# SHIV A NA TH PRASAD ' v. ST A TE OF WEST BENGAL AND ORS - **Citation:** [2006] 2 S.C.R. 98 - **Court:** Supreme Court of India - **Decided:** 2006-02-03 - **Case number:** Criminal Appeal No. 182 of 2006 - **Bench:** B.P. Singh, S.H. Kapadia - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-a-na-th-prasad-v-st-a-te-of-west-bengal-and-ors-21338 - **Pages:** 22 ## Headnote .> P-enal Code, I 860-Sections I 208, 406, 420, 467, 4 I 7 and 204 /PCCriminal Procedure Code, 1973-Section 482-Evidence Act, 1872-Sections c .91 and 92-Criminal complaint filed before trial court against accused for conspiracy, criminal breach of trust and misappropriation of assets vested in trusts for purpose of public charitable institutions on the basis of a will purported to be executed by testator-Trial Court took cognizance of the offences and issued summons to the accused-High Court declined to intervene under section 482 Cr.P.C.-Accused contending before the Court that the D complaint is malafide, vexatious and oppressive and is an abuse of the process of law and that the issue raised is purely of a civil nature which cannot be tried in a criminal court-Correctness of-Held, the complaint is based on 1 mutual and oral agreements imposing secret trust obligations as evidenced by the trust deeds- "Secret trust" is a doctrine evolved to prevent fraud-Oral E evidence is admissible to prove fraud-Hence, the complaint cannot be dismissed at the initial stage on the ground of alleged malafides of the complainant. - MPB and his wife PDB formed five trusts covering their assets estimated at around Rs. 2400 crores. After MPB died, PDB settled the assets of the five F trusts for the benefit of three public charitable institutions. Thereafter, PDB purported to have executed a will bequeathing all her properties to one RSL >-· after dissolving all the five trusts. After the death of PDB, RSL claimed the properties under the will. Complainant-respondent filed a complaint praying for issuance of G process against RSL and three others (including the two appellants) before trial court for criminal conspiracy, criminal breach of trust, cheating, forgery and other offences under section 1208 read with sections 406, 420, 467, 417 .. and 204 IPC. The complainant has alleged in his complaint that MPB and PDB desired to leave their estate, after their demise to charity and for that H 98 I SHIV A NA TH PRASAD v. ST A TE OF WEST BENGAL 99 ,._ ·}.>- purpose, they treated five mutual and reciprocal irrevocable trusts for vesting A the assets in three public charitable institutions; that he was a privy to the discussions/consultations and thinking at the time of creation of the trusts and public charitable institutions for the purpose envisaged; that after their demise, the assets of the trusts stood finally settled in the public charitable institutions as remainder beneficiaries; that when RSL made a claim to the B entire estate under a purported will executed by PDB, on making enquiries, ) it revealed that RSL had criminally conspired with the other accused in ~ misappropriating the assets by creating false evidence to show that the five trusts stood revoked and dissolved during the lifetime of PDB and a will was ,,, executed bequeathing all the assets in his favour; that the object of the alleged will was to destroy the interest of the three public charitable institutions; that c one of the trustees of all the trusts was not even aware of the alleged I.. revocation/dissolution of the trusts by PDB and hence there was no revocation of the five trusts as alleged by the accused; that the accused committed criminal breach of trust by doing such acts; that RSL committed fraud and criminal breach of trust by getting a will signed by PDB without disclosing D the nature of the document; and that RSL brought into existence a letter ~ termed as codicil allegedly signed by PDB four years after the execution of ,-. the will in conspiracy with the other accused to fortify the will. The trial court, on the basis of the complaint, found a prima facie case for offences under sections 120B, 406, 417 and 420 IPC against the accused E and summoned the accused including the appellants. The appellants moved High Court under section 482 Cr.P.C. for quashing of the criminal proceedings. The High Court refused to intervene and set aside or quash the proceedings. In ## Text _Characters 0–39,982 of 63,514. This is a partial read: ask again with offset=39982 for what follows._ A SHIV A NA TH PRASAD ' , v. ST A TE OF WEST BENGAL AND ORS. FEBRUARY 3, 2006 B [B.P. SINGH AND S.H. KAPADIA, JJ.] .> P-enal Code, I 860-Sections I 208, 406, 420, 467, 4 I 7 and 204 /PCCriminal Procedure Code, 1973-Section 482-Evidence Act, 1872-Sections c .91 and 92-Criminal complaint filed before trial court against accused for conspiracy, criminal breach of trust and misappropriation of assets vested in trusts for purpose of public charitable institutions on the basis of a will purported to be executed by testator-Trial Court took cognizance of the offences and issued summons to the accused-High Court declined to intervene under section 482 Cr.P.C.