(Prayer: C-53Q. To call for the records pertaining to the impugned FIR in Cr.No..43/2022 dated 26.10.2022 on the file of the R1 and quash the same as illegal.)

1. This petition is filed to quash the impugned FIR in Crime.No.43/2022, dated 26.10.2022 on the file of the 1st respondent for the alleged offence under sections 415, 420, 423, 465, 467, 468 and 471 of IPC.

2. The case of the prosecution is that the defacto complainant namely Vairavel and the 1st accused are trustees of “K.S.P.Natarajan Trust” as per the Settlement Deed registered in Doc.No.755 of 1956 dated 23.04.1956 and the Trust Deed registered in Doc.No.2566 of 1956 dated 14.11.1956. But suppressing the same, the Petitioner/ 1st accused has executed two rectification Deeds dated 30.04.2020 and 21.05.2020 by inserting the names of the accused Nos.2 to 5 as Trustees and the petitioners / accused Nos.6 and 7 have joined hands with them to swindle the property belonging to the said Trust. Hence the 1st respondent has filed an FIR in Crime No.43 of 2022 on 26.10.2022 for offences under Sections 415, 420, 423, 465, 467, 468 and 471 of IPC, in view of the complaint made by the defacto complainant.

3. The contention of the petitioner is that the 2nd petitioner is the wife of 1st petitioner and the 3 to 5 petitioners are the daughters of the 1st and 2nd Petitioners. The 6th and 7th petitioners are the employees of 1st petitioner. The 1st petitioner and the defacto complainant are cousins. The said “K.S.P.Natarajan Trust” was formed to immortalize Mr.Natarajan, son of Mr.K.S.Shanmugavel Nadar, who had passed away in the year 1956. On 23.04.1956, the 1st petitioner’s grandfather Mr.K.S.Shanmugavel Nadar (1) and one Mr.Ganapathy, son of Mr.K.S.Shanmugavel Nadar (2), Mr.Mariappan Nadar (3) (father of the 2nd respondent / defacto complainant) and Mrs.Rajalakshmi Ammal (4) (mother of the 1st petitioner) have settled few of their properties vide a Settlement Deed in Doc.No.755 of 1956 in favour of K.S.P.Natarajan Trust, which was later registered vide a registered Trust Deed dated 14.11.1956 in Doc.No.2566 of 1956 on the file of the Thoothukudi, SRO. Initially, there were six trustees and Mr.K.S.Shanmugavel Nadar as its Managing Trustee. On 26.11.1974, a rectification deed was executed vide Doc.No. 662 of 1974 in which the Trustees were 1. K.S.Shanmugavel Nadar, 2. Ganapathi Nadar, 3. N.Rathinavel Nadar, the N.Rathnavel (1st petitioner himself) and 4.Rajalakshmi Nadar.

4. Again on 21.04.1975, the above said Trustees have executed a Rectification Deed vide Doc.No.846 of 1975 on the file of the Joint Sub-Registrar No-II, Thoothukudi. Thereafter, Mr. Mariappan and Mr. Ganapathy, respectively, have pre-deceased their father Mr.K.S.Shanmugavel Nadar. On 13.02.2017 another Rectification Deed was executed, in which the Trustees were the 1st and 2nd petitioners and the 1st petitioner as the Managing Trustee of the said K.S.P.Natarajan Trust. Thereafter, on 30.04.2020, another rectification Deed was executed in which the daughters of the 1st petitioner i.e. the 3 to 5 petitioners were added as the Trustees. When the same was presented before the Joint Sub Registrar No-II, Thoothukudi on 21.05.2020, the same was not registered and the Sub Registrar had demanded the 1st petitioner to appear before him on 26.05.2020 stating an objection made by the 2nd respondent. The 1st petitioner has challenged the said enquiry notice vide W.P.(MD) No.6322 of 2020 and an order of Interim Stay has been granted by this Court, vide order, dated 27.05.2020. Thereafter, the 2nd respondent has also made complaints before the 1st respondent who had issued summon against the 1st petitioner to produce documents under Section 91 of Cr.P.C on 10.06.2020. The said notice was issued without providing any reason or the copy of the complaint submitted by the 2nd respondent. The 1st Petitioner had challenged the said summon in W.P(MD). No.8918 of 2020 and when the case came up for hearing on 01.03.2022, the said case was closed for the following reasons:

                     "2. The learned Additional Public Prosecutor appearing for the Respondents 1 and 2, on instructions, submitted that the complaint given by the third respondent itself is closed on 27.08.2020.

                     3. In such view of the matter, no further order is required in this petition. Accordingly, this Writ Petition stands disposed of. No costs. Consequently, connected miscellaneous petition is closed."

