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. }
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.
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. }
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 }
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
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.
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.
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 before the two courts. While dealing with the contention of the complainant, that the sale of Minerva Cinema was not a genuine sale and that the consideration paid therefor was not as per the market value, the Sessions Court held that the offer of Rs.32 crores from Vardhaman Construction Company was made belatedly and hence of no consequence. It further opined that the letter of offer is nothing but manipulation of documents and that there being nine partners of Eagle Theatres , deception of one of them cannot be acceptable. As regards the mental health of F.C. Mehra, the Sessions Court concluded that he was in sound mental health. The basis for this conclusion was an affidavit filed by F.C. Mehra in civil proceedings and the minutes of settlement referred to 21
above. The Sessions Court also held that the complainant had obtained the order of issuance of process by suppressing facts.
18. The learned counsel for both the sides, Mr. Jayakar for the petitioners and Mr. Ponda for the complainant have advanced extensive arguments in support of their respective cases. They have referred to all the proceedings, civil and criminal, between the parties and the orders passed therein.
19. It is needless to say that at the root of both the complaints is the mental health of F.C. Mehra. According to the complainant, his mental health at the relevant time was not sound, which fact is disputed by the petitioners and other accused persons. There is no dispute as regards the various documents executed by F.C. Mehra which benefit the petitioners and others. Therefore genuineness of these documents depend upon the mental health of F.C. Mehra in view of the definition of false document under Section 464 Indian Penal Code. Section 464 defines making a false document. The part of the definition relevant for the present purposes reads as follows :
"Section 464. Making a false document-[A person is said to make a false document or false electronic record- Firstly.........
Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alterations.]
In the circumstances, the learned Magistrate was only required to see whether prima facie there was sufficient material on record to support the allegation of the complainant for proceeding further with the case. In both the cases, the learned Magistrate was apparently satisfied with the sufficiency of material and hence issued the process. The challenge to the orders of issuance of process in the Sessions Court however met with different results.
20. The arguments of petitioners on the mental health of F.C. Mehra is three fold. Firstly there is vehement denial of his mental ill-health. Secondly that the material produced by the complainant in support is not believable and hence cannot be relied upon. Thirdly that the Magistrate could not have gone into the allegations in the absence of report of judicial inquisition into the mental health of F.C. Mehra by a competent court under Mental Health Act, 1987 (hereinafter referred to as the M.H. Act). In the 23
absence of a finding on the unsoundness of mind of F.C. Mehra in the judicial inquisition, issuance of process in the complaints would be patent illegality and result into miscarriage of justice. Mr. Ponda, on the other hand submits that the provisions of the Mental Health Act, 1987 can have no bearing whatsoever on the criminal proceedings and that the a criminal court is required by law to arrive at its independent finding on the allegations of mental health.
21. In view of the rival contentions, it has become necessary to look into the purpose of the M.H. Act, it's scheme to serve that purpose and it's applicability to criminal proceedings. The purpose of the Act is "to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provision with respect to their property and affairs and for matters connected therewith or incidental thereto". The Act is divided into ten Chapters. The first Chapter contains the preliminary information and the definitions. Chapter II provides for Mental Health Authorities to be incharge of regulation and development with respect to mental health services and to supervise psychiatric hospitals etc. Chapter III provides for establishment and maintenance of Psychiatric hospitals and nursing homes. Chapter 24
IV deals with admission and detention whether on voluntary basis or under special circumstances of mentally ill persons in psychiatric hospital or psychiatric nursing home. Chapter V regulates the activities relating to mentally ill persons on admission to Psychiatric hospitals or nursing homes. Chapter VI provides for judicial inquisition regarding alleged mentally ill person possessing property and for custody of his person and management of his property. Chapter VII fixes liability to meet cost of maintenance of mentally ill persons detained in psychiatric hospital or nursing home. Chapter VIII makes provision for protection of human rights of mentally ill persons. Chapter X is the penal chapter providing for the penalties for contraventions of the provisions under the Act and Chapter X takes care of miscellaneous matters.
22. Section 2(l) of the M.H. Act defines mentally ill person as "a person who is in need of treatment by reason of any mental disorder other than medical retardation". The definition is seen to be a wide definition and in tune with the purpose of the Act. The purpose of the M.H. Act is seen to be more of social welfare. The objective essentially is to ensure that an unfortunate member of the society is taken care of and treated with dignity. This can be 25
safely inferred from the Statement of Objects and Reasons of the M.H. Act. The statement takes note of the change in the attitude of the society towards persons afflicted with mental illness and rapid advance of medical science to treat such persons. With these welcome changes, the provisions of the Indian Lunacy Act, 1912 were found to be outmoded and need was felt to have fresh legislation with provisions for treatment of mentally ill persons in accordance with the new approach.