-Accused contending before the Court that the D complaint is malafide, vexatious and oppressive and is an abuse of the process of law and that the issue raised is purely of a civil nature which cannot be tried in a criminal court-Correctness of-Held, the complaint is based on 1 mutual and oral agreements imposing secret trust obligations as evidenced by the trust deeds- "Secret trust" is a doctrine evolved to prevent fraud-Oral E evidence is admissible to prove fraud-Hence, the complaint cannot be dismissed at the initial stage on the ground of alleged malafides of the complainant. - MPB and his wife PDB formed five trusts covering their assets estimated at around Rs. 2400 crores. After MPB died, PDB settled the assets of the five F trusts for the benefit of three public charitable institutions. Thereafter, PDB purported to have executed a will bequeathing all her properties to one RSL >-· after dissolving all the five trusts. After the death of PDB, RSL claimed the properties under the will. Complainant-respondent filed a complaint praying for issuance of G process against RSL and three others (including the two appellants) before trial court for criminal conspiracy, criminal breach of trust, cheating, forgery and other offences under section 1208 read with sections 406, 420, 467, 417 .. and 204 IPC. The complainant has alleged in his complaint that MPB and PDB desired to leave their estate, after their demise to charity and for that H 98 I SHIV A NA TH PRASAD v. ST A TE OF WEST BENGAL 99 ,._ ·}.>- purpose, they treated five mutual and reciprocal irrevocable trusts for vesting A the assets in three public charitable institutions; that he was a privy to the discussions/consultations and thinking at the time of creation of the trusts and public charitable institutions for the purpose envisaged; that after their demise, the assets of the trusts stood finally settled in the public charitable institutions as remainder beneficiaries; that when RSL made a claim to the B entire estate under a purported will executed by PDB, on making enquiries, ) it revealed that RSL had criminally conspired with the other accused in ~ misappropriating the assets by creating false evidence to show that the five trusts stood revoked and dissolved during the lifetime of PDB and a will was ,,, executed bequeathing all the assets in his favour; that the object of the alleged will was to destroy the interest of the three public charitable institutions; that c one of the trustees of all the trusts was not even aware of the alleged I.. revocation/dissolution of the trusts by PDB and hence there was no revocation of the five trusts as alleged by the accused; that the accused committed criminal breach of trust by doing such acts; that RSL committed fraud and criminal breach of trust by getting a will signed by PDB without disclosing D the nature of the document; and that RSL brought into existence a letter ~ termed as codicil allegedly signed by PDB four years after the execution of ,-. the will in conspiracy with the other accused to fortify the will. The trial court, on the basis of the complaint, found a prima facie case for offences under sections 120B, 406, 417 and 420 IPC against the accused E and summoned the accused including the appellants. The appellants moved High Court under section 482 Cr.P.C. for quashing of the criminal proceedings. The High Court refused to intervene and set aside or quash the proceedings. In appeal to the Court, the appellants contended that the criminal F -·~ complaint was filed by the complainant at the instance of au Interested group; that it is harrasive, ma/afide and is .used as a tool of oppression to terrorise the appellants into succumbing to the pressure; that the complaint is an abuse of the process of law since the complainant was rewarded with a highly paid job by the interested group soon after his making the complaint; that the G · complaint and the documents annexed thereto does not disclose the ingredients ... of the offence of criminal breach of trust and cheating; that the issues raised ... in the complaint are complicated issues of civil nature relating to mutual wills \ ~ and mutual trusts which cannot be decided by criminal court; that the reliance - placed by the COIJlplainant on oral agreements cannot be permitted since the :: H 100 SUPREME COURT REPORTS [2006] 2 S.C.R. ,.,. A oral evidence were contrary to the terms of the written documents and hence are barred under sections 91 and 92 of the Evidence Act, 1872; that the High Court should have exercised inherent powers under section 482 Cr.P.C. for the ends of justice since the complaint was frivolous, vexatious, oppressive and malicious; and that the allegations of conspiracy were vague, general and B completely lacking in factual particulars and hence there was no reason for the magistrate to issue process against them. The appellants further