J. Venkatesan

New Delhi, Feb 3

THE Supreme Court on Friday refused to quash the criminal proceedings pending before a Kolkata court against Mr R.S. Lodha and three others for allegedly forging the will of the late Priyamvada Birla. While allowing the trial to go on, the court dismissed special leave petitions (SLPs) against a Calcutta High Court order declining to stay the trial.

A Bench comprising Mr Justice B.P. Singh and Mr Justice S.H. Kapadia, which had reserved orders on the SLPs on November 10, 2005, gave the verdict today, observing: "It is too premature to discharge the accused by holding that there was no evidence against them and hence the process cannot be quashed at this stage."

Mr Rajinder Pansari, an associate of the Birlas, had filed a criminal case in a Kolkata court against Mr Lodha, Mr V. Gaurishankar, Mr S.N. Prasad, and Mr S.K. Daga, accusing them of having committed a fraud by drafting Priyamvada Birla's will in Mr Lodha's favour.

Mr Prasad filed a revision petition in the High Court to quash the criminal proceedings but this was rejected.

Both Mr Prasad and advocate Mr Gaurishankar filed SLPs in the apex court seeking to quash the High Court order and stay of all further proceedings pending before the trial court.

Dismissing the SLPs, the Bench said that this was a criminal complaint filed under Section 406 of the Indian Penal Code - misuse of authority as administrator of property, abuse of position, and grabbing property.

It added that the question of trust should be determined on the basis of the evidence to be produced by the parties before the trial court and the prosecution could not be denied an opportunity to prove its case by producing cogent evidence.

The judges also said that in the criminal trial very few prosecution witnesses had been examined and other witnesses were still to be examined.

Further, the language of the will also would have to be examined by the court concerned.

The Bench, however, made it clear that it was not expressing any opinion on the case at this stage.

The petitioners contended that the High Court had erroneously rejected the revision petitions in the case challenging the proceedings before the trial court.

They said that no criminal case had been made out against the four accused because the probate proceedings were still pending.

They also refuted the allegation that Mr Lodha, who was auditor of the Birla group, was entrusted with the property vested in the form of five public trusts.

Priyamvada Birla had clearly created the will in favour of Mr Lodha after revoking the earlier will, they said. Therefore, there was no criminal breach of trust as alleged in the complaint.

On behalf of the Birlas, it was argued that the charitable trusts set up by M.P. Birla and Priyamvada Birla could not have been revoked as the trust property had already been vested in charities by the mutual will executed by the couple in 1982.

It was contended that Mr Lodha and his accomplices could not have revoked the trusts because as trustees they were supposed to protect the interests of the trust and hence, the alleged revocation and claim that Priyamvada Birla had left everything to them was in itself a criminal breach of trust.

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(This article was published in the Business Line print edition dated February 4, 2006)
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