Kishor
Kirtilal Mehta & Ors Vs. Vijay Kirtilal Mehta & Ors [2008] Insc 192 (18 February 2008)
Altamas
Kabir & Lokeshwar Singh Panta
CRIMINAL
APPEAL NO. 330 OF 2008 @ S.L.P. (CRIMINAL) NO.357 of 2007 Altamas Kabir, J.
1.
Leave granted.
2. By
a Deed of Trust dated 5th
July, 1978, one Kirtilal
Manilal Mehta, the late father of Kishor Kirtilal Mehta, the appellant No.1
herein, created a Trust known as Lilavati Kirtilal Mehta Medical Trust and
appointed Kishor Kirtilal Mehta, Mrs.Charu Kishor Mehta the appellant No.2 and
Mrs. Rekha Haresh Sheth, the sister of the appellant No.1, as Permanent
Trustees thereof. The said Trust established the Lilavati Hospital which is a highly-reputed hospital
in Mumbai and is considered to be one of the best hospitals in India today.
3.
Clause 17 of the Trust Deed stipulates that as far as possible only members of
the Settlor's family are to be appointed as Trustees. However, the respondent
No.1, Vijay Kirtilal Mehta, the elder brother of the appellant No.1 and son of
the Settlor, was neither appointed as a Permanent Trustee nor as a Trustee by
the Settlor when the Trust was created. According to the appellants, it was at
the instance of the appellant No.1 that the respondent No.1 was appointed as a
Trustee on 22nd July,
1990, for a period of
five years, as provided under the Trust Deed. The case of the appellants is
that since the Trust Deed further stipulates that except for Permanent Trustees
all other Trustees could be appointed for a term of five years only and for a
maximum of three terms, the respondent No.1 ceased to be a Trustee after the
expiry of the third term on and from 22nd July, 2005.
4.
According to the appellants, Mrs.Charu Kishor Mehta, the appellant No.2,
thereafter issued a notice on 5th April, 2006,
for holding a meeting of the Trustees in order to fill up the vacancy caused by
the cessation of the respondent No.1 as a Trustee of the aforesaid Trust. Mrs. Rekha
Haresh Sheth did not attend the meeting held on 8th April, 2006, but addressed
a letter to the appellant No.2 through her advocate enclosing a copy of the
Minutes of a meeting of the Trust purported to have been held on 22nd July,
1995, wherein Mr. Vijay Kirtilal Mehta, the respondent No.1, was shown to have
been re-appointed as a Permanent Trustee. The Minutes also indicated that the
appellants, Kishore Kirtilal Mehta and Mrs. Charu Kishore Mehta, had signed the
said Minutes.
The
appellants denied having signed the said Minutes and questioned the genuineness
of the same and contended that the said Minutes had been fabricated in order to
circumvent the Resolution adopted by the Permanent Trustees on 8th April, 2006, declaring the cessation of the
trusteeship of the respondent No.1.
5. In
any event, by his letter dated 8th April, 2006
the respondent No.1 asked the appellant No.2 not to hold any meeting on 8th April, 2006, pursuant to her notice dated 5th April, 2006. The appellants were also informed
that Niket Mehta, son of the respondent No.1, had been appointed a Permanent
Trustee and the respondent No.1 had been re-appointed as a Permanent Trustee.
6.
From the materials on record it appears that in regard to the Minutes of the
meeting of the Trustees allegedly held on 21st July, 1995, a Change Report was
filed with the office of the Assistant Charity Commissioner, Mumbai, on 10th
April, 2006, to record the cessation of trusteeship of Prashant Kishore Mehta
and the re- appointment of Rajiv Kishore Mehta as Trustee of the above Trust.
7.
Certain other facts subsequently surfaced from correspondence addressed by the
Heads of the different departments of the Lilavati Hospital to the appellant
No.2 which led to the filing of a complaint by the appellant No.1 before the
Economic Offences Wing of the Bombay Police on 3rd May,2006, against the Lilavati
Hospital Trust and others for having allegedly committed offences punishable
under Sections 120-B, 465, 467, 468, 471, 474 and 420 of the Indian Penal Code.
8.
Since, according to the appellants, no action was taken by the Economic
Offences Wing of the Bombay Police on the basis of the complaint dated
3.5.2006, the appellant No.1 filed a complaint before the Additional Chief
Metropolitan Magistrate (4th Court), Girgaum, Mumbai, on 13.5.2006, being CC
No.24/M/2006, against the respondent No.1 and others under Section 120-B, 465,
467, 468, 471 and 420 of the Indian Penal Code alleging that the accused
persons had committed forgery and had fabricated various documents and records
of the Trust, including the Resolution alleged to have been adopted by the
Trustees on 22.7.1995. By an order dated 22.5.2006 the learned Magistrate
directed the Gamdevi Police Station to investigate into the allegations
contained in the complaint filed by the appellant No.1 under Section 156(3) of
the Code of Criminal Procedure. The Gamdevi Police Station registered First
Information Report MECR No.5/2006 on 27.5.2006 on the basis of the said
complaint.