contended that the five trusts are expressly made ..,,. revocable; that there was no creation of a beneficial interest in the public '- charitable institutions; that PDB was the only beneficiary under the trust deeds c till she died; that on reading the five trust deeds; there was no valid creation of the trust because the settlor, the trustee and the beneficiary in all the five trusts was one and the same person; that the trusts were private trusts and not public trusts as alleged by the complainant; that there was no vesting of assets in public charitable institutions as PDB had the right to sell/alienate the trust property without any restrictions; that PDB, being the sole D beneficiary of all the trusts, revoked the trusts and hence the appellants cannot be accused of committing breach of trust as alleged by the complainant; and ' that the act of PDB in revoking the trusts and/or treating the property as her own and disposing of the same by a will cannot constitute criminal breach of 1 trust E Dismissing the appeals, the Court HELD: 1.1. The question as to whether PDB had the authority to revoke the trusts 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 F act was performed with the intent of converting trust property into private property pursuant to a conspiracy by the accused. In the complaint, the ~ complainant has averred that he was present and consulted when the couple opted for mutual wills and even 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 G on their demise. These facts in issue are matters of evidence. The question as to whether there existed a valid trust or that PDB was entitled to dissolve the ... trust even during her lifetime are defences which can be taken at the ... ' appropriate time. [118-B-D] H 1.2. The complaint is based on an important aspect of mutual trust The allegation is that the beneficial interest is dishonestly misappropriated by the SHIVA NATH PRASAD v. STATE OF.WEST BENGAL 101 ·y> accused. The complaint is about dishonestly setting up personal title to A the trust property. The complaint is based on mutual and oral agreements imposing secret trust obligations as evidenced by the trust deeds. "Secret trust" is a doctrine evolved to prevent fraud; that, fraud is not an ingredient for the application of the said doctrine. However, the substance of the complaint is that the secret trust has become the reason for fraud B because the legatee under the secret trust is made to believe by the accused that she was the beneficial owner, free from any trust. In a matter of this y type, oral evidence was admissible to prove what is called "fraud". (118-E-F-G] 1.3. The question of malafides has to be decided on the facts of each c case. At the outset, it is reiterated that credentiality of the complainant at this stage is not relevant. In the facts and circumstances of this case, at this stage, this Court is not included to accept the argument that the complaint should be dismissed at the initial stage on the ground of alleged malafides of the complainant. The observations in the judgment should not be read as the opini. a trustee of MP Birla Foundation (one of the three public charitable A institutions). He was also a trustee of HMI and EIEI prior to the dissolution of the five trusts w.e.f. 15k 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. B Respondent no.2 herein (complainant), a former employee working i,1 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 !PC, inter alia, on the c 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 complai:iant, when the mutual wills were executed D in 1981 and 1982, he was consulted and he had taken part in the discussion j with MPB. According to the complaint, the couple had decided to dis~ose 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 E 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 tlie instrument of nominations of the F .... 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 G 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 berieficiaries >-~ were HM!, EIEI and MP Birla Foundation. Respondent no.2 was also, in tum, associated as honorary secretary of HMI, EIEI and MP Birla Foundation. Respondent no.2 herein has alleged in the complaint that he was stunned H 104 SUPREME COURT REPORTS [2006] 2 S.C.R. A 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 MPS, 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 B 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 C 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 cri."llinally 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 D 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, E the;e 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 F 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. G 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 H Shiva Nath Prasad was a close confidante of late Smt. Birla, having completed \ .. t SHIVA NATH PRASAD v. STA TE OF WEST BENGAL [KAPADIA. J.] j 05 . 