalani for the O.P. No. 2 submitted that in the Probate Court there are distortion of facts and some vital facts were not disclosed before the Probate Court. Before the Probate Court Mr. Lodha in his application did not disclose about the mutual Wills created by late MPB and late PDB in the years 1981 and 1982. It was not disclosed that there were five trusts created by them in 1988, out of which four trusts were created by late PDB and one trust was created by late MPB. It was not disclosed in the application for grant of probate that the said trusts which were created, three were for public charitable institutions namely HMI, EIEI and MPBF. In the matter of public charitable trusts every citizen is interested. The properties were vested in public trusts and charitable trusts till 15.4.99 and, suddenly on that date i.e. 15.4.99 the entire properties which were vested to public charitable trusts became the sole property of late PDB and four days thereafter on 19.4.99 all the entire properties became personal property of Mr. Lodha and his son. Mr. Lodha himself was a trustee of charitable trusts, then how the properties which vested in charitable trusts became personal property of late PDB and thereafter, on the strength of alleged Will executed by PDB the entire property of M.P. Birla Empire became the personal property of Mr. Lodha and his son. From the facts and circumstances it is clear that Mr. Lodha had fiduciary capacity to control PDB. The Will was drafted very cleverly and during her last days PDB was seriously ill and she could not move on her own. She had to use wheel chair and had no mental capacity to go through papers and documents or to read the contents of documents. Taking this advantage and by exercising fiduciary capacity Mr. Lodha himself by false representation to PDB that she is divesting all her properties to charitable institutions obtained her signature over the alleged Will.

40. Before the Probate Court the points for consideration would be (i) whether the testatrix has sound disposition of mind at the time of executing the Will in question, (ii) validity of the Will, (iii) whether the Will was duly executed and attested and whether attestation was in accordance with law. In order to save revocation of the trusts a letter to the Income-Tax Department was sent later on to show as if it was a codicil. It was not disclosed at all how the revocation of trusts was made and what were the grounds of alleged revocation of trusts. No deed of revocation was ever produced before any authority including the Probate Court to make it out the grounds for revocation as alleged. The decision of Probate Court is not binding at all on the Criminal Court relating to offence alleged. The central issue in complaint is whether the accused persons committed criminal breach of trust of property belonging to three charitable institutions. This issue is not at all a relevant issue in the probate proceeding or in any civil proceeding. There is no commonality of issues concerning the allegation of breach of trust in the Probate Court and in the Criminal Court.

41. When the issues or points for consideration before the Probate Court and the Criminal Court are different and not identical, question of relevancy of judgment in view of provisions of Sections 41 to 43 of the Indian Evidence Act do not arise in the instant matter. The decision of Civil Courts are not binding on Criminal Courts and cannot be treated generally as relevant in evidence. Judgments are opinion of Judges on facts at conclusion on the basis of evidence and materials-on-record. Exceptions are Sections 41 and 42 of the Indian Evidence Act. The Probate Court will not decide that accused No. 1 was a trustee of all the three charitable trusts. What are the duties and liabilities of the trustees have been defined in Chapter III of the Indian Trusts Act particularly in Sections 11, 12, 13, 14, 15, 17, 18 and other sections of the said chapter. If a trustee acts contrary to direction of the trust deed it is breach of trust attracting elements of Section 406 of IPC and paragraphs 25, 26 and 27 of the complaint discloses the materials. In , M.S. Sheriff and Anr. v. State of Madras and Ors., the Supreme Court held that conflict between Civil and Criminal Courts decisions is not a relevant consideration to interfere with one proceeding or the other. This view was followed by five-Judges Constitution Bench of the Supreme Courts in Iqbal Singh Marwah v. Meenakshi Marwah, reported in 2005(3) SCALE 93. In the said judgment the Supreme Court observed as follows:

24. Coming to the last contention that an effort should be made to avoid a conflict of finding between Civil and Criminal Courts it is necessary to point out that the standards of proof required in the two proceedings are entirely different. Civil cases are decided on preponderance of evidence while in criminal case the entire burden lies on the prosecution and proof beyond reasonable ground has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final and binding in the other as both cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against the order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras , which is at page 381 of the book, give a complete answer to the problem posed.

42. Mr. Jethmalani also submitted that the binding nature of Section 41 of the Evidence Act is only as to the character of the Will and the executor. The limited scope of binding nature of judgment of the Probate Court has been established by the decisions of Bombay High Court in State of Maharashtra v. Yeshwantrao Dattatraya Rananavare, reported in 1978 Cr.L.J. 1434, the decision of Calcutta High Court in Ranjit Kumar Pandey v. Swaha Rani Pandey, reported in 1979 Cr.L.J. 1301 and Lalit Mohan Das v. Radha Raman Saha, reported in 15 CWN 1021. The judgment of the Supreme Court in K.G. Premshanker v. Inspector of Police (supra) relied upon by the learned Counsel for the petitioner rather helps the complainant’s case and reiterates the general principle laid down in Sheriffs case.

43. The Supreme Court relying on a judgment of Lahore High Court reported in AIR 1945 Lahore 23, B.N. Kashyap v. Emperor, observed that, “If the civil and criminal proceedings are for the same cause, judgment of Civil Court would be relevant if the conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41.” In which aspect the judgment of the Probate Court can be binding has been stated in the judgment of Calcutta High Court reported in 1979 Cr.LJ 1301, Ranjit Kumar Pandey v. Swaha Rani Pandey. The Calcutta High Court observed that, “Under Section 41 of the Indian Evidence Act the judgment and decree passed in the said civil suit is a conclusive proof of the fact that the opposite party has been divested of her legal status of a wife, but not of the reasons for which she has been so divested.” The Bombay High Court in State of Maharashtra v. Yeshwantrao Dattatraya Rananavare (supra) observed that, “Under Section 41, the judgment of the Probate Court is conclusive proof only with respect to the various legal characters or declarations made in those proceedings, in so far as they are within the scope of these proceedings. The Civil Court has no jurisdiction to decide that the document is forged within the meaning of the penal section under the penal Code. Hence, the declaration that the Will was forged cannot be binding on the Criminal Court.” Mr. Jethmalani accordingly submitted that the points in issue before the Probate Court are completely different from the points in issue involved in the complaint case and in the present proceeding in this Court in which the petitioner has prayed for quashing the complaint case. As the points in issue for determination in the two Courts are different, the decision of Probate Court cannot be binding on the Criminal Court in this matter and Probate Court is not at all competent to decide whether by the action of the accused persons elements of offence under Sections 406/420/417/467/120B have been made out or not.

44. Mr. Jethmalani also contended that Will is revocable but, trusts are not revocable, if there is no such specific clause for revocation of trust. There were two mutual Wills created by late MPB and PDB and those two mutual Wills will operate as trust and, if one of them expires, the other or survivor cannot dispose of the properties of such trust according to his/her wish. The beneficiaries in such a situation can sue or enforce the contract. The vesting which was postponed takes place till the happening of incident is a vested right and this is the rule in India, U.S.A., Britain and Australia. MPB and PDB created a constructive trust and mutual Wills are one form of constructive trust. After death of MPB, his wife PDB cannot make Will against the wishes of her husband. Both MPB and PDB created mutual Wills on same date and after death of one, the person who survived cannot transfer properties of trust against the interest of deceased.

45. He further submitted that the issue whether the five trusts which were claimed to be revocable by the petitioner, were actually revoked or not is not a relevant matter for consideration before this Court in this revisional application where the petitioner has prayed for quashing the criminal proceeding under Section 482 of the Code. These matters may be decided on the basis of evidence in the trial and not at this stage. Even if there was a power to revoke, whether such power was validly exercised as per provisions of grant of that power is an issue of fact which can be decided on the basis of evidence in the trial. The term of reservation of power of revocation contemplates a written document, be it a deed or a Will, for exercising the power of revocation but there was no such document showing power of revocation. It is manifestly transparent from the materials-on-record that five trusts were created by MPB and PDB, out of which four were by PDB and one by MPB. When there was existence of the trust deeds and properties were dedicated to the charitable institutions, the onus shifts on the petitioner and other accused persons to prove that the trusts were revoked in accordance with law and charity was legally deprived. These are matters of fact which can be established in the trial on the basis of evidence. The petitioner has admitted that the trust created by MPB was not revocable and, therefore, there was clear breach of trust qua the trust made by MPB. The power of revocation was limited to the trusts created by PDB. The submission of the learned Counsel of petitioner that under Clause 6(b) of the trusts PDB had the power to undo the application in favour of charity and to do it in favour of herself and accordingly absence of right of revocation did not matter, is a submission without any foundation.

46. The trusts were not revocable since MPB and PDB had reciprocally and orally agreed not to revoke the trusts. Section 92 of the Evidence Act cannot operate as bar to lead oral agreement being proved in the trial on the basis of allegation made in the complaint The complaint rests on the oral agreement between the Birla couple at the time of execution of five trusts that neither of them would revoke the trusts. The complainant was present when the Birla couple so agreed and was a witness to such agreement and there is another witness, a solicitor who advised and drafted the trust deeds and was also a trustee on the five trusts as witness. It is clear that four trusts executed by PDB do not constitute a written agreement between PDB and MPB. Similarly the trust executed by MPB is not a written agreement between MPB and PDB. So even if both of them were alive, or one of them was alive, nothing in Section 92 of Evidence Act will prevent both of them or either of them from leading oral evidence to establish oral agreement between them not to revoke the trusts.

