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However, on 15th April 1999 PDB purported to revoke all the five trusts (stood dissolved). On 18th April 1999, Smt. Birla executed her will by which she bequeathed all her properties (including the estate of MPB) to accused no.1, R.S. Lodha and after him his son, the value of which is around Rs.2400 crores. Smt. Birla died on 3rd July 2004. R.S. Lodha was a trustee of MP Birla Foundation (one of the three public charitable institutions). He was also a trustee of HMI and EIEI prior to the dissolution of the five trusts w.e.f. 15.4.1999. Appellant herein, Shiva Nath Prasad, accused no.2 was also a trustee in the five trusts. Accused no.3, Dr. V.Gauri Shanker was a trustee in HMI, EIEI and MP Birla Foundation. He was also a trustee in three out of five mutual trusts referred to above. Respondent no.2 herein (complainant), a former employee working in MP Birla Group, claiming to be a close associate of late MPB and his wife, petitioned a complaint in the court of Chief Judicial Magistrate, Alipore in case no.C/4693 of 2004 alleging offences under the aforestated sections, viz., 120-B read with 406, 420, 467, 417 and 204 of the IPC, inter alia, on the ground that he was a witness to the intention and the wishes of the couple during their lifetime to leave their estate to charity which decision was made known to everyone close to the couple including the other members of the Birla family. According to the complainant, the couple had accordingly executed mutual wills on two occasions, first in the year 1981 and subsequently in 1982. According to the complainant, when the mutual wills were executed in 1981 and 1982, he was consulted and he had taken part in the discussion with MPB. According to the complaint, the couple had decided to dispose of their assets to charity after their demise. Respondent no.2 herein has further alleged in the complaint that in 1988 the couple created five mutual and reciprocal trusts under which the estate went to charity as the remainder beneficiary. Respondent no.2 further alleged that he was involved in the discussion relating to formulation of the terms and conditions to be mentioned in the five trust deeds. He was consulted in the matter of drafting of the said deeds. He was also a witness to the mutual and reciprocal agreements between MPB and PDB in regard to the five trusts. He was also a formal witness to the deeds. He was also a witness to the instrument of nominations of the beneficiaries of the five trusts. He was also a witness to the deed of appointment of trustees of the five trusts. According to respondent no.2, the said five trusts were created by the couple as mutual and reciprocal trusts by which the couple had mutually agreed to leave their estate, after their death, to charity and pursuant to that decision they had nominated the charitable institutions in which the assets held by the five trusts worth Rs.2400 crores would vest. According to respondent no.2, the said five trusts were irrevocable and the three public charitable institutions nominated by the couple as beneficiaries were HMI, EIEI and MP Birla Foundation. Respondent no.2 was also, in turn, associated as honorary secretary of HMI, EIEI and MP Birla Foundation. Respondent no.2 herein has alleged in the complaint that he was stunned when he came to know, on the demise of PDB, that the first accused R.S. Lodha had claimed that the estate of PDB, which included the estate of MPB, belonged to him under the above will dated 18th April 1999 made by the deceased PDB. In his complaint, respondent no.2, has stated that when he came to know that R.S. Lodha had made a claim to the entire estate of the Birlas, he made enquiries which revealed to him that R.S. Lodha had criminally conspired with the other accused in criminally misappropriating assets worth Rs.2400 crores vested by the above five mutual trusts in the above three charitable institutions and that the accused had converted the charitable endowment for personal gain. Respondent no.2, in his complaint, has further stated that the accused had attempted to create false evidence to show that the five trusts stood revoked and dissolved on 15th April 1999 which is three days before the alleged will dated 18th April 1999 executed by PDB and thereby the assets which had vested in the charitable institutions had been criminally misappropriated by fraud and conspiracy in which the other accused had participated actively. Respondent no.2 herein has further stated in his complaint that the accused have conspired to create false evidence in support of their claim that the five trusts stood dissolved during the lifetime of PDB herself. In his complaint, respondent no.2 has further stated that R.K. Choudhury, one of the trustees in the three out of five trusts was not even aware of the alleged revocation/dissolution of the five trusts by Smt. Birla during her lifetime, as alleged by the accused. According to the complaint, there was no revocation of the five trusts, as claimed by the accused. Respondent no.2 is a chartered accountant. In his complaint, he has pointed out the reasons for the couple deciding to vest the shares of group holding companies of MPB in the above three public charitable