50 years of service with MPB group of companies. He dealt with all the tax A '!..J 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 HM! and EIEI. Respondent B 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, Sushi! Kumar Daga, was a long standing employee of the MP Birla Group. He was a member of the managing committee of HMI and EIEI. c 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 D 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 re'!ied 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 E biography ofMPB 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, F 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 G 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 ofMPB H ~ 106 SIJPREME COURT REPORTS 12006] 2 S.C.R. \ A 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 insti:utions whose property stands B 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 ,- c 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 m the final nominations in favour of three public charitable institutions in the presence of the complainant, Shiva Nath Prasad and R.K. - Choudhury. Respondent no.2 has categorically stated that after the demise of D MPB on I 0th September 1990, Smt. Birla, in fact, executed the nominations in accordance with the pious wish of her husband and that the said nominations were mutually agreed nominations of the five trusts duly executed by her. The legal effect of the said nominations were explained by R.K. Choudhury in the presence of the complainant and in the presence of Shiva Nath Prasad to Smt. Birla. Respondent no.2 has further stated that Smt. Birla was told by .., E R.K. Choudhury that the said nominations were irrevocable and that the said Shiva Nath Prasad was ftilly aware, along with Smt. Birla, that the five trusts along with the nominations were mutual and reciprocal and were irrevocable even by Smt. Birla (survivor) except in terms of clause 19 which provision was common in all the deeds. Respondent no.2 has alleged that in terms of F the nominations agreed between MPB and PDB, during the lifetime of MPB and made after the demise of MPB, as explained above, the assets of the five trusts estimated at Rs.2400 crores stood finally settled in the three public charitable institutions as remainder beneficiaries. Respondent no.2, in his ... complaint, has stated that in the second week of April 1999, R.S. Lodha started misleading Smt. Birla. She was made to sign documents which had G the effect of misappropriating the assets dedicated to and vested in the three public charitable institutions through the medium of the five trusts. Pursuant to the said conspiracy, on 18th April 1999 which was a Sunday, R.S. Lodha - separately called three persons to Birla Park, residence of Smt. Birla and • persuaded each on~ of them by false representations and fraud to attest a ,, . H document signed by the deceased Smt. Birla. This document is the impugned will by which all the properties of the couple under the five trusts stood - I SHIVA NATH PRASAD v. STATE Of WEST BENGAL [KAPADIA. J.]107 diverted from charity. They were converted to become the p~rsonal j:lroperty A "- ' _, of R.S. Lodha. The three persons were P.L. Agarwal, Dr. Madan S. Vaidya and Mahabir Prasad Sharma. f:ccordingly, respondent no.2 has complained that the above acts constituted massive fraud on Smt. Birla and on the five trusts; that, the said fraud constituted a criminal breach of trust on the three public charitable institutions which are deprived of endowments worth Rs.2400 B crores and accordingly in the complaint respondent no.2 has alleged that R.S. Lodha had cheated and defrauded Smt. Birla into believing that she was f_. making a document to leave the property to charity as she and her husband had desired and declared from time to time since 1981-82. Respondent no.2 has lastly stated in his complaint that four years after the execution of the will dated 18th April 1999, a letter dated I 5th April 2003 termed as codicil is c brought into existence by R.S. Lodha in conspiracy with Shiva Nath Prasad and S.K. Daga to fortify the will. It contains a direction in respect of four residential properties which are now directed to R.S. Lodha and after him, his son. Respondent no.2 has alleged that this letter dated 15.4.2003 is creat~d as a supporting evidence to the will of 1999. Respondent no.2, in his complaint, D has stated that Shiva Nath Prasad prepared the balance sheets of the five trusts as on 15.4.1999 in June 2000 only to show that the five trusts stood • dissolved through deeds prior to the making of the alleged will dated 18.4.1999. ... Respondent no.2 has pointed out that R.K. Choudhury was a trustee. He had never resigned from the trusts. He had never ceased to be a trustee. He is not even aware of the dissolution of the trusts on 15.4.1999. In the circumstances, E in his complaint, respondent no.2 has alleged that there was no revocation, oral or in writing, on 15.4.1999 or at any time later on. Respondent no.2 has --; further pointed out in his complaint that