47. He thereafter submitted that mutual trust is recognised in law and the contention of the learned Advocate for petitioner that mutual Wills are known in law but mutual trust are not, should not be accepted. In Re Cleaver (deceased) Cleaver v. Insley and Ors., reported in 1981(2) All ER 1018, husband and wife made Wills on same date in similar terms, Thereafter, the wife took benefit under husband’s Will in accordance with his Will and the wife made new Will differing from terms of mutual Wills. The question arose whether mere fact of simultaneity of Wills in similar terms are sufficient to establish enforceable agreement and whether constructive trust arose out of enforceable agreement for mutual Wills. It was held that, for mutual Wills to be enforceable it had to be established by clear and satisfactory evidence that on the balance of probabilities there had been agreement between the makers of the two Wills to dispose of their respective property in a similar way under mutual Wills. If “there was an enforceable agreement to execute mutual Wills equality would interfere to impose a constructive trust on survivor’s property on the principle that equality would not permit a person to whom property had been transferred on the faith of an agreement that would be dealt with in a particular way for the benefit of a third party to deal with, it inconsistently with that agreement. In all the circumstances there was clear and satisfactory evidence that the 1974 Wills were executed in pursuance of a enforceable agreement between the testator and testatrix which imposed mutual obligations on them to dispose of their property in a similar way and accordingly, since the testatrix had the benefit of testator’s estate, a constructive trust was imposed on her estate for the benefit of the plaintiffs. In the instant matter the two Wills of 13th July, 1982 by MPB and PDB clearly show that even any oral evidence to supplement them that they were reciprocal Wills conclusively show the intention that after the death of both, the properties should go to charity and on the death of one, his or her property will pass to the other. Similarly, the trust deeds were made by the Birla couple, one by MPB and the remaining four by PDB had also used same language and to the same effect and paras 13 and 14 of the complaint contains the necessary averments including the recitals of nominations of 10.9.90 and offers oral evidence that establishes that the agreement is mutual and a constructive trust arises out of mutual agreement.

48. Clause 19 of the trust deeds do not confer unconditional power to revoke the trusts. Clause 19 has a proviso which is a reflection of Section 79 of the Indian Trusts Act. In Thanthi Trust v. Income Tax Officer, reported in 1991 ITR 261, it was laid down that, once the property has been validly and completely dedicated to charity, no power is left in the founder to revoke and no assertion on his part or the subsequent conduct of himself or his descendants contrary to such dedication would have the effect of nullifying it. The vesting of the properties of all the five trusts including the trusts created by late PDB had taken place in favour of charitable institutions and this could not be undone by any purported revocation even by PDB herself and such a view was expressed in the abovestated 1991 ITR 261. The five trusts which contain charitable endowments are not revocable despite the power of revocation claimed to have been vested in the settlers. The Bombay High Court in Controller of Estate Duty, Vidarbha & Marathwada v. Mangala, reported in 1983 ITR 491 : 1982 Mah. LJ 686, held that, when it was contended that a charitable trust declared by a non-testamentary instrument would be revoked in exercise of the power of revocation expressly reserved to the author of the trust as provided in Section 78(b) of the Trusts Act, any charitable trust which is either of a public or private character, would be wholly outside the provisions of the Trusts Act. It is rather admitted that documents executed on 10.9.90 had created a vested interest in the properties of the five trusts in favour of the three public charitable institutions after the demise of MPB. It amounts to creation of vested interest within the meaning of Section 19 of the Transfer of Property Act as distinct from contingent interest within a meaning of Section 21 of the Transfer of Property Act.

49. He further submitted that MPB and PDB created constructive trust and mutual Wills are one form of constructive trust. After death of MPB his wife cannot make Will against wishes of husband. Both created mutual Wills on same date with same terms and conditions disclosing their same intention and, thereafter, the person who survived cannot transfer against the interest of the deceased. In Vaidyanatha Ayyar v. Swaminatha Ayyar, reported in AIR 1924 PC 221, it was held that, where the testator directed that 2/3rd of the income from his properties should be given to the wife and balance l/3rd shall be used for payment of certain debts and afterwards for charity, and after the demise of the wife 2/3rd of the share of income of wife shall also be spent for charity, the direction constituted a public charitable trust even though the direction was to take effect at a definite time in future. The Supreme Court followed this decision subsequently in Sugra Bibi v. Hazi Kummu Mia, and held that, where in a trust certain provision was made for the maintenance of the family members along with some other provision made in favour of charity will not make the trust as not a trust for charitable purpose.

50. Mr. Jethmalani also submitted that the first accused became co-trustee without knowledge of the complainant. The petitioner came to Court not with clean hands. Being a trustee of MPBF the first accused cannot convert the said trust property into his own hand as his personal property. The second accused was a trustee of all five trusts. It is strange how the second accused allowed trust property to become personal property of Mr. Lodha. All these facts and circumstances clearly establish that there was gross breach of trust in respect of trust properties particularly in respect of three charitable institutions. The item No. 1 of the first schedule of the trust of MPB is a very valuable property as it is 1500 shares of East India Investment and in view of the instructions of the trust deed the said shares vests forthwith to HMI and PDB cannot damage the said instruction of the trust. Revocation of trust is completely different from causing loss or damage to public charitable trust. The trust of PDB dated 4.2.88 in respect of item Nos. 1 and 2 of the first schedule are very valuable properties as these are 3875 ordinary share of East India Investment and 40,000 ordinary share of Gwalior Webbing Company and these are the substantial shares of the said two companies belonging to the M.P. Birla group and Clause 19 of the trust deed cannot operate as power of revocation. The oral agreement of settler relating to their intention to create trust requires consideration. As there was no deed of revocation, the trusts cannot be revoked by Will, and even if revoked, it should be concerning trust fund and the said properties cannot be given to Mr. Lodha personally. The vesting in respect of PDB was made subsequently and so it was vested interest and interest to vest in public charity is a vested interest. In order to revoke the trust deed under Clause 19 of the trust deed there must be deed of revocation showing clear intention of revocation of trust when it is settled in law that once properties vested in charitable and public trusts those cannot be revoked.

51. Mr. Lodha in his application for probate of Will did not state anything about the trust deeds created by MPB and PDB. The schedule of the properties mentioned in the application filed by Mr. Lodha for grant of probate includes the properties of three charitable trusts. In view of the decision of Controller of Estate Duty, Vidarbha v. Mangala (supra) and Halsbury’s Laws of England such trusts are against rule of perpetuity. The oral agreement between late MPB and PDB at the abode of Lord Venkateswara at Tirupati were known to the complainant. They had clear intention to divest their properties into charity and dedication to charity is totally irrevocable.

52. He also submitted that merely because Mr. Lodha has filed an application for grant of probate concerning which a civil proceeding is pending, that cannot be a bar to proceed with the criminal proceeding. Indian Judicial System takes its side possibility of conflicting decisions on same issue and same evidence. Decision of Civil Courts are not binding on Criminal Courts and cannot be treated generally as relevant in evidence. The Probate Court cannot decide title concerning the properties. The Probate Court will not decide that first accused was a trustee of three charitable trusts. Section 41 of the Evidence Act does not bar or call for stay of the complaint.

53. He submitted that points in Criminal Court are different from probate matter. The only common matter in two cases would be (i) whether the Will was read over and explained to the testatrix or whether she read the contents of the Will and understood the nature of the disposition she was making and (ii) whether she ascended to the different clauses of the Will with clear knowledge and understanding. If PDB herself consented to the scheme of Mr. Lodha she herself would have been guilty of breach of trust as she earlier expressed her desire to create trust deed to dedicate properties for charitable institutions and for creation of public charitable trusts.

54. He further submitted that late PDB was falsely represented by Mr. Lodha and without knowing and understanding the contents of the instrument or without reading the contents of the Will she put signature by the false representation of Mr. Lodha understanding that she thereby was executing a deed dedicating properties to public charitable trusts and in that process after putting signature delivered the document to Lodha. In that process all her properties became personal property of Mr. Lodha. Will is a valuable security and the conduct of Mr. Lodha fully completed all ingredients of Section 420 of IPC. In support of his contention Mr. Jethmalani cited the decisions , Bulchand Chandiram v. Bank of India Ltd.; , Naokhila Loan Co. Ltd. v. Hemendra Narayan Roy; , In re K. Rama Rao; , Ishwarlal Girdharilal Parekh v. State of Maharashtra and Ors.; 49 Indian Appeals (Vol. XLIX) page 237, Srinivasa Chariar v. Evalappa Mudaliar; , Krishna Mohan Kul alias Nani Charan Kul and Anr. v. Pratima Maity and Ors., and Section 111 of the Evidence Act. He further submitted that Section 78 of the Trusts Act is very important and the Bombay High Court judgment is an authority over this matter. Under the terms and conditions of trust deed after death of PDB the properties were to pass to public charitable trust and not to Mr. Lodha and his son.

55. Mr. Jethmalani further pointed out that Mr. Lodha, who was donee himself took part in preparation of the Will. The natural presumption of undue influence and fraud prima facie can be drawn against him. Being the beneficiary of the Will himself, Mr. Lodha cannot take part in the preparation of Will. The Will was prepared very cleverly to mislead late PDB and to create false representation to her. Upto para 3 of the Will there are statements concerning public trusts and presumption would be that if anything was read over to late PDB only these portions which contains statements relating to public trusts were read over and explained to her. In the complaint it has been categorically mentioned that during her last days due to her prolonged illness she was not in the habit of reading contents of documents and taking this advantage Mr. Lodha exercising fiduciary capacity and false representation obtained the Will from her. The attesting witnesses denied putting of their signature in presence of their testatrix and they stated in their affidavit that the testatrix did not sign in the Will in their presence. In support of his contention that the beneficiary or donee himself cannot take part in the preparation of Will. Mr. Jethmalani referred to the decision of , Ramchandra Rambux v. Champabai and Ors.; , Kalyan Singh v. Chhoti and Ors.; , Vellaswamy Servai and Ors. v. V.L. Sivaraman Servai and Ors. and AIR 1929 PC 45, Sarat Kumari Bibi v. Rai Sakhi Chand Bahadur and Ors.

