Jiwaji Rao Scindia & Anr Vs. Sambhajirao Chandrojirao Angre & Ors
 INSC 36 (9
Rangnath Misra Rangnath Oza, G.L. (J) Dutt, M.M. (J)
1988 AIR 709 1988 SCR (2) 930 1988 SCC (1) 692 JT 1988 (1) 279 1988 SCALE (1)261
INFO : D 1991 SC1260 (70) R 1991 SC2176 (49) RF 1992 SC 604 (104)
Procedure Code, 1973: Section 482-Prosecution at the initial stage-Quashing
of-Test to be applied by Court-Whether un controverted allegations establish a
prima facie offence-Whether expedient in interest of justice to permit
prosecution to continue.
Penal Code, 1860: Sections 34, 120-B, 406, 467- Allegation that officers of
Trust in collusion with trustee created tenancy in respect of trust
flat-Whether case of breach of trust-Whether amounts to a criminal offence or
only a civil wrong.
Trusts Act 1882: Section 53-Lease of trust property-Allegation that officers of
Trust in collusion with trustee created tenancy in respect of flat of trust-
Prosecution under Section 406, 467 I.P.C.-Whether maintainable.
trust with the settler, her son and two others, as trustees was created. Part
of the trust property included a large house.
in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of
the trust between 1976 and June, 1981. On a complaint filed in the court of the
Metropolitan Magistrate by one of the trustees alleging that these two
officers, in conspiracy with one of the trustees, son of the settler, and his
wife, had created documents showing tenancy in respect of a flat of the large
house, forming part of the trust property, in favour of the aforesaid trustee's
wife, summons were directed to be issued against the aforesaid four accused for
offences punishable under sections 406 and 467 read with section 34 and 120B of
accused persons challenged the proceedings before the High Court which quashed
the proceedings against two of the accused, but sustained the order of the
Magistrate against the other two accused, appellants in Civil Appeal No. 657 of
Appeals against the aforesaid order were filed in this Court both by the two
accused, whose prosecution was not quashed, as also the complainant.
behalf of the accused-appellants, it was contended that the trust-deed authorised
the trustee to look after the affairs of the trust, but the tenancy in favour
of the trustee's wife could not be considered as creating an interest in favour
of the trustee as the wife was an independent person having her own income,
that there was no mens rea involved for initiating criminal proceedings and, at
the most it amounted to a civil wrong, and that the court machinery should not
be permitted to be utilised for private vengeance as the mother and the son had
behalf of the complainant it was urged that in view of s. 53 of the Indian
Trusts Act, it was a clear case of breach of trust and that every breach of
trust would simultaneously be a civil wrong and a criminal offence, and an
opportunity should be given to the complainant to establish his case by leading
evidence, and that no objection could be taken at the preliminary stage.
the appeal of the accused and dismissing the appeal of the complainant, the
When a prosecution at the initial stage is asked to be quashed, the test to be
applied by the court is as to whether the uncontroverted allegations, as made,
prima facie establish the offence. It is also for the court to take into
consideration any special features which appear in a particular case to
consider whether it is expedient and in the interest of justice to permit a
prosecution to continue.
is so on the basis that the court cannot be utilised for any oblique purpose
and where in the opinion of the court chances of an ultimate conviction is
bleak and, therefore, no useful purpose is likely to be served by allowing a
criminal prosecution to continue, the court may while taking into consideration
the special facts of a case also quash the proceeding even though it may be at
a preliminary stage. [934G-H; 935A] A case of breach of trust may be both a
civil wrong and criminal offence. But there would be certain situations where
it would predominantly be a civil wrong and may or may not amount to criminal offence.
The instant case is one of that type where, if at all, the facts may constitute
a civil wrong and the ingredients of the criminal offence are wanting. [935B-C]
932 Having regard to the relevant documents, including the trust deed and the
correspondence following the creation of the tenancy and taking into
consideration the natural relationship between the settler and the son and his
wife and the fall out and the fact that the trustee's wife does not claim any
interest in the tenancy, the criminal case should not be continued. The
criminal proceedings against the appellants-accused are quashed. [934F; 935C-D]
APPELLATE JURISDICTION: Criminal Appeal Nos. 657-58 of 1986.
the Judgment and Order dated 13.2.1986 of the High Court of Bombay in Criminal
Application No. 120 of 1984.
L.M. Singhvi, Ram Jethmalani, Dalveer Bhandari, Mrs. Madhu Bhandari, S.S. Khanduja,
A.M. Khanwilkar and A.S. Bhasme for the Appearing parties.
Judgment of the Court was delivered by RANGANATH MISRA, J. Both the appeals are
by special leave and are directed against the same judgment of the Bombay High
Court on an application under section 482 of the Code of Criminal Procedure.
The High Court by the impugned decision quashed the prosecution against two of
the four accused persons. The two accused persons whose prosecution has not
been quashed are appellants in Criminal Appeal No. 657 of 1986 while the
complainant assails the decision of the High Court quashing the prosecution of
the two accused persons in Criminal Appeal No. 658 of 1986.