9. The
above complaint was followed by an application filed by the appellant No.1 on
18.5.2006 under Section 94 of the Code for issuance of a Search Warrant for
search and seizure of the Minutes of the alleged meetings of the Board of
Trustees as well as the letter dated 21.7.1996 which was alleged to have been
forged.
10.
Soon thereafter, the appellant No.1 filed Suit No.2444 of 2006 before the City Civil Court at Bombay on 30th
May, 2006, praying for
a declaration that the Minutes of the meeting alleged to have been held on
22.7.1995 and the Resolution adopted therein, were forged and fabricated.
Admittedly, the said suit is still pending disposal.
11. At
the time of arguments in respect of the application for interim reliefs prayed
for by the appellant No.1 in the said suit, the counsel for the Trust tendered
a copy of the Minutes Book of the Trust containing the Minutes of the meetings
of the Trust alleged to have been held between 31st January 1993 and 31st
March, 1997. According to the appellants herein, that was the first time that
they had come across the said Minutes Book. It is the case of the appellants
that on examination of the Minutes Book, which was produced on behalf of the
Trust, they found that the entire Minutes Book contained forgeries and
fabrication. A detailed affidavit was filed by the appellant No.1 in that
regard. It may be mentioned at this stage that the prayer made by the appellant
No.1 for issuance of a search warrant was refused by the Magistrate by his
order dated 15.6.2006, inasmuch as, the investigation under Section 156(3) of
the Code was also in progress.
12. On
19.6.2006 Smt. Rekha Sheth filed an affidavit in Suit No.2444 of 2006 pending
before the City Civil
Court, Bombay, inter alia, disclosing that she
was in possession of the three original letters dated 21.7.1994. Thereafter, in
connection with the investigation under Section 156(3) of the Code the Gamdevi
Police Station issued a notice dated 24.7.2006 to the appellant No.1 directing
him to produce the following documents:
i)
Minutes Book of the meetings of the Board of Trustees for the period 31.1.1993
till date,
ii)
Resolution passed on 22.7.1995 (3 originals); and
iii)
Letter dated 21.7.1995 signed by the appellants herein and Rekha Sheth (3
originals).
13.
Subsequent to the said notice, the respondent No.1, Vijay Kirtilal Mehta filed
Criminal Writ Petition No.1581 of 2006 before the High Court of Bombay against
the order dated 2.5.2006 passed by the Additional Chief Metropolitan Magistrate
and also against order dated 24.7.2006 and prayed for quashing of the said two
orders as also the FIR dated 27.5.2006.
14.
The writ petition was listed before the High Court of Bombay on 27.5.2006 and
after hearing the counsel for the parties the High Court passed an order
directing the respondent No.1 and the Lilavati Hospital Trust to permit the
police authorities to inspect the documents, impugned by the appellants, at the
premises of the Lilavati Hospital and to furnish copies thereof to the said
authorities. Interestingly, the appellants herein who were vitally interested
in the subject-matter of the proceedings, were not made parties in the Criminal
Writ Petition No.1581 of 2006 and accordingly the appellants moved an
application for intervention on 4.8.2006. Inasmuch as, the respondent No.1 sent
certain selected documents only directly to the Police Station, the appellants
herein moved an interlocutory application No.310 of 2006 in the pending
criminal writ petition. The same was listed for hearing on 23.8.2006 and by
consent of the counsel appearing for the parties the High Court appointed the
Chief Examiner of Documents, Government of Maharashtra, as Court Commissioner
to examine the following documents:
i)
Minutes Book of the meeting of the Trust in respect of the alleged meetings of
the Board of Trustees of the said Trust between 31.1.1993 to 31.3.1997 running
into 150 pages;
ii) 3
Original letters dated 21.7.1995; and
iii) 3
Original extracts of the Resolution dated 22.7.1995.
15.
Subsequent to the passing of the said order dated 23.8.2006 the Public
Prosecutor moved the High Court for substitution of the Chief Examiner with the
Additional Chief Examiner and also sought relief to permit the Commissioner to
take the documents in question to their laboratory for chemical examination. By
its order dated 8.9.2006 the High Court while confirming its order of 23.8.2006
directed the respondent No.1 to hand over the original documents as contained
in paragraph 4 of the said order of 23.8.2006 to the Prothonotary and the
Senior Master of the High Court who would then take the said documents into
custody and seal and dispatch the same by special messenger to the Chief
Examiner of Documents, M.S. at Pune, who was appointed as the Commissioner by
the Court. The Chief Examiner of Documents was directed not to part with the
documents in any manner and to keep the same in safe custody and after
conducting required scientific tests on the documents return the same in a
sealed cover by special messenger to the Prothonotary and the Senior Master of
the Court and to send his opinion within six weeks from the date of receipt of
the documents. On the documents being received back from the Chief Examiner of
Documents, the appellant would be entitled to collect the same in the presence
of the respondents, their advocates, the learned Public Prosecutor and the
Investigating Officer.
15.
Thereafter, on 10.11.2006 the matter was once again listed before a Division
Bench of the High Court comprised of the Hon'ble Mr. Justice S.B. Mhase and the
Hon'ble Mr. Justice S.R.Sathe, when the letter dated 7.11.2006 from the Chief
Examiner of Documents was brought to the notice of the Court. Since the said
letter is the genesis of the present proceedings before us the same is
reproduced hereinbelow :
"No.
