Punjab-Haryana High Court
Sanjay Jain vs Usha Goel And Others on 12 October, 2012
Author: Sabina
Bench: Sabina
Crl. Misc. M No. 10015 of 2009 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Date of Decision:October 12, 2012
Crl. Misc. M No. 10015 of 2009 (O&M)
Sanjay Jain ..........Petitioner
Versus
Usha Goel and others ..........Respondents
Criminal Revision No. 540 of 2009 (O&M)
Usha Goel and others ...............Petitioners
Versus
Sanjay Jain................................................................Respondent
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Manoj Bajaj, Advocate
for the petitioner-Sanjay Jain (and for the respondent
in CRR No, 540 of 2009).
Mr.C.B.Kaushik,Advocate
for the respondents-Usha Goel and others
(in Crl. Misc. M No. 10015 of 2009 and
for the petitioners in CRR No. 540 of 2009)
**
Crl. Misc. M No. 10015 of 2009 (O&M) 2
Sabina, J.
Vide this judgment, the above-mentioned two petitions would be disposed of as the petitioner(s) have sought quashing of order dated 21.11.2008 (Annexure P7) whereby respondents were discharged qua the offence punishable under Section 420 of the Indian Penal Code (`IPC' for short).
Contents of the complaint (Annexure P1) reads as under:-
"1.The complainant is an existing trustee of the "RAI BAHADUR MAKHAN LAL DHARAMSHALA TRUST" at Railway Road Rewari. He was appointed as trustee in succession of late Smt. Shakuntla Devi, wife of late Sh. Nemi Chand Jain. (Founder of the said Trust) and with the consent and approval of Smt. Usha Goel (O.P.No.1) Copies of registered deeds, documents dated 11.10.1954, 18.4.1975 and 27.1.1991 are annexed as annexure P1, P2 and P3 respectively.
2.That Smt. Usha Goel, wife of Sh.Ajay Goel (O.P.No.1) has without the knowledge and consent of an existing trustee (Sanjay Jain) complainant, and with the motive of criminal conspiracy, illegally appointed opposite parties No. 2 to 4, as trustee's to the said "RAI BAHADUR MAKHAN LAL DHARAMSHALA TRUST" and they have together forged an illegal deed of trust registered vide registration No.9969/4 at serial No.155 dated 22.12.1995 with the sub registrar at Asaf Ali Road New Delhi. Thus, committing a breach of Crl. Misc. M No. 10015 of 2009 (O&M) 3 Trust dishonestly and at the back of the complainant. (Copy of the said illegal trust deed registered vide No.9969/4 at serial No.155 is annexed herewith as annexure P4).
3.That the opposite parties No.1 to 4 have used this forged document (i.e. Trust Deed Registered vide No. 9969/4 at serial No.155) as to be genuine in Rewari, for claiming and collecting the income from rent from the tenants of the property of the trust at Rewari.
4. That the opposite parties have also committed forgery of the registered legal document, namely, the registered trust deed dated 27.1.1981 without any notice to the sub registrar at Rewari or to the complainant trustee, thus proving their intention of concealment.
5. That the said document of trust deed dated 27.1.1981 is a registered document and without the due authority any amendment is an offence under the Indian Penal Code.
6. That the opposite parties have committed an offence of cheating, forgery, criminal breach of trust and criminal conspiracy, disturbing the sanctity of the registered document (Original/First Trust Deed by the founder dated 11.10.1954) to gain from the illegal document of trust deed registered vide No.9969/4 at New Delhi and to cause loss to the complainant and the public trust.
7. That the opposite parties have fraudulently fabricated against the original trust deed dated11.10.1954 (registered by the founder of the trust) by adding the provision to Crl. Misc. M No. 10015 of 2009 (O&M) 4 transfer funds from the trust to unauthorized purposes like donation to schools and hospitals.
8.That the complainant having genuine apprehensions had timely informed the police authorities that the opposite party no.3, namely, Tarun Goel s/o Sh,Ajay Goel would leave the country (as he is doing service in the USA) and that his passport alongwith the others be confiscated and they be arrested immediately.
9. That the complainant approached the local police and the SSP Rewari with the complaint, which is registered in the complaint register in the police HQ at Rewari vide No.1362 dated 19.11.1996.(copy of which is annnexed herewith as annexure P5 to this complaint). The police refused to lodge the complaint, with the result that part No.3 i.e. Sh. Tarun Goel has left the country and the other opposite parties are also planning to leave the country.
10.That the opposite parties as stated above have committed acts of FORGERY, CHEATING, CRIMINAL CONSPIRACY AND CRIMINAL BREACH OF TRUST against the public charitable trust and they are liable to be prosecuted under appropriate sections of the Indian Penal Code i.e. 120B, 406, 420,423, 463, 464 ,467,468, 469, 470, 471, 472, 476 and 477.
11.That the actions of the opposite parties constitute various offences by themselves and deserve severe punishment, to save the charitable public trust and its funds from falling into Crl. Misc. M No. 10015 of 2009 (O&M) 5 the hands of unauthorized and undesirable persons,who have clandestinely converted the public trust into a private trust by criminal conspiracy and other illegal acts." The case of the complainant, in brief, is that trust deed registered on 22.12.1995, by excluding the name of the petitioner- Sanjay Jain as a trustee, was a forged and fabricated document. The said trust deed has been created with a view to cheat the complainant-Sanjay Jain. On the basis of the forged trust deed, the respondents had collected the rental income from the property of the Trust at Rewari.
