SHIRIN FAZALBHOY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") for quashing Complaint Case No. 570 of 1998 and also for any consequential orders and the order dated 24-11-1998, whereby and whereunder Sri S.S. Rao, Judicial Magistrate, Ranchi took cognizance of the offence under Sections 384, 420, 403, 471 and 120B of the Indian Penal Code.

(2.) The case of the prosecution in brief is that accused Nos. 1 and 2 claim to be the trustee of Abdullah Fazalbhoy Charities Trust of Mumbai and accused No. 3 claims to be the Manager of the said Trust. One Govind Lalwani (deceased) was for a long time Secretary of Nutan Jai Bharat Housing Co-operative Society of Jai Bharat Building, Shaiikar Ghanekar Marg, Prabha Devi, Mumbai. As back as on 31-10-1949 Shanta Kumar Mitra (deceased ) husband of Mrs. Nirmala Mitra acquired from the Builder Deepchand and C Gandhi the title and possession over a second floor Hat as Flat No. C-2 of Jai Bharat Building (renumbered as Flat No. C -1 and presently numbered as Flat No. 47) and a garage in Prabha Devi, Dadar, Mumbai. On 4-9-1950 the said flat and garage were searched and thereafter sealed and locked by the Criminal Branch Bombay Police in connection with a criminal case registered against Shanta Kumar Mitra at Ranchi. The entire space in Jai Bharat Building is presently under the management of Nutan Jai Bharat Housing Co-operative Society.

(3.) On an application filed by the State of Bihar which was registered as Miscellaneous Judicial Case No. 31 of 1949, an order of attachment of all the movable and immovable properties belonging to Shanta Kumar Mitra was passed by the Judicial Commissioner, Ranchi on 18-8-1952 and, accordingly, several properties belonging to Shanta Kumar Mitra were attached. A receiver was also appointed by the learned Judicial Commissioner, Ranchi in terms of the order dated 18-8-1952 passed in M.J.C. No.31 of 1949 and took charge of Flat No. 47, Shanta Kumar Mitra and others were tried in Sessions Trial and was convicted and sentenced for the various offences. In M.J.C. No. 31 of 1949 several claims and objections were filed after the death of Shanta Kumar Mitra. In the year 1975 Smt. Nirmala Mitra, his widow, was substituted in his place as opposite party in M.J.C. No. 31 of 1949. It is further alleged that accused persons along with Govind Lalwani entered into a conspiracy to defraud the Court of the learned Judicial Commissioner, Ranchi and the Receiver appointed by the said Court as well as Smt. Nirmla Mitra and could not bring the actual facts to the notice of the learned Judicial Commissioner , Ranchi or to the Court receiver. It is further alleged that in pursuance of the orders of the High Court and the Supreme Court, the learned Judicial Commissioner, Ranchi passed the order dated 30-3-1987 in M.J.C. No. 31 of 1949 wherby and whereunder it was held that only Rs. 33,00,000/- and odd was payable to the State of Bihar and such amount can be realised from the sale of attached gold and ornaments. The Receiver was also directed to handover vacant possession of all the other attached movable and immovable properties including Flat No. 47 and garage of Jai Bharat Building, Dadar, Mumbai to Smt. Nirmala Mitra and the said order remain intact even by dismissing S.L. (Cr.) 1621 of 1988 filed by the State of Bihar. In pursuance of the said order, the dues of Rs. 33,00,000/- lacs and odd to the State of Bihar was duly cleared by Smt. Nirmal Mitra and thereafter direction of the Judicial Commissioner, Ranchi regarding delivery of possession was passed in favour of Smt. Nirmla Mitra which starts phasewise implementation. It is further alleged that the accused persons suppressed the formation of Jai Bharat Housing Co-operative Society from the Court receiver. In spite of knowledge that 2nd Floor of Flat No. 47 and garage of Jai Bharat Building, Dadar, Mumbai belonged to Smt. Nirmla Mitra and that the same were in custodia legis, the accused persons and Govind Lalwani (now deceased) committed fraud and fabricated documents to cause issuance of Share Certificate No. 49 dated 15-12-1999 in favour of Abdulla Fazalbhoy Charities Trust and all these fabrications and forgery were done behind the back of the complainant and his Principal Smt. Nirmala Mitra.