institutions, namely, HMI, EIEI and MP Birla Foundation. Respondent no.2 has stated that it was tax planning advised by respondent no.2 and by R.K. Choudhury. The purpose of choosing the three institutions was to make them a vehicle to promote the charitable activities of MPB group. Respondent no.2, in his complaint, has categorically alleged that R.S. Lodha is a qualified chartered accountant, who had won the confidence of the couple and who solely planned his way and eliminated all those who had worked with the couple so as to make Smt. Birla hopelessly dependent on him. According to the complaint, R.S. Lodha was the exclusive advisor and consultant of Smt. Birla personally. He was a director, auditor and the trustee of different companies. According to the complaint, in the last couple of years prior to 1999, R.S. Lodha had come to occupy the central place in the scheme of things of MPB group of companies and charitable endowments. Respondent no.2 has further alleged that similarly Shiva Nath Prasad was a close confidante of late Smt. Birla, having completed 50 years of service with MPB group of companies. He dealt with all the tax matters of Smt. Birla. He filed her tax returns. He entered into correspondence on her behalf with Income Tax Department. He was given a power of attorney to sign, on her behalf, the tax returns. He was a trustee of all the above five mutual trusts. He was a trustee in the three public charitable institutions. He was also a member of the managing committee of HMI and EIEI. Respondent no.2 has further alleged that Dr. Gauri Shanker was a trustee of all the above three public charitable institutions. He was also a trustee of three of the five mutual trusts, viz., M.P. Birla Trust, Priyamvada Birla Trust and Priyamvada Birla Kosh. Similarly, respondent no.2 has stated in his complaint that the fourth accused, Sushil Kumar Daga, was a long standing employee of the MP Birla Group. He was a member of the managing committee of HMI and EIEI. He was also a trustee of MP Birla Foundation. In his complaint, respondent no.2 herein, has alleged that Shiva Nath Prasad and S.K. Daga are the witnesses to the letter dated 15.4.2003 addressed by late Smt. Birla to R.S. Lodha which has been tendered as codicil in the probate proceedings pending before the High Court. Respondent no.2, in his complaint, has alleged that Shiva Nath Prasad and S.K. Daga are the witnesses to the said letter which was created in pursuance of the criminal conspiracy to misappropriate the property of the public charitable institutions. In his complaint, respondent no.2 herein, has relied upon one more circumstance in support of his contention that the couple had always desired to leave their estate, after their demise, to charity. In this connection, respondent no.2-complainant has placed reliance on the biography of MPB written by Dr. Gauri Shanker in which a graphic description of the visit by the couple to Tirupathi has been mentioned. In the said book, Dr. Gauri Shanker has mentioned how he had taken the draft trust deed of MP Birla Foundation to His Holiness the Sankaracharya and got it approved by him. In the said book, it is allegedly stated that in the last years of his life, MP Birla had desired that his entire estate should go to charity. In the said book, it is further recited that MP Birla Foundation was the foremost institution formed on 23rd January 1986, its trustees were the three daughters of K.K. Birla, brother-in-law of MP Birla, two professionals from the industrialist group etc. and later Smt. Birla also joined its board as the chairperson and as the trustee. According to the biography, the couple expressed their desire to give their wealth and properties to God and accordingly Dr. Gauri Shanker was requested to translate that idea into reality by drawing a deed of trust. The final draft was prepared. It was taken to Kanchipuram. It was placed before His Holiness Sankaracharya and accordingly the deed was sanctified. This book was published in 1993. This circumstance is relied upon in the complaint to show that Dr. Gauri Shanker was aware of the decision of MPB and PDB to dedicate their entire wealth to charity and yet he took part in the conspiracy to divert the endowment worth Rs.2400 crores from charity to the personal kitty of R.S. Lodha and after him, his son. According to the complaint, R.S. Lodha, alongwith Shiva Nath Prasad and Dr. Gauri Shanker were the trustees of the said three public charitable institutions whose property stands criminally misappropriated by the first accused pursuant to a criminal conspiracy by the other accused who committed criminal breach of trust. This was possible by virtue of the power and influence of R.S. Lodha and by reason of the long familiarity of the other accused with the couple. According to the complaint, MPB died on 30th July 1990. Upto the time of his death, he had done nothing to show the slightest inclination to change his charitable intentions or to put an end to the mutuality expressed wills of 1982 and the trust deeds of 1988 and on the contrary in January and February 1989, the couple had agreed on the final nominations in favour of three public charitable institutions in the presence of the complainant, Shiva Nath Prasad and R.K. Choudhury.