5. The said trust has leased out more than 80 Acres of land to M/s.Shanmugar Salterns (P) Ltd., in which the defacto complainant is the Director. As the Lease Period was over in the year 2020, the said M/s.Shanmugar Salterns (P) Ltd., failed to extend the lease. Hence, the Trust has taken in-charge of the same and prepared the land for producing salt. But in the meantime, the defacto complainant has sent his henchmen to take away the salt produced by the petitioner's trust. Against the act of the defacto complainant, the 1st petitioner has lodged a police complaint before the Superintendent of Police, Thoothukudi on 22.0.2021 in Receipt No.1147, dated 23.03.2021 and the same was also forwarded to the Inspector of Police, Kulathur. The 1st petitioner has also filed a civil suit in O.S.No.72 of 2021 on the file of the Principal District Judge, Thoothukudi, restraining the defacto complainant from interfering from the peaceful possession of the 1st petitioner over the Trust Property. Aggrieved by the same, the 2nd respondent has initiated the present complaint just in order to harass the Trustees of the said K.S.P.Natarajan Trust and also the employees of the said Trust. The 1st respondent, who had initially denied to register a complaint stating that it is a civil dispute and asked the 2nd respondent to seek remedy in the competent civil court. The 2nd respondent had also made a complaint before the Superintendent of Police, Thoothukudi and the same was received on 25.05.2022 and by considering that fact that the it was civil nature, the Superintendent of Police, Thoothukudi, has not initiated any criminal actions against the petitioners.

6. Further it is stated that the 1st and 2nd Petitioner and the defacto complainant are partners in family business running in the name and style of M/S.K.S.P.S.Natarajan & Co., M/s.Lakshmi Salt Works, M/s.Shanmugar Salterns Pvt.Ltd. and M/s.K.S.P.S Textiles Pvt. Ltd and have equal share in the family business. As the defacto complainant was not involved in business and tried to swindle the money from the business, the business relationship between the parties started to fall apart. Hence, the 2nd petitioner has sent a notice for dissolution of partnership at will under Section 43 of the Partnership Act on 16.02.2022 and has filed a suit in O.S.No.57 of 2022 on the file of the Learned Principal District Judge, Thoothukudi, with a prayer to wind up the business i.e., the K.S.P.S.Natarajan & Co., and sought for accounts from 01.04.2018. The 1st petitioner has also sent a notice for dissolution of partnership at will under Section 43 of the Partnership Act on 16.02.2022 and has filed a suit in O.S.No.94 of 2022 on the file of the Learned Principal District Judge, Thoothukudi, with a prayer to wind up the business i.e. the M/s.Lakshmi Salt Works and sought for accounts from 01.04.2018. Once the 1st and 2nd petitioners had started to talk about partition in the family business, the defacto complainant has started to file frivolous complaints against the petitioners and is trying to settle the issue by giving criminal color to the same. The said trust is in the name of 1st petitioner father and they have no need to cheat or swindle the property of the Trust nor the petitioners have taken any step to do the same. The 2nd respondent has lodged this complaint as if he is a trustee to the said Trust. But by the virtue of the Rectification Deed in the year 1974, Mr. Mariappa Nadar's name is nowhere to be seen (Mariappa Nadar is the father of 2nd respondent). The petitioners are innocent and they have not involved in any offences and they are Law abiding citizens and have no prior case. The 6th and 7th petitioners are only the employees and they have no role to play in the said Trust, other than being employees.

7. The defacto complainant had vehemently opposed the quash petition and submitted that the original trust states that only the male members can be in the management of the trust. But the petitioners have included the female members of the family, thereby fraudulently included the female members. Even though it is claimed that there is rectification of the said clause, the said rectification was made without intimating the defacto complainant and the descendants of the Mariappa Nadar, without any agenda and without convening any meeting, maliciously omitted the name of the defacto complainant. There is no authority to the petitioner to take over the trust and its properties without including the Mariappa Nadar’s descendants. The petitioners especially the 1st petitioner with malafide intention to take over the property had cheated the other trustees.

8. After hearing the rival submissions of both sides, this Court had given its anxious consideration.

9. The primary contention of the petitioners is that the ingredients of sections 415, 420 and 423 of the Indian Penal Code are not attracted. Section 415 is the definition of cheating, section 420 deals with cheating and dishonestly inducing delivery of property and section 423 deals with dishonest or fraudulent execution of deed of transfer containing false statement of consideration. The said sections are extracted hereunder:

                     Section 415 Cheating – Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'?

                     Explanation: A dishonest concealment of facts is a deception within the meaning of this section.

