* 1 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 383 OF 2010 IN CRIMINAL APPLICATION NO. 677 OF 2008 Smt. Rachana Lalit Kankani Aged 27, Occ: Housewife presently residing at Modi Bhawan Main Road, P.O. Sojat Road, Dist.Pali, Rajasthan- 3016103 ....Applicant/Orig.First Informant : VERSUS : 1. The State of Maharashtra at the instance of D.N. Nagar Police Station, C.R. No. 12 of 2008 2. Mrs. Kamla Raghunath Prasad Kankani, 53-A, Shivam Apartments 96, J.P. Road, Andheri(West), Mumbai-400 058. 3. Smt. Seema Sandip Kankani 53-A, Shivam Apartments, 96, J.P. Road, Andheri(West), Mumbai-400 058. 4. Smt. Ritu Vikas Mundra 6th Floor, Raju Valika 11th Road, Khar (West), Mumbai ...Respondents/Orig.Applicants and Accused Mr. A.H.H. Ponda, Advocate for the Applicant. Mrs. G.P. Mulekar, APP for the State-respondent no.1. Mr. M.S Mohite, Advocate for respondents no.2 to 4. * 2 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 CORAM :- Smt. R.P. SondurBaldota, J. 26 August, 2011. P.C. :- 1. The applicant herein is the complainant in C.R. No. 12 of 2008 dated 10th January, 2008 registered with D.N. Nagar Police Station against respondents no.2 to 4 for commission of the offences punishable under Sections 498A, 406, 465, 471, 506 read with Section 34 Indian Penal Code. Respondent no.2 is the mother-in-law of the applicant. Respondent no.3 is the wife of her brother-in-law and respondent no.4 is her sister-in-law. The husband of the applicant, Lalit died in the train bomb blast on 11th July, 2006. She has a son, Yash aged about 5 years. Since some time after the death of her husband, the applicant has been residing with her parents at Rajasthan. 2. Apprehending their arrest in C.R. No. 12 of 2008, respondents no. 2 to 4 had filed an application in this Court being Criminal Application No. 677 of 2008 for anticipatory bail. The application came to be allowed by the order dated 29th April, 2009 in view of certain statements made on behalf of applicants no.2 to 4. The part of the order relevant for the present purposes reads as follows :- * 3 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 5. Mr. Mundargi, learned counsel for the applicant “ submits that the applicants, even now are ready to transfer certain properties in the name of complainant and her son, and they are also ready to hand them over to the complainant, if she so desires. He further submits that the applicants have no objection even if the right of the complainant is kept intact to make further claim in the properties, if she feels that she is entitled for more than what has been offered to her. His statements are accepted. The properties which the applicants are ready to transfer in the name of the complainant and her son - Yash are as follows: a) Flat No.52-A in Shivam Apartment Rs.50,00,000/- to be transferred in the name of Rachana and Yash for their use and occupation OR In the alternate Rs.50,00,000/- being value of the flat to be given to Rachana and Yash. b) Fixed Deposit of Rs.53,98,000/- Rs.53,98,000/- in I.C.I.C.I. Bank, Andheri, presently in the name of Kamla Devi and Sandeep Kankani. The Applicant is willing to give up her 1/3rd share in favour of Yash. Thus the entire amount of Rs.53,98,000/- to be given to the Rachana and Yash. c) The Applicant is willing to give Rs. 3,44,000/- the value of jewellery of Rs.3,44,000/- disclosed in the balance sheet of Late Lalit Kankani to Rachana in Cash. d) An amount of Rs.1,25,15,325/- is Rs.83,43,550/- lying in various SBI Saving Bonds in * 4 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 which the Applicant has 1/3rd share. The Applicant is willing that Bonds worth Rs.83,43,550/- be transferred to Rachana and Yash after deducting her 1/3rd share to be paid to her. e) The Applicant has no objection Rs.18,00,000/- for giving the amount of Rs.18,00,000/- invested in 8% SBI Saving Bonds 2003 to Rachana and Yash. f) Property worth Rs.51,18,587/- is Rs.34,12,392/- subject matter of Testamentary Petition No.54/2007 in the Bombay High Court. The applicant has a 1/3rd share in all these properties. The applicant is willing to give to Rachana and Yash an amount of Rs.34,12,392/- as their share in the said property. g) The Applicant has no objection to Rs. 8,00,000/- handover an amount of Rs.8,00,000/- lying in PPF Account No.714466 to Rachana. g) An amount of Rs.25,60,600/- is Rs.25,60,600/- lying in A/C. No.1180721023 of Central Bank of India, Cotton Exchange Branch. The applicant is willing that the entire amount to be given to Yash and Rachana. Total Rs.2,76,58,542/- ” . The above statement made for transfer of the properties however was in respect of only part of the claim of the applicant as can be seen from the * 5 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 clarification given in following terms in the later part of the order. . It is made clear that while passing this order I have not “ decided the rights of the parties. It is always open to the complainant and her son to take possession of the properties, which the applicants are ready to transfer and also to approach the appropriate court seeking further share, if any, in the properties left by her husband and which are in possession of the applicants. It is also open to the applicants to transfer the properties as aforestated in the name of the complainant and her son and for which they need not wait for orders of the court. 