Karnataka High Court
Mr Ravi Gerard vs State Of Karnataka on 12 August, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7862 OF 2021
BETWEEN:
MR.RAVI GERARD
S/O GOPAL RAO M.S.,
AGED ABOUT 56 YEARS
R/O THE SCHOOL OF ANCIENT WISDOM
I.V.C. ROAD, DEVANAHALLI TALUK
KANNAMANGALA PALYA, KANNAMANGALA POST
DEVANAHALLI,
BENGALURU RURAL - 560 010.
... PETITIONER
(BY SRI BHARATH KUMAR V., ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH STATION HOUSE OFFICER
CUBBON PARK POLICE STATION
BENGALURU - 560 001.
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. NARENDRA D.S.,
AGED ABOUT 45 YEARS
R/O NO.2516, 2ND FLOOR
2
13TH MAIN, KUMARASWAMY LAYOUT
BENGALURU - 560 111.
... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
SRI VIVEK REDDY, SR.ADVOCATE A/W
SRI ABHIRAM ANAND, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR BEARING NO.31/2021,
REGISTERED WITH THE RESPONDENT NO.1 CUBBON PARK POLICE
STATION, ALONG WITH INFORMATION DATED 08.04.2021
WHEREIN THE PETITIONER HEREIN IS ARRAIGNED AS ACCUSED
NO.2 FOR THE ALLEGED OFFENCES P/U/S 120(B), 408, 420, 467,
468, 471 R/W 34 OF IPC PENDING BEFORE THE IV ADDL.C.M.M.,
BENGALURU, NRUPATHUNGA ROAD, BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.06.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner/accused No.2 in Crime No.31 of 2021 is before this Court calling in question FIR registered on 08-04-2021 for offences punishable under Sections 120B, 408, 420, 467, 468, 471 read with 34 of the IPC.
2. Heard Sri V. Bharath Kumar, learned counsel appearing for the petitioner, Smt. K.P.Yashodha, learned High Court Government 3 Pleader appearing for respondent No.1 and Sri Vivek Reddy, learned senior counsel appearing for respondent No.2.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
On 16-05-1997 one Mrs. Manize A.J.Sait @ Mani Kantwala Nee Mani Balsara @ Maa Manize (for short 'Maa Manize') founded "School of Ancient Wisdom" ('the School' for short) operating under the aegis of M/s Jewel in the Lotus Trust registered under the Maharashtra Public Trust Act at Mumbai. On 9-02-2010 it is claimed that Maa Manize executed a Will and registered the same before the office of the Sub-Registrar, Shivajinagar wherein accused Nos. 1 and 2 were witnesses. In accordance with the Will after the death of Maa Manize, accused No.1 would become the Managing Trustee of the School and all the properties will be banqueted to accused No.1 who would have a right to deal with the property as he would desire. On 22-03-2012 the petitioner was inducted into the Trust as a Trustee and on 26-04-2012 Maa Manize dies. Accused No.1 files a P & SC No.233 of 2013 and obtains a probate of Will dated 09-02-2010. Likewise on 29-12-2016 the office of Charity 4 Commissioner, Mumbai intimated of the change in Trusteeship i.e., induction of the petitioner as a Trustee. It is claimed that the Charity Commissioner, Mumbai conducted enquiry as contemplated under Section 22 of the Maharashtra Public Trust Act and accepts the change and registers the same.
4. In the year 2019-20 accused No.1 is said to have sold flat bearing Nos. 83 and 84 and deposited proceeds of Rs.2,97,00,000/-
in favour of the Trust. Later accused No.1 inducts three more people into the Trust as trustees viz., Mr. Gopi Hanumanathappa, Mrs. Sajini and Prof. Leela Sundaram. After the said event, the 2nd respondent herein sets the criminal law in motion against the petitioner and accused No.1 alleging serious acts of misappropriation, diversion of funds of the Trust which belonged to Maa Manize. The complainant is one D.S.Nagendra claiming to a Computer Science Engineer attached to the activities of the Trust for a long time. A detailed complaint is registered before the Police at Bangalore indicating that after the demise of Maa Manize, Ram Menon, accused No.1 took over the Trust as Managing Trustee and was looking after the Trust activities. Sathsanghs were held at the 5 Rest House Apartments at Bangalore and at the School at Devanahalli. The petitioner herein was working as a Driver with Maa Manize. At the time when the complainant used to attend Sathsanghs organized by the School, the petitioner was actively involved and was interfering in every activity of the Trust. The apartments were sold and it had come to light that the petitioner was inducted as a Trustee by creating forged documents without placing the matter before all the Trustees and on such created documents, submitted re-composition of the Trust to the Charity Commissioner and have indulged in such cheating of a Trust created by Maa Manize even forging the signatures of Maa Manize.