56. In reply Mr. Shanti Bhusan submitted that PDB did not intend to give M.P. Birla Empire to other Birla brothers or sisters. All the five trusts were private trusts. There were Clause of nomination in the trusts and nominations were made by late PDB. There was no vesting of any property to charity on 10.9.90. All earlier nominations were superseded. Clause 19 of the trust deeds contains express condition for revocation of trusts. The complainant himself on 12.9.90 transferred share and accordingly the complainant himself is also guilty of breach of trust. If there was no clause of revocation Clauses 6, 7 and 19 would not have been included in the trust deeds. Sections 56, 77 and 78 of the Trusts Act are clear to indicate how trusts can be extinguished and revoked. Sections 91 and 92 of the Evidence Act is a complete bar to lead oral evidence to contradict or vary the terms of written documents, There was no metis rea of the accused persons in the incident as alleged. The decision of the Supreme Court in , Dilharshankar C. Bhachech v. Controller of Estate Duty, Ahmedabad, paragraphs 27 to 36 and 40, 41 and 50 would make it clear the nature of mutual Wills and wnether mutual Wills can operate as constructive trusts. In the present case the trust deeds show complete departure from earlier Wills and after the trust deeds the alleged mutual Wills of PDB and MPB lost all importance and earlier Wills were revoked. In view of the construction of the trust deeds all the properties vested to late MPB and PDB and, PDB herself subsequently revoked the trusts and executed the Will in favour of Mr. Lodha. There was no vesting of any property in any public charitable trust and there was no element of breach of trust, cheating, false representation, forgery etc. against the petitioner and other accused persons. Mr. Shanti Bhusan relating to mens rea of accused petitioner cited the decisions in S.W. Palanitkar v. State of Bihar, ; G.V. Rao v. L.H.V. Prasad, ; Ajoy Mitra v. State of M.P., and Superintendent and Remembrancer of Legal Affairs, West Bengal v. Birendranath Chakraborty, . So far as it relates to cheating Mr. Shanti Bhusan cited the decisions of Ram Jas v. State of U.P., ; Aswini Kumar v. Emperor, and (supra). So far as it relates to relevancy of judgment under Sections 41 and 42 of the Evidence Act Mr. Shanti Bhusan cited the decisions in Manjanali Debi v. Ramdas Shome, reported in 4 CWN 176: 1978 Cr.LJ 1434; State of Maharashtra v. Yeshwantrao Dattatraya Rananavare and Ors., ; Oxford University Press v. Commissioner of Income Tax 2001(3) SCC 33; KG. Premshanker (supra), and , M.S. Sheriff and Anr. v. State of Madras and Ors.

57. After hearing the submissions of the learned Senior Counsels appearing for both the parties and considering the same, I find that the main thrust of argument canvassed by them before this Court are whether the mutual Wills created by late MPB and PDB in 1981 and 1982 were to be construed as constructive trusts and whether the five trusts created by them in 1988, four by late PDB and one by late MPB in February, 1988 were revocable or not and, whether Clause 19 of the said trust deeds can be treated as express condition for revocation of trusts. They also made submissions relating to relevancy of judgment of Civil Court or Criminal Court, if facts in issue and points involved in both the cases are identical. For the petitioner it has also been submitted that all the points that has been raised in the complaint can be answered by the Civil Court in the probate proceeding filed by Mr. Lodha, the first accused in the criminal case for obtaining probate on the Will executed by late PDB concerning the properties of M.P. Birla Empire. Other questions were also raised which are, absence to mens rea by the accused persons, absence of elements of Sections 406, 417, 420, 467 and 120B of the IPC. It was also canvassed before me as to whether Sections 91 and 92 of the Evidence Act could be a bar to adduce evidence of any oral agreement when there are written documents which can reflect the intention of the Birla couple. Though the learned Counsels argued at length over these points, all the submissions made before this Court relating to these matters particularly whether the mutual Wills created constructive trusts, whether the trust deeds of 1988 were revocable in terms of Clause 19 of the trust deed, whether there was vesting of property in the public charitable trusts or not, are not at all relevant matters for consideration by this Court in this revisional application which has been filed by the petitioner praying for quashing the complaint or the criminal proceeding started against him on the basis of complaint filed by complainant O.P. No. 2.

58. This is not a civil suit for declaration that the trusts were not revocable or that the properties of late MPB and PDB after their death vested in public charitable institutions according to their intention and could not have been transferred to Mr. Lodha on the strength of alleged Will dated 18.4.99 by PDB, and that, the action of PDB by executing the Will on such date be declared as null and void and inoperative and for any other declaration. This Court is also not competent to discuss title of properties nor can come to a finding whether late PDB had any authority to execute the Will or not. If any civil suit was filed by any party challenging the propriety, authority or jurisdiction to execute the Will or for declaration that the mutual Wills of late MPB and PDB of 1981 and 1982 and the five trust deeds created by them on different dates in February, 1988 were irrevocable or revocable, these questions or facts in issue would have been relevant for the said suit. Any observation by this Court over these aspects would be absolutely out of authority and jurisdiction in this revisional application exercising power under Section 482 of the Code to quash the criminal proceeding as prayed for.

59. While exercising power under Section 482 of the Code on the basis of an application filed by one of the accused in the complaint case for quashing the criminal proceeding, this Court is not at all competent to come to any finding as to whether the Wills of 1981 and 1982 by late MPB and PDB were mutual Wills and after the death of one of them the survivor could not have changed the desire and intention of the deceased. At the same time, this Court in this matter cannot arrive at any decision whether the five trust deeds executed by late MPB and PDB out of which four were created by PDB on 4.2.88,15.2.88, 18.2.88 and 25.2.88 respectively and one created by late MPB on 25.2.88 could have been revoked or not by PDB after the death of MPB. This Court cannot come to the conclusion whether Clauses 6, 7 and 19 of the trust deeds including the nominations made by PDB and the directions made by PDB after death of MPB can lead to the conclusion that by such clauses, nomination and direction PDB had the power and authority to revoke the trusts and to become owner of the entire properties including the properties of the trust deeds of MPB. In this application under Section 482 of the Code this Court cannot arrive at any decision as to whether in view of the mutual Wills of MPB and PDB of 1981 and 1982 and subsequent trust deeds made by them in 1988 on the aforesaid dates, the properties vested in public charitable institutions particularly three charitable institutions namely HMI, EIEI, MPBF, and as such could not have been revoked by late PDB in the form of executing Will in favour of Mr. Lodha and his son on 18.4.99. This Court also cannot come to a decision whether on 15.4.99, just three days before the execution of the Will dated 18.4.99 late PDB had any authority to revoke the trust deeds and to transfer properties including properties of charitable institutions into herself and thereafter three days later to transfer the entire M.P. Birla Empire to Mr. Lodha by the Will dated 18.4.99. Any discussion by this Court or giving any finding over such matter in this revisional application would be wholly irrelevant and beyond jurisdiction. Whether Sections 56, 77 and 78 of the Trusts Act were applicable and trusts were extinguished and revoked are not at all a matter for consideration by this Court in this proceeding. Any discussion which would be beyond the scope of jurisdiction of this Court under Section 482 of the Code in considering the present revisional application would be wholly irrelevant, and being so, this Court would refrain from making any observation as to whether the trust deeds or the mutual Wills were revocable or not, or whether the properties vested in public charitable trusts or not particularly to three charitable institutions or, whether after such vesting of properties to public charitable institutions whether PDB had any authority to revoke the trusts and to become owner of entire property herself just three days before execution of Will and whether she had any authority to transfer the properties including alleged properties of charitable institutions to Mr. Lodha by executing a Will dated 18.4.99.

60. The only consideration by this Court would be whether there are materials before this Court in exercise of its jurisdiction under Section 482 of the Code to quash the criminal proceeding filed by the complainant O.P. No. 2. While discussing the merits of the revisional application under Section 482 of the Code this Court of course may consider some of the points but would not give any finding touching merits of mutual Wills, power of revocation of trust deed or whether the trust deeds were in fact revoked or not and whether after mutual Wills of 1981 -1982 and the trust deeds of 1988 at least some properties vested in public charitable trusts particularly to three charitable trusts and whether PDB had any authority to revoke all the trusts including the trusts of late MPB.

61. The submission of the learned Senior Counsel for the petitioner that all trusts were private and not public charitable trusts, and therefore, in view of the revocation clause mentioned in the trust deeds after death of MPB, PDB had the right and authority to revoke the trust, cannot be decided by this Court. This Court cannot enter into any such discussion in this matter which has been initiated by the petitioner praying for quashing of criminal proceeding started against him by the O.P. complainant. These are matters of defence of the petitioner and, if any finding is required that may be decided in the trial though, the Criminal Court is not the proper Court to decide whether a trust is a private trust or public charitable trust. The proper jurisdiction to decide such matter vests with the Civil Court and, Civil Court means the Court where question of title concerning trust properties and declaration and other reliefs relating to revocation of trusts and nature of the trusts viz. whether private trusts or public charitable trusts’ can be entertained and adjudicated upon. The Probate Court though Civil Court, cannot decide these points as duty of Probate Court is to consider whether the testator/testatrix had sound physical ability and mental alertness at the relevant time when the disposition was made and whether the Will in question was properly executed and attested in accordance with law and other points which are connected in connection with the probate proceeding including the point whether the testatrix at the relevant time was in sound disposing state of mind and understood the nature and effect of the dispositions and put signature out of her own free will.

62. At the same time this Court cannot decide whether the trusts were revocable as alleged by the petitioner. This point in this application under Section 482 of the Code cannot be decided by this Court. This is a point in issue which may be relevant in a civil suit and not in this revisional application filed by the petitioner praying for quashing the criminal proceeding started against him and others.