HE/1319/HW/PCP/34/06/VVR/06 Office of the Chief State Examiner of Documents,
C.I.D. M.S., Pune Date : 07
November, 2006 To The
Registrar, Original Side, Prothonotary and Senior Master, High Court, Original
Side Mumbai Ref. : Your letter No.B/ 16143 dated 6.11.2006 Sub. : Misc.Application
No. 440/06 in Criminal Writ Petition 581 of 2006.
Sir,
The additional documents in this case have been received in this Office today
i.e. on 7.11.2006. As per the previous order dated 23 August 2006 the signature (Resolution dated 22 July 95) in the Blue Register was disputed.
However,
the register does not contain signatures of Sow. C.K. Mehta. In the present order,
6 documents which were sent previously are stated to be admitted. It is,
therefore, requested to kindly communicate as to which signatures of Shri K.K.
Mehta and Sow. C.K. Mehta are disputed and which signatures are admitted
specifically so as to enable this office for the needful.
The Hon'ble
Lordship may kindly be requested to grant a further period of about 4 week's
time for examination after receipt of complete clarification.
Inconvenience
caused to the Hon'ble Lordship is deeply regretted.
Yours
faithfully, Sd/- Chief State Examiner of Documents C.I.D. M.S. Pune On the said
letter being brought to the notice of the Court the matter was adjourned till
14.11.2006, when, after hearing learned counsel for the parties, the Division
Bench was of the view that since the order of 23.8.2006 had been passed with
the consent of the parties and was subsequently reaffirmed by order dated
8.11.2006 and 2.11.2006, it would be appropriate to place the matter before the
original Bench consisting of the Hon'ble Justice J.N. Patel and the Hon'ble
Justice Roshan Dalvi for clarification of their Lordships' order dated
23.8.2006.
16.
Thereafter, the matter was taken up by the latter Bench on 10.1.2007 on the
basis of the letter written by the Chief Examiner of Documents on 7.11.2006,
and, by its order of even date, the Hon'ble Judges passed the order which has
been impugned in the present appeal and reads as follows:
"CRIMINAL
APPLICATION NO. 310 OF 2006 IN CRIMINAL WRIT PETITION NO.1581 OF 2006 Kishor Kirtilal
Mehta ...Applicant Vijay Kirtilal Mehta & ors. ..Respondents Mr. M.S. Mohite
for the applicant Mr. S.R.Borulkar, P.P. for the State CORAM : J.N. PATEL &
ROSHAN DALVI, JJ DATE : 10TH
January, 2007 P.C.
1. The
matter has been placed before our Bench to clarify our order dated 23.8.2006
which was modified by passing further order on 8.9.2006. The question for
seeking clarification arose because a communication dated 7.11.2006 was
received by the Registrar of this Court from the Commissioner appointed by this
Court i.e. the Chief State Examiner of Documents, C.I.D., M.S. Pune and in
which a specific query has been made that in respect of six documents which
were sent previously to the Commissioner and stated to be admitted. The
Commissioner wanted to know as to which signatures of Shri K.K. Mehta and Sow
C.K. Mehta are disputed and which signatures are admitted specifically so as to
enable his office to do the needful. Though such a clarification is not
required as our order dated 23.8.2006 is very specific with reference to the
documents which are required to be examined by the Commissioner, but what we
find is that one of the intervenor-complainant has stated that they dispute all
the signatures of Shri K.K. Mehta in the minute book and of Sow C.K. Mehta in
three letters and the three resolutions and for that reason the Commissioner
need not, for the present, examine all the signatures on the minutes book
except relating to the resolution dated 22.07.1995 which is the basis of the
complaint lodged with Gamdevi Police Station and the three copies of the
resolutions and three letters as observed in our order and submit his report as
early as possible.
2.
Needless to say that the Commissioner would require specimen signatures of the
parties for the purpose of comparison which have already been forwarded by
order dated 2.11.2006. Sd/-(J.N. Patel,J.) Sd/- (Roshan Dalvi,J.) True
copy"
17.
Appearing for the appellant, Dr. A.M. Singhvi submitted that by the impugned
order dated 10.1.2007 passed in Application No.310/06 filed in Criminal Writ
Petition No.1581 of 2006, the Division Bench of the High Court truncated the
directions given in its earlier order dated 23.8.2006 though indicating that
the same was to clarify the said order of 23.8.2006. Dr. Singhvi submitted that
such purported clarification was necessitated on account of the letter dated
7.12.2006 addressed by the Commissioner appointed by the Court to the Registrar
raising certain specific queries in respect of six documents which had been
previously sent to the Commissioner and stated to be admitted. The High Court
further recorded that by the aforesaid letter the Commissioner wanted to know
as to which signatures of Shri K.K. Mehta and Sow Charu Kishore Mehta were
disputed and which signatures were admitted specifically so as to enable his
office to do the needful. He also submitted that the learned Judges had then
altered the contents of their earlier order dated 23.8.2006 by observing that
since one of the intervenors /complainants had disputed all the signatures of Shri
K.K. Mehta in the Minutes Book and that of Charu Kishore Mehta in 3 letters and
the 3 Resolutions, the Commissioner was not required for the present to examine
all the signatures in the Minutes Book except those relating to the Resolution
dated 22.7.1995, which is the basis of the complaint lodged with Gamdevi Police
Station, together with the 3 copies of the Resolutions and 3 letters as
observed in the order of 23.8.2006 and to submit his report as early as
possible.