5. It is the said complaint that becomes a crime in Crime No.31/2021 for offences punishable under Sections 120B, 408, 420, 467, 468, 471 r/w 34 of the IPC. It is registration of crime that drives the petitioner to this Court in the subject petition. This Court by its order dated 23-10-2021 had granted an interim order of stay of further investigation which is subsisting even as on date.
Therefore, further investigation into the matter of the alleged crime of accused No.2/petitioner herein is not carried on.
66. The learned counsel appearing for the petitioner would contend with vehemence that the complaint is registered by an unknown person on the activities of the Trust. The description in the complaint is that the complainant is a Computer Science Engineer and narrates instances about people who are living in Singapore who are not even connected with the Trust. After the death of Maa Manize, accused No.1 who was bestowed the property by Maa Manize inducted the petitioner into the Trust. His position when Maa Manize was alive is not what is to be looked into but becoming the Trustee in the year 2016 and that re-composition of the Trust being accepted would confirm that the petitioner has not indulged in any illegality, cheating or forgery as it was the move of accused No.1 to induct the petitioner into the Trust.
7. On the other hand, the learned senior counsel Sri Vivek Reddy representing the complainant/2nd respondent would take this Court through the documents produced by him to contend that forensic examination of signatures on the Will and the documents produced before the Charity Commissioner are all forged and the Forensic Laboratory had clearly opined that the signatures on the 7 documents were doubtful and the petitioner had approached concerned Court seeking bail which had been turned down and this Court reiterated rejection of bail to the petitioner on the ground that cheating and forgery alleged is prima facie met. May be acts of cheating and forgery are attributable to accused No.1, but the direct beneficiary of such forgery and cheating is the petitioner.
8. The learned senior counsel would further take this Court to account details of the petitioner to contend that Rs.1.34 crores were found to be transferred to the Bank account of accused No.2/petitioner herein from the Trust and several documents of the Trust were seized from the house of the petitioner. The learned senior counsel would emphasize that all these matters are in the realm of seriously disputed questions of fact which would require a full blown trial and seeks dismissal of the petition.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
810. The afore-quoted facts are not in dispute. Maa Manize was a prominent lady of a Parsee family who allegedly owned huge collection of artifacts, paintings, exquisite jewelry and was residing at flat No.84, Rest House Apartments, Bangalore. Mrs. Maa Manize who was also known as Mani Kantwala Nee Mani Balsara used to conduct Sathsangh at her residence and had also founded a Trust in the name of 'Jewel in the Lotus Trust', which was registered under the Maharashtra Public Trust Act on 16-05-1997. Later she established an institute in the name and style of "The School of Ancient Wisdom" in the property/land belonging to her at Devanahalli. Accused No.1 is said to have been proximate to Maa Manize in furtherance of which a Will dated 9-02-2010 was executed by Maa Manize in his favour and registered before the jurisdictional Sub- Registrar at Bangalore. After the death of Maa Manize, the probate proceedings were instituted by accused No.1 and gets all the documents registered in his name as the Will bequeathed the properties into the name of accused No.1 and all the properties in terms of the Will would fall into the title of the Trust 'Jewel in the Lotus Trust'. Sathsanghs were being held in the Rest House Apartment where Maa Manize was staying and after her 9 death, the apartments were sold. The sale of apartments raised doubts about credentials of the accused. Members who were attending Sathsangh raised eyebrows about transfer of funds and the way Sathsanghs were held and managing of funds. They later come to know that accused No.2 who was a "Man Friday" of Maa Manize had been inducted into the Trust as one of the trustees. In that light a complaint comes to be registered on 8-04-2021. The complaint quotes the Will and also narrates the circumstances that led to registration of the complaint. It is necessary to notice the complaint insofar as it is germane to the present lis. It reads as under:
"After the demise of Maa Manize, Mr. Ram Menon took over as Managing Trustee and was looking after the Trust activities including "The School of Ancient Wisdom".