3. The Investigating agency thereafter arrested respondents no.2 to 4 and released them on bail. The chargesheet in the case came to be filed in November, 2009 after which these respondents appeared before the learned Magistrate and have been released on regular bail. 4. The order of anticipatory bail does not specify the period for effecting the transfers mentioned therein. In the circumstance, respondents no.2 to 4 were expected to comply with the statement, which on it’s acceptance by the Court had assumed the character of an order, within a reasonable period. Though the length of the reasonable period would depend upon the nature of the transfers to be effected, there cannot be any dispute that atleast some of the transfers are such as could be effected immediately. The respondents, however, failed to take the necessary action in respect of any of the transfers. After sending four reminders for compliance, the applicant filed the present * 6 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 application on 21st June, 2010 i.e. more than a year after the order seeking two reliefs. The first relief is for taking suitable action against respondents no.2 to 4 for non-compliance with the order of the Court. The second relief is for setting aside the order dated 29th April, 2009 and directions to the police to take custody of the respondents. 5. After filing of the present application, respondents no.2 to 4 were made to deposit certain amounts in the Court. Pursuant to the order dated 14th January, 2010 they deposited a sum of Rs.20,00,000/-. Then, pursuant to the order dated 11th July, 2010 the sums of Rs.30,00,000/- and Rs.3,44,000/- and passbook for PPF Account No. 714466 with Post Office (Kalbadevi H.O.) came to be deposited. Thereafter, pursuant to the order dated 12th July, 2011 further amount of Rs.25,60,600/- has been deposited. According to the respondents, the amounts deposited by them take care of the following items of their statement. Rs.20,00,000/- + Rs.30,00,000/- - Item (a) Rs.3,44,000/- - Item (c) Rs.25,60,600/- - Item 2nd (g) PPF passbook - Item 1st (g) As regards items no.(d) and (e), the respondents refer to a sum of Rs. 81,00,000/- and odd lying in the joint Savings Account No. 1180731093 with Central Bank of India, Cotton Exchange, Mumbai in the names * 7 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 of the applicant, respondent no.2 and Sandeep, the brother-in-law of the applicant. The respondents have agreed that the applicant can keep the entire amount lying in that bank account. This concession however does not take care of the entire amount payable under Items (d) and (e). It falls short by Rs.20,43,550/-. 6. There is no amount deposited in respect of Item no.(f). 7. As far as Item no.(b) is concerned, the respondents have taken a strange course of action which, on the face of it does not appear to be in good faith. Respondent no.2 has settled a trust in the name of Yash “ Lalit Kankani Benefit Trust” with a corpus of Rs.1,00,000/- and further amount of Rs.53,98,000/- transferred to the trust towards its corpus. The trust is to be administered by the professional trustee, City Bank Financial and Custodial Services Limited. Respondent no.2 is the second trustee. A copy of the trust-deed has been annexed to the affidavit-in-reply filed by respondent no.2. The trust deed is dated 22nd August, 2009. It’s perusal shows that all the powers of management of the trust amount have been concentrated in the hands of the professional trustee who is to receive charges for every action of administration to be taken by it. It permits the professional trustee to invest the amount of corpus into fixed deposits and various securities. * 8 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 Clause-14 of the trust deed provides that all the monies, securities and documents of title relating to the properties subject to the trust shall be under exclusive custody and control of the professional trustee. The other trustee is to have only reasonable facilities for inspecting the same. Further, the monies of the trust fund are to be deposited with the bank account of the professional trustee in its sub-ledger account which is to be operated by the professional trustee. The second schedule annexed to the trust-deed provides for initial fixed charges of Rs.5,000/- for drafting of the deed of settlement and supplementary documents etc. and acceptance fees by way of initial commission on the corpus, as well as, addition to the corpus at the rate of 0.5%. Parts-II, III and IV of the second Schedule provide for management charges, handling charges and the other charges of the professional trustee. The trust-deed is thus seen to be an onorus document causing heavy financial responsibilities on the trust thereby depleting the corpus of the trust. 8. The trust-deed makes provision for payment of sum of Rs.15,000/- per month to the person holding custody of Yash until, he attains the age of 21 years. Though, as per the statement, the entire amount of Rs. 53,98,000/- under the fixed deposit was to be received by the applicant * 9 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 and Yash, clause-6 of the trust-deed provides that in the unfortunate event of demise of Yash prior to his attaining the age of 21 years, the entire trust fund together with the un-applied net income shall be divided between the applicant and repsondent no.2 for their absolute use and benefit. And in the event the applicant and respondent no.2 were to predecease Yash, their respective share of 50% was to be handed over to their legal heirs. This provision is per-se contradictory to the statement made before this Court on 29th April, 2009. As per the statement, the entire amount belongs to the applicant and her son, Yash. There is no question of respondent no.2 claiming any share in the amount at any point of time. 9. Mr. Mohite, the learned counsel for the respondents, submits that the only intention of respondents no.2 to 4 behind formation of the trust was to secure the interests of the minor, Yash. He states that the respondents have no objection if respondent no.2 is substituted by the applicant. Even if respondent no.2 is substituted by the applicant as the second trustee, in view of the terms and conditions of the trust- deed, she will not have any control over the activities of the trust. Therefore, formation of the trust by respondent no.2 in respect of the amount payable to the applicant under Item (b) can by no stretch of * 10 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 imagination be said to be compliance with the statement made before the Court. 