Sonal Modi (nee Himatsingka) vs Gourav Himatsingka

Partha Sakha Datta, J.—The two revisional applications being CRR No.1135 of 2007 and CRR No. 3043 of 2007 are being disposed of by this common order.

One Gourav Himatsingka lodged a petition of complaint with the learned Chief Metropolitan Magistrate, Calcutta against five accused persons i.e. Rakesh Himatsingka, Dhirendra Nath Maity, Anita Himatsingka, Sonal Himatsingka and Maalika Himatsingka alleging commission of offences u/s 406/411/4C7/471 read with section 1208 of the IPC:.

The facts are that Dipak Kumar Himatsingka and Smt. Rohini Himatsingka who ordinarily reside at Mumbai are the parents of the complainant Gourav Himatsingka. The accused Rakesh Himatsingka is the uncle of Gourav. The accused Dhirendra Nath Maity is an employee under Rakesh. Anita Himatsingka is the wife of Rakesh, while Sonal Himatsingka who is the petitioner in CRR No. 1135 of 2007 and Maalika Himatsinghka who is the petitioner in CRR No. 3043 of 2007 are the two daughters of Rahesh and Anita.

The complainant''s parents Dipak and Rohini held five number of shares of M/s. Shree Co-operative Housing Society Ltd. of 52/2, Ballygunj Circular Road, Kolkata - 700 019 and were allotted nearly 50 per cent of the total land corresponding to about 26 cottahs at 13, Gurusaday Road, Kolkata - 700019. The present market price of the land would be about Rs.3.50 crores. Bhagawati Prasad Himatsingka was the father of Dipak Kumar Himatsingka and grand father of the complainant. The complainant''s parents by an unregistered general power of attorney dated 8th August, 1994 appointed Bhagawati Prasad as their constituted attorney as they were unable to look after their assets and business in Kolkata. Bhagawati Prasad seriously fell ill and the power of attorney was revoked by a Deed of Revocation dated 29th May, 1996. Such revocation of the power of attorney was to the knowledge of Rakesh and is wife Anita. Bhagawati Prasad subsequently died and then disputes arose between parents of the complainant on the one hand and Rakesh and Anita on the other. The parents of the complainant requested Rakesh and his wife Anita to hand over to them all the original share certificates of the society and other belongings but they avoided on one plea or the other from time to time. After demise of Bhagawati Prasad the five share certificates came into the custody of Anita and Rakesh and they took control of the depository situated on the third floor at 6, Old Post Office Street, Kolkata- 700 001. Rakesh with an intention to deprive the complainant''s parents of the valuable securities started removing them from the depository which was created for safe custody which Rakesh and his employee and others had taken control of and the complainant who was in Calcutta on 19th September, 1997 saw such removal, and then lodged a complaint with the Hare Street Police Station. The complainant''s parents were informed of the matter who then by letters dated 4th October, 1997 and 9th October, 1997 informed the Co-operative Society that their shares certificates were misplaced and requested the society against transferring the shares to anybody without prior intimation to them. But the society by a letter dated 30th December, 1997 informed the complainant that the shares held by the complainant''s parents Dipak and Rohini had been transferred in the name of Shaurya, a minor son of Rakesh, and also in the name of Rakesh himself as a Karta of HUF. The said society has been functioning from the residence of the solicitor of Rakesh. The HUF of Rakesh consists of Rakesh, his wife Anita, minor son Shaurya and two daughters who are petitioners herein Sonal and Maalika. Thus, according to the complainant, the accused persons dishonestly and fraudulently took possession of the shares and criminally misappropriated the same and committed also criminal breach of trust, forgery, theft. Such alleged transfer was effected in November, 1997 an the basis of a deed purportedly signed by Bhagawati Prasad Himatsingka as constituted attorney on 22nd November, 1996 i.e. much after the revocation of the power of attorney. It is alleged that from the xerox copy of the deed of transfer it appears that Rakesh has signed as father and natural gurdian of Shaurya, as transferee and the deed of transfer was executed by Rakesh as Karta of HUF. Rakesh committed forgery of the deed for making wrongful gain to himself and wrongful loss to complainant''s parents. Bhagawati Prasad Himatsingka was not in Calcutta on the date of execution of the alleged deeds. No consideration was passed by the deeds. Thus, it is alleged that the accused persons pursuant to criminal conspiracy committed criminal breach of trust and forgery.