63. After considering the submissions of the learned Advocates of the parties on this point, I am of opinion that the submission of Mr. Shanti Bhusan regarding relevancy of judgment is well-settled and there is no dispute at all that judgment of Civil Court are binding on the Criminal Court and not the converse. But in the instant matter the question would be how far the judgment of Civil Court, particularly Probate Court can be binding on the Criminal Court to decide elements of offence as disclosed in the complaint? It is certain that a Probate Court cannot come to a finding relating to elements of offence under Section 406/420/467 of the IPC and also elements of abetment under any section of Chapter V of IPC or conspiracy under Section 120B of IPC. It appears from the submissions of the learned Advocates of the parties that before the Probate Court even it was not disclosed that before the impugned Will made by late PDB in favour of Mr. Lodha on 18.4.99 there were five trusts in the year 1988 created by late MPB and PDB- out of which four trusts were executed by late PDB and one was executed by late MPB. The jurisdiction of Probate Court is limited to certain extent concerning the application for grant of probate and the Probate Court cannot decide whether there are elements of alleged offence under Section 406/420/467/120B of IPC against the petitioner and others who were arrayed as accused persons in the complaint. Only the Criminal Court can decide whether elements of Section 406/420/467/120B of IPC have been revealed against the petitioner and others or not. Without evidence in the trial the essential features or ingredients of the abovementioned offences as alleged in the complaint cannot be decided. Therefore, in the present matter the Probate Court cannot set the matter at rest by its decision touching the points which would be relevant in the complaint case. The avenues of two Courts are different, and accordingly, a Probate Court is incompetent to come to a finding as to whether there are elements of alleged offence under Section 406/420/467/120B of the IPC against the petitioner or not. It is beyond the scope and jurisdiction of Probate Court to come to a finding whether elements of Section 406/420/467/120B of IPC as alleged by the complainant against the petitioner and others have been transpired or not. The decisions cited by Mr. Shanti Bhusan though enunciates settled principle that judgment of Civil Court are binding on Criminal Court, yet the said decisions are not applicable in the present matter as the Probate Court is totally incompetent to come to a finding as to whether elements of alleged offence against the petitioner and others have been revealed or not. If identical issues were there in the Probate Court like the points involved in the Criminal Court, then only the decisions of Probate Court would have been binding on the Criminal Court. In the instant matter I am afraid all the points may not come before the Probate Court as Probate Court cannot decide title. Probate Court also cannot decide whether trusts of 1988 were revocable or not and whether at least three out of the five trusts were public charitable trusts and whether by converting the properties of the public charitable trust to personal property of late PDB and thereafter through the impugned Will handing over the properties of alleged charitable trusts to Mr. Lodha and his son constituted any criminal offence or not.

64. Even assuming, though not admitting, the Civil Court comes to the decision that the Will was obtained by practising misrepresentation, coercion on late PDB, and that, there was breach of trust by Mr. Lodha and others, whether such finding of Civil Court could automatically be binding on the Criminal Court in the criminal proceeding arising out of complaint filed by the complainant O.P. alleging breach of trust, cheating, forgery etc. against the petitioner and others. The decision of the Civil Court cannot establish essential ingredients of the abovementioned offences. The Criminal Court in order to come to a finding has to form its own opinion on the basis of oral and documentary evidence. Accordingly, without full-fledged trial on the basis of evidence and materials on record, it cannot be decided whether the trusts as alleged were purely private family trusts, or whether there were clauses containing at least dedication of some property or fund for religious and charitable purposes and, whether conversion of the said property or fund of public and religious trust into personal property of PDB, and thereafter by divesting the same in favour of Mr. Lodha through the impugned Will, invited or attracted elements of offences of breach of trust, cheating, forgery etc. Without evidence it cannot be decided whether PDB had any right or authority to transfer the trust properties of late MPB Trust as her personal property and thereafter to dispose of the same in favour of Mr. Lodha through the Will and whether that act amounted to breach of trust, cheating etc. or not. Without evidence in the trial it cannot be decided whether the said trusts were mutual trusts and were not revocable though in the trust deeds itself there was clause of revocation. Therefore, the findings of Civil Court cannot decide the fate of the essential elements of offences as disclosed in the complaint and without proper trial on the basis of oral and documentary evidence all these points cannot be decided. This Court at this stage when there is no evidence at all cannot decide all these points. All these points should be left open to be decided by the Trial Court on the basis of evidence, materials on record and circumstances.

65. Mr. Shanti Bhusan submitted that the decisions cited by Mr. Jethmalani for the complainant O.P. relating to mutual Wills and mutual trusts are not at all applicable and none of the cases arises out of criminal proceeding. No judgment was cited by the complainant where the Criminal Court was asked to decide the existence and/or validity of mutual Wills or for that matter any Will. Relying on the decision of the Trustees of Gordhandas Govindram Family Trust, Bombay v. C.I.T, Bombay (supra) he submitted that the facts of the present case are identical with facts of the reported case. In the reported case it was held that the trust is known as ‘Gordhandas Govindram Family Trust’ and this is a pointer. It shows that the trust was primarily intended for the benefit of the family of Gordhandas Govindram. The Bombay High Court accordingly held that, “It is not possible to hold that the trust in question is a trust for any public purpose. It is clearly a private trust”. In the present case all the five trusts were for the benefit of family of late PDB and MPB and it was not a trust for any public or religious or charitable purpose. All the trusts were private trusts as there was clause in all the trusts for revocation. Late PDB revoked the trust rightly and thereafter made the Will.

66. On the other hand, Mr. Jethmalani submitted that late PDB had no power to revoke the trust of MPB. The trusts were not revocable since the Birla couple had reciprocally and orally agreed not to revoke the trusts. Section 92 of the Evidence Act cannot operate as a bar to lead oral evidence to prove oral agreement in that respect. In fact, the trusts created by late MPB and PDB are not written agreement between them and accordingly Section 92 of the Evidence Act does not apply. Mutual trust is recognised in law and mutual Wills in all are mutual trusts. Clause 19 of the trust deed does not confer unconditional power to revoke. All the five trusts are partly private trusts and are partly trusts for religious and charitable purpose and they are not revocable in law. In support of his contention Mr. Jethmalani cited the decisions of Re Cleaver (deceased) Cleaver v. Insley (supra), Thanthi Trust v. Income Tax Officer (supra), Controller of Estate Duty, Vidarbha and Marathwada v. Mangala (supra), Vidyanatha Ayyar v. Swaminatha Ayyar (supra) and Sugra Bibi v. Hazi Kummu Mia (supra).

67. Before proceeding further into the matter I like to discuss principles decided by different High Courts and Hon’ble Supreme Court in some of the decisions concerning this matter or point which would make the position of law clear. In the trustees of Gordhandas Govindram Family Trust v. C.I.T., Bombay (supra) by an indenture of trust dated 11.6.1941 Govindram and his brothers, all sons of Gordhandas Seksaria, created a trust in respect of sum of Rs. 11 lakhs. The trust was known as ‘Gordhandas Govindram Family Trust’. The important clauses of the trust were for giving help or relief to such Vaishaya Hindoos as the trustees may consider deserving of help. There were also clauses to provide for payment of maintenance and marriage expenses of the poor male or female descendants of Seksaria family, Rs. 5/- per month may be paid as and by way of maintenance of any deserving Vaishaya Hindoo, Rs- 5/- per month may be paid to deserving poor unmarried female Vaishaya Hindoo or widow and Rs. 500/- may be expended for the purpose of meeting the expenses of marriage of any poor deserving female Vaishaya Hindoo. The C.I.T., Bombay demanded wealth tax and it resulted into litigation. The Bombay High Court held that, “The trust is a family trust and is not a trust for any public purpose. It was clearly a private trust.

68. In Re Cleaver (deceased) Cleaver v. Insley (supra) the husband and wife made Wills on same date in 1974 in similar terms. The wife took benefit under husband’s Will in accordance with his Will and thereafter made new Will in 1975 differing from terms of mutual Wills. It was held by the Chancery Division that, in all the circumstances there was clear and satisfactory evidence that the 1974 Wills were executed in pursuance of an enforceable agreement between the testator and the testatrix which imposed mutual obligations on them to dispose their property in a similar way and accordingly, since the testatrix had the benefit of testator’s estate, a constructive trust was imposed on her estate for the benefit of the plaintiffs. Her executors were, therefore, bound to administer and distribute the estate in accordance with her 1974 Will.

69. In Thanthi Trust (supra) it was observed that, –

If a valid and complete dedication to a trust had taken place, there would be no power left in the founder to revoke and no assertion on his part or the subsequent conduct of himself or his descendents contrary to such dedication would have the effect of nullifying it. If the trust had been validly and really created any deviation by the founder of the” trust or the trustees from the declared purpose would amount only to a breach of trust and would not detract from the declaration of the trust and hence the subsequent conduct of the founder in dealing with the funds of the trust long after its creation may not put an end to the trust itself. There can, therefore, be no reason for doubting the genuineness of the trust.

70. In Controller of Estate Duty, Vidarbha and Marathwada (supra) it was held that, –

The department was not entitled to rely on Clauses 6 and 19 to contend that there was reservation of interest of the trust property…. The trust being a charitable endowment the power conferred on the settlers under Clause 23 to revoke the trust was invalid…. Therefore, the so called power of revocation was redundant and ineffective.

71. In Vaidyanatha Ayyar (supra) there was a Will containing a clause that,-

The executors shall with the said 1/3rd portion of the said income make annadhanam in our family choultry and if she (the testator’s wife) dies leaving any moveable properties they shall be used by the said executors themselves for the said feeding charity. After my wife’s disease 2 out of 3 portions of the income enjoyed by her shall be utilised for the charity.

It was held by the Privy Council that,-

The words ‘the charity’ are the correct rendering of the vernacular which they are informed is in Tamil. If those words are the correct rendering of the vernacular they plainly refer to the chatram charity which had immediately before been indicated and the gift was not void for uncertainty.

72. In Sugra Bibi (supra) in a Wakf deed executed by Hazi Elahi Bux on November 18, 1936 there were certain provisions in favour of the family members of the founder along with some other provisions in favour of the public and a suit was brought for removal of Mutwalli and appointment of plaintiffs son in his place.