18. In
support of his aforesaid submission, Dr. Singhvi referred to paragraph 4 of the
said order dated 23.8.2006 whereby the Chief Examiner of Documents, Government
of Maharashtra, had been appointed as the Commissioner with directions to
examine the documents to be produced by the respondent No.1 herein in original,
namely;
i)
Minutes Book running into 150 pages for the period 31.1.1993 till 31.3.1997;
ii)
All the three original letters dated 21.7.1995; and
iii)
All 3 original extracts of Resolution dated 22.7.1995.
19.
Dr. Singhvi urged that the said directions did not restrict the examination of
the Minutes Book only to the Resolution dated 22.7.1995 to which the impugned
order dated 10.01.2007 had been confined.
He
urged that the directions given in paragraph 4 had to be read with paragraph 7
of the order which provided that the parties could assist the Hand- writing
Expert in identifying the documents from the Minutes Book which were required
to be examined by him. The directions also provided that so far as items 2 and
3 were concerned, all the 3 original letters and Resolutions were required to
be examined. Dr. Singhvi contended that paragraph 7 of the order made it very
clear that the parties would be entitled to identify not only the Resolution
dated 22.7.1995, but all such other documents in the Minutes Book which were
required to be examined by the Hand-writing Expert. Dr. Singhvi urged that by
the impugned order the width of the initial order was sought to be narrowed
down only to the Resolution of 22.7.1995.
20.
Dr. Singhvi reiterated the stand taken on behalf of the appellants in Suit
No.2444 of 2006 before the City Civil Court at Bombay, instituted by the
appellant No.1 herein, wherein the Minutes Book of the Trust containing the
minutes of the meetings of the Trust purported to have been held between
31.1.1993 to 31.3.1997 was produced. Dr. Singhvi also reiterated that according
to the appellants that was the first time that they had come across the said
Minutes Book and by looking into the same they found that the entire Minutes
Book contained forgeries and fabrication. He submitted that it is in that
context that a prayer had been made by the appellant No.1 before the Additional
Chief Metropolitan Magistrate (4th Court), Girgaum, Mumbai, under Section 94 of
the Code of Criminal Procedure for issuance of a search warrant for search and
seizure of the said Minutes Book, but the same had been refused by the
Magistrate on 15.6.2006 on the ground that investigation under Section 156(3)
of the Code in connection with CC No.24/M/2006 was also in progress.
21. In
this regard, Dr. Singhvi brought to our notice the photocopies of the recording
of the Minutes in the Minutes Book with regard to the meetings purported to
have been held on 31.1.1993 and on other dates where the appellant No.1 was
shown to be present, although, according to him, he was not present at such
meetings. From the said minutes of the meeting held on 31.1.1993 and from
various other minutes, including that of the meeting alleged to have been held
on 3.5.1993, wherein the expression 'Mumbai' had been used, although, at the
said point of time, the usage of the expression 'Bombay' was still prevalent
and had not been substituted by the expression 'Mumbai'. He submitted that the
same would prima facie establish that the said Minutes had been fabricated at a
much later date when the State started using the expression 'Mumbai' in place
of 'Bombay'. Dr. Singhvi submitted that it is in such context that an
examination of the entire Minutes Book for the period in question became
necessary and was contemplated in paragraphs 4 and 7 of the order dated
23.8.2006, and by virtue of the impugned order dated 10.1.2007, the entire
purpose of proving the fabrication of the Minutes Book had been rendered infructuous.
22.
Dr. Singhvi also contended that the letter of 7.11.2006 addressed by the
Commissioner appointed by the Court to the Prothonotary and Senior Master of
the High Court, merely required a clarification that since the Resolution dated
22.7.1995 did not contain the signature of Charu Kishore Mehta and in the order
of 23.8.2006 these documents had been previously stated to be admitted, it was
necessary to know which signatures of Shri K.K. Mehta and Sow.
Charu Kishore
Mehta were disputed and which signatures were admitted specifically, so as to
enable his office to do the needful. Dr. Singhvi submitted that in the impugned
order of 10.1.2007 the High Court observed that since all the signatures of the
said two persons were disputed, the Commissioner should confine his examination
only to the signatures as appearing in the Resolution dated 22.7.1995, thereby
truncating the scope of the earlier order dated 23.8.2006.
23.