The learned Metropolitan Magistrate, 11th Court, Calcutta by his order dated 12th of September, 2006 framed charges against all the accused persons including the petitioners under sections 406/467/471 read with section 120B of the IPC on the ground that a prima facie case has been made out against them all.

Sonal Modi who is the petitioner in CRR No. 1135 of 2007 preferred a revisional application before the learned City Sessions Court but the learned Sessions Judge, City Sessions Court in Criminal Revision No. 176 of 2006 rejected the revisional application by the order dated 3rd January, 2007 and confirmed the impugned order of the learned Magistrate dated 12th of September, 2006.

Maalika Himatsingka, the other petitioner in CRR No. 3043 of 2007 separately challenged in a separate revisional application the impugned order of the learned Magistrate and the learned Additional Sessions Judge, 4th Fast Track Court, Bichar Bhavan, Calcutta in Criminal Revision No.217 of 2006 rejected the application and thereby confirmed the order of the learned Magistrate.

The two petitioners now challenged again in two separate applications u/s 482 of the Cr PC the order dated 3rd January, 2007 passed by City Sessions judge in Criminal Revision No. 176 of 2006 and the order of the Additional Sessions Judge, 4th Fast Track Court, Bichar Bhavan, Calcutta dated 26th April 2007 in Criminal Revision No. 217 of 2006 whereby both the learned judges affirmed the Magisterial order.

The point for consideration is whether the materials on record do disclose any prima facie case at all against the two daughters of Rakesh. I am quite conscious of the position that it is not a case of quashing of a petition of complaint or FIR. It is a case for setting aside the orders of the learned Sessions judge who upon the revisional application of the petitioners affirmed the Magisterial order and refused to make order of discharge after the learned Magistrate upon recording of some amount of evidence framed charges generally against all the five accused persons. It is true that the inherent power of the Court u/s 482 of the Cr PC should be sparingly used to interfere with an order of framing charge but if it would appear that no material prima facie is available for framing charge against an accused the provision of section 482 of the Cr PC can be invoked so that there might not take place abuse of the process of the Court. If on the other hand, materials do justify framing of charge then certainly there would be no question of this Court''s interference.

Extensive arguments have been advanced by the learned senior counsels for both the parties and before their submissions are considered it is worthwhile to have a survey of oral and documentary evidence adduced by the complainant on the basis of which the learned Magistrate framed charges against all the accused persons including the present two.

P.W.1, Kamal Chowdhury, an employee of Indian Airlines was brought to give evidence to the effect that Bhagawati Prasad Himatsingka travelled from Calcutta to Bombay on 21.11.1996 but he could not prove the fact. His evidence is useless.

P.W.2, P.V. Narayan, an officer of Indian Airlines deposed that Bhagawati Prasad Himatsingka and another R. Himatsingka travelled from Calcutta to Bombay on 21.11.1996. His evidence does not go further.

P.W.3, Ranjit Kumar Patra, a constable says that Gourav''s complaint dated 19th September, 1997 lodged with the O.C. Hare Street Police Station could not be located because it was endorsed in favour of one C.R. Biswas, S.I. for investigation and the said Shri Biswas had been hospitalized.

P.W. 4, I.C. Mahewari, a representative of M/s. Shree Co-operative Housing Society Ltd. said that Dipak''s wife Rohini and Dipak himself by their respective letters dated 4th October, 1997 and 9th October, 1997 informed the society of the loss of five share certificates and the said letters are exhibits 4 and 5. Then, he further produced and proved a letter by Deepak''s wife Rohini asking the society not to effect transfer of her share. Exhibit 7 is another letter by Dipak to the society to the said effect. Then the said witness produced another letter, exhibit 8 dated 22.11.1996 written by Rakesh on behalf of his minor son Shaurya enclosing share certificates with a deed of transfer and requesting transfer of the share in the name of the minor son and in his favour as well as Karta of HUF. That letter also accompanied a copy of the general power of attorney executed by Dipak in favour of his father Bhagawati Prasad Himatsingka. P.W.4 further produced disputed share certificates since transferred vide Exbt. 8 to 11.