23. The M.H. Act, however, does not provide for any machinery or procedure for general identification of mentally ill persons. When need of care of such a person arises, he can be admitted to psychiatric hospital or nursing home either voluntarily or at the request of any relative or a friend. On such request being made, the Medical Officer incharge of the hospital or a nursing home, admits him as inpatient if satisfied that in the interest of the mentally ill person, it is necessary so to do. Judicial inquisition for that purpose is not required.
24. The only provision in the M.H. Act for judicial inquisition is Section 50 in Chapter VI. It provides for judicial inquisition into alleged mentally ill-person possessing property. But that is not made compulsory to every mentally ill-person holding property. 26
Under the Section, an application for holding an inquisition into the mental condition of such a person can be made, not just by relatives of mentally ill person, but also by different government authorities i.e. Public Curator appointed under Indian Succession Act or the Advocate General of the State or the Collector of the District. On receipt of the application, the District Court by following the procedure prescribed has to either personally examine the mentally ill person or get him examined by an expert. Section 51 of the Act requires the District Court, on completion of inquisition to record its finding on (i) whether the alleged mentally ill person is in fact mentally ill or not and (ii) where such person is mentally ill, whether he is incapable of taking care of himself and of managing his property or incapable of managing his property only. The other provisions in Chapter VI relate to appointment of guardians of mentally ill person and manager of property. The section does not provide that without judicial inquisition, the person and property of mentally ill person cannot be dealt with. It apparently provides for a situation where either there is nobody to take care of the person or property of mentally ill person or where somebody is taking disadvantage of the situation. In such a case, the person may become responsibility 27
of the State. This can be seen from Section 78 of the Act, under which the cost of maintenance of a mentally ill person detained as inpatient in any psychiatric hospital or nursing home is to be borne by the State Government unless otherwise provided for. Section 50 is seen to not take into account the offences relating to mentally ill persons or the provisions therefor under the Penal enactments. It does not provide for any criminal acts committed either in respect of their person or property. This aspect is completely excluded from the Act. It is therefore obviously and abundantly clear that judicial inquisition under the M.H. Act is not necessary for considering criminal action relating to mentally ill persons and there can be no substance in the contention that the Magistrate could have appreciated the allegation that F.C, Mehra was suffering from dementia and unsoundness of mind only after judicial inquisition under the M.H. Act. Mr.Ponda has rightly submitted that it would be a ridiculous proposition that criminal action must be held back until the report of judicial inquisition under Section 50 and 51 of the M.H. Act. Such a proposition would defeat the very purpose of the provisions of Indian Penal Code and would allow a person to take advantage of his own 28
wrong. Therefore, the M.H. Act cannot be attracted to criminal proceedings.
25. Mr. Ponda further submits that the findings in civil proceedings are no longer binding in a criminal case on the same facts. Relying upon three decisions of the Apex Court, he submits that the earlier view held by the Courts that the findings in the civil suit are binding in a criminal case on the same facts, but not vice versa has since changed. The decisions of the Apex Court relied upon by Mr. Ponda are:
(i) K.J. Premshankar vs. Inspector of Police, reported in (2003) Supreme Court Cases (Cri.) 223
(ii) Eqbal Singh Marwah & another vs. Meenakshi Marwah & Another, reported in (2005) 4 Supreme Court Cases 370 and (iii) Rukhmini Narvekar vs. Vijaya Satardekar and others, reported in (2008) 14 Supreme Court Cases 1.
The observations of the Constitution Bench in Eqbal Singh Marwah's case on the question read as follows:
"Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or 29
binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."
Thus this is the second reason for rejecting the contention that the learned Magistrate ought not to have proceeded with the complaint in the absence of report of judicial inquisition under the M.H. Act. It must be mentioned here that the petitioners have, themselves successfully avoided any judicial inquisition in the mental health of F.C. Mehra by contesting the proceedings filed by the complainant under the M.H. Act. In the Mental Health Petition filed by him, the complainant had taken out miscellaneous application requesting for medical treatment to F.C. Mehra. That application was contested by the petitioners. The application was disposed of by the Bombay City Civil Court by its' reasoned order dated 28th November 2006 requesting the Dean of J.J. Hospital to depute Neurologist to the residence of F.C. Mehra to examine his mental status and health and submit confidential report in that respect. The petitioners challenged the order in this Court by preferring an appeal being Appeal from Order No.61 of 2006, wherein an interim stay of the direction has been given by this Court. In that circumstance, it does not lie in the mouth 30
of the petitioners that no criminal action can be maintained without judicial inquisition under the M.H. Act.