73. It was held by the Supreme Court that,-

The mere fact that there are certain provisions in favour of the family members of the founder alongwith some other provisions in favour of the public, the case will not be taken out of the provisions of Section 92, Civil Procedure Code. The reason is that there is a substantial portion of the income of the Wakf properties to be spent for purposes of charitable and religious nature. The proper test for holding whether the Wakf would fall within the purview of Section 92, Civil Procedure Code is to examine whether the Wakf has been created substantially for a public purpose. Applying the test to the present case, we are of opinion that the Wakf created by Hazi Elahi Bux on November 18, 1936 falls within the purview, Section 92, Civil Procedure Code.

…

As we have already stated, the Wakf created by Hazi Elahi Bux was a Wakf created for a public purpose of charitable or religious nature…. We are accordingly of the opinion that the suit falls within the purview of provisions of Section 92, Civil Procedure Code and in the absence of the consent in writing of the Advocate General the suit is not maintainable.

74. After considering the submissions of the learned Senior Counsels of the parties in respect of mutual trust and whether the trusts were revocable or not if it contains certain provisions relating to charity and considering the above discussed legal principles, I am of opinion that without evidence in the trial it cannot be decided whether there was mutual trust between the Birla couple and whether the trusts were irrevocable due to provision of some yearly amount for religious and charitable purposes like renovation of old temples, educational purpose and medical relief. The view expressed by the Bombay High Court in Gordhandas Govindram Family Trust (supra) cannot be regarded as the only authority in this respect when I consider the principles laid down in Re Cleaver (deceased) Cleaver v. Insley (supra), Thanthi Trust (supra), Controller of Estate Duty, Vidarbha and Marathwada (supra), Vaidyanatha Ayyar (supra) and Sugra Bibi (supra). The decisions of the Privy Council and the Supreme Court in Vaidyanatha Ayyar (supra) and Sugra Bibi (supra) respectively indicates that it requires examination whether a charity has been created substantially for a public purpose. In order to ascertain it certain tests are necessary which cannot be decided by this Court in this revisional application. In order to ascertain the test to come to a decision whether a trust was created for genuine religious and charitabie purpose evidence is required and that is possible only after trial on the basis of evidence.

75. In this connection it is pertinent to consider whether Section 92 of the Evidence Act would be a bar on the complainant to lead evidence to prove all these things. Mr. Shanti Bhusan submitted that Section 92 of the Evidence Act is a clear bar to lead evidence to contradict or vary the terms of written document. Section 92 provides that no evidence or any oral agreement or statemnet shall be admissible for the purpose of contradicting, varying or adding to or subtracting from the terms of the written document. The trust deeds were executed in writing and the provisions of Sections 91 and 92 of the Evidence Act exclude any evidence being given by the complainant and his witnesses to the effect that the trust deeds were not revocable. Proviso 2 to Section 92 further makes it clear that existence of any separate oral agreement can be given only when the document is silent on the matter and such oral agreement is not inconsistent with the terms of the documents.

76. Mr. Ram Jethmalani on the contrary submitted that the trusts created by the late Birla couple were not written agreements between them. Four trusts executed by late PDB do not constitute any written agreement between her and late MPB. Similarly, the trust executed by late MPB is not a written agreement between him and his wife. Even if both of them were alive, or one of them was alive, nothing in Section 92 of the Evidence Act will prevent both of them or either of them from leading oral evidence to establish oral agreement between them not to revoke the trusts. In the trusts created by late PDB, late MPB was not a party and similarly in the trust of MPB late PDB was not a party. Accordingly, Section 92 of the Evidence Act does not apply in the instant matter to lead oral evidence to establish oral agreement between the Birla couple to show their real intention behind the trusts as to whether those were revocable or not.

77. After hearing the submission of the learned Senior Counsels of the parties I am unable to agree with the views of Mr. Shanti Bhusan in this matter. Section 92 of the Evidence Act cannot operate as a bar to lead oral evidence to establish real intention of the parties in execution of the written document. Oral evidence is permissible to establish any separate agreement between the parties in relation to the written document.

78. Section 92 of the Evidence Act runs as follows:

92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument of their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting form, its terms.

79. There are six provisos disclosing the circumstances when oral evidence may be admitted to prove certain facts as mentioned in the said provisos. After carefully going through the provisions of Section 92 of the Evidence Act I am of opinion that the bar to lead oral evidence in respect of a written document or instrument applies only to the parties to the instrument and the bar does not apply to strangers or any person who was not a party to the written instrument. Section 92 deals with bilateral documents only reduced to writing either by consent of parties or by requirements of law. It does not apply to unilateral documents, such as, power-of-attorney, Wills etc. This is clear from the words ‘as between the parties’ and the reference to the words ‘separate oral agreement’. The true position is that when the terms of any document are in dispute between a stranger to it and a party to it or his representative, the restriction in Section 92 is not applicable and both of them are at liberty to lead oral evidence to contradict, vary, add to or subtract from its terms (in view of the decision of the Supreme Court in Bai Hira v. Official Assignee .

80. In Parvinder Singh v. Renu Gautam, , it was held by the Supreme Court that oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different. In Ramdip Sharma v. Baldeo Singh, , it was held that, “Section 91 includes oral evidence in respect of the terms of a written contract. Section 92 excludes oral evidence for the purpose of contradicting, varying, adding or subtracting from the terms of a written contract. In other words Sections 91 and 92 exclude oral evidence in respect of the terms of a written contract. They do not prohibit the parties to lead oral evidence in respect of the nature of contract as well as in respect of the oral agreement entered into between the parties”. In Arumoorthi Chettiar v. Secondary Education Committee of Vallala Sangam of Vadugupatti, reported in AIR 1962 Madras 360, it was held that Section 92 of the Evidence Act does not preclude party from proving real contract and to prove that the real contract was different from what was found in the deed. In Anjali Das v. Bidyut Sarkar, , it was held that bar under Section 92 of the Evidence Act is not applicable where the agreement is partly oral and partly in writing.

81. The Supreme Court in Roop Kumar v. Mohan Thedani, held that,-

This Court in Gangabai v. Chhabubai and Ishwar Dass Jain v. Sohan Lal , with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon, but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.

82. The above discussion on legal principle make it clear that in the instant case Section 92 of the Evidence Act is not a bar to lead oral evidence to establish what was the real intention of late PDB and MPB behind execution of the written document namely trust deeds and what was the agreement between them. The trust deeds were not bilateral documents, but were unilateral documents, and accordingly, oral evidence is admissible to establish what was the real intention of late MPB and PDB behind the execution of such written documents viz., trust deeds.

83. Mr. Shanti Bhusan submitted that the complaint has been filed with mala fide intention. The complaint does not pnma facie disclose ingredients of the alleged criminal offences. It has been filed at the instance of the Birlas’ in an attempt to pressurise the accused persons and the attesting witnesses of the Will made by late PDB in favour of Mr. Lodha. It has been done so that, the other accused persons who were witnesses of the Will and codicil do not appear in the Court to prove the attestation and execution of the Will and the codicil. The complaint has been filed by the Birlas’ is now an admitted fact in view of the counter- affidavit dated 16.2.05 filed by the complainant stating that B.K. Birla desired to file the complaint irrespective of any consequence. After lodging the complaint on 5.10.04 the complainant was rewarded with a job on 10th November, 2004 by the grandson of B.K. Birla at a monthly salary of approximately Rs. 1.75 lakhs. The statement made by B.K. Birla regarding his intention to file the complaint was also published in the newspaper namely ‘The Telegraph’ on 8.1.05. All these facts clearly indicate that complaint was filed with mala fide intention.

84. He contended that the scope of the High Court in dealing with Section 482 of the Code has been laid down in several decisions. In State of Haryana v. Bhajan Lal, reported in 1992 Supp. 1 SCC 335, the Supreme Court after discussing the principles in detail including the earlier decisions formulated seven grounds in which the High Court can exercise power of quashing criminal proceeding under Section 482 of the Code. It was clearly indicated by the Supreme Court in the said decision that the said seven grounds are not exhaustive. Out of the seven grounds mentioned in the said decision the grounds 1, 3, 5 and 7 are important which are squarely applicable in the present revisional application and these grounds are sufficient to quash the criminal proceeding started on the basis of complaint lodged by complainant O.P. The grounds 1, 3, 5 and 7 as discussed in the said decision runs as follows:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) …

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) …

(5) Where, the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) …

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

85. The present complaint if taken at its face value and accepted in its entirety do not prima facie constitute any offence or makes out a case against the accused petitioner. The uncontroverted allegations made in the complaint and the evidence collected in support of the same do not disclose commission of any offence and make out a case against the accused. The allegations made in the complaint are absurd and inherently improbable and on the basis of it no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused petitioner. The conduct of Mr. B.K. Birla clearly reveals that the criminal proceeding is manifestly attended with mala fide and/or the proceeding has been maliciously instituted with ulterior motive for wreaking vengeance on the accused petitioner, Mr. Lodha and others with a view to spite them due to personal grudge.

86. Mr. Shanti Bhusan also referred to the decisions in Madhu Limaye v. State of Maharashtra, ; Raj Kapoor v. State, ; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao Amgre, ; State of Karnataka v. L. Muniswami, ; Sardar Trilok Singh v. Satya Deo Tripathy, ; Pepsi Foods Ltd. v. Special Judicial Magistrate, ; Ashok Chaturvedi v. Shitul H. Chanchani, ; G. Sagar Suri v. State of U.P., and R.P. Kapur v. State of Punjab, , in support of his submissions on power of High Court under Section 482 of the Code.

87. After referring the above stated decisions Mr. Shanti Bhusan submitted that the complainant and another witness namely Mahabir Prasad Sharma were examined under Section 200 of the Code and the learned Magistrate by the order dated 5.10.04 issued process under Section 406/417/420/120B of IPC against this petitioner and others. The learned Magistrate did not take cognizance in respect of other charges against the accused persons levelled in the complaint. In the instant case the allegations in the petition of complaint when read in the light of the accompanying documents and/or deposition of complainant and his witness do not disclose the essential ingredients of the alleged offence of criminal breach of trust or criminal conspiracy and cheating. The case relating to criminal breach of trust has been set out in paragraphs 12 to 15 of the complaint and the allegations relating to offence of cheating has been set out in paragraphs 25 and 26 of the complaint.

