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CASE NO.: Appeal (crl.)  330 of 2008

PETITIONER: Kishor Kirtilal Mehta & Ors

RESPONDENT: Vijay Kirtilal Mehta & ors

DATE OF JUDGMENT: 18/02/2008

BENCH: ALTAMAS KABIR & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

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

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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

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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

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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

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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

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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

Vs.

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,

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.