26. This brings me to the contention of the petitioners that F.C. Mehra enjoyed sound mental health and that the allegation of the complainant of his ill health are false. In this regard, the complainant relies upon Certificates issued by two doctors, Dr. Katrak and Dr. Khadilkar, stating that F.C. Mehra at the relevant time was suffering from dementia. Mr. Jayakar, however, strongly urges that one look at the certificates is enough to show that the same are not worth the contents written therein. According to him from the language of the certificates, it is apparent that the certificates have been obtained by the complainant by influencing the concerned doctors. It is to be noted that Mr. Jayakar does not question the professional expertise or authority of either of the doctors, who has issued certificates. Both the doctors are a name to reckon with in their professional field. Dr. Katrak issued three certificates dated 13th October 2003, 3rd September 2004 and 28th June 2004. The first certificate dated 13th October 2003, states that F.C. Mehra was assessed by Dr. Katrak several years ago and according to the history given by his son Mr. Parvesh Mehra, F.C. Mehra needed evaluation of his higher mental functions to see 31
whether he was capable of dealing with his legal and financial problems. The second certificate dated 28th June 2004 records that Dr. Katrak had initially examined F.C. Mehra on 14th August 2001. At that stage F.C. Mehra had symptoms of forgetfulness, his "Many Mental, Status Examination" (M.M.S.E.) had shown impairment of registration and recall, suggestive of "M.C.I. amnestic". As per the certificate, F.C. Mehra was again reviewed by Dr. Katrak on 24th June 2004. It was found that mental functions of F.C. Mehra had deteriorated considerably and he was hardly able to perform on the M.M.S.E. test suggesting that he had a gross dementia. Doctor opined that in view of gross dementia, he was incapable of looking after his financial and legal matters. The third certificate is dated 3rd September 2004 issued by Dr. Katrak in Form 10-1 as required under Section 80DDB of Income Tax Act, 1961 read with 11DD of Income Tax Rules, 1962. The certificate describes the ailment suffered by F.C. Mehra as of dementia-Alzheimer disease. The three certificates had been produced by the complainant at the time of filing of the complaint. Dr. Khadilkar had performed cognitive tests upon F.C. Mehra on 23rd May 2006 and issued certificate dated 8th June 2006 certifying that F.C. Mehra was suffering from cognitive decline and 32
primary degenerative dementia. He was not capable to look after his legal matters. In the cognitive tests conducted, F.C. Mehra was unable to answer the simplest questions put to him. He was unable to state the date, the day, the month and even the year of the date on which the test was being conducted. He could not do the multiplication of 100 by 7. He could identify the objects like a pen and a bulb but was unable to state use of the two objects.
27. A lot has been argued about the language of the certificates issued by Dr. Katrak and Dr. Khadilkar, wherein it has been mentioned that F.C. Mehra was incapable of looking after his legal and financial matters. Mr. Jayakar submits that the certificates produced are not simple medical certificates indicating the health of F.C. Mehra, but are certificates procured by the complainant for specific purposes. Even if the argument that the certificates have been obtained by the complainant for the purpose of the court proceedings, is to be accepted that does not take away the gravity of the ailment described in the certificate. In any case, that would be an issue to be considered by the learned Magistrate at the appropriate time.
28. The certificates produced by the complainant were sufficient for the Magistrate to form an opinion that there is sufficient material for proceeding further in the complaint. As has been rightly submitted by Mr. Ponda, the test to be applied for the purpose of issuance of process is whether there are sufficient grounds for proceeding further in the complaint and not whether there are sufficient grounds for conviction The enquiry therefor is not in the nature of a trial. Where there is prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issuance of process cannot be refused. Reliance, in this connection, is placed upon decisions of the Apex Court in i) Nirmaljit Singh Hoon vs. The State of West Bengal and others, reported in AIR 1972 Supreme Court 2639, ii)Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & others, reported in 1976 Supreme Court Cases (Cri.)507 and iii) Dr. S.S. Khanna vs. Chief Secretary, Patna and another, reported in (1983) 3 Supreme Court Cases, 42.