88. He further contended that in order to attract criminal breach of trust the first ingredient which has to be shown is entrustment of property. The whole case of the complainant is based on the plea that the trusts being irrevocable and the directions and nominations operating not after the lifetime of PDB but on the date of making nominations or directions on 10th September, 1990 the entrustment of all the properties in the three charitable organisations came about on 10th September, 1990. The different clauses of the trust deeds namely Clause 2, Clause 4(ii), Clause 5(iii), Clause 6(a), Clause 6(b) and specific clause for revocation would make it clear that all the five trusts were private trusts which were created for the benefit of private individuals and not for any religious and charitable purpose. In all the four trusts created by PDB she was the sole beneficiary and in the trust created by MPB he was mentioned as the as the sole beneficiary. Clause 19 of each of the trust deeds contain specific revocation clause. Under Clause 6(a) the trustee was required to spend the income of the trust fund during lifetime of the sole beneficiary namely PDB for the maintenance of said sole beneficiary or in the manner and for the purpose as may be directed by herself. Even after death of sole beneficiary namely PDB under Clause 6(b) of the trust deed required the income and the corpus of the trust fund to be spent and utilised by the trustees for the maintenance of the sole beneficiary’s husband MPB, if he be alive. It is crystal clear that all the five trusts created by MPB and PDB were for their own benefit and those were not charitable endowment and were not trusts of religious and charitable nature. The different clauses of the trust deeds as stated above makes it clear that the question of any criminal breach of trust would not arise as there was no entrustment of property on 10th September, 1990 as alleged which is the foundation of the complaint in regard to criminal breach of trust.

89. The second ingredient of the offence of criminal breach of trust is dishonest misappropriation or conversion to one’s own use of the entrusted property. The expression dishonestly’ has been defined in Section 24 of the IPC as whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.” The Supreme Court in several decisions has held that mens rea is an essential ingredient of any criminal offence and, therefore, there has to be an intention to commit criminal offence in order to attract any penal provision of the IPC. The questions as to whether the properties in question stood entrusted to the three charitable organisations on 10th September, 1990 or not, and whether the trusts of 1988 were revocable or not or whether the nominations or directions given under Clauses 7(a) or 6(b) of different trust deeds would be altered from time to time or whether they were to be effective only after the lifetime of PDB, are matters of controversial nature, no charge of criminal breach of trust would be maintainable. No complaint in respect of any criminal offence can be founded on these facts as mens rea is totally lacking in this case.

90. Mr. Shanti Bhusan further submitted that the principles laid down by the Supreme Court in S.W. Palanitkar v. State of Bihar (supra) and other decisions in Ajoy Mitra v. State of M.P. (supra) and Superintendent and Legal Remembrancer of Legal Affairs, West Bengal v. Birendra Chandra Chakravarty (supra) establishes that in a case where the creation of trust itself is doubtful and needs to be decided in civil proceeding until the Civil Court determines whether a trust had been created so as to provide a foundation for an offence of criminal breach of trust, it is not possible to take criminal proceeding for the purpose of criminal breach of trust.

91. He also submitted that cheating has been defined in Section 415 of the IPC First part of Section 415 applies only when as a result of false representation some property is delivered. Since this is a case of attestation of a Will and not delivery of any property, it is only the second part of Section 415 which, if at all, would be applicable. The second part of Section 415 prescribes that, “Or intentionally induces the person so deceived to do or commit to do anything which he would not do or commit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.” The mere attestation of signatures of the testatrix at the foot of the will could not cause any damage or harm to the attesting witness in body, mind, reputation or property and thus even if the signatures of the attesting witnesses had been obtained by deceiving them, no offence of cheating under Section 415 would be committed.

92. Referring to the decision of the Supreme Court in Ram Jas v. State of U.P., and R.P. Kapur v. State of Punjab (supra) Mr. Shanti Bhusan submitted that the abovestated facts and circumstances would make it clear that neither the complainant nor the attesting witnesses of the Will suffered any loss or damage or harm either in body, or mind, or reputation or property and they had nothing to show that the complainant or the said witnesses delivered any property to the petitioner and other accused persons by any inducement or deceive, The complainant and his witness M.P. Sharma were not present when any misrepresentation might have been made to PDB by Mr. Lodha, there is no legal evidence in support of this allegation in the complaint. Even if these witnesses referred to some statement having been made by late PDB to them, such evidence would be hearsay which would not be admissible as being a statement of a deceased person. Statement of a deceased is admissible only in the circumstances set out in Section 32 of the Evidence Act. The 8 circumstances set out in Section 32 relating to admissibility of statement of deceased are not at all applicable in this case and the so called statement of late PDB does not fall in any of the 8 clauses mentioned above. Even if any evidence is adduced about the statement of PDB, it would not constitute any legal evidence under the Evidence Act. As there is no legal evidence, the complaint is liable to be quashed on the basis of third category laid down by the Supreme Court in R.P. Kapur’s case (supra). The petition of complaint and the statement of witnesses examined under Section 200 of the Code and the documents annexed with the petition of complaint do not make out any prima facie case against the petitioner and others and the complaint does not disclose any offence. The allegations made in the complaint are absurd and inherently improbable. The statement of Mr. B.K. Birla and the affidavit in reply by the complainant makes it clear that the criminal proceeding was instituted manifestly with mala fide intention for wreaking vengeance on the accused persons with a view to spite the petitioner and other accused persons. This is a fit case where this Court should exercise its inherent jurisdiction under Section 482 of the Code and would quash the criminal proceeding as continuation of the criminal proceeding would be an abuse of the process of the Court.

93. Mr. Jethmalani in reply to the scope of Section 482 of the Code submitted that the power of the High Court under Section 482 is an extraordinary one. In a catena of decisions the Supreme Court has laid down that the power to quash criminal proceeding should be exercised very sparingly and with circumspection and, that too in the rarest of rare cases. In support of his contention Mr. Jethmalani cited the decisions in State of Haryana v. Bhajan Lal (supra), Rupan Deol Bajaj v. Kanwar Pal Singh Gill, ; State of Bihar v. Rajendra Agrawalla, ; Central Bureau of Investigation v. Duncans Agro Industries Ltd., Calcutta, ; Nagawwa v. Veeranna Shivalihgappa Conjalgi, ; Municipal Corporation of Delhi v. Ram Kishan Rohtagi, ; Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala ; State of Bihar v. Murad Ali Khan, ; Dhanalakshmi v. R. Prasanna Kumar, reported in 1990 Cr. L J 320; State of M.P. v. Awadh Kishore Gupta, ; Paresh Chandra Roy v. Kallol Dasgupta, reported in 2003 CWN 969; Ram Abatar Agarwala v. State of West Bengal, reported in 2002 (1) CLJ 488; M. Narayandas v. State of Karnataka, ; State of Andhra Pradesh v. Golconda Linga Swami ; A.R. Antulay v. Ramdas Sriniwas Nayak (supra), State of Bihar v. P.P. Sharma, reported in 1992 Supp (1) SCC 222 and State of Maharashtra v. Ishwar Piraji Kalpatri, .

94. He submitted that the High Court cannot embark upon an enquiry as to the probability, reliability or genuineness of the allegations made in the complaint and is also not entitled to appreciate evidence at this stage. It is not necessary to scrutinise the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. There is distinction in law between quashing of complaint simpliciter and quashing of FIR and investigation. This distinction predates Bhajan Lal’s case. One of the earliest expositions under the new Code on quashing of complaints can be found in Nagawwa’s case (supra), Nagawwa’s case itself was a case which dealt with issue of process on a complaint after an enquiry under Section 202 of the Code had first been conducted. None of the grounds in Nagawwa’s case applies here which is a pure complaint case. Later cases deal with situation as in the instant case. In the present case there was no enquiry under Section 202 of the Code, nor any police investigation, and as such it is a pure complaint case. The decision of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi (supra) is a case where the Supreme Court laid down the test which can be applied for quashing a pure complaint case. It was observed by the Supreme Court that proceedings against an accused in the initial stages can be quashed only when on the face of the complaint or the papers accompanying the same, no offence is constituted. Subsequently, the Supreme Court in Municipal Corporation of Delhi v. P.D. Jhunjunwala (supra) and in State of Bihar v. Murad Ali Khan (supra) reiterated that for the purpose of quashing proceedings on a complaint, only the allegations set forth in the complaint have to be seen and whether the complaint discloses the offence alleged, and nothing more. The Supreme Court observed that, “The High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him.

95. The Supreme Court in Dhanakalshmi v. R. Prasanna Kumar (supra) finally settled the law in this area relating to quashing of complaint by observing that, “Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In a proceeding instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complaint that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event, there would be no justification for interference by the High Court.” The Supreme Court subsequently in State of M.P. v. Awadh Kishore Gupta (supra), M. Narayandas v. State of Karnataka (supra) and State of A.P. v. Golconda Linga Swami (supra) reiterated the same view and held that the power to quash under Section 482 of the Code does not arise where the allegations made in the complaint/FIR taken at their face value and accepted in entirety prima facie constitutes offence or makes out a case against the accused, the High Court cannot enquire into the reliability or genuineness or otherwise of the allegations made in the complaint, and the High Court has no power to inquire whether the allegations are likely to be established or not. In the present matter, the allegations made in the petition of complaint and the statement of witnesses recorded under Section 200 of the Code makes out a case against the accused persons and prima facie discloses elements of alleged offence. At this stage, this Court cannot enquire into the reliability or genuineness of the allegations made in the complaint and also cannot come to a decision as to whether the allegations are likely to be established.

96. Mr. Jethmalani submitted that prima facie elements of cheating has been established. A Will is a document and the said document contains disposition of property by late PDB in favour of Mr. Lodha. The persons cheated have done something which they would not have done i.e. putting signature on document which transfers trust property to an individual in breach of trust. It must effect them in their reputation and expose them to a likely prosecution.