Smt. Vijaya Raje Scindia of Gwalior
created a trust on 23rd of February, 1966, known as "Srikrishna Madhava
Trust" with four trustees in all including the settler, the other three
trustees being Mr. Madhavrao Jiwajirao Scindia, Col. Eknath Trimbak Patil and
Kumar Shanbhajirao Chandrojirao Angre. Madhavrao is the son of the settler
while the other two, though residents of Gwalior, are not members of the family. 'Vijay Vilas' a large house located in
the Bombay city constituted a part of the
trust property. Russi Homi Awary and Damodar Rangrppa Shenoy, respondents in
Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager
respectively of the Trust between 1976 and 1982. Flat No. 15 of 'Vijay Vilas'
was in the occupation of the Sushiladevi Kathait on tenancy basis.
June, 1981, the said tenant surrendered the tenancy and on 9th of June, 1981,
the 933 Secretary issued a certificate to the effect that the tenancy had
terminated. On 31st of March, 1982, the said Secretary issued another
certificate to the effect that the aforesaid tenancy terminated with effect
from 1st April, 1980, after the entire rental liability
had been liquidated.
allegation that the two officers of the Trust in conspiracy with trustee Madhavrao
and his wife Smt. Madhavi had created documents showing tenancy in respect of
that flat in favour of Smt. Madhavi, a complaint was filed by trustee Angre in
the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay on 27th
July, 1983. Summons were directed to be issued against the four persons
referred to above for offences punishable under sections 406, 467 read with
sections 34 and 120-B of the Indian Penal Code.
accused persons challenged the proceedings before the High Court by filing an
application under section 482 of the Code and prayed for quashing of the
criminal case. By the impugned order dated 13th February, 1986 the High Court
quashed the proceedings so far as accused Nos. 2 and 4 were concerned but
sustained the order of the Metropolitan Magistrate in regard to the remaining
two accused persons.
these appeals have been filed as already stated.
settler and the accused being mother and son, an attempt was made to bring
about a settlement but that having failed the appeals have been heard on merit
and are being disposed of by this common judgment.
learned counsel appearing for the accused appellants has contended that the
criminal proceedings are without any basis and if at all, a civil wrong may be
said to have been caused. According to him, the trust deed authorised trustee Madhavrao
to look after the affairs of the Trust. The flat had been tenanted at a
particular rent when the tenant vacated; and a new tenant had to be inducted-it
being the common case that the flat was intended for tenancy-Madhavi wanted to
be the tenant and at the rate of rent which the outgoing tenant was paying, a
new tenancy was created. Under the law applicable to tenancies in Bombay, a higher rent is not chargeable
and as such no higher amount of rent could be claimed by the Trust in regard to
the flat. The wife of the trustee is an independent person having her own
income and the tenancy in favour of Madhavi cannot be considered to be creating
an interest in favour of the trustee. Dr. Singhvi further relied upon a
lawyer's notice issued on behalf of the trust calling upon Madhavi to surrender
the tenancy in favour of the Trust failing which action was threatened. Madhavi
volunteered to surrender the tenancy and thus there was really no 934
justification, according to Dr. Singhvi, for initiating criminal proceedings.
In the facts and circumstances of the case narrated above, the appellants'
counsel contended that there was no mens rea for the offences as alleged and at
the most it amounted to a civil wrong. He argued that the mother and the son
had fallen out and on that score the machinery of the Court should not be
permitted to be utilised for private vengeance.
appearing for the complainant, on the other hand, maintained that it was a
clear case of breach of trust and according to him every breach of trust would
simultaneously be a civil wrong and a criminal offence and if summons have been
issued by the Metropolitan Magistrate on the basis of the complainant's
allegations, no objection could be taken at the preliminary stage. It is
appropriate that the complainant should be given an opportunity to establish
his case by leading evidence. He relied upon the provisions of section 53 of
the Indian Trust Act which provides:
trustee, and no person who has recently ceased to be a trustee, may, without
the permission of a principal Civil Court of original jurisdiction, buy or
become mortgagee or lessee of the trust-property or any part thereof; and such
permission shall not be given unless the proposed purchase, mortgage or lease
is manifestly for the advantage of the beneficiary." We have considered
the relevant documents including the Trust deed as also the correspondence
following the creation of the tenancy. We have also kept in view the
submissions advanced on behalf of the parties by their respective counsel. We
have further taken into consideration the natural relationship between the
settler and the son and his wife and the fall out.
legal position is well-settled that when a prosecution at the initial stage is
asked to be quashed, the test to be applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is also for the court
to take into consideration any special features which appear in a particular
case to consider whether it is expedient and in the interest of justice to
permit a prosecution to continue. This is so on the basis that the court cannot
be utilised for any oblique purpose and where in the opinion of the court
chances of an ultimate conviction is bleak and, therefore, no useful purpose is
likely to be served by allowing a criminal prosecution to 935 continue, the
court may while taking into consideration the special facts of a case also
quash the proceeding even though it may be at a preliminary stage.
has submitted, as we have already noted, that a case of breach of trust is both
a civil wrong and a criminal offence. There would be certain situations where
it would predominantly be a civil wrong and may or may not amount to a criminal
offence. We are of the view that this case is one of that type where, if at
all, the facts may constitute a civil wrong and the ingredients of the criminal
offences are wanting. Several decisions were cited before us in support of the
respective stands taken by counsel for the parties. It is unnecessary to refer
to them. In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi
does not claim any interest in the tenancy. In the setting of the matter we are
inclined to hold that the criminal case should not be continued.
Appeal No. 657 of 1986 is allowed and the criminal prosecution against the two
appellants being Madhavrao and Russi Homi Avari is quashed. In view of what we
have stated above, Criminal Appeal No. 658 of 1986 has to fail and is