29. The other circumstance relied upon by both the sides in support of their respective claims on the mental health of F.C. 34
Mehra is the fact of the family meetings held to sort out the issues relating to the person and properties of F.C. Mehra. Both sides rely upon the minutes of the meetings. The meetings had been organised, as mentioned hereinbefore, at the instance of the petitioners through the intervention of family friends and their relatives. The first meeting was held on 7th January 2004. Apart from the petitioners and the complainant, the meeting was attended by F.C. Mehra himself, his grandson Amit, who is the son of the complainant and Shri R. Prasad Rao, the Chartered Accountant of F.C. Mehra. Bare perusal of the subjects on the agenda of the meeting fixed either at the instance of the petitioners or at the instance of the complainant show that the meeting was essentially for the purpose of managing the properties and businesses of F.C. Mehra. The petitioners apparently were not satisfied with the decisions taken at the meeting. Therefore, the second meeting was held on 8th/9th/10th January 2004. F.C. Mehra was not present on any of the dates of the second meeting. It was instead attended by one Nirmal Kapoor, a family friend. The minutes of the second meeting have been drawn.
30. Both the counsel have taken me through details of the different decisions taken at the meeting. Apart from the decisions taken at the meeting, in my considered opinion, what is significantly relevant is holding of meetings itself, by the family members of F.C. Mehra in relation to the conduct of his businesses and management of his properties. Further the subsequent meeting was held in his absence. Had F.C. Mehra been of perfect sound mental health, such meetings obviously would not have been held or rather would not have been allowed to be held by him. Perusal of the minutes would show that the agenda fixed at the instance of the complainant related to the medical treatment to be given to F.C. Mehra, for which appointment had been taken by him of Dr. Katrak on 22nd December 2003. In contrast, the agenda fixed at the instance of the petitioners related to the Will of the mother and participation of the complainant in the business of Eagle Movie Production and use of Eagle Film's office premises by him. It is also to be noted that though the properties and assets of F.C. Mehra were being considered in the meeting for the management, there was not a single subject on the agenda placed at the instance of F.C. Mehra himself. It would not be out of 36
place to mention that at the relevant time, the age of F.C. Mehra was about 83 years.
31. Next the agreements arrived at in the meetings would also sufficiently indicate that all was not well with F.C. Mehra. In the meetings, the parties agreed that the bank accounts of (i) Smt. Sham Mehra, the mother, (ii) F.C. Mehra and (iii) M/s F.C. Mehra (HUF) would be operated jointly by three persons. The three persons were to be F.C. Mehra himself, the complainant and one of the petitioners. This agreement was to be given an immediate effect. It was agreed that all the letters, writings, power of attorney, affidavits etc. given either by Smt. Sham Mehra or by F.C. Mehra in favour of any of the sons prior to date of the meetings shall become null and void and fresh document shall be prepared and got executed by F.C. Mehra on the subject. It was further agreed that no transaction relating to the assets and business of F.C. Mehra would be conducted without signatures of all the four sons. The minutes show that the petitioners and the complainant had arrived at some workable arrangement as regards the conduct of businesses and management of properties of F.C. Mehra. The above decisions arrived at the meetings would, prima facie support the contention of the complainant on the 37
mental health of F.C. Mehra. In my opinion, all the above circumstances would be sufficient for the learned Magistrate for proceeding further with the complaint.
32. It has been contended on behalf of the petitioners that the complaints of the complainant have been filed with malafide intentions and oblique motives not only to harass the petitioners but also to drag F.C. Mehra to the Court. According to the petitioners, the criminal complaints are an unnecessary harassment and humiliation caused to them and F.C. Mehra. Mr. Jayakar submits that the act of the complainant is an act of an frustrated person on not getting the desired results from civil proceedings. I find no substance in this submission of the petitioners, because as observed hereinabove, the certificates of the two doctors issued coupled with the decisions taken at the family meetings prima facie support the allegation of the complainant. At this stage, of the matter, it would also be difficult to hold that the complainant has any oblique motive in filing the complaints. Had the complainant been after the money or properties of F.C. Mehra, he would not have refused to accept the sum of Rs.79,80,00,000/- offered to him by the petitioners as his share in the proceeds of 38
sale of Minerva Cinema to accused no.15 noted at paragraph 15 above.
33. It has also been contended on behalf of the petitioners that the complainant has not disclosed all the relevant facts on record and has suppressed various litigations wherein similar allegations were made, but the complainant was unable to secure any reliefs. The complaint does make reference to the various litigations between the parties. The only lapse on the part of complainant has been in not annexing copies of each and every proceeding and the orders passed therein to the complaint. The explanation for the same offered by Mr. Ponda is that annexure of all the proceedings and the orders passed therein to the complaint would have made the complaint extremely bulky, therefore, the complainant made specific reference to the all proceedings in his complaint and relied upon the proceedings referred to. The explanation offered is a plausible explanation. Therefore, I am not inclined to agree with the submission of the petitioners that there is any suppression of the material facts from the court by the complainant.