97. He also submitted that the submission of the learned Counsel for the petitioner that there was no mens rea of petitioner and other persons and that there was no criminal breach of trust, is not acceptable. In Srinivasa Chariar v. Evalappa Mudaliar (supra) the Privy Council held that, “When property proved to have been originally trust propertyis claimed by the trustee as his own, the onus is upon him to establish the legitimacy of his personal acquisition by the clearest and most unimpeachable evidence.” In the present case the trustees, particularly Mr. Lodha and the petitioner have, on the contrary, attempted to suppress the very existence of the five trusts and the charitable endowment in favour of the three charitable institutions. In the application for grant of probate they have concealed existence of five trusts created by late MPB and PDB in 1988 thereby creating three charitable institutions. Considering the affirmative obligation of the trustees to explain their conduct, the plea of mens rea and absence of criminal breach of trust is totally misconceived. Moreover, mens rea cannot be decided by this Court at this stage in this revisional application seeking quashing of the criminal proceeding. Mens rea is an issue of fact which requires to be inferred from the evidence, both oral and documentary including circumstantial evidence which is not permissible for this Court to assess at this stage. Prima facie there are sufficient ingredients or elements of criminal breach of trust. There is no ground for quashing the criminal proceeding and the application filed by the petitioner under Section 482 of the Code is itself an abuse of the process of Court and the revisional application requires dismissal.

98. The legal principle relating to jurisdiction of High Court to exercise powers under Section 482 of the Code or Article 226 of the Constitution are well settled and as such, I do not like to discuss in details the facts and legal principles pronounced by the Hon’ble Supreme Court and different High Courts in the decisions cited by the learned advocates of both parties on powers of High Court under this section. There are catena of decisions of the Hon’ble Supreme Court in this respect and some of the leading decisions are prior to the case of State of Haryana v. Bhajan Lal, (supra) and some are after the decision of the above-stated case in which the same views have been reiterated. The guidelines set out by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal (supra) are applicable in respect of both First Information Report and complaint. Besides that, relating to quashing of criminal proceeding in respect of a complaint the important decisions are Nagawwa (supra), Delhi Municipality v. Ram Kishan Rohtagi (supra), Dhanalakshmi v. R. Prasanna Kumar (supra), State of Bihar v. Murad AH Khan (supra) and Municipal Corporation of Delhi v. P.D. Jhunjunwala (supra). In State of Haryana v. Bhajan Lal the Hon’ble Supreme Court laid down seven grounds under which a High Court can exercise its power under Section 482 of the Code to quash a criminal proceeding and the said grounds for guidance were laid down in paragraph 102 of the judgment. In the said decision the Supreme Court quoted the observation of the Hon’ble Supreme Court in R.P. Kapur v. State of Punjab (supra) which runs as follows:

Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises. It is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused person.

99. In the said decision in paragraph 98 the Hon’ble Supreme Court quoted the observation of the same Court passed earlier in Madhabrao Jiajirao Scindia (supra) where it was held by the Supreme Court that, “The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special fact of a case also quash the proceedings even though it may be at a preliminary stage.

100. The guidelines set out by the Hon’ble Supreme Court in paragraph 102 in the decision of State of Haryana v. Bhajan Lal (supra) make it clear that under the following grounds or circumstances the High Court can exercise its inherent power under Section 482 of the Code to quash a criminal proceeding:

i) Where the allegations made in the First Information Report or in the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused,

ii) Where the allegations In the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code,

iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused,

iv) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused,

v) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

101. Besides that, the proceeding may be quashed where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act under which a criminal proceeding is instituted to the institution and continuance of the proceeding and where the allegations in the FIR do not constitute a cognizable offence but constituting only non cognizable offence, no nvestigation is permitted by a police officer without order of a Magistrate under Section 155(2) of the Code. The principles of law as laid down by the Supreme Court in this decision is well-settled and in the subsequent decisions the same view has been reiterated by the Supreme Court.

102. However, relating to only complaint cases the principles enunciated by the Hon’ble Supreme Court requires to be mentioned which has been referred to by Mr. Jethmalani. In Nagawwa (supra) the Supreme Court held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

103. In the Municipal Corporation of Delhi v. Ram Kishan Rohtagi (supra) the Hon’ble Supreme Court laid down the principles by observing that, “It is, therefore, manifestly clear that proceeding against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code.

104. In Dhanalakshmi v. R. Prasanna Kumar (supra), the Hon”ble Supreme Court laid down the following legal principles:

Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.

105. In State of Bihar v. Murad Mi Khan (supra) the Hon’ble Supreme Court set out the guidelines in the following manner holding that, “It is trite that jurisdiction under Section 482 Cr. PC, which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the chargesheet, do not in law. constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the Court or not.

106. The legal principles enunciated by the Hon’ble Supreme Court in the aforesaid decisions relating to complaint makes it clear that a criminal proceeding against an accused in the initial stage can be quashed only, if on the face of the complaint and the papers and documents accompanying the same, no offence has been constituted and no case has been made out against the accused. The test is that taking the allegations and the complaint as it stands without adding anything to it or subtracting anything from it, if no offence is made out, the High Court will be justified in quashing the proceeding in exercise of its inherent powers under Section 482 of the Code. Exercise of the inherent power to quash a criminal proceeding based on complaint may be made-in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It is of course clear by the dictum of the Supreme Court in Mrs. Dhanalakshmi (supra) that it is not however necessary that there should be a meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious in that event there would be no justification for interference by the High Court. It is well settled that in exercising jurisdiction under Section 482 of the Code the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That matter can be decided in the trial by the Magistrate when the evidence both oral and documentary comes before him.

107. Keeping in mind the aforesaid legal positions it now requires consideration whether in the present case this Court should exercise its inherent jurisdiction under Section 482 of the Code to quash the criminal proceeding started against the petitioner on the basis of complaint lodged by the complainant O.P. In this connection it requires to be looked into as to whether the complaint if taken at its face value and accepted in entirety without adding anything to it or subtracting anything from it prima facie constitutes any offence and makes out any case against the accused. It also requires to be seen as to whether the complaint and the evidence collected in support of it discloses commission of any offence or makes out a case against the accused. It also requires consideration whether the allegations made in the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. This Court is also required to consider whether the criminal proceeding started against this petitioner on the basis of complaint is manifestly attended with mala fide and/or whether the proceeding is maliciously instituted with ulterior motive for wreaking vengeance on the accused petitioner and with a view to spite him due to private and personal grudge. It should also be remembered that in exercising the jurisdiction under Section 482 of the Code this Court is not authorised to make an enquiry to find out whether the allegations in the complaint are likely to be established by evidence or not and whether the allegations in the complaint are likely to be proved in the trial. That function completely rests with the Magistrate when evidence both oral and documentary would be produced before the said Court.

108. It has been specifically alleged in the petition of complaint that several properties were vested to three public charitable institutions namely, Hindustan Medical Institution, Eastern India Educational Institution and M.P. Birla Foundation. Late PDB made the necessary directions on 10.9.90 for utilisation of the trust fund and nominations for M.P. Birla Trust. It appears from the said directions for utilisation of the trust fund that she by such direction vested properties to Hindustan Medical Institution under Clause 6(b) of the trust deed of late M.P. Birla and gave the following assets absolutely to the said institution:

(a) 1500 ordinary shares of Rs. 100/- each of East India Investment Company,

(b) 7933 ordinary shares of Rs. 10/- each of Rameshwara Jute Mills and

(c) 1 ordinary share of Rs. 10/- in Zenith distributers and agents limited.

109. It was also specifically mentioned in the said direction that the trustees as far as possible shall continue to carry out philanthropic, charitable and public religious activities which her husband late M.P. Birla used to do.

110. In respect of Priyamvada Birla Trust she made nomination of beneficiaries on 10.9.90 in respect of the said trust created by herself. There she also disclosed the same wish relating to continuance of philanthropic, charitable and public religious activities of her late husband. She made the nomination of beneficiary (ies) in the following way under Clause 7(a) of the trust deed:

i) Hindustan Medical Institution was made the beneficiary to which the following assets were transferred:

a) 3875 ordinary shares of Rs. 100/- each of East India Investment Company,

b) 40000 ordinary shares of Rs. 10/- each of Gwallior Webbing Company Ltd.,

c) 224 ordinary shares of Rs. 10/- each of Universal Cables Ltd.,

d) 800 ordinary shares of Rs. 100/- each of Baroda Agents and Trading Company Ltd.,

e) cash in hand, bank balance and all other assets for which no specific nominations has been made.

111. In respect of Priyamvada Birla Fund she made nomination of beneficiary (ies) under Clause 7(a) of the trust deed on 10.9.90 in the following manner. By such nomination Eastern India Educational Institution was made beneficiary to which the following assets were transferred:

(a) 40000 ordinary shares of Rs. 10/- each of Gwallior Webbing Company Limited,

(b) 7% capital investment bond of total face value of Rs. 23,75,000/-,

(c) Cash in hand, bank balance and all other assets of the trust.

112. Late PDB also made nomination under Clause 7(a) of the trust deed in respect of Priyamvada Birla Kosh on 10-9.90 and by such nomination made Eastern India Educational Institution as the beneficiary to which following assets were transferred:

(a) 38000 ordinary shares of Rs. 10/- each of Gwallior Webbing Company Limited,

(b) 13300 units of Unit Trust of India of the face value of Rs. 10/- each, and

(c) Cash in hand, bank balance and all other assets of this trust.

113. Late PDB made nomination of beneficiary (ies) in respect of Priyamvada Birla Nidhi Trust on 10.9.90 under Clause 7(a) of the trust deed and made Eastern India Educational Institution as the beneficiary to which the following assets were transferred:

(a) 33300 ordinary shares of Rs. 10/- each of Gwallior Webbing Company Limited,

(b) 40 bonds of Mahanagar Telecom Nigam Limited of the face value of Rs. 1000A each,

(c) 10095 equity shares of Rs. 10/-each of Universal Cables Limited,

(d) 7% capital investment bonds of face value of Rs. 11 lakhs, and

(e) cash in hand, bank balance and all other assets of the trust.