Sathsanghs were also held in Rest House Apartments. Mr. Ram Menon was operating both from Rest House Apartments and "The School of ancient Wisdom" at Devanahalli. During our visits we noticed that services of Ravi Gerard were continued by Mr. Ram Menon. Ravi Gerard was actively involved and interfering in the matter of the Trust and School. We felt, that he was assisting Mr. Ram Menon in his old age and who was in need of Assistance.
... ... ....
st
During the 1 week of August 2020, we visited "The School of Ancient Wisdom" and met Mr.Ram Menon and Ravi Gerard. Both of them informed us that the two flats in Rest House Apartments were sold for Rs.3 crores each but in the sale deeds it is shown that price of each flat is Rs.1.5 crores and an amount of Rs. 1,48,50,000/- each was paid by cheque to the Trust Account and Rs. 1,50,000/- each was deducted as 10 Tax at Source and remaining Rs.3 crores was shared between them. Copy of sale deed of Flat No.83 is at Annexure (4) and copy of the sale deed of flat No.84 is at Annexure (5).
... ... ...
We perused the documents pertaining to induction of Ravi Gerard as Trustee. In the minutes of a meeting of the Trust purported to have been held on 22-03-2022. In this minutes it was mentioned that Ravi Gerard has been inducted as Trustee and again it was mentioned in the first page that from "22-03-2016" Ravi Gerard is the Trustee of the Trust and though Maa Manize expired on 26-04-2012. Hence, the minutes dated 22-03-2013 were fabricated and forged. Even the signatures of Maa Manize were forged, since we were acquainted with signatures of Maa Manize we found that signature of Maa Manize was forged. Though it was mentioned in the minutes that induction of Ravi Gerard as Trustee is to be intimated to Charity Commissioner, Mumbai immediately, this was not done only on 29-12-2016 i.e., four and half years and after the demise of Maa Manize, this false and fabricated documents were submitted to the Charity Commissioner, Mumbai through the Chartered Accountants of the Trust. Copy of minutes dated 22-03-2012 is at Annexure (6).
... ... ....
Even Mr. Ram Menon has sworn in an affidavit on 26.02.2019 mentioning that by resolution dated 26.02.2019 mentioning that by resolution dated 22.03.2012 Ravi Gerard has been inducted as Trustee. This copy of the affidavit is as Annexure (10). Even Annexure (10) was also submitted to the office of the Charity Commissioner, Mumbai along with letter Exhibit Annexure (9).
On 22-03-2021 we obtained copies of the documents in P & SC 233 of 2013 from the City Civil Court, Bangalore pertaining to the probate of Will of Maa Manize. In this case Mr. Ravi Gerard was examined as PW-2 on 11.04.2014. Mr.Ravi Gerard has deposed that he was working as "Manager in the School of Ancient Wisdom. Copy of deposition of Ravi Gerard who has been examined as PW-2 in the copy of the P & SC 233 of 2013 is as Annexure (11).
This clearly shows that even on 11-04-2014 he was not a Trustee of Jewel in Lotus Trust. This also goes to show all the documents including the minutes of the trust dated 22-03- 11 2012 are fabricated, false and the signature of Maa Manize was forged by Mr.Ram Menon and Ravi Gerard.