34. Much emphasis has been placed by the petitioners on the affidavit of F.C. Mehra filed in the Bombay City Civil Court Suit 39
No.17 of 2003, wherein he has claimed to be of sound mental health. The affidavit by itself, can be of no assistance to the petitioners to get the complaint thrown out of the court, since the affidavit is required to be weighed by the learned Magistrate at the time of the trial against the evidence of the medical experts. Further the language of the affidavit shows that the same has been drafted by legal experts, since it contain,s apart from the statements of facts, legal submissions also. The affidavit can also not be read without it being proved, like any other document. Even if the petitioners were to produce a certified copy of the affidavit, obtained from the Bombay City Civil Court, which has not been done by them, the same would not absolve the petitioners of proving the truth of the contents of the affidavit. In this regard, Mr. Ponda has rightly relied upon two decisions of this Court holding that mere production of certified copies of a document is not enough and that production of certified copies of even public documents does not absolve the person producing the documents of the responsibility to prove the truth of the contents of the documents. Our High Court in its decision in Kortiyar vs. Unit Trust of India, reported in 1983, Maharashtra L.J. Page 339 has held that though it is a general rule that secondary evidence 40
of a public document is admissible by way of certified copy, the party producing it is not relieved of its responsibility to prove execution of the documents just as if the original is being produced. It has held that a certified copy of a public document can be admitted in secondary evidence to prove only what the documents state and the truth of what the documents state must be separately established. The public document which was there for consideration in the case was return of a company under the provisions of Section 159 of the Companies Act. The second decision cited by Mr. Ponda of Division Bench of this court in Suhas Bandh vs. State of Maharashtra and another, reported in 2009 All M.R. (Cri.) page 2614. The Division Bench had an occasion to consider certified copy of Form No.22 certified by the R.O.C. relating to the resignation of a director of a registered company. The Division Bench relying upon the decision of M.P. Prakash Barve's case held that mere production of certified copy of Form No.22 is not sufficient to discharge an accused from the proceedings u/s 138 N.I. Act and it was necessary for the accused to prove the fact of resignation in the same manner as any other document.
35. In their extensive arguments advanced, both the sides taken me through the details of the transactions questioned by the complainant in his complaints. Firstly it would be better not to express any view on the contentions on merit least the same may affect one side or the other later. Secondly, in my opinion, it is not necessary for this court to enter into those details while considering petition for quashing of one of the complaints in exercise of inherent power under Section 482 Code of Criminal Procedure and the Criminal Revision Application challenging dismissal of the other complaint. The inherent powers under Section 482 Cr.P.C. enables this court to quash a proceeding if it comes to the conclusion that allowing the proceedings to continue would be abuse of process of the court or the ends of justice require the proceedings to be quashed. For that purpose, the Court has to see that the allegations contained in the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged or that the complaint is frivolous, vexatious or oppressive. While considering the scope and ambit of Section 482 Cr.P.C., the Apex Court in Inder Mohan Goswami and another vs. State of Uttaranchal and others, reported in (2007)12 Supreme Court Cases, page 1 has observed as follows: 42
"27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage".
The power is to be exercised with circumspection and not to stifle a legitimate prosecution. In the instant cases, it cannot be said in either of the complaints that the allegations made therein do not constitute the offences alleged. It also cannot be said that the complaints are intrinsically untrustworthy, so as to reject them at the threshold. For the reasons abovementioned, the petition filed by the petitioners is liable to be and is dismissed.
36. The Criminal Revision Application filed by the complainant must be allowed for the same reasons as for dismissal of the Writ Petition. For the same reasons, the order of the Sessions Court impugned in the Criminal Revision Application cannot be sustained. In the facts and circumstances of the case, accused no. 43
15, the purchaser of the property can also not be discharged. He had published notice in newspaper relating to the proposed transaction of sale of Minerva Cinema calling for objections to the transaction, if any. The complainant had immediately put him to notice about the mental health of F.C. Mehra as also the conduct of the petitioners. Despite this forewarning, accused no. 15 concluded the deal, according to the complainant, at a price much less than the prevalent market price. There is no dispute as regards issuance of the public notice and response of the complainant thereto. Therefore, the complaint against accused no. 15, alongwith the other petitioners could not have been stifled at the threshold. The Criminal Revision Application is therefore allowed and the order impugned therein is set aside. (Smt. R.P. SondurBaldota, J.)