10. Mr. Ponda, the learned counsel for the applicant, submits that the amount of Rs.3,44,000/- deposited by the respondent towards their obligation in terms of prayer clause (c), can also not be said to be sufficient compliance. He submits that the amount of Rs.3,44,000/- mentioned in the order reflected the value of the jewellery disclosed in the balance sheet of Lalit as on that date i.e. 29th April, 2009. Admittedly, there is substantial upward revision in the value of gold, since then. Therefore, he requests that the respondents be directed to deposit the present value of the jewellery in Court. A couple of adjournments had been granted to these respondents to enable them to furnish details of the jewellery disclosed in the balance sheet of Lalit for the purpose of current valuation. Apparently, the respondents have not been able to get the details because the relevant documents have been seized by the police in the complaint filed by the applicant. Mr. Mohite, submits that taking into account value of the jewellery of Rs.3,44,000/- as on 29th April, 2009 and the price of the gold as on that day, the approximate weight of the gold in the jewellery would be of 713 grams. On that basis, the value of the jewellery as on today would be of Rs. * 11 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 16,11,987/- at the rate of Rs.22,610/- per 10 gms gold. According to the applicant, the approximate value of the jewellery of Lalit as on the date would be of Rs.20,00,000/-. Considering the facts and circumstances of the case, I am inclined to accept the value placed by the applicant on the jewellery of Lalit as the correct value. The respondents therefore must be directed to deposit the difference in the value of the jewellery rounded off to Rs.17,00,000/- in the Court. 11. Even after taking into account, the amounts deposited by the respondents in the court and the amounts made available to the applicant, it is seen that, the statement made before the Court does not stand fully complied with. The statement in respect of item (b) and (f) remains unfulfilled entirely and in respect of item (d) partly. This is the background against which the reliefs sought by the applicant are required to be considered by the Court. 12. It is obvious from the entire proceedings and the order dated 29th April, 2009 that almost all the properties belonging to the applicant and her minor son, Yash have been in the custody of the respondents. They had voluntarily agreed to transfer and hand over some of the properties i.e. those mentioned in the order to the applicant. It is also clear that the statement made on behalf of respondent no.1 has been a * 12 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 major consideration, though not the only consideration, for grant of anticipatory bail to the respondents. It was therefore imperative for respondents no.2 to 4 to abide by the statement made by them to this Court. No litigant can be allowed to ignore and disregard the statements made by him to the Court for obtaining the orders in his favour. 13. However, in my opinion, despite the deplorable conduct of the respondents one cannot lose sight of certain other facts of the case. The dispute between the parties is a family dispute and the respondents are ladies. In all probability, they do not appear to be the decision makers in the family. The family disputes must be, as far as possible, resolved amicably. This is in the interest of both the sides, as well as, in the interest of the society in general. There have been attempts made in the past and also by me to bring the parties to the settlement. But the attempts have not been successful. Nonetheless, the path for settlement must be paved. Therefore, in my considered opinion following directions shall serve the interests of justice. (i) Respondents no.2 to 4 are directed to deposit a sum of Rs. 17,00,000/- in this Court within a period of 6 weeks from today. (ii) The applicant is at liberty to withdraw the amounts of Rs. * 13 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011 20,00,000/-, Rs.30,00,000/- Rs.3,44,000/- and Rs.25,60,000/- deposited in the Court and her PPF passbook. (iii) The applicant is at liberty to withdraw Rs.17,00,000/- as and when deposited by respondents no.2 to 4. (iv) The applicant is entitled to receive the entire amount lying in the Saving Bank Account no.1180731093 with Central Bank of India, Cotton exchange, Mumbai. (v) It is made clear that the applicant will be receiving the amounts for herself and on behalf of her son, Yash. (vi) Respondents no.2 to 4 shall pay costs of this application quantified at Rs.1,00,000/- within a period of 6 weeks from today. (vii) With the above direction, the application shall stand disposed off. (viii) In the event respondents no.2 to 4 fail to comply with the directions against them within the time granted, the application will stand allowed in terms of prayer clause (b) without any further reference to the Court. [SMT. R.P. SONDURBALDOTA, J] * 14 * Cri.Appln.383..2010 in Cri.Appln. 677.2008 26.8.2011