Learned counsel submitted that the foundation of the complaint is based on averments which are false in view of the documents annexed to the complaint. In this connection, learned counsel submitted that the five trust deeds clearly show on bare reading that the trusts were set up with a private object to provide benefit to individual beneficiaries with absolute power of alienation of the entire trust property and income without any compulsion for charity. It was urged that on a bare reading of the trust deeds it is clear that they were expressly made revocable and, therefore, it is not open to the complainant to claim that the said five private trusts were irrevocable when on the face of the documents, they are revocable. Learned counsel further submitted that the very fact that nominations were made on 10th September 1990 by Smt. Birla shows that nothing prevented her from making further nominations superseding the earlier nominations dated 10.9.1990. Learned counsel submitted that even the nominations dated 10.9.1990 were not entirely charitable. In fact, in value terms it was more in favour of private individual members of Birla family. Learned counsel submitted that the deceased Smt. Birla was in sound health and she actively looked after her business and had undertaken busy travel schedules as recently as February 2003. Learned counsel submitted that even if all the allegations in the complaint supported by documents annexed thereto were believed to be true, the same did not disclose the ingredients of the offence of criminal breach of trust as there was no entrustment of property of one in the hands of another. Similarly, the ingredients of the offence of cheating are also not disclosed in the complaint. Learned counsel urged that the issues raised in the complaint are complicated issues of civil law relating to mutual wills and mutual trusts which cannot be decided by a criminal court and which issues should be relegated to regular civil proceedings before a court of competent jurisdiction. Learned counsel urged that the five trusts were expressly made revocable. In this connection, reliance was placed on clause 19 of the Trust Deed. Learned counsel urged that the complainant has relied upon, in the complaint, oral agreements for which oral evidence cannot be permitted to be adduced as such oral evidence was contrary to the terms of the written documents and was, therefore, barred under sections 91 and 92 of the Indian Evidence Act, 1872. Similarly, the allegations of the trust property having vested in three public charitable institutions, upon nomination, being made in their favour by Smt. Birla, have no substance because the properties mentioned in the nominations were only to be transferred to the nominees on the death of the settlor/sole beneficiary, namely, Smt. Birla and, therefore, there was no basis for alleging that the assets had vested in the three charitable institutions upon nominations being made by Smt. Birla. In this connection, it was further pointed out that the nominations made by Smt. Birla were in supersession of her nominations made earlier. In the circumstances, there was no merit in the allegations made in the complaint that the assets covered by the trusts stood vested in the three public charitable institutions on issuance of nominations/directions in 1990. According to the learned counsel, the complaint made by respondent no.2 herein smacks of malafides particularly when he has been appointed at a salary of Rs.1.75 lacs per month in one of the rival Birla companies soon after his making the above complaint. As regards the scope of section 482, Cr.PC, learned counsel submitted that since the complaint was frivolous, vexatious, oppressive and malicious, the High Court should have exercised its powers under section 482, Cr.PC because such powers are required to be exercised ex debito justitiae or for the ends of justice. Learned counsel relied upon various cases in which criminal proceedings have been quashed at the initial stage to prevent abuse of process of court and for the ends of justice. In this connection, reliance was placed on several decisions of this court, more important being R.P. Kapur v. State of Punjab [AIR 1960 SC 866]; State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Suppl. 1 SCC 335]; Madhu Limaye v. The State of Maharashtra [1977 (4) SCC 551] and Madhavrao Jiwajirao Scindia & Ors. v.