the accused have communicated about the dissolution of the trusts to the Income Tax Department only on 27th June 2000 when a letter was addressed by Smt. Birla to the Joint F Commissioner of Income Tax, Calcutta, stating that the five trusts have been ..... dissolved on 15.4.1999 and that the assets have been transferred to her as the _, sole beneficiary. The balance sheets of the five trusts as on 15.4.1999 prepared by second accused in June 2000 only to show that the trusts stood dissolved w.e.f. 15.4.1999. Respondent no.2 has alleged that the accused have conspired to create records by entering into correspondence with Income Tax Department. G Respondent no.2 has accordingly relied upon the aforestated circumstance in ~ support of his allegation of conspiracy to create ante-dated documents to •; .... show retro-active revocation of the five trusts. Relying upon the aforestated ,, ~ "1 circumstances, the complainant has alleged in his complaint that the accused had entered into a criminal conspiracy, the ultimate object of which was to •, misappropriate dishonestly the charitable estate and converting the said estate H 108 SUPREME COURT REPORTS [2006] 2 S.C.R. A to their own use. Respondent no.2 has further alleged that the object of the alleged will of 1999 was to destroy the interest of the three public charitable in3titutions in which the estate had irrevocably vested; that, the purported dissolution of the trusts was a step in the execution of criminal conspiracy; that, the modus operandi of the accused was to attain this illegal object B fraudulently by showing that the five trusts were dissolved during the lifetime of Smt. Birla who was fraudulently induced and cheated as she had no legal knowledge nor access to independent legal advice; that, Smt. Birla was a lay housewife who had no knowledge of legal intricacies; that, she was deceived into executing a fraudulent will on 18.4.1999. That the three attesting witnesses were also deceived and finally the accused have even deliberately 3uppressed C the facts relating to the five trusts from the application for probate made to the High Court in respect of the alleged will dated 18.4.1999. Respondent no.2 has stated in his complaint that a trustee be~oming a party to the dissolution of an irrevocable trust is dishonest and guilty of criminal breach of trust; that, there was nothing to show that Smt. Birla was advised to convert the properties dedicated to public charities to personal properties and C on the contrary by filing and signing balance sheets of five trusts the accused have sought to create evidence of the dissolution of the trusts and thereby they have aided and abetted misappropriation of the properties belonging to public charitable institutions. The accused have used their dominant position in the five trusts and in the three public charitable institutions to illegally E revoke the five trusts and thereby dishonestly misappropriated the properties of the three public charitable institutions which constituted offence punishable under section 120-B read with section 406 of !PC. In execution of the conspiracy, the accused, in fact, misappropriated the properties of the 'public charitable institutions by illegally showing that the five trusts stood revoked and by transferring the properties held by five trusts or the three public F charitable institutions to Smt. Birla as her personal properties as is evidenced from the balance sheets filed on behalf of the five trusts by the second accused. Hence, respondent no.2 has alleged that the accused were also guilty of substantive offence of criminal breach of trust under section 406, !PC. Respondent no.2 has also alleged in his complaint that R.S. Lodha was liable G for offence punishable under section 420, !PC inasmuch as he was the instrumentality of procuring the will dated I !S.4.1999 by inducing Smt. Birla by false representation to sign the said will, divesting the properties from charity and converting it to the assets of the first accused. Lastly, respondent no.2 has alleged that accused nos.2, 3 and 4, all of whom were trustees and/ or members of managing committee in one or more of the three public H charitable institutions had connived both by positive acts of commission and \ ' ... ... /, , SHIVA NATH PRASAD v. STATE OF WEST BENGAL [KAPADIA. J.]109 > omission to aid and abet accused no. I R.S. Lodha in the offence of criminal A breach of trust for which they are liable to be punished under section I 09 read with section 406, IPC. Accordingly, respondent no.2 vide his aforestated complaint prayed for issuance of process under section 120-B read with sections 406, 420, 467, 417 and 204, IPC and also substantive offences under sections 120-B, 406, 420, 417 and 204 of !PC. B To complete the chronology of events, suffice it to state that vide order I dated 05.10.2004, CJM Alipore held that a prima facie case for offence under ~ .. sections 120-8/406/417 /420 IPC was made out against the accused. Accordingly, cognizance was