1 IN THE HIGH COURT OF JUDICAUTRE AT BOMBAY CRIMINAL APPELALTE JURISDICTION CRIMINAL WRIT PETITION NO.2364 OF 2007 1. Mr. Umesh Mehra } Aged : 54 years, } Residing at 2 Bhaktawar Bldg., } Narayan Dabholkar Road, } Mumbai - 400 006 } } 2. Mr. Rajesh Mehra } Aged : 52 years, } Petitioners Residing at 31, Purvi Marg, } Vasant Vihar, New Delhi - 110 057 } } 3. Mr. Rajiv Mehra } Aged : 50 years, } Residing at Amber Bungalow, } Bhulabhai Desai Road, } Mumbai - 400 026. } Vs. 1. The State of Maharashtra } } 2. Mr. Parvesh Mehra } Respondents Residing at 1, Skylark Bldg., } L.D. Ruparel Marg, } Malabar Hill, Mumbai - 400 006. } Mr. Mohan Jayakar a/w Mr. Samsher Garud, Mr. Pankaj Sutar, Ms. Nafisa Hamid, Mr. Nikhil Chaudhari i/by M/s Khaitan & Jayakar, Advocates for petitioners. Mr. A.H.H. Ponda, Advocate for respondent no.2. Mrs. M.R. Tidke, APP for State. 2 WITH CRIMINAL REVISION APPLICATION NO.237 OF 2009 1. Mr. Parvesh Mehra } Residing at 1, Skylark Bldg., } L.D. Ruparel Marg, } Applicant. Malabar Hill, Mumbai - 400 006. } Vs. 1. The State of Maharashtra } } 2. Mr. Umesh F. Mehra } Aged : 54 years, } Residing at 2, Bhaktawar Bldg., } Narayan Dabholkar Road, } Mumbai - 400 006 } } 3. Mr. Rajesh F. Mehra } Aged : 52 years, } Residing at 31, Purvi Marg, } Vasant Vihar, New Delhi - 110 057 } 4. Mr. Rajiv F. Mehra } Aged : 50 years, } Residing at Amber Bungalow, } Bhulabhai Desai Road, } Mumbai - 400 057. } } 5. Mrs. Veena Soni of Delhi, } Indian Inhabitant, } Residing at 1/13, Shanti Niketan, } New Delhi - 110057. } } 6. Eagle Theatre, } Plaza Cinema, Connaught Place, } New Delhi - 110001 } } 7. Shri Jaspal Singh Sawhney, } Plaza Cinema, New Delhi- 110001 } 3 8. Shri Shamsher Prithvi Raj Kapoor } (Popularly known as Shammi Kapoor), Blue Heaven Bldg., } Mount Pleasant Road, } Mumbai - 400 006. } } 9. Mrs. Pushpinder Kaur } Having her office at Plaza Cinema, } Connaught Place, } New Delhi - 110001 } } 10. Shri Parmeet Singh Sawhney. } 15-A Friends Colony (West), } New Delhi. } } 11. Shri Darshan Singh, } Respondents K-14, Hauz Khas Enclave, } New Delhi. } } 12. Shri Kartar Singh of Delhi, } K-14, Hauz Khas Enclave, } New Delhi } } 13. Shri Surinder Singh of Delhi, } K-14, Hauz Khas Enclave, } New Delhi } } 14. Shri Bhagwant Singh of Delhi, } K-14, Hauz Khas Enclave, } New Delhi. } } 15. Shri Nevelle Tulli, } Nirmal Bhawan, } Ground Floor, Nariman Point, } Mumbai - 400 021. } Mr. A.H.H. Ponda, Advocate for applicant. Mrs. M.R. Tidke, APP for State- respondent no.1 4 Mr. Mohan Jayakar a/w Mr. Samsher Garud, Mr. Pankaj Sutar, Ms. Nafisa Hamid, Mr. Nikhil Chaudhari i/by M/s Khaitan & Jayakar, Advocates for respondents no. 3 to 14. Ms. Renu Parekh and Mr. Sanjeet Rai i/by ALMT Legal, for respondent no.15. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 21st April, 2011 JUDGMENT : 1. These two proceedings unfold sad Saga of an unfortunate father who during his prime time had single handedly created an empire out of nothing. His children have been at loggerheads with each other over his properties. The disputes that started during the lifetime of the father have continued unabated after his death on 29th July 2008. The facts of the case are such that irrespective of the success for either side, the father is obviously a loser. The father is Mr. F.C., Mehra, the Hindi film producer, who migrated to India after partition and became a name to reckon with in the Hindi film industry. 2. Though both the proceedings arise out of different complaints, since the facts leading to the two proceedings and the questions arising thereunder for consideration of the Court are similar, the proceedings are being decided by a common order. 5 3. The writ petition filed is by the original accused in C.C. No. 71/SW/06 pending before the Additional C.M.M., 40th Court, Girgaon, Mumbai. Respondent no.2 to the petition is the original complainant, Parvesh, the eldest son of F.C. Mehra. The petitioners are his three other sons. After recording the statement in verification of the complaint, the learned Magistrate, on 6th May 2006 issued process against the petitioners under Sections 465, 467, 468 and 471 read with Section 120 and 34 Indian Penal Code. On 7th November 2006, the petitioners filed an application for discharge before the learned Magistrate, which came to be dismissed by the order dated 13th November 2007. Being aggrieved by the order of dismissal, the petitioners preferred Criminal Revision Application No.1362 of 2007 to the Sessions Court. The Revision Application was dismissed by the order dated 29th November 2007. Therefore, the petitioners have filed the petition herein under Article 227 Constitution of India and 482 Code of Criminal Procedure for