Sambhajirao Chandrojirao Angre & Ors. [1988 (1) SCC 692]. Learned counsel submitted that the power of the court to grant discharge under section 245(2), Cr.PC in a warrant case instituted otherwise than on a complaint did not impinge on the inherent power of the High Court under section 482 of Cr.PC to quash proceedings in appropriate cases. In this connection, reliance was placed on the judgment of this Court in the case of Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [1998 (5) SCC 749]. Learned counsel submitted that exercise of inherent power to quash the proceedings is called for in cases where the complaint did not disclose any offence or that the complaint was frivolous, vexatious or oppressive. Learned counsel submitted that in the present case the complainant has tried to distort the facts in order to give an impression of an offence. That the said attempt was grossly frivolous, vexatious and oppressive and, therefore, the High Court should have quashed the process issued by the CJM, Alipore. On the question of breach of trust, learned counsel submitted that there was no entrustment of property which is the main ingredient of the offence under section 405; there was no valid creation of trust under the five trust deeds; there was no creation of a beneficial interest in the three public charitable institutions; that Smt. Birla was the only beneficiary under the trust deeds till she died; that, there was no vested interest created in any beneficiary other than Smt. Birla under any of the five trust deeds and lastly the revocation of the four trusts did not amount to the extinguishment of vested or beneficial interest of any other person under the trust deed so as to constitute an act of conversion. Learned counsel submitted that on reading the five trust deeds in the light of the aforestated proposition of law it would become clear that, in the present case, there was no trust because the settlor, the trustee and the beneficiary in all the five trusts was one and the same person, viz., M.P. Birla in M.P. Birla Trust and Priyamvada Devi Birla in the other four trusts. As sole beneficiary, both M.P. Birla in M.P. Birla Trust and Priyamvada Devi Birla in other four trusts, had absolute power of disposition of the trust property and also over the trust income including the power of bequest by nomination. The beneficial interest of M.P. Birla in the trust property was the same as the legal ownership which vested in him as a trustee and if the beneficiary and the trustee were the same person and if the beneficiary has the same right as the trustee, then there can be no beneficial interest under section 3 of the Indian Trusts Act, 1882 and, therefore, it was urged that, in the present case, there was no valid creation of a trust, as alleged. Learned counsel submitted that in any event the said five trusts were private in nature and a mere contingency in charity would not make such trusts public and thereby bring them out of the provisions of Indian Trusts Act. In this connection, it was urged that the sole beneficiaries of the trusts were M.P. Birla and Smt. Birla and that reference to charity in clause 8 was a mere contingent interest and, therefore, such provision cannot transform the nature and character of the private trust into a public or charitable trust. Learned counsel urged that the primary purpose of the settlor was to benefit the members of his family and, therefore, the trusts in the present case were private trusts and not public trusts, as alleged by the complainant. Learned counsel urged that, in the present case, there was no complete dedication to charity under these five private trusts even according to the intention of the settlor or in terms of the trust deed. Further, learned counsel submitted that since there was an express clause of revocation, one cannot say, as sought to be contended, that a public trust came into existence for charitable purposes. Learned counsel urged that there was no vesting on any point of time in three public charitable institutions as on 10.9.1990 or in any charity under clause 8 of the trust deed, as submitted by the complainant; that, the proviso to clause 6 (b) in Smt. Birla's four trust deeds excluded the right of her husband to sell the trust property and consequently Smt. Birla had a right to sell/alienate the trust property without any restrictions; that, this provision further indicates that the trust property was or could be completely extinguished by Smt. Birla by operation of all or any of her powers as the trustee/settlor. Learned counsel urged that by clause 5 of the trust deed Smt. Birla was vested with the power of alienation of the corpus of the trust and the income therefrom. In this connection, reliance was placed on clauses 5, 10, 11(iii), 11(iv) and 11(xxi) of the trust deeds. In the circumstances, learned counsel submitted that the powers of Smt. Birla under the trust deeds were similar to the powers of a testator under a will; that, just as a testator could deal with his property covered in the will during his lifetime and just as under the will the legatee/beneficiary had no vested interest in the bequest under the will which is merely contingent upon the acts of the testator during his lifetime so also Smt. Birla under the five trust deeds was a testator of a will and she had full authority to deal with the property covered by the will/trust during her lifetime, the beneficiary having no vested interest in the bequest. Learned counsel further urged that even as far as property of M.P. Birla Trust was concerned, the deceased had full beneficial interest in the corpus during her lifetime; that, there was nothing in the deed of trust that made her directions given under clause 6(b) irrevocable; that, Smt. Birla could have nominated a member of the family even after the nominations/directions of September 1990 without committing breach of trust; that, even if Smt. Birla had named a charitable trust during her lifetime, she could have changed the direction and given it to any other trust whether charitable or non- charitable. In any event, the directions were to operate only upon her death. In this connection, reliance was placed on the letter dated 12th September 1990 addressed by Smt. Birla to East India Investment Company Pvt. Ltd. requesting that the shares in the trust property may