taken. Accordingly, accused were summoned on 29.11.2004. c Aggrieved by the said order dated 05. l 0.2004 of CJM Alipore, accused no.2-Shiva Nath Prasad moved the High Court under section 482 of Code of Criminal Procedure (Cr.PC) for quashing the proceedings vide complaint case no.C4693/04 pending before CJM Alipore under sections 406/417/420/ 120-B, !PC. By the impugned judgment, the High Court has refused to D intervene and set aside/quash the criminal proceedings. Hence, the accused ~ have come in appeal to th is court. "' Shri Harish N. Salve, learned senior counsel appearing on behalf of Shiva Nath Prasad submitted that in 1983 G.D. Birla died. At that time, there was tension within the Birla family over division of assets. M.P. Birla and E Smt. Birla were unhappy and hurt with the way they were treated during partition. Despite the couple being issueless, the couple did not take assistance from any member of the Birla family in the running of their business and in the running of M.P. Birla group of companies. R.S. Lodha was closely associated with the couple. Over the years, Smt. Birla came to repose a lot of faith, confidence and affection on R.S. Lodha. She openly declared that F R.S. Lodha would be her successor. In this connection, learned counsel placed reliance on the minutes of the board meeting of Birla Corporation Ltd. held in September 200 I in which meeting nominees of financial institutions and banks were present. In their presence, Smt. Birla declared that R.S. Lodha was to be her successor. Learned counsel further submitted that R.S. Lodha G was also made chairperson of four holding companies in M.P. Birla group in 1999 within one week from 18.4.1999. He was also made the co-chairman .. , of the main manufacturing companies controlled by the group headed by Smt. Birla and all the key senior executives of the group were aware of her wishes, Learned counsel submitted that on the death of Smt. Birla, the other Birlas have come together to grab control of the M.P. Birla group for free H 110 SCPREME COURT REPORTS 120061 2 S.C.R. A under the facade of charity. It was pointed out that in August 2004 Birlas filed an application in the High Court for probate of two alleged wills allegedly made by the couple on 13th July 1982 claiming the same to be mutual wills. It is the case of the appellant herein that the said 1982 wills were revoked during the lifetime of M.P. Birla and Smt. Birla. Further, it is urged that no B explanation has been given for not applying for probate of the said wills of M.P. Birla who died on 30th July 1990 for 14 long years. Learned counsel submitted that the Birlas have themselves signed documents showing Smt. Birla as the sole intestate heir of M.P. Birla which documents are totally contrary to the present case of mutual wills mentioned in the complaint. Learned counsel next contended that the criminal case filed by respondent C no.2 herein, R.P. Pansari, is one such attempt on the part of the Birlas; that, the case has been instituted only to harass R.S. Lodha and other individuals who were close to Smt. Birla; that, the complainant has been set up by the Birlas to harass R.S. Lodha; that, the complainant is a disgruntled ex-employee of M.P. Birla group; that, the complainant had nothing to do with three charitable institutions after April 2000; that, he had nothing to do with M.P. D Birla group after December 200 I; that, immediately after the filing of the complaint, R.P. Pansari was rewarded with a job at a basic salary of Rs. I, 75,000/- per month by the grandson of B.K. Birla and accordingly it was submitted that the com:ilaint constituted an abuse of the process of law. E Learned counsel submitted that the foundation of the complaint is based on averrnents 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 F 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 I 0th September 1990 by Smt. Birla shows that nothing prevented her from making further G nominations superseding the earlier nominations dated I 0.9.1990. Learned counsel submitted that even the nominations dated I 0.9.1990 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 H undertaken busy travel schedules as recently as February 2003. , , .... .... SHIVA NATH PRASAD v. STATE OF WEST BENGAL [KAPADIA,J.] 111 Learned counsel submitted that even if all the allegations in the complaint A 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 el)trustment of property ofone 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 B complicated issues of civil law relating to mutual wills and mutual trust1s 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 C 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 D 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 E 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 F 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 b~cause such powers are required to be exercised ex debito justitiae or for the ends of justice. Learned G 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.