Dr. Singhvi referred to Civil Appeal No.1575 of 2007 which had arisen out of
suit No.1997 of 2006 pending before the City Civil Court, Mumbai, wherein
appellant No.2, Charu Kishore Mehta, was the plaintiff. The said suit had been
filed in respect of one of the four Resolutions passed by the Board of Trustees
of the Lilavati Kiritilal Mehta Medical Trust on 29.4.2006 resolving that she
should not interact or communicate with employees and/or consultants of the Lilavati
Hospital and Research Centre and/or the Trust save and except through the Board
of Trustees of the Trust, and the employees and the consultants were also
informed that they were not to take into account any instructions directly
given by Mrs. Mehta to them. Dr. Singhvi submitted that while granting leave in
respect of the said appeal this Court had by order dated 26.3.2007 come to a
conclusion that there was serious dispute between the parties, which could
ultimately cause serious difficulties in the running of the hospital which was
under the management of the Trust. Accordingly, as a temporary measure, this
Court directed that Dr. Narender Trivedi, Vice-President of the hospital and
Dr. K. Ramamurthy, Senior Consultant of the hospital, would be in charge of the
hospital and of the day to day running of the Hospital and Research Institute.
This Court also directed that the two Administrators would take all decisions
relating to the administration of the hospital and give a report to the Board
of Trustees every two weeks. By a subsequent order dated 20.8.2007 this Court
replaced Dr. K. Ramamurthy, as Administrator on his expressing his inability to
continue to function as an Administrator due to ill-health and he was replaced
by Mr. Justice A.A. Halbe, a retired Judge of the Bombay High Court, as Joint
Administrator along with Dr. Narendra Trivedi.
24.
According to Dr. Singhvi, a Contempt Petition, being No. 125 of 2007, was,
thereafter, filed in respect of the final order passed by this Court disposing
of the appeal on 26.3.2007. While considering the contempt application, this
Court was informed that the suit filed by the appellant No.2 in the Civil
Court, Bombay, had already been dismissed by a Judgment and Order dated
24.9.2007.
However,
while dismissing the suit, the trial court had continued the order appointing
the Joint Administrators for a period of 10 weeks or until further orders of
this Court, whichever was earlier.
This
Court directed the said order to continue for a further period of 10 weeks from
24.9.2007, subject to any interim or final order that might be made in the
appeal from the order dismissing the suit or any collateral proceedings. The
contempt petition was also dismissed as withdrawn.
25.
Dr. Singhvi submitted that in the report filed by Justice Halbe, as one of the
Joint Administrators of the Trust, various irregularities were pointed out
indicating that there were acts of misappropriation, misfeasance and
malfeasance by Trustees Vijay Mehta and Dushyant Mehta and that huge amounts
belonging to the Trust had been siphoned off by them. Various details of such
alleged misappropriation have been indicated in the Report and the ultimate
figure given by the Joint Administrator was computed as Rs.258,90,00,000/-.
26.
What Dr. Singhvi tried to convey was that not only had the Trust been
completely mismanaged, but that the Trust funds were being misappropriated by
the respondent No.1 and some of the other Trustees.
Dr. Singhvi
submitted that in the light of the Report filed by Justice Halbe, in his
capacity as one of the Joint Administrators, it was all the more expedient not
to restrict the examination of the Minutes Book to the Resolution dated
22.7.1995 alone, as has been done by the Bombay High Court in the order
impugned in this appeal, but to allow such examination in respect of the other
Resolutions contained in the Minutes Book as well, as was originally intended
by the order dated 23.8.2006.
27.
The first objection taken by Mr. Ranjit Kumar, learned Senior Counsel for the
respondents, to Dr. Singhvi's submissions, was that since the criminal
complaint was pending before the Magistrate and only a direction had been given
under Section 156(3) of the Code of Criminal Procedure, it was not open to the
complainant to indicate the manner in which the investigation was to be
undertaken. He also submitted that the complaint had originated only after
inspection of the Minutes Book had been shown to the appellant No.1 herein in
Suit No.2444 of 2006, filed by the said appellant before the City Civil Court
at Bombay, praying for a declaration that the Minutes of the meeting alleged to
have been held on 21.7.95 and the Resolution adopted therein were forged and
fabricated.
28.
Mr. Ranjit Kumar also submitted that the petition filed by the appellant No.1
under Section 94 of the Code of Criminal Procedure for issuance of a search
warrant had been dismissed by the learned Magistrate on 15.6.2006.
29.
Mr. Ranjit Kumar urged that the reference made in the order of 23.8.2006
regarding production of the Minutes Book running into 150 pages for the period
from 31.1.1993 till 31.3.1997 had to be read and co-related with paragraph 7 of
the order in which the parties were allowed to assist the Hand- writing Expert
in identifying the documents from the Minutes Book relating to the Resolution
dated 22.7.1995 which was directed to be made available to the Commissioner
appointed by the Court for his examination and verification.
30.
Referring to the copy of the Minutes of the meeting of the Board of Trustees
dated 31.1.1993, 3.5.1993 and copies of other minutes produced by Dr. Singhvi,
Mr. Ranjit Kumar submitted that Dr. Singhvi's submissions thereupon were
misconceived since the expression 'Mumbai' had been in existence, particularly
amongst the Gujarati community in Bombay, from long before the usage was
officially recognised by the Government of Maharashtra. In fact, he also
referred to a Gujarati newspaper known as "Mumbai Samachar" which had
been in publication long before the term 'Mumbai' came to be officially used.