In support of his case, petitioner-Sanjay Jain led his preliminary evidence. The trial Court vide order dated 30.9.1998 (Annexure P3) ordered the summoning of the respondents-accused under Sections 420, 468,471,120-B IPC. Respondents sought review of the said order. The trial Court dismissed the review petition filed by the accused-respondents vide order dated 6.9.2003. The respondents challenged the said order by filing the revision petition. The revision petition filed by the respondents was dismissed vide order dated 20.7.2004 (Annexure P4) by the Court of revision. The trial Court vide order dated 1.5.2007 (Annexure P6) dismissed the complaint filed by the petitioner. Consequently, the accused/respondents were discharged. Against the said order, petitioner preferred the revision petition. The Court of revision vide impugned order dated 21.11.2008 (Annexure P7) held that it was prima facie established that the respondents had committed the offence of forgery. However, no offence of cheating had been made Crl. Misc. M No. 10015 of 2009 (O&M) 6 out against the accused. The Magistrate was directed to pass a fresh order in view of the observations made in the order dated 21.11.2008. Hence, the present petition.
Learned counsel for Sanjay Jain has submitted that vide judgment and decree dated 28.2.2007 (Annexure P5), the suit filed by the respondents for declaration that cancellation deed dated 26.11.1996 was illegal null and void, was dismissed. The said judgment and decree were upheld in appeal by the First Appellate Court. Learned counsel for Sanjay Jain has further submitted that the learned Sessions Judge rightly held that, prima facie, offence of forgery with regard to the trust deed in question was made out against the respondents. The said trust deed had been forged by the respondents with a view to cheat the petitioner. However, the learned Sessions Judge erred in holding that no offence punishable under Section 420 IPC could be said to have been made out against the accused.
Learned counsel for the accused, on the other hand, has submitted that no offence of cheating or forgery was made out in this case. Although the property was situated at Rewari but the trust deed in question has been prepared at Delhi. Hence, the Court at Rewari had no jurisdiction to try the case.
After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves to be remanded back to the Sessions Judge for deciding it afresh in accordance with law.
Respondents had filed the civil suit No. 38 titled "Usha Goel vs. Sanjay Jain and others". The said suit was filed for Crl. Misc. M No. 10015 of 2009 (O&M) 7 declaration that the cancellation deed dated 26.11.1996 was illegal, null and void. A perusal of the judgment in the said suit dated 28.2.2007 (Annexure P5) reveals that the following issue No.10 was framed by the trial Court:-
"Whether the trust deed executed on 6.12.1995 registered on 22.12.1995 at Delhi vide registration No. 9969/4 showing Usha Goel, Ajay Goel, Trun Goel and Prajan Kumar Jain as trustee is a forged document?OPD"
While deciding the said issue, it was held that the trust deed dated 6.12.1995, whereby the petitioner-Sanjay Jain who was trustee on the basis of the trust deed dated 27.1.1991 had been excluded and the public trust had been converted into a private trust, was not a valid legal document. Issue No.10 was decided in favour of the defendants. In the criminal proceedings also, the issue is with regard to the execution of the trust deed dated 6.12.1995 which was held to be not a valid legal document in the civil litigation. The learned Sessions Judge fell in error while holding that no offence of cheating punishable under Section 420 IPC was made out in the present case. The trust deed dated 6.12.1995 had been incorrectly prepared by the respondents with a view to cheat the petitioner who was one of the trustee of the trust as per the trust deed dated 27.01.1981. However, while preparing the trust deed in question dated 6.12.1995, the name of the petitioner-Sanjay Jain was excluded as one of the trustee. It is apparent that the said act was done with a view to cheat the petitioner. Hence, the finding of the learned Sessions Judge to the effect that no offence of cheating was Crl. Misc. M No. 10015 of 2009 (O&M) 8 made out in the present case is liable to be set aside. Rather, prima- facie it is evident that the offence under Section 420 IPC was made out against the accused.
So far as the offence of forgery is concerned, the same can not be said to be made out in the facts of the present case.
Section 463 IPC reads as under:-
"463. Forgery Whoever makes any false documents or Electronic Record part of a document or Electronic Record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 IPC reads as under:-
"464. Making a false document "A person is said to make a false document or false electronic record-
First-Who dishonestly or fraudulently-
(a) Makes, signs, seals or executes a document or part of a document;
(b) Makes or transmits any electronic record or part of any electronic record;
(c) Affixes any digital signature on any electronic record;
(d) Makes any mark denoting the execution of a document or the authenticity of the [electronic signature], With the intention of causing it to be believed that such document or part of document,or electronic record [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority Crl. Misc. M No. 10015 of 2009 (O&M) 9 he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [ electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the napture of the alterations;
In the facts and circumstances of the present case, the accused have not prepared the document with the intention of causing it to be believed that the same was executed by a person knowing that it had not been executed by the said person. Rather the accused had prepared a new trust deed by excluding the petitioner-Sanjay Jain as one of the trustee. As per the Civil Court, the accused had converted a Public trust into a Private trust. Trust deed dated 6.12.1995 was held to be not a valid legal document by the Civil Court. Execution of a document by giving incorrect facts cannot be equated with forgery.
In the present case, the trust deed in question was prepared at Delhi, whereas, the trust property is situated at Rewari.
In the facts and circumstances of the present case, it would be just and expedient to quash the impugned order dated 21.11.2008 (Annexure P7) and all consequential proceedings arising therefrom and remand the matter back to the Sessions Judge for Crl. Misc. M No. 10015 of 2009 (O&M) 10 deciding the same a fresh in accordance with law. The accused would also be at liberty to take up the plea of jurisdiction before the learned Sessions Judge.
Both the petitions stand disposed of accordingly.
(SABINA) JUDGE October 12, 2012 arya