                     Section 420 cheating and dishonestly inducing delivery of property – Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

                     Section 423 dishonest or fraudulent execution of deed of transfer containing false statement of consideration – Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or instrument which purports to transfer or subject to any charge any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

10. The contention of the defacto complainant is that the petitioners with a dishonest intent to grab the entire Trust and its properties had dishonestly and fraudulently signed and executed a Supplementary Trust Deed containing false statement of consideration to grab the entire Trust Properties as his own by omitting the names of the de-facto complainant and his cousin brother from the Trust Deed, who are also beneficiaries of the Trust. Hence, the act of the petitioners constitutes the offence under sections 415, 423 and 420 of the Indian Penal Code.

11. The contention of the petitioners are that the defacto complainant’s clan was removed from the trusteeship and partnership firm long ago since they tried to swindle the money from the business. Further the business relationship between the parties fell apart and the defacto complainant was not involved in business at all. It is also contented that for disputes in trusteeship and partnership, already the parties have initiated civil proceedings, hence the present criminal proceeding is an attempt to give criminal colour for civil proceedings.

12. After hearing the rival submissions this Court had given its anxious consideration. It is seen originally the defacto complainant and the petitioners’ clan were trustees in the trust and partners in partnership firm. When differences arose between them, especially when there is an allegation that the defacto complainant swindled the money, the petitioners have initiated action against the defacto complainant removed him from the trust and partnership firm. Aggrieved over civil proceedings were initiated. The specific allegation is that the petitioners have removed the defacto complainant fraudulently without following the procedure under section 92 of the Civil Procedure Code and without resolution through the Board Meeting. Merely not following the procedure before removal of trustees or partners would not constitute criminal offence. But it may give a civil right to the defacto complainant. Rightly the parties have filed civil cases and the same is pending.

13. The next contention of the defacto complainant is that the petitioners have included the female members of the family as trustees / partners. But the original Trust is formed only by including the male members. Whether the female members can be included or not is a contentious issue, but cannot be stated as criminal offence. The same may constitute a civil right, definitely will not constitute criminal offence. Therefore, this Court is of the considered opinion that the section 415, 423 and 420 would not be attracted.

14. The next contention of the petitioners is that the ingredients of sections 465, 467, 468 and 471 of the Indian Penal Code are not attracted. Section 465 deals with punishment for forgery, section 467 deals with forgery of valuable security, will etc., section 468 deals with forgery for purpose of cheating and section 471 deals with using as genuine a forged document or electronic record. The said sections are extracted hereunder:

                     Section 465. Punishment for forgery. – Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

                     Section 467. Forgery of valuable security, will, etc.—

                     Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

                     Section 30. “Valuable security”.—The words “valuable security” denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.

                     Illustration

                     A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer the right to the bill to any person who may become the unlawful holder of it, the endorsement is a “valuable security”.

                     Section 468. Forgery for purpose of cheating.—

                     Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either de-scription for a term which may extend to seven years, and shall also be liable to fine."

                     Section 471. Using as genuine a forged document or electronic record.—

                     Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."

15. The contention of the defacto complainant is that the 1st petitioner by creating and registering a false document i.e. the Supplementary Trust Deed with the intention to cause damage and in order to grab the Trust Properties with the intention to commit fraud, hence the sections 465 and 467 would be attracted. Further the original Trust Deed is a "valuable security" under Section 30 of the IPC in as much as it creates and transfers legal rights and liabilities. The forged amendment aims to alter and destroy the effect of this valuable security with the dishonest intention of wrongful gain for himself, his family including his wife and three daughters, while causing wrongful loss to the 2nd respondent and his cousin brother, further registered the deed knowing the same is not genuine, hence the petitioners have committed forgery by creating Supplementary Trust Deed and used it knowing the same is not genuine, thereby committed offence under sections 468 and 471.

16. The contention of the petitioners are that the supplementary deeds were executed after following the procedures as per law. The defacto complainant after swindling money from the trust and partnership cannot claim any right over the trust and firm.

17. It is seen that the core alleging against the petitioners is that the petitioners have changed the basis of the original trust deed wherein the original trust was formed by including the male members of the family alone and there is a condition that it shall continue only with the male members alone. But the petitioners have modified the said clause by executing supplementary trust deed and then another supplementary trust deed was executed including the 1st petitioner’s wife and daughters. The same was modified behind the back of the defacto complainant, which according to the defacto complainant is a fraudulent act. Mere changing some clause of the trust deed cannot constitute criminal act. By changing the such clause even if the valuable rights of the defacto complainant (as per the defacto complainant “valuable security”) is taken away then also the same cannot constitute criminal act. Therefore, this Court is of the considered opinion that the 465, 467, 468 and 471 of the Indian Penal Code are not attracted.

18. For the reasons stated supra, this Court is inclined to quash the impugned FIR. Accordingly, the impugned FIR is quashed and the criminal original petition is allowed. Consequently, connected miscellaneous petition is closed.