Mahatma Brahmanand and Others vs Gulshan Rai Parti and Another

Palok Basu, J.—Does a trustee commit any offence by opening a bank account in his own name for depositing the trust money coming to him as such, is the short question calling for decision in this application u/s 482 Code of Criminal Procedure praying for quashing of a complaint and all further proceedings therein.

A criminal case No. 385 of 1987 is pending in the court of Judicial Magistrate, Meerut, under Sections 409/109 IPC in which Gulshan Rai Parti is the complainant and accused No. 1 is Mahatma Brahmanand; accused No. 2 is Mahatma Alak Dayalanand and accused No. 3 is Mahatma Satyanand.

The relevant facts emerging from the said complaint are that one Swami Nijatmanand constructed a temple known as Shri Guru Mandir Nangali Saheb in Salempur, Sardhana, Meerut. A trust was formed on 8th May, 1945, by Swami Nijatmanandji for running the said temple and administering the property thereof. The Trust deed was to expire on 17-5-1980 because it was for a period of 35 years. In the registered deed there were some legal defects but the object of the Trust was great. Though by and large the work of the Trust was continuing in terms of the trust deed but because of some members who started irregular working which resulted in the misuse of the funds/property. The complainant is one of such persons who had donated generously for the Trust. On 4-5-1973 the living trustees and some others held a meeting and extended the period to 50 years and appointed new trustees in place of the dead, all this was illegal. Four new trustees appointed on 7-4-1985 were : (1) Sri Mahatma Brahmanandji Maharaj, (2) Sri Gyan Shabdanandji Maharaj, (3) Sri Mahatma Alak Dayalanandji Maharaj and (4) Sri Mahatma Guru Sewanandji Maharaj. The Working Commitiee was reconstituted. Apart from these, the following four Sub-Committees were also formed :

(1) Building Sub-Committee - Mahatma Shiva Premanand appointed as Chairman.

(2) Langar Sub-Committee - Mahatma Brahmanand appointed as Chairman.

(3) Farming Sub-Committee - Swami Satyanand appointed as Chairman.

(4) Temple Sub-Committee - Alak Dayalanand appointed as Chairman.

Mahatma Brahmanand was appointed to supervise the working of the Four Sub-Committee. Presently the said Trust is established with the name of Sri 108 Swami Swarupanandji Maharaj/Sri Guru Mandir Nangali Ajar Salempur, Pargana Daurala, district Meerut. The value of the property would be about more than rupees one crore. The bank account of the Trust is with the State Bank of India, Sakauti Branch, Tanda, Post Office Satguru Nagar in the name of Sri Guru Mandir Nangli Saheb and can be operated under the joint signatures of the Chairman and the Treasurer of the Trust. No other person can withdraw any amount or keep any amount received on behalf of the Trust in his personal account nor can keep the cash in hand All the Members, the Trustees, the Committee Members and Office-bearers and Managers are Agents of the Trust while dealing with the property of the Trust. Flouting the said directives amounts to an offence. The accused are not following Sanyas rituals and have become property-addict and with that end in view have converted the cash amount of the Trust into their own property. On 28-4-1986 a sum of Rs. 7000/- has been deposited in account No. 5790 in State Bank, Sakauti, Tanda in their own name by accused No. 1 and No. 2. On 17-2-1986 a sum of Rs. 36026.45 was deposited in account No. 5642 of the State Bank Branch, Sakauti, Tanda in their own name by accused No. 2 and 3. On 3-2-1987 a sum of Rs. 20,000/- has been deposited in account No. 5790 by accused No. 1 and No. 2. On 6-2-1987 a sum of Rs. 15000/-has been depositsd in account No. 5642 by accused No. 2 and No. 3 Apart from these, a sum of Rs. 5046/- has been deposited by accused No. 2 in account No. 1997 with the State Bank of India, Sakauti, Tanda. The accused have misused a huge amount belonging to the Trust and it is possible that recurring huge amounts are being embezzled which are not yet clear. It is only the aforesaid items of amount which have come to notice. As regards the remaining property of the Trust including two golden covers valued more than a lakh of rupees the rights are being reserved until full details are obtained. After citing the names and details of the witnesses it was prayed that the accused should be summoned and convicted and sentenced in accordance with law.

On 7-9-1987 the magistrate being satisfied from the statements of the complainant recorded u/s 201) Code of Criminal Procedure and of the witnesses examined u/s 202 Code of Criminal Procedure proceeded to summon the accused-applicants u/s 409/109 IPC. This application with the prayer to invoke the inherent powers of this Court has been filed so as to quash the complaint, the summoning order and further proceedings in the said case.