Mr. Ranjit Kumar submitted that usage of the word 'Mumbai' in some places in
the aforesaid minutes did not automatically establish that they had been
fabricated.
31.
Regarding the signature of the Chairman of the Board of Trustees in the
Minutes, Mr. Ranjit Kumar urged that in normal practice the Minutes could be
signed as and when the Chairman was available and his signature at a later date
did not indicate that the said Minutes were fabricated.
32.
Mr. Ranjit Kumar then referred to the testimony of Charu Kishore Mehta in Suit
No.1997 of 2006 wherein she had examined herself as PW-1. It was pointed out
that in cross-examination Charu Kishore Mehta admitted that Vijay Kirtilal
Mehta, who was made defendant No.10 in the suit, was the Managing Trustee of
the Trust, though she was not aware of any meeting having taken place in which
he had been so appointed. She also stated that Vijay Kirtilal Mehta was the
President and Chief Executive Officer of the Lilavati Hospital, though she did
not know since when he had been appointed in such capacity.
Mr. Ranjit
Kumar submitted that Charu Kishore Mehta also admitted that she was unable to
recollect when Vijay Kirtilal Mehta had been reappointed as a Term Trustee for
the first and second terms. She was also unable to recollect as to whether
Change Report had at all been submitted to the Charity Commissioner in respect
of such reappointment and that she also had no knowledge as to when Vijay Kirtilal
Mehta ceased to be a Term Trustee as had been contended by her.
33.
Mr. Ranjit Kumar then referred to the testimony of Kishor Kirtilal Mehta, who
was examined as PW-6, regarding the souring of relations between him and Vijay Kirtilal
Mehta and that he believed whatever Mrs. Rekha Haresh Sheth, defendant No.2,
had told him at the meetings of the Trust. PW 6 had deposed that from what had
transpired in the meetings he fully believed that the said defendant No.2 was
not personally involved in the forgery and the fabrication of the documents,
though subsequently in the complaint filed by him before the Metropolitan
Magistrate he had also involved her along with other Trustees in the
allegations of forgery of the Minutes of 22nd July, 1995.
34.
Mr. Ranjit Kumar also submitted that the Suit No.2444 of 2006 was dismissed by
the learned Judge, City Civil Court at Bombay, and one of the issues involved
was whether the plaintiff had been able to prove that even if the meeting of
29th April, 2006 did take place, it was illegal and suffered from the various
vices set out in the plaint, or at least some of them, or any of them. He urged
that the learned Judge had returned a negative finding on the said issue.
35.
Reference was also made by Mr. Ranjit Kumar to a chargesheet filed by the
Central Bureau of Investigation against the appellant No.1 and his son
regarding the manner in which they were alleged to have deceived people in
respect of supply of diamonds, which was said to be the business being
conducted by the said appellant. He also referred to the various criminal cases
said to have been filed against the appellant No.1 in order to establish the
criminal antecedents of Appellant No.1.
36.
Mr. Ranjit Kumar lastly submitted that the Report filed by Justice Halbe did
not reflect the view of the other Joint Administrator and had been filed
voluntarily and singly, without being asked to do so by the Court.
37.
Mr. Ranjit Kumar submitted that the case of the appellant throughout had been
that the Minutes of the meeting held on 22nd July, 1995, and the resolution
alleged to have been passed therein, were forged and fabricated and taking
advantage of the letter written by the Chief Examiner of Documents, CID, the
appellant had tried to expand the scope of the specific order dated 28th
August, 2006.
38.
Mr. Ranjit Kumar submitted that the appellants had filed the appeal to embark
upon a roving or fishing enquiry, despite having confined their claim for
inspection to the specific resolution of 22nd July, 1995, and the same was
therefore, liable to be dismissed.
39.
Appearing on behalf of the State, Mr. P.B. Sawant, learned senior counsel,
firstly referred to the first complaint made by the appellant No.1 to the
Senior Inspector-In-charge, Additional C.P., GB CB CID EOW, Crawford Market,
Mumbai, on 3rd May, 2006, to indicate the scope of the enquiry contemplated in
such complaint. He particularly referred to paragraphs 3 to 5 of the complaint,
which are reproduced hereinbelow:
"3.
Recently, me and my wife have received from No.2 copy of certain Minutes of
Meeting of Trustees and from Nos.10 to 20 copy of Resolution in the form of
true copy of extract with purports to disclose as if No.21 Mr. Vijay Kirtilal
Mehta is made a permanent Truestee vide Clause 17 of the Trust Deed as on 22nd
July, 1995.
They
are alleging that in the said Meeting me, my wife, No.2 Mrs. Rekha H. Sheth and
Shri Bharat S. Shah were present as recorded in the purported Minutes at pages
81 to 83.
4. It
is needless to add that these documents are not only forged and fabricated, but
are per se false documents which contain absolutely incorrect facts and have
been got up with view to support a false claim with the intention of defrauding
the Truest and me and others by forging the said Minutes and the Resolution alongwith
my signature. I maintain and reiterate the no such Meeting was ever held nor
was No.21, Mr. Vijay Kirtilal Mehta ever appointed as a permanent trustee as is
sought to be portrayed dishonestly and falsely.
