2019 Supreme(SC) 562

SUPREME COURT OF INDIA
R. Banumathi, R. Subhash Reddy, JJ.
BIRLA CORPORATION LIMITED – Appellant
VERSUS
ADVENTZ INVESTMENTS AND HOLDINGS – Respondents
CRIMINAL APPEAL NO. 875 OF 2019 (Arising out of SLP(Crl.) No.9053 of 2016)
WITH
BIRLA BUILDINGS LIMITED – Appellant
VERSUS
BIRLA CORPORATION LIMITED – Respondent
CRIMINAL APPEAL NO. 877 OF 2019 (Arising out of SLP(Crl.) No.4609 of 2019 @ D. No.6405 of 2019)
WITH
GOVIND PROMOTERS PVT. LTD. – Appellant
VERSUS
BIRLA CORPORATION LIMITED – Respondent
CRIMINAL APPEAL NO. 876 OF 2019 (Arising out of SLP(Crl.) No. 4608 of 2019 @ D. No.6122 of 2019)
Decided on : 09-05-2019

IMPORTANT POINTS
Magistrate has to apply his mind for issuing process.
The "document" as defined in Section 29 IPC is a "moveable property" within the meaning of Section 22 IPC which can be the subject matter of theft. The information contained thereon in the documents would also fall within the purview of the "corporeal property" and can be the subject matter of the theft.
Unless "dishonest intention" or "wrongful gain" could be attributed to the respondents and there is "wrongful loss" to the appellant, the ingredients of Sections 378 and 380 IPC will not be attracted.
Proceedings amounting to abuse of process of law or bringing pressure upon the accused can be quashed.

Headnote:(a) Code of Criminal Procedure, 1973 - Sections 200 and 202 - Enquiry u/s 202 in a complaint filed u/s 200 - Satisfaction of Magistrate for issuing process - Dependant only on allegations made in the complaint or the evidence in support of the averments in the complaint - Application of mind - Enquiry by Magistrate or investigation by police mandatory - Magistrate not required to record detailed order. (Para 27, 30, 34, 38)

       (2013) 2 SCC 488; (2015) 12 SCC 420; (2012) 5 SCC 424; (2014) 14 SCC 638; (2017) 3 SCC 528; (1998) 5 SCC 749; (2013) 4 SCC 505; 1993 Supp (1) SCC 499; (2004) 4 SCC 432 - Relied upon

       (b) Code of Criminal Procedure, 1973 - Sections 200 and 202 - Complaint alleging offences u/s 378 and punishable under Sections 380, 411 and 120B Indian Penal Code, 1860 - Complaint not attributing any specific overt act to any of the respondents - It only apprehends that the accused in connivance with each other have procured the documents - Allegations in the complaint vague and lacking material particulars as to the commission of the theft - Mere fact that respondents No. 10 and 11 are responsible for security and maintenance of the building cannot lead to an inference that respondents No. 10 and 11 are responsible for the theft - Satisfaction of Magistrate apparently presumptive. (Para 47, 48, 50, 55)

       (2015) 4 SCC 609; AIR 1963 SC 1430; (2015) 12 SCC 420

       (c) Indian Penal Code, 1860 - Section 378 - Offence under - Instituted other than on a police report - Warrant case - Triable under Chapter XIX, Code of Criminal Procedure, 1973 - Requiring framing of charge - Charge cannot be framed without specific material - Instantly complaint lacking particulars as to time and the place of theft or the person who has committed theft. (Para 58, 59)

       (1998) 5 SCC 749 - Relied upon

       (d) Code of Criminal Procedure, 1973 - Section 202 - Discretion to summon exercised by Magistrate - Not for the Sessions Court or the High Court to substitute its own discretion for that of the Magistrate to examine the case on merits - However, Magistrate required to apply his mind for exercising discretion. (Para 60)

       (1976) 3 SCC 736 - Referred

       (e) Indian Penal Code, 1860 - Section 378 - Theft - Subject matter should be movable property - ‘Document’ including its photocopy - A movable property u/s 22, and a ‘corporeal property’ u/s 29, IPC - Can be subject matter of theft - Instantly taking away of the documents temporarily and using them in the pending litigations between the parties - Would not amount to theft. (Para 67, 68, 70)

       AIR 1963 SC 1094 - Referred

       (f) Indian Penal Code, 1860 - Section 378 - Intention - Causing wrongful gains to respondents and wrongful loss to appellants - Instantly documents used in CLB proceeding to substantiate case of oppression and mismanagement - No question of "wrongful gain" to the respondents or "wrongful loss" to the appellant - Ingredients of theft not made out. (Para 74, 75)

       (g) Indian Penal Code, 1860 section 378 and 380 - Documents used in good faith in Company case alleging oppression and mismanagement - Cases pending - No "dishonest intention" or "wrongful gain" could be attributed to the respondents - Section 378 and 380 not attracted. (Para 76)

       (1974) 1 SCC 345 - Relied upon

       (h) Indian Penal Code, 1860 - Section 378 and 380 - Respondents entitled to call for documents from appellant-Company in the Company case - Instead, producing those documents themselves - Allegation of dishonestly removing the documents from custody of appellants and thus committing offence of theft - Nothing but arm-twisting tactics to deprive the respondents from pursuing their defence with relevant evidence and materials. (Para 80)