Sri Murlidhar has been heard in support of this case on behalf of the applicants at length and similarly Sri S.D.N. Singh, advocate, has strenuously argued the matter for the complainant while Sri Surendra Singh, learned A.G.A. has argued on behalf of the State of U.P.

It may be noted that the facts stated in the complaint have virtually been admitted by the accused and some relevant averments have been made in the affidavit accompanying the petition u/s 482 Code of Criminal Procedure. Since the reference has been repeatedly made by the Learned Counsel to the averments in order to further their arguments, it will be desirable to refer to those paragraphs in detail as also the averments in the counter affidavit filed by the complainant in reply thereto. Suffice it to say, for the time being, no specific instance of misuse, abuse... or embuzzlement has been levelled in the complaint except the fact that three bank accounts in the personal names of accused in which the amounts realised/received as trust money has been deposited.

Before answering the question it must be remembered that the essen tial ingredients of the offence of criminal breach of trust lies in the entrust- ment of the property to the accused. In this connection the definition of criminal breach of trust (see Section 405 IPC) does not contemplate the creation of a Trust with all the technicalities of law of Trust. It refers to the creation of a relationship whereby the owner of the property makes it over to the accused to be retained by him until a certain contingency arises. In other words, the person transferring possession of the property to the accused still remains the legal owner of the property and the accused is only the custodian of the property to be kept by him for the benefit of another. This view is fortified by the observations of the Supreme Court in the case of Jaswantrai Manilal Akhaney Vs. The State of Bombay, .

In this very connection another important fact to be remembered is that in order to constitute an offence of criminal breach of trust it is not required that misappropiation has factually taken place after the creation of the Trust. The entrustment may arise �in any manner whatsoever�. In a given case on failure to account for a render a false explanation even inference of misappropriation with dishonest intent may readily be made.

It is not disputed that the three accused have opened bank accounts in their personal names. The relevant paragraph in the affidavit of Mahatma Satyanand, one of the applicants reads as under :

In paragraph 4 of the counter affidavit filed on behalf of the complainant it has been stated that �no material fact has been suppressed since the opening of the bank account itself indicates commission of the offence of criminal breach of trust.

In the rejoinder affidavit filed by Brahmanand Puri the averments in paragraph 7 of the original affidavit were reiterated.

In this connection Sri Murlidhar has laid great emphasis on the averments in paragraph 8 of the affidavit of Mahatma Satyanand to the effect that :

(1) One of the accounts is in the name of applicant No. 2 since 1980 when he was not a trustee.

(2) The other two accounts in the personal names of the other two accused were opened because defects had arisen in operating the accounts in the Trust money. These were throughout admitted to be trust funds and were ultimately transferred to fixed deposit receipts in the name of Trust in March 1987 long before the present complaint.

(3) The stand of the applicants was clearly given out in the civil suit and proceedings in the First Appeal From Order No. 400 of 1987 arising therefrom.

More emphas�s was laid on paragraph 6 of the counter affidavit wherein these averments were not specifically replied and all that was stated was that the applicants are guilty of offence because of the allegations made in the complaint and if they have got any defence it will always be open to them to set it up in the trial.

The maximum that emerges from the aforesaid averments is that some deposits which remained in the personal account have been transferred into F.D. Rs. in the name of the Trust. Needless to say, the averments made in the paragraph quoted above in the affidavit filed in support of this appli cation are vague and do require going into details. It is not the case of the accused that the personal accounts have ceased and are not operated. On the contrary, one of the personal accounts has been pleaded to be existing from before the said accused becoming a trustee. It must, therefore be held that none of the accused had right to deposit the trust-amouuts in their personal accounts. It would be laying down a dangerous proposition of law if it is held that a trustee may receive and collect trust-amounts and yet keep it in a personal bank account. For, whatever reason the accused may try to show in this petition u/s 482 Code of Criminal Procedure for depositing Trust money in personal account, it will prima facie be entering into defence version in order to find out justification of the opening of the bank account in the personal name of the accused. Unless the matters are suitably raised and decided, it cannot be said that no prima facie case of converting the trust-money into personal use by opening bank account in their personal names has not been disclosed.

With this background in mind the complainant�s allegation goes unrebutted that the accused have received the trust-money and have opened accounts in their personal names with the said amount. Admittedly, therefore, the Trust loses control over the amount which is to be operated by the individual having the account in his name. Therefore, on the admitted facts there is no force in the argument of the Learned Counsel for the applicants that prima facie no offence has been disclosed and, therefore, the complaint and furthur proceedings should be quashed.

In view of the aforesaid discussion there is no merit in this application which fails and is accordingly dismissed. Interim order dated 6-4-1988 is vacated.