quashing of the complaint. The petition was admitted on 4th August 2008 and the interim order of stay of the criminal proceedings in CC No.71/SB/2006 passed. Respondent no.2 preferred special leave petition to the Apex Court being Special Leave Petition (CRL) No.8629/2008. By the order dated 15th 6 December 2008, the Apex Court issued notice to the petitioners and granted interim stay of the High Court s order. Consequently ’ the complaint progressed with recording of evidence before framing of charge. The S.L.P. came to be disposed off by the order dated 11th February 2010 by which the hearing of the petition herein was expedited and continuation of the complaint was permitted to the extent of completing the evidence of the witness under examination. 4. The complainant had filed another complaint being CC No. 27/SW/08 against his three brothers, the petitioners abovenamed and 11 other persons for the offences punishable under Sections 420, 468, 471 read with 34 Indian Penal Code. This complaint is pending in the same Court as the earlier complaint. The learned Magistrate, on appreciation of the statement in verification and the documents produced was of the opinion that there are sufficient grounds to proceed further against the accused in regard to only the offence punishable under Section 420 r/w Section 34 Indian Penal Code and that the allegations in respect of the other offences were not well formulated. He, therefore, on 8th August 2008 issued process under Section 420 r/w 34 Indian Penal Code against the accused. They challenged the order by preferring two 7 criminal applications to the Sessions Court. By the order dated 6th April 2009, the Sessions Court allowed both the revision applications. The order of the learned Magistrate issuing process against the accused was set aside and the complaint dismissed. Being aggrieved by the order, the complainant has preferred the above criminal revision application to challenge the same. 5. The three businesses of F.C. Mehra involved in the present proceedings are of Natraj Studio Pvt. Ltd., Eagle Theaters and Eagle Films. In Natraj Studio Pvt. Ltd., his share holding was of 20%. He was also one of the directors of the company. The company had it s studio at Andheri and it s business was to hire ’ ’ out the studio for the purpose of film making. The second business of Eagle Theater was a partnership firm in which originally F.C. Mehra s wife Shyam Mehra was a partner to the ’ extent of 19%. On death of the wife, F.C. Mehra became entitled to life interest in the shares pursuant to the will of the wife, with the children as ultimate beneficiaries. The firm Eagle Theater owned two cinema halls i.e. Plaza Cinema at Delhi and Minerva Cinema at Mumbai. The third business of Eagle Films is also a partnership business in which F.C. Mehra had 20% share. Earlier the complainant was a partner in Eagle Films along with the 8 petitioners and F.C. Mehra. He resigned from the firm in the year 2001 on account of differences with the brothers. He was replaced by his son Amit. In addition to the above businesses, F.C. Mehra held several investments in RBI bonds worth more than a Crore, Post Office savings of more than 15 lacs, jewelery etc. He owned immovable properties of land in Takwa, ahead of Lonawala, a bungalow in Khandala and a flat being 71, Sherman, 7th Floor, Narayan Dabholkar Road, Mumbai. The flat had been earlier standing in the name of his wife, which was bequeathed to him under the will. 6) THE FACTS IN CC NO.71/SW/06 : From the year 2000, F.C. Mehra started keeping frail health both Physical and mental. Since that time, his entire business interest came into active control of the petitioners, with the complainant having already distanced himself by resigning from the partnership firm. After the death of the mother of the petitioners and the complainant, petitioner no.1 volunteered to look after F.C.Mehra and got him shifted to a flat adjoining to his own residence. According to the complainant, F.C. Mehra had been under treatment of Dr. S.M. Katrak, the consulting Neurologist attached to Jaslok Hospital since August 2001. 