During first week of March 2021 myself, Mr. Jay Amaran and Mr. Gopi Hanumanthappa went to "The School of Ancient Wisdom" and met Mr. Ram Menon and Ravi Gerard. Mr. Gopi Hanumanthappa questioned both of them as to how both of them can create false and fabricated documents and forging the signatures of Maa Manize in inducting Ravi Gerard as Trustee. Mr. Gopi Hanumanthappa also asked both of them as to why they have misappropriated huge trust funds. Both Mr. Ram Menon and Ravi Gerard were shocked and both of them with folded hands requested us to pardon both of them for the wrong they have done. Mr. Ram Menon told us that after the demise of Maa Manize both of them were looking after the affairs of Trust and School. Since there was no other income for both of them they were taking the funds of Trust for their expenses and he further told us that during 2016 Ravi Gerard forced him to take him as trustee. Then both of them decided to create documents regarding induction of Ravi Gerard as Trustee. In the year 2016 in Rest House Apartments, both of them created documents dated 22-03-2012 including Ravi Gerard as Trustee and both of them forged the signatures of Maa Manize. And they informed us that all the other documents pertaining to inductions of Ravi Gerard were fabricated and forged in Rest House Apartments and Ravi Gerard took them to Mumbai to present these documents to Charity Commissioner, Mumbai. On hearing this all three of us were shocked and asked Mr. Ram Menon and Ravi Gerard as to why did they stoop down to this level of cheating the Trust created by Maa Manize and even forging the signatures of Maa Manize.
When we asked both of them to give the details of the trust funds they have misappropriated, Ravi Gerard told that he will give the list of the some of the trust funds they have misappropriated and after some time they gave the list of misappropriate funds by them.
Mr. Ram Menon and Ravi Gerard told all of us that they have already received advance money towards the sale of property in Carter Road, Bandra, Mumbai and were planning to sell this property within a month or two.
12They also told us that they have sold the antique jewellery and antiques belonging to Maa Manize and have utilized the money.
All of us told Mr. Ram Menon and Ravi Gerard that they have cheated Maa Manize and misappropriated the funds of Charitable Trust created by Maa Manize, they will definitely face the legal consequences. We told them that to protect the interest of the Trust, we will file complaint against both of them. Mr.Ram Menon and Ravi Gerard fell at our feet accepting their guilt and requested us to forgive them.
The copy of the list furnished by both of them is as Annexure (12).
The list furnished by both of them disclosed the following misappropriation of the Trust Funds.
1. Mr. Ram Menon around Rs.20 lakhs.
2. Mr. Nanda Kumar- brother of Mr.Ram Menon residing at Kerala around Rs.65 lakhs.
3. Ravi Gerard around Rs.60 lakhs
4. Dr.Leela Sundaram around Rs. 6 lakhs.
On 20th June 2020, Mrs. Leela Sundaram was inducted as Trustee. Mr.Ram Menon and Ravi Gerard have conspired with Mrs. Leela Sundaram and have paid Rs.6/- lakhs to her. A brief note about the copy of "the School of Ancient Wisdom" is as Annexure (13).
Though Ravi Gerard has no other source of known income during 2019, he had purchased a house worth more than Rs.40 lakhs on Hennur Road.
Under the above circumstances, it is evident that Mr. Ram Menon and Ravi Gerard have conspired together and forged and fabricated documents, and have misappropriated the Public Charitable Trust Funds for their personal benefit and further misappropriated the sale proceeds of Antique Jewellery and Antiques belonging to Maa Manize which was written in the Will to the Trust. They have also disposed of the two flats 83/84 in Rest House Apartments at a reduced price and 13 misappropriated the funds which also was Willed by Maa Manize to the Trust.
Hence, I request your goodselves to register a Criminal Case under Section 120-B, 467, 468, 471, 408, 420 read with 34 IPC against Mr. Ram Menon and Ravi Gerard. A detailed investigation and audit is required. I also request to seize all the documents of the Trust and stop these two persons from operating the Bank Accounts of the Trust. It is also requested that Mr.Ram Menon and Ravi Gerard may kindly be prevented from interfering with any management affairs of the Trust and School and also they may be restrained from selling the property at Carter Road, Mumbai and also any other properties of the Trust."
A perusal at excerpts of the complaint would clearly indicate the allegation of creation and forgery of documents. The contention is that the change report before the Charity Commissioner inducting the petitioner as a Trustee was effected by way of forged documents, as the resolution letter that forms the part of the changed report before the Charity Commissioner was dated 22-03-2012 bearing No.E-17108/16-05-1997. Reporting the change was done on 22-01-2018 and subsequent order of confirming the reporting in respect of addition and deletion of Trustees was initiated under Section 22 of the Maharashtra Public Trust Act, 1950. Therefore, the contention of the learned senior counsel representing the 2nd respondent is that the entire document is seeped in fraud. The report of change which is said to have come 14 about on 09-10-2016 for what had happened on 22-03-2012 reads as follows:
"SCHEDULE III (Vide rule 13(I)) Report of changes that have occurred or are desired in the particulars record in the register of public Trusts Name: Jewel in the Lotus Trust Registered No.E-17108/16-5-1997 Nature of change Reasons for the Remark, if any change Mr. M. G. Ravi Appointment of Appointed as Gerard Trustee Trustee on 22-3-2012. Copy of notice, resolution and appointment letter enclosed.