114. Besides that, in the trust known as Priyamvada Devi Birla Fund it was mentioned under Clause 6(a) of the trust deed that Rs. 21,000/-every year shall be spent for charitable and religious purpose namely, renovation of old temples. In the trust deed known as Priyamvada Devi Birla Kosh there was provision for allotting Rs. 5000/- per year for charitable purpose namely, educational purpose under Clause 6(a) of the trust deed. In the trust deed known as Priyamvada Devi Birla Nidhi there was direction for allotmenc of Rs. 11000/-per year for charitable purpose namely, for medical relief under Clause 6(b) of the trust deed.

115. In the directions and nominations of beneficiaries it was clearly mentioned that the said public charitable institutions shall hold the above shares in terms of rules and bye-laws of the said institutions as corpus of the said institutions and shall not sale, dispose of, mortgage or deal with the same in any manner save and except with the unanimous decision of all the trustees to be recorded in writing keeping in view the interest and benefit of the institutions.

116. It is the specific case of the complainant that all the accused persons forming a conspiracy misrepresented late PDB in execution of the Will. By such misrepresentation they abetted and aided the commission of alleged breach of trust in respect of properties vested to beneficiaries namely, three charitable institutions. It has been stated in the petition of complaint that during her last days due to her prolonged illness late PDB was not in a position to move freely and she used to move on a wheel chair and has no mental capacity and physical fitness to read contents of any written instrument. Taking this advantage by exercising fiduciary relation Mr. Lodha was able to obtain the impugned Will from late PDB by misrepresentation and, execution and attestation of the Will by the testatrix in presence of alleged attesting witnesses was not made in accordance with law. The facts over this matter as stated in the complaint gets to some extent support from the statement of P.W. 2 Mahabir Prasad Sharma and it establishes that the complaint was able to make out a prima facie case for issuing summons.

117. The following points are emerging for consideration after reading the complaint as a whole and considering the documents and statement of complainant and his witness examined under Section 200 of the Code:

(1) Whether late MPB and late PDB had any intention or wish to make endowment of their properties for charitable and religious purpose?

(2) Whether the trust created by late MPB could be revoked by late PDB and, whether on the strength of direction and nomination of beneficiaries made by late PDB on the trust of late MPB making Hindustan Medical Institution beneficiary and giving certain properties to that organisation she could retransfer the said properties to Mr. Lodha through the Will?

(3) Whether giving properties to other charitable institutions as made by late PDB herself through nominations in the trust deeds created by her making the said institutions beneficiaries can she thereafter, take away those properties from the said institutions and give it to Mr. Lodha through the Will? (4) When Mr. Lodha himself was a trustee whether he could have allowed or consented to transfer properties vested to charity in his favour through the Will and, if so, whether he exerted influence on late PDB by fiduciary relation on her? (5) Whether Mr. Lodha himself being the beneficiary of the impugned Will, can take all steps in the preparation of the Will and also for calling the witnesses for execution and attestation as alleged and whether his action constitutes offence or offences as alleged? (6) Whether averments of complaint and statement of complainant and P.W. 2 M.P. Sharma makes out a case of fraudulent misrepresentation by Mr. Lodha and other accused persons on PDB behind execution of the impugned Will? (7) Whether the action of the petitioner and other accused persons as depicted in the complaint and statement of witnesses recorded under Section 200 of the Code amounted to attract elements of abetment and conspiracy to transfer properties vested to charity in favour of late PDB and thereafter to Mr, Lodha through the impugned Will constituting offence of abetment and conspiracy and breach of trust?

118. The abovementioned points can be answered by the Trial Court only on the basis of evidence. These facts and circumstances which are emerging from a reading of the complaint and statement of witnesses on oath makes out that complainant was able to make out a prima facie case for issuing process. The fate of the complaint particularly, in relation to the abovestated facts and points, will depend upon the evidence in the trial and at this stage without evidence the abovestated points and facts cannot be decided in this revisional application.

119. During trial the account books, audit reports, balance sheet and other papers of the abovestated three charitable institutions may be produced before the Trial Court along with account book, audit reports etc. of the M.P. Birla Empire and it will reveal whether any amount or fund was spent behind charity. If account books, audit reports etc. reveal release of fund for renovation of old temples, advancement of education, medical facilities and relief etc. whether allegations of complainant as disclosed in complaint would constitute offences alleged? The Criminal Court definitely in the trial can consider whether there was any commission of offence or offences by the accused persons including late PDB herself on the basis of such facts as disclosed in the complaint. Section 92 of the Evidence Act in this respect is not at all a bar to lead evidence to establish what was the real intention of late PDB and late MPB behind the creation of five trust deeds.

120. The complaint and the statement of witnesses recorded under Section 200 of the Code and the documents accompanying the complaint if read on the whole would make it clear that the allegations made in the complaint, if they are taken at their face value and accepted in their entirety without adding anything to it or subtracting anything from it, prima facie makes out a case against the accused persons and prima facie establishes elements of offence to go for the trial. The uncontroverted allegations made in the complaint and the evidence collected in support of it discloses at least elements of some offence prima facie and makes out a case against the accused persons. In my opinion, the allegations made in the complaint are not absurd and inherently improbable. Prima facie it does not appear that the criminal proceeding is manifestly attended with mala fide and it does not appear that the proceeding has been maliciously instituted with ulterior motive for wreaking vengeance on the petitioner and other accused persons with a view to spite them due to some private and personal grudge. It is well-known that at this stage there cannot be meticulous analysis of the case before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. Considering the allegations made in the complaint and in the light of the statement of the witnesses recorded under Section 200 of the Code and in consideration of the documents annexed with the complaint it appears to me that there is no material to show that the complaint was mala fide, frivolous or vexatious. At this stage in this application under Section 482 of the Code it is not possible to enquire about the reliability or genuineness or otherwise of the allegations made in the complaint and the High Court at this stage has no power to inquire whether the allegations are likely to be established or not. At this stage, it cannot be decided whether the complaint was lodged on account of personal vendetta or that the complaint was lodged maliciously with ulterior motive for wreaking vengeance on the petitioners and other accused persons due to private and personal grudge. Even if the complaint was lodged on account of some personal vendetta that itself is not a ground to discard the complaint and it has to be decided and weighed after the evidence is collected in the trial (M. Narayandas v. State of Karnataka (supra).

121. Mr. Krishna Kumar Birla and three others as plaintiffs have instituted a suit bemg C.S. No. 221 of 2004 in this Court against Mr. Rajendra Singh Lodha praying for declaration that the defendant as executor and sole beneficiary of the Will dated 18.4.99 and purported codicil dated 15.4.03 allegedly made by late PDB is not entitled to deal with the estate of PDB and for injunction to restrain the defendant and his men and agents from taking possession of any of the assets of the estate of late PDB and dealing with or disposing of the same or otherwise in terms of the purported Will and codicil along with other reliefs. Filing of the suit by Mr. K.K. Birla and others itself cannot be a ground for stay of the criminal proceeding in view of the discussions made above. The points for determination in Civil Court are not identical with the points involved in the criminal proceeding, Pendency of civil suit cannot be a ground for quashing or staying the criminal proceeding. There are catena of decisions of the Hon’ble Supreme Court in this respect and I refer only Kamaladevi Agarwal v. State of West Bengal and Ors., reported in 2001 Cr.L.J. 4733 and Vitoori Pradeep Kumar v. Kaisula Dharmaiah, reported in 2001 AIR SCW 2286.

122. Mr. Shanti Bhusan also submitted that the criminal proceeding may be stayed till the disposal of the probate proceeding and other civil suit as all material points upon which fate of the complaint is rested can be decided by competent Civil Court. The decisions cited by him on this point have been discussed earlier while discussing the point on relevancy of judgment of Civil Court on Criminal Court and legal implication of Sections 40 to 43 of Evidence Act. I am unable to agree with the views of Mr. Shanti Bhusan and his contentions are not acceptable. I do not find any such emergent situation in this matter which requires stay of the criminal proceeding till the disposal of the probate proceeding or other civil proceedings or suits. In a criminal case the Court of Magistrate will have to decide whether the allegations made in the complaint have been established on the basis of evidence or not and, whether the facts disclosed in the complaint relating to commission of the offence as alleged have been established or not. A Civil Court definitely cannot decide whether facts disclosed in the complaint formulated the commission of offence as alleged or not. On such matter Criminal Court is the only Court to come to a decision whether the facts as disclosed in the complaint invites or attracts elements of offence and whether the alleged offences disclosed in the complaint have been established at the conclusion of trial on the basis of oral and documentary evidence or not. At this stage there is nothing to show that the learned Magistrate acted capriciously or illegally in issuing process against petitioner and others. This is a warrant procedure case and during trial at the stage of framing charge if the learned Magistrate on consideration of evidence finds that no material of offence/offences has/have been established he would be free to discharge the accused persons. There is no reasonable and cogent ground for stay of the criminal proceeding till disposal of the probate proceeding or other civil suits.

123. The above discussion makes it clear that continuation of the criminal proceeding would not amount to abuse of the process of Court. The present case is not such a rare case where this Court should invoke its jurisdiction under Section 482 of the Code to quash the criminal proceeding. The revisional application has no merit at this stage and accordingly it fails and is dismissed.

124. It is made clear that the observations made by this Court are only for the purpose of the subject-matter of this revisional application and this Court has not entered into merits of the complaint and the learned Magistrate in the trial will arrive at his own decision on the basis of evidence and materials on record without being influenced in any way by the observations of this Court.

125. All interim orders of stay passed earlier stand vacated.

126. Learned Magistrate is directed to proceed with the complaint case in accordance with law.

127. Send a copy of this order to the learned Chief Judicial Magistrate, Alipore for information and necessary action.

128. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.