9 Dr.Katrak had diagnosed him with a condition of gross dementia and had certified that he was incapable of looking after his financial or legal matters. The mental condition of F.C. Mehra was such that he would often suffer from bouts of amnesia and would within minutes, forget what he had done or said. His capacity to understand and assimilate difficult issues of business had deteriorated considerably. He would put signature on any document without understanding what he was signing or the meaning and the contents of the documents. Soon thereafter he would have no memory of having signed the document. In the year 2003, the complainant learnt that the petitioners had got certain documents signed from F.C. Mehra despite his ill mental health. The documents included a power of attorney for dealing with his properties and investments. Despite a request, the petitioners had not disclosed copies of the documents executed by F.C. Mehra. The complainant had also repeatedly asked the petitioners and other family members to allow him to take the father to Dr. Katrak for medical treatment. He had taken appointment of Dr. Katrak, on two occasions, on 19th December 2003 and 22nd December 2003. But the petitioners had refused every time claiming that Mr. Mehra was mentally sound and did 10 not need any medical treatment. Finally the complainant filed a suit in the Bombay City Civil Court, being S.C. Suit No.17 of 2003 on 29th December 2003 against the Petitioners to which F.C. Mehra was also a party as defendant no.1. One of the reliefs in the suit was appointment of reputed Neurologist to examine F.C. Mehra to ascertain his mental health. The complainant also sought permanent injunction to restrain the petitioners, interalia, from dealing with or disposing of the immovable properties belonging to F.C. Mehra by using the power of attorney. The suit was opposed by the Petitioners by filing written statement disclosing that the power of attorney dated 10th January 2003 executed by F.C. Mehra and partners of Eagle Films was in favour of petitioner no.1, to enable him to look after the interest of F.C. Mehra in Natraj Studio. There was also an affidavit signed by F.C. Mehra filed to oppose the application for interim reliefs in which he claimed to be of sound mental health. 7. While the civil proceedings were pending, the petitioners, in the month of January 2004 sought intervention of relatives and friends to sort out the internal differences and a meeting came to be held between the petitioners and the complainant, on 7th January 2004. Mr. Prasad, the Chartered Accountant of F.C. Mehra 11 attended the meeting. He prepared minutes of that meeting recording the agreement arrived at between the parties. As per the first minutes, it was agreed, interalia that all the documents/ deeds of the agreements having signature of F.C. Mehra, would stand revoked and be declared null and void and that the petitioners would take all necessary steps to carry out the revocation. However at the instance of the petitioners, further meetings came to be held on 8th, 9th and 10th January 2004 and the minutes modified. In none of the meetings, however, the petitioners disclosed the exact nature of the transaction relating to Natraj Studio and Eagle Theaters carried out by the petitioners in the name of F.C. Mehra. Petitioner no.3, by his letter dated 1st April 2004 called upon the complainant to withdraw his suit as a condition precedent for fulfilling the demands of the complainant. Believing the representations of the petitioners and on sensing an opportunity to have his father receiving medical treatment early, the complainant withdrew the suit in the month of April 2004. 8. After withdrawal of the suit, the complainant learnt about the proposal to develop the vacant land of Natraj Studio by dividing it into five portions of 10,500 sq. ft. for each of the five directors. All the directors except F.C. Mehra got the land of 12 respective portion transferred to their name. The land coming to the share of F.C. Mehra instead of being transferred to his own name, came to be transferred / sold in the name of M/s Eagle Films with four other persons as directors. Further this transfer was effected for the paltry sum of Rs.17,50,000/- when the actual market price as per the then ready reckoner was of Rs. 4,32,89,500/-. The complainant alleges that the purported sale-deed dated 28th September 2003 between Natraj Studio Private Limited and the Eagle Films, was signed by the petitioner no.1 on behalf of Eagle Films. Thereafter, all the recipients of vacant land jointly entered into development agreement dated 3rd December 2003 with a developer by name West Wood Realtors Private Limited , and “ ” stood to gain more than 15 crores each. In the case of F.C. Mehra, instead of he being benefited with Rs.15 Crores, the benefits went to M/s Eagle Films, where F.C. Mehra shared the amount with four other partners. The complaint alleges that the petitioners had made F.C. Mehra sign the development agreement and general power of attorney dated 5th December 2003 in favour of the developer despite knowledge of his bad mental health. In this way, the petitioners had started siphoning of the estate of F.C. Mehra during his lifetime. 