Ms.Manize A.J.Sait Vacancy in office Copy of Death
due to death on Certificate
26-04-2012
For Jewel in the Lotus Trust
Sd/-
Menon Kalathil Remakrishna"
The order accepting the report of change is dated 20.06.2019.
What preceded the change report is germane to be noticed.
Accused No.1 communicates to the petitioner-accused No.2 an 15 invitation to become a Trustee. This is done on 18.05.2012 and it reads as follows:
"18th May 2012 To Mr M.G.Ravi Gerard #44, Manjunatha Layout Ramamurthy Nagar Bangalore - 560 001.
Dear Sir Sub: Letter of Invitation to become a Trustee Subsequent to the meeting that was held at 83/84 Rest House Apts #14 Rest House Road Bangalore 560 001 on 18th May 2012 when I invited you and you agreed to become a Trustee of Jewel in the Lotus Trust which would manage The School of Ancient Wisdom.
I would be grateful to receive your written confirmation at the soonest of your willingness to be a trustee of Jewel in the Lotus Trust for our record.
I enclose within a copy of the Trust Deed of the said trust for your study.
I would be grateful to receive your acknowledgement of receipt of this letter in the copy enclosed.
Your Sincerely Sd/-
Ram Menon Managing Trustee. Jewel in the Lotus Trust"16
A bald communication, 48 hours later, is sent accepting the invitation by the petitioner. This reads as follows:
"To The Managing Trustee Jewel in the Lotus Trust Jewel in the Lotus Trust 84/83 Rest House Apts 14 Rest House Road Bangalore 560 001.
I agree to be a Trustee in the Jewel in the Lotus Trust and will abide by all the terms and conditions of the trust deed.
Name: M.G.RAVI GERARD Date: 20.05.2012 Signature: Sd/-"
Both these events back to back happened in the year 2012.
The resolution which brings in the petitioner as a Trustee dated 22-03-2012 reads as follows:
"RESOLUTION The meeting was presided by Mr.Menon Kalathil Ramakrishna, Trustee at 83/84, Rest House Apartments, 14, Rest House Road, Bangalore 560 001, Karnataka which commenced at 11.15 a.m. The following resolutions were adopted unanimously.
Resolution No.1:
The minutes of the last meeting were read over by the Mr.Menon Kalathil Ramakrishna, and they were confirmed by the trustees without any addition or query. Hence, the following resolution was adopted unanimously.17
"RESOLVED THAT the minutes of earlier meeting held on 12/01/2012 is approved unanimously.
Resolution No.2:
Presently there are two trustees operating and managing the trust. In view of the same and to have additional trustee, the trust has approached MR.M.G.Ravi Gerard for appointing him as trustee of the trust. After due deliberation and discussion, it was unanimously decided to appoint Mr.M.G.Ravi Gerard as trustee of the Trust and following resolution was adopted unanimously.
"RESOLVED THAT Mr.M.G.Ravi Gerard, residing at 44 Manjunatha Layout, Ramamurthy Nagar, Bangalore 560 001 be and is hereby appointed as a Trustee with effect from 22-03- 2016."
"FURTHER RESOLVED THAT the Trustee Mr.Menon Kalathil Ramakrishna, be and is hereby authorised to file necessary forms with the Charity Commissioner, Mumbai, Maharashtra and to take all other steps as may be necessary and expedient in this regard in respect of the appointment of Mr.M.G. Ravi Gerard."
Resolution No.3:
Presently the trustees are residing at Bangalore. In order to facilitate the compliance with the Hon'ble Charity Commissioner's Office, Mumbai it would be advisable to appoint Kanu Doshi Associates LLP, Chartered Accountants, Mambai. After due deliberation and discussion, it was unanimously decided to appoint Mr.M.G.Ravi Gerard as trustee of the Trust and following resolution was adopted unanimously.