       (i) Code of Criminal Procedure, 1973 - Section 482 - Criminal proceedings ought not to be permitted to degenerate into a weapon of harassment - Proceedings amounting to abuse of process of law or bringing pressure upon the accused - Can be quashed - Proceedings in instant case need to be quashed. (Para 83, 85, 88)

       (1976) 3 SCC 736; 1992 Supp (1) SCC 335; (2006) 6 SCC 736; (1988) 1 SCC 692 - Relied upon

       Facts of the case:

       One Priyamvada Devi Birla (PDB) and her husband Madhav Prasad Birla (MPB) were in control and management of several corporate entities which are collectively referred to as the M.P. Birla Group of Industries. They did not have any children. They have created several trusts for undertaking charitable activities in particular on the education side. PDB died on 03.07.2004 and MPB had predeceased her. There is an ongoing dispute over legality of a Will allegedly executed by Priyamvada Devi Birla (PDB) dated 18.04.1999 in favour of Rajendra Singh Lodha and respondent No. 17-son of said Rajendra Singh Lodha. On 19.07.2004, a petition was filed by Rajendra Singh Lodha, father of respondent No. 17 for grant of probate of the purported Will before the High Court at Calcutta. The Probate Petition has been converted into a testamentary suit for grant of Letters of Administration. Krishna Kumar Birla (KKB), Basant Kumar Birla (BKB), Ganga Prasad Birla (GPB) and Yashovardhan Birla (YB) have filed caveats to oppose the grant of probate of the said Will dated 18.04.1999. The High Court held that Ganga Prasad Birla (GPB) has a caveatable interest and therefore, he has a right to oppose the grant of probate of the said Will. The said testamentary suit is pending. Subsequently, Krishna Kumar Birla (KKB), Kashi Nath Tapuriah (KNT) and Pradip Kumar Khaitan (PKK) filed an application for grant of probate of the 1982 Will of Madhav Prasad Birla (MPB) and Ganga Prasad Birla (GPB); Kashi Nath Tapuriah (KNT) and Pradip Kumar Khaitan (PKK) have filed an application for grant of probate of the 1982 Will of Madhav Prasad Birla (MPB) before the High Court at Calcutta and the said testamentary proceedings are also pending.

       Respondents No. 1 to 5 who are shareholders of the appellant Company and the trust-Birla Education Trust represented by respondent No. 6, had filed a Company petition in CP No. 1/2010 under Sections 397 and 398 of the Companies Act, 1956 before the Company Law Board (CLB) alleging oppression and mismanagement being perpetrated by respondent No. 17 who is in administration and operation of the said Company. The petition before the CLB has been filed through respondents No. 6 to 9 who are shown as accused Nos. 6 to 9 in the complaint.

       On 24.03.2010, respondents No. 12 to 16 have filed five civil suits in the High Court of Calcutta (CS Nos. 73-77/2010) under Section 92 of the Code of Civil Procedure stating that in the year 1988, MPB and PDB had created five mutual and reciprocal trusts to leave the estate covered by these trusts for charity. These trusts are said to have been revoked just three days prior to the alleged Will dated 18.04.1999. In the said suits in CS No. 73-77/2010, respondents No. 12 to 16 have challenged the revocation of the five trusts and prayed for recovery of the properties of the public charity and for enforcement of the public trust obligations of the properties vested in the said five trusts.

       The company petition in CP No. 1/2010 was filed before CLB (now pending before NCLT) on 10.03.2010. In the said company petition, documents No. 1 to 54 have been filed. Document No. 1-Internal Audit Report of the appellant Company was filed in the civil suits filed by respondents No. 12 to 16 challenging the revocation of the five trusts created by MPB and PDB. Alleging theft and misappropriation of all the documents No. 1 to 54, the appellant Company filed the criminal complaint under Sections 379, 403, 411 read with Section 120B IPC against respondents No. 1 to 16 and in the said complaint, appellant was represented by Shri Samir Ganguly who is the Vice-President (Legal) of the appellant-company. The gravamen of the allegations in the complaint is that copies of 54 documents were used before the Company Law Board (CLB) in C.P. No. 1 of 2010 filed by respondents No. 1 to 5 and Birla Education Trust represented by respondent No. 6. Copy of one such document viz., Internal Audit Report of Chanderia Unit of the appellant Company has been filed along with the interlocutory applications filed by respondents No. 13 to 16 in the civil suits which were filed challenging the revocation of trusts and for recovery of properties vested in the trust.

       The learned Magistrate found that there are sufficient grounds for proceeding against all the sixteen respondents and ordered issuance of summons to the respondents for the offences punishable under Sections 380, 411 and 120B IPC.

       The High Court held that insofar as documents No. 29 to 54 are concerned, the complainant can proceed against the respondents and accordingly remitted the matter to the trial court.

       Finding of the Court:

       The "document" as defined in Section 29 IPC is a "moveable property" within the meaning of Section 22 IPC which can be the subject matter of theft. The information contained thereon in the documents would also fall within the purview of the "corporeal property" and can be the subject matter of the theft.

       Unless "dishonest intention" or "wrongful gain" could be attributed to the respondents and there is "wrongful loss" to the appellant, the ingredients of Sections 378 and 380 IPC will not be attracted.

       Result: Appeal filed by appellant dismissed. Appeals filed by respondents allowed.