5. I
further state that these documents are part of a pre-planned conspiracy entered
into between all of the above mentioned persons as they all are instrumental in
creating such fabricated and backdated documents only to deprive me and my wife
of our legitimate rights and to create right in favour of No.21. Mr. Vijay Kirtilal
Mehta as permanent trustee, which do not exist."
He
also referred to paragraph 6 of the first complaint as also paragraph 6 of the
second complaint before the Additional Chief Metropolitan Magistrate, 4th Court
Girgaum, Mumbai, to indicate the scope of the complaint which dealt with the
alleged fabrication of the Minutes of the meeting of the Board of Trustees
alleged to have been held on 22nd July, 1995. Paragraph 6 of the first
complaint and paragraph 6 of the second complaint are reproduced hereinbelow
one after the other:- "6. I maintain that there was no such Meeting held
and this clearly tentamounts to making a false document and committing forgery
and using and possessing the forged document knowing the same to be forged with
the intention of committing an offence of cheating which are all done pursuant
to a pre-planned conspiracy which involves altering the pages of the Minute
Books and creating bogus Minutes as well bogus Board Resolutions and extracts
thereof."
"6.
Accused No.2 respondent to the said notice by her reply dated 7th of April
2006, written by her Advocate Mr. Amol Inamdar on her behalf, enclosing a copy
of the purported Minutes of a meeting of the Board of Trustees of the said
Trust allegedly held on 22nd July, 1995, in which among other things, it was
falsely alleged that Accused No.1 was appointed as a Permanent Trustee of the
said trust aw and from 2nd July, 1995. My wife Smt. Charu K. Mehta, gave a copy
of the said letter dated 7th
April, 2006 along with
its enclosures to me for my perusal. The said purported Minutes copies were
hand written and at the foot of the said Minutes, my purported signature has
been forged.
Annexed
hereto and marked as Exhibit 'B' is a copy of the said forged Minutes allegedly
bearing my signature. I was taken aback and rudely shocked to see such Minutes
as no such meeting had ever taken place and neither I have signed any such
Minutes nor was Accused No.1 ever appointed as a Permanent Truestee of the said
Trust, as falsely alleged. The said copy of the Minutes per se was forged and
fabricated pursuant to a pre-planning among the Accused and others to capture
power of the said Trust by ousting me, my wife and the other Trustee. Neither
myself nor my wife and the said Bharat Shah, whose presence has been recorded
in the said Minutes were ever present for any such alleged meeting on then
purported date viz. 22nd July, 1995 or otherwise."
40. It
was lastly submitted by him that on account of the findings of the High Court
in its order of 19th October, 2006 with reference to the letter written by the
Chief Examiner of Documents on 11th October, 2006, regarding the letter said to
have been sent by the appellant No.1 and the directions of the Court to
disregard the same, no interference was called for with the judgment and order
of the High Court under appeal.
41.
Although, lengthy arguments have been advanced on behalf of the appellants and
the respondents, all of whom claimed to have an interest in the management of
the Lilavati Hospital, being run by the Lilavati Kirtilal Mehta Medical Trust,
what we are called upon to decide in the appeal before us is the scope of the
order passed by the Division Bench of the Bombay High Court on 23.8.2006 in
Criminal Writ Petition No.1581 of 2006 filed by Vijay Kirtilal Mehta, in regard
to the examination of the documents enumerated in paragraph 4 of the order in
relation to the subsequent order of 10.1.2007 impugned in this appeal.
42. We
are, therefore, also required to examine whether the scope and ambit of the
directions contained in paragraphs 4 and 7 of the aforesaid order dated
23.8.2006 have in any way been circumscribed by the subsequent order dated
10.1.2007.
43. As
has been observed by the Division Bench of the Bombay High Court in its order
of 23.8.2006, the subject matter of the writ petition involves the allegations
made on behalf of the writ petitioners that a meeting of the Board of Trustees
of the Lilavati Kirtilal Mehta Medical Trust had been held on 22.7.1995
pursuant to which a Resolution had been adopted in the absence of the writ
petitioner and his wife and that their signatures had been forged in the said
Resolution. Consequently, as part of the investigation, certain documents were
required to be examined by the Hand-writing Expert. This aspect of the matter
has been highlighted both by Mr. Ranjit Kumar and Mr. Sawant appearing for the
respondent Trustees and the State of Maharashtra, respectively.
It has
accordingly been urged by them that the directions given in paragraphs 4 and 7
of the said order of 23.8.2006 will have to be read and understood in that
context only.
44.
Such submissions have been made to counter Dr. Singhvi's submission that
paragraph 4 of the order did not limit the scope of the examination by the
Hand-writing Expert only to the Resolution dated 22.7.95, but that paragraphs 4
and 7 of the order of 23.8.2006 taken together clearly indicate that the
examination could be undertaken of the entire Minutes Book itself. It has been
urged by him that it is in such context that the entire Minutes Book for the
period from 31.1.1993 till 31.3.1997 had been directed to be produced and
liberty was given to the parties to assist the Hand-writing Expert in
identifying the documents from the Minutes Book which were required to be
examined by him and that the Bombay High Court had erred in altering its
earlier directions and confining the examination only to the Resolution dated
22.7.1995.