"RESOLVED THAT Kanu Doshi Associates LLP, Chartered Accountants, Mumbai to represent before the Hon'ble Charity Commissioner or Officers in connection with changes, modification or proceedings or any other matter relating to or arising under any of the provisions under Bombay Public Trust Act, 1950.18
With this above proceedings, the meeting came to an end. President expressed the vote of thanks to all the members present for today's meeting."
This is what is alleged to be forged, as this sees the light of the day only after the death of Maa Manize, as she dies on 26-04-2012. It is these seriously disputed questions of fact that declines entertainment of the petition at this juncture. Several other instances of seriously disputed questions of fact are also put forth in the complaint and in the statement of objections filed by the complainant.
11. Facts being thus, the question is whether the 2nd respondent had any locus to register the complaint against the accused.
12. It is trite law that criminal law can be set into motion by any person. Question of locus standi is alien to criminal law. In the facts of the case, the Trust was registered as a Public Charitable Trust under Maharashtra Public Trust Act and complainant and 19 others were all persons who were and are interested in the betterment of the Trust. Since the Trust was registered under the Maharashtra Public Trust Act and apartments owned by Maa Manize were also dedicated to the activities of the Trust, the complainant, in the considered view of this Court, does have locus to set the criminal law in motion. The complainant is in the form of an informant. He has informed suspicion with regard to the allegations made and therefore, the contention that the complainant has no locus to register the complaint deserves to be repelled.
13. Once locus of the complainant is sustained all other facts lead to a solitary unmistakable conclusion that the matter requires a full blown trial. Therefore, undoubtedly, in the realm of disputed questions of fact, the allegations made against accused Nos. 1 and 2 for offences punishable under Sections 120B, 408, 420, 467, 468 and 471 IPC require trial. Sections 467, 468 and 471 of the IPC which deal with forgery read as follows:
"467. Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer 20 any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
... ... ... ...
471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
Section 467 deals with forgery of valuable security, will etc. A person forging a document which purports to be a valuable security or a Will and receives the benefits out of that is said to have committed forgery. Section 468 deals with forgery for the purpose of cheating and Section 471 using a forged document to be a genuine one. The allegation against the petitioner on the basis of the examination of signatures by Forensic Laboratory albeit private is that they are disputed and they are not the signatures of Maa 21 Manize. Therefore, Section 467 gets prima facie attracted. Section 468 and 471 are the off-shoot of Section 467 of the IPC. If the aforesaid provisions are prima facie met in the complaint, the contention of the petitioner is that those are attributable to accused No.1 and not to him. Insofar as it concerns the petitioner, Section 408 is invoked. Section 408 of the IPC reads as follows:
"408. Criminal breach of trust by clerk or servant.--Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 408 deals with criminal breach of trust by clerk or servant and is punishable with imprisonment for seven years and Section 120B that is invoked of criminal conspiracy would enmesh the petitioner as well. Therefore, it cannot be said that the petitioner is innocent as projected and was only a servant of the Trust and should not be proceeded against sans substance.
2214. Reference being made to the judgment of the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH1 becomes apposite. The Apex Court in the case of KAPTAN SINGH has held as follows:
"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or 1 (2021) 9 SCC 35 23 conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191: (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686: (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337: (2020) 1 SCC (Cri) 173], referred to hereinabove.
9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its 24 jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.
11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27- 10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error.
25Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.
2614. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied) In the light of the disputed questions of fact which could be resolved in a full blown trial, I do not find any merit to entertain the petition that too at the stage when investigation is still on. It is not a case where it would come within the parameters of interference laid down in the case of STATE OF HARYANA v. BHAJAN LAL -
1992 Supp (1) SCC 335 or in the case of NEEHARIKA INFRASTRUCTURE v. STATE OF MAHARASHTRA - 2021 SCC OnLine SC 315.
15. In the result, the petition lacking in merit is dismissed.
27It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the pending proceedings against any other accused.
In view of dismissal of the petition, I.A.No.2/2021 also stands disposed.
Sd/-
JUDGE bkp CT:MJ