13 9. The complainant also learnt that the petitioners had got certain documents executed whereby 19% share of his mother, Sham Mehra was schematically diverted to another partnership firm by name M/s Falcon Equipments. The partners of both the firms i.e. Eagle Theaters and Falcon Equipments were belonging to the same family group. In Falcon Equipments, instead of F.C. Mehra, the wives of the petitioners and the son of the complainant had been made partners. The complainant alleges that the firm of Falcon Equipments was created for the sole purpose of avoiding taxes by splitting the earnings of Eagle Theaters and diverting a part of it to the dummy firm of Falcon Equipments. This arrangement did not affect the other partners because for them, the partners in the two firms being from the same family, the earnings of Falcon Equipments had remained in the family. However, this was not so happen in the case of F.C. Mehra as his place in Falcon Equipments was taken by wives of the petitioners and the son of the complainant. It appears that later Amit, son of the complainant sought to resign from the partnership fir, contending that F.C. Mehra was the right person to be a partner in Falcon Equipments. 14 10. On 1st March 2005, the complainant had held a meeting with Mr. Joginder Singh, a senior partner in both the firms i.e. Eagle Theaters and Falcon Equipments to protest against the manner in which the share of F.C. Mehra was dishonestly transferred in Falcon Equipments. Mr. Joginder Singh agreed that the wives of petitioners and Amit Mehra would retire from the firm with immediate effect and be replaced by F.C. Mehra. However, this did not take place at any point of time. 11. The complainant alleges that since the petitioners have dishonestly got documents executed from F.C. Mehra despite the knowledge of he being not of sound mind, they have committed the offence punishable under Sections 420, 465, 471 and 468 read with 34 Indian Penal Code. 12. On receiving the process in the proceedings, the petitioners filed a joint application for discharge contending that the complaint was a false complaint and that the complainant had no locus standi to file the same. They also claimed that F.C. Mehra was in perfectly sound state of mental health and did not need any medical treatment from Dr. Katrak or any other doctor. They relied upon three civil proceedings filed by the complainant and the orders passed therein. The first was the City Civil Court Suit 15 No.17 of 2004 which was subsequently withdrawn. According to the petitioners, withdrawal of the suit was in view of the affidavit filed by F.C. Mehra that he was of sound mind and was capable to look after and manage his legal and financial affairs. The second proceedings was Suit No.3161 of 2005 filed by the complainant in this court, for protection of properties of F.C. Mehra. In that suit, the application filed by the complainant for interim reliefs had been rejected by this court holding that there was no declaration by any competent authority that F.C. Mehra was not of sound mental health. The third proceeding was Application No.5 of 2006 filed under the provisions of Mental Health Act, wherein identical allegations as regards mental health of F.C. Mehra were made. The petitioners also contended on merits that the allegations of siphoning away of the properties made by the complainant, were false and baseless. According to them, the power of attorney dated 10th January 2003 executed by F.C.Mehra was a special power of attorney that allowed petitioner no.1 and in his absence, other petitioners one after another to attend the meetings of Natraj Studio on behalf of F.C. Mehra. As regards the medical treatment to F.C. Mehra, the petitioners claimed that he himself did not desire to be examined by Dr. 16 Katrak and that his wish was respected by all. According to them , it was agreed that no attempt would be made to have F.C. Mehra examined by anyone without his consent and unless accompanied by atleast two of his children. 13. The learned Magistrate by his short and succinct order, rejected the application for discharge observing that the extensive material relied upon by the petitioners could be not considered by the Court at this stage and that he could consider only the material produced by the prosecution. He further found that the various documents produced by the petitioners were copies of the documents which could not be taken into consideration, unless and until, the same were legally proved. 