be transmitted to her name as she was the sole survivor of her late husband. Learned counsel submitted that even the letter which Smt. Birla wrote to Income Tax Department intimating dissolution of the private trusts on 15.4.1999 with the enclosed balance sheets showed that the assets and the income of the trusts was all along included in the personal Income Tax returns of Smt. Birla. In conclusion, learned counsel urged that M.P. Birla and Smt. Birla had granted absolute right in the trust property unto themselves, and the second bequest, if any, under clause 8 was in favour of charity which had failed and, therefore, there was no entrustment of property as contemplated by section 405, IPC. The sole beneficiary of all the five trusts was Smt. Birla who had revoked the trusts in the year 1999 and, therefore, the appellant cannot be accused of committing breach of trust, as alleged in the complaint. Any disposal by Smt. Birla in her own favour or to those claiming under her can never fall within the meaning of section 405, IPC. The act of the deceased in revoking the trusts and/or treating the property as her own and disposing of the same by will cannot constitute breach of trust under section 405, IPC. Shri R.F. Nariman, learned senior counsel appearing on behalf of Dr. Gauri Shanker-accused no.3 submitted that Dr. Gauri Shanker is 83 years old. He is the senior advocate of this court. He joined Indian Revenue Service in 1948 and held, during his tenure, senior positions. He was appointed an advisor to L.K. Jha Commission. He was personally known to late M.P. Birla and through M.P. Birla, he came to know Smt. Birla. He was close to the couple. He used to advise them on personal and corporate matters. He came to know R.S. Lodha through M.P. Birla. He had seen the couple placing reliance on R.S. Lodha. He had seen the couple giving responsibility to R.S. Lodha from time to time. He was consulted by the couple in matters of religion, philosophy, charity, business and taxation. According to Dr. Gauri Shanker, Smt. Birla was a wise lady, well read and proficient in several languages. According Dr. Gauri Shanker, on the demise of G.D. Birla, M.P. Birla had conveyed his dissatisfaction over the division of management of Birla companies. In the last few years of his life, M.P. Birla had gradually handed over the charge of M.P. Birla group of companies to Smt. Birla. After the demise of M.P. Birla, Dr. Gauri Shanker remained close to Smt. Birla. He advised her on personal and corporate matters. Towards the end of 1990 Smt. Birla had told Dr. Gauri Shanker that she had decided on R.S. Lodha as her successor and she was desirous of making a will for this purpose. According to Dr. Gauri Shanker, Smt. Birla had told him that she would revoke five private trust deeds before making her will. It was further submitted that even according to Dr. Gauri Shanker although he was a trustee of three trusts out of five private trusts created in 1988 none of the properties settled in the trusts had been transferred/recorded in the names of the trustees and that all the five private trusts were revocable. Further, Smt. Birla had asked Dr. Gauri Shanker to prepare a will by which she would bequeath the right, title and interest of all that she owned to R.S. Lodha whom she used to treat like her son and in consonance of the detailed instructions of Smt. Birla, Dr. Gauri Shanker had drawn up a will dated 18.4.1999 which was duly registered and which is annexed to the criminal complaint. Learned counsel submitted that in fact Dr. Gauri Shanker was told by Smt. Birla that she had dissolved the five private trusts before executing the will. After four years Smt. Birla had expressed her desire to give further directions regarding her properties and consequently a letter, based on her instructions, was drafted by Dr. Gauri Shanker which was signed by Smt. Birla on 15.4.2003 in the presence of Shiva Nath and S.K. Daga.

We have referred to the doctrine of mutual and reciprocal wills and trusts only to understand the basis of the complaint. At this stage we are required to read the complaint as it is. Suffice it to state at this stage of the matter that the couple had executed mutual wills in 1981 and 1982; followed by reciprocal trusts in 1988 which are in almost identical words. The scheme of the mutual deeds read together is almost identical. It is not disputed that a mere declaration can create a trust obligation, particularly when the settlor is the sole trustee under the trust. Before us what is argued by the appellants is that there is no valid creation of trust; that, there was no "vesting" of the assets in the three public charitable institutions; that, the act of Smt. Birla in revoking the trusts and/or treating them as her own property was within her competence; that, the trusts were revocable; that, at the highest it is case of failure of the second charity and that predominantly the dispute is a civil dispute. At this stage, we may point out that what is complained of in the complaint filed by respondent no.2 herein is regarding the acts of management including dissolution of the trusts and making of the will by which trust properties have been allegedly converted dishonestly into personal properties of R.S. Lodha constituting an offence of criminal misappropriation under sections 405 and 406 and cheating under section 420, IPC. Here we may add that question as to whether Smt. Birla had the authority to revoke is different from the allegation that the acts of setting up personal title to the trust property constituted criminal breach of trust and that, the act was performed with the intent of converting trust property into private property pursuant to a conspiracy by the accused. In the complaint, respondent no.2 herein has averred that he was present and consulted when the couple opted for mutual wills in 1981, 1982 and even in 1988 when mutual and reciprocal trusts were executed. The complaint is based on the alleged oral agreement and understanding between the husband and wife regarding disposal of properties on their demise. Suffice it to say that these facts in issue are matters of evidence. The question as to whether there existed a valid trust or that Smt. Birla was entitled to dissolve the trust even during her lifetime are defences which can be taken at the appropriate time.