45. In
order to decide the question arising in this appeal, we will have to examine
the circumstances in which the criminal writ petition, in which the orders
dated 28th August, 2006 and 10th January, 2007, were passed, came to be filed.
46. In
the first complaint made by the appellant No.1 to the Senior
Inspector-In-charge, Additional C.P., GB CD CID EOW, Crawford Market, Mumbai,
on 3rd May, 2006, the focus was on the alleged
fabrication of the Minutes of the meeting of the Board of Trustees said to have
been held on 22nd July,
1995.
Paragraph
6 of the complaint, which has been reproduced hereinbefore, categorically
alleges that no such meeting had been held and that the pages of the Minutes
Book had been altered thereby creating bogus Minutes and bogus Board
Resolutions.
47. In
the complaint made before the Additional Chief Metropolitan Magistrate, 4th
Court, Girgaum, Mumbai, it has also been specifically stated that although in
the Minutes of the meeting alleged to have been held on 22nd July, 1995, the
appellant No.1 and his wife, Charu Kishore Mehta, had been shown to be present,
they were neither present at the meeting nor have they signed the Minutes as
had been sought to be represented in the Minutes Book.
48. It
may be noted that on 22nd May, 2006, the Additional Chief Metropolitan
Magistrate directed investigation into the complaint filed by the appellant
No.1, under Section 156(3) Cr.P.C. and on 24th July, 2006, pursuant to such
order, the Gamdevi Police Station directed the respondent No.1 to produce the
Minutes Book of the meetings of the Board of Trustees for the period from 31st
January, 1993, till date, together with the Resolution adopted on 22nd July,
1995 and the letter of 21st July, 1995 signed by the appellants and Smt. Rekha Sheth.
49. In
the meantime, the appellant No.1 also filed Suit No.2444 of 2006 on 13th May,
2006, in the City Civil Court at Bombay for a declaration that the Minutes of
the meeting of the Trustees, alleged to have been held on 22nd July, 1995, and
the Resolution adopted therein, were forged and fabricated. Significantly, it
was on 21st May, 2006, during the hearing of the appellant No.1's prayer for
interim relief in the said suit, that the Minutes Book of the Trust for the
period between 31st July, 1993 and 31st March, 1997, was produced by the respondent
before the Court and according to the appellants, it was on such occasion that
for the first time they came across the Minutes Book which on examination was
found to be full of forgeries and fabrications.
50. It
may also be noted that the criminal complaint and the suit were both proceeded
with simultaneously, but the order for examination of the Minutes Book and the
Resolution of 22nd July, 1995 and the letter of 21st July, 1995, were passed by
the Bombay High Court in the proceeding arising out of the criminal complaint
before the Additional Chief Metropolitan Magistrate. It may, therefore, be
concluded that the directions contained in the order passed by the Bombay High
Court on 23rd August, 2006, was made on the basis of the complaint before the
Magistrate and not on the basis of what had been discovered when the Minutes
Book had been produced before the City Civil Court at Bombay in connection with
Suit No.2444 of 2006 filed by the appellant No.1 herein. In fact, the relief
prayed for in the suit was also limited to a declaration that the Minutes of
the meeting held on 22nd
July, 1995 and the
Resolution passed therein were forged and fabricated.
51. It
is obvious that certain new materials were discovered by the appellants after
examining the Minutes Book which had been produced by the respondent No.1
before the City Civil Court at Bombay, and the same has inspired the appellants
to claim that the directions given on 23rd August, 2006, by the Bombay High
Court covered examination of the entire Minutes Book and was not only confined
to the Minutes of the meeting held on 22nd July, 1995 and the Resolution
subsequently adopted. As indicated hereinbefore, the High Court was apparently
aware of the aforesaid situation and thereby limited the examination of the
Minutes Book to the Minutes of the meeting said to have been held on 21st July, 1995, for the present (emphasis
supplied).
52. In
our view, the High Court did not restrict further examination of the Minutes
Book, if required, but for the purpose of the complaint filed before the
Additional Chief Metropolitan Magistrate, the High Court seems to have taken
the view that the examination by the Handwriting Expert of the Minutes of the
meeting held on 21st July, 1995, was sufficient and it ordered accordingly.
53.
The matter is still pending before the Bombay High Court and should any further
examination of the Minutes Book of the Trust be necessary, it will always be
open to the complainant-appellant No.1 herein to apply for such further
examination in the pending proceedings.
54.
We, therefore, see no reason to interfere with the order passed by the Bombay
High Court on 10th January, 2007, which has been challenged in this appeal,
since, in our view, the High Court was compelled to pass such order on account
of the dispute raised about the authenticity of various signatures in the
Minutes Book purported to be that of the appellants herein.
55. We
accordingly dismiss the appeal, but we also make it clear that the directions
given by the Bombay High Court in the order of 10th January, 2007 have been made in praesenti and will not in any way
preclude further examination of the Minutes Book.
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