14. Being aggrieved by the order of dismissal of discharge application, the petitioners preferred Criminal Revision Application No. 1362 of 2007 to the Sessions Court. The Revision Application also came to be dismissed by the order dated 29th November, 2007 impugned in the above writ petition. The Sessions Court, after taking note of the ambit of its revisional jurisdiction held that since there were two versions placed forth by both the sides, triable case is made out in the complaint itself. It observed that the veracity of the allegations in the complaint can be decided 17 only at the time of evidence, which is the stage as per Section 244 of Criminal Procedure Code i.e. evidence before charge, the complaint being a private complaint and that it was not proper to accept the contention in the Revision Application without testing the same. The Sessions Court, further observed that the petitioners had failed to show that the opinion formed by the Magistrate as regards the sufficiency of the material for issuance of process was wrong on the face of it. It confirmed the opinion of the Magistrate that there is sufficient material to proceed against the petitioners and dismissed the Revision Application. 15. THE FACTS IN CC NO.27/SW/2008 : This complaint filed by the complainant is against the petitioners abovenamed, his sister, the firm of Eagle Theaters, the partners of Eagle Theatres and one Neville Tulli, purchaser of the property from the petitioners. In the complaint, after referring to the estate of F.C. Mehra, as also his mental health, the complainant alleges that on 6th July 2006, the petitioners and the other partners in Eagle Theatres sold Minerva Cinema to accused no.15 and obtained a letter of gift from F.C. Mehra to themselves to ensure that his share of 19% of sale proceeds did not go to his 18 bank account. It was instead taken by the petitioners. Pursuant to the gift letter, each of the petitioners received a sum of Rs.79.80 lacs. They had offered the complainant his share of Rs.79.80 lacs, which was refused by him and which subsequently came to be deposited in the bank account of F.C. Mehra on 3rd February 2006. Accused No.15 had published notice in Times of India, relating to the proposed transaction of sale of Minerva Cinema and called for objections thereto. The complainant had replied the public notice on 10th February 2006 informing him about the mental health of F.C. Mehra as also the machinations of the petitioners. Despite the forewarning, accused no.15 concluded the deal at a price much less than the prevalent market price. According to the complainant there is underhand dealing to the extent of atleast Rs.4-5 crores. He alleges that the documents executed in respect of sale of Minerva Cinema are false documents under Section 464 Indian Penal Code. The Petitioners and other accused persons dishonestly caused F.C. Mehra to sign the documents with knowledge that he by reason of unsoundness of mind could not know the contents of the documents. Therefore, the petitioners and other accused have committed the offence punishable under Sections 420, 468, 471 read with 34 Indian Penal Code. On this complaint, as already 19 mentioned above, process under Section 420 read with 34 Indian Penal Code came to be issued. 16. Accused nos.1 to 14 and accused no.15 filed two separate criminal revision applications to challenge the order of issuance of process against them. The challenge to the order of issuance of process was essentially on the ground that there is no substance and also no material before the Court to support the allegation that F.C. Mehra was not mentally sound. Accused no.15 contended that he being the bonafide purchaser of the property was not concerned with the cheating alleged by the complainant. Besides, F.C. Mehra was only one of the co-owners. Therefore, no process could have been issued against him. As regards the other accused persons, they contended that the order of issuance of process was illegal since the Magistrate had not taken into consideration the previous litigations between the petitioners and the complainant and the orders passed therein. The litigations included a suit filed by the complainant challenging sale of Minerva Cinema. They also referred to the earlier criminal complaint making similar allegation and pendency of the above writ petition with the interim order of stay of the complaint passed therein. They had 20 further made several submissions as regards the merits of the allegations in the complaint. 17. The Sessions Court considered the two revision applications and allowed the same accepting the contentions raised by the accused persons. It held that the complaint did not make out prima-facie case against all the accused. For that, the Sessions Court relied upon the various orders passed by this Court and the Bombay City Civil Court in the civil proceedings pending