P.W. 5, Sri Gourav Himatsingka is the complainant. He translated the facts alleged in the petition of complaint. His evidence so far as it is relevant for the present purpose is reproduced below: (with unavoidable grammatical corrections here and there).

''My parents held 5 Nos. of shares of M/s. Shree Co-operative housing society limited of 52/2, BaIIygunge Circular Road, Calcutta-19. By virtue of the said five shares they allotted 50% of the total land measuring 26 cottahs situated at 13, Gurusaday Road, Calcutta-19. The present market value of the said land would be about 3.50 crores. Out of the 5 Nos. of shares 2 Nos. of shares are held in the name of my father vide certificate No.45 and 36 and Dist. No.18 & 8. The remaining three shares are held in the name of my mother vide certificate No. 25, 28 and 41 Dist No. 25, 28 and 13. That by an unregistered power of attorney dated 8th Aug, 1994 my parents appointed my grand father late Bhagwati Prasad Himatsingka as their constituted Attorney to look after their properties and assets at Calcutta as they usually reside at Mumbai and those five share certificates were instead (sic) to the custody of Bhagawati Prasad Himatsingka, since deceased. My grant father was suffering from diabetes, high blood pressure, renal failure for which he was treated both in India and abroad in Hospital and Nursing home. So my grand father had the power of attorneys granted to my parents revoked by executing two separate deeds of Revocation both dated 29th May, 1996 which were duly witnessed. These are the said two Deed of Revocation signed by my parents and confirmed and accepted by my grand father before learned Spl. Metropolitan Magistrate at Mumbai. This is the signature of my father and my grand father. I know their signatures. Deed of Revocation executed by my father is marked ext.14. This is the signature of the mother and my grand father whose signatures I know. Deed of Revocation executed by my mother is marked Exhibit 15. These facts were known to both the accused No.1 and 3. My grand father Bhagwati Prasad Himatsingka died on 9.4.97. After his demise certain disputes arose between my parents and the accused No.1 and 3. Then my parents requested the accused No.1 and 3 to hand over the original five share certificates and other documents to them. Accused No.1 and 3 had gained control of those documents after the death of my grand father, by taking control of the common depository situated at 3rd floor of temple chambers, 6, Old Post Office Street, Calcutta-1 where the said documents were lying. The accused No.1 and 3 made some false plea and pretexts and failed to hand over those documents from time to time. Every time they were requested to hand over those documents by my parents but did not do so.''

''My uncle and aunt never handed over the share certificate. On September 19th 1997 the accd. No. 1, 2 and 3 and others started removing various illegible including share certificates, papers and documents etc. from the common depositary situated on the 3rd floor Temple chambers, 6, Old Post Office Street which accd. No.1 & 3 had taken control of wrongfully after the death of my grand father late Bhagwati Prasad Himatsingka I happened to be present on the date and place mentioned and wanted to stop them to transfer the share certificate but I am unable to do so. There after I immediately filed the complaint with the Hare Street P.S. on 9th Sept. 1997. I did not bring the copy of the complaint today. On the happening the incident I informed parents at Mumbai about the development. Then by letter dated 4.10.1997 and 9.10.1997 my parents informed the society that share certificates have been misplaced and requested them not to transfer the share without a prior permission from them. No reply was forthcoming. All of a sudden by letter dated 31.12.97 the society informed my parents that those shares had already been transferred to the name of Shaurya Vir Himatsingka through Rakesh Vir Himatsingka as the father and natural Guardian of the Minor and in the name of Rakesh Kumar Shauray Vir HUF through Rakesh Himatsingka as Karta. Society operated its office from the residence of the solicitor of the accd. No.1 i.e. my uncle. The particular of the share transfer are the two number of share belongings to my father Deepak Kumar Himatsingka which have been transferred in favour of Shaurya Vir Himatsingka minor through Rakesh Himatsingka as father and natural guardian. Three shares belonging to my mother Rohini Himatsingka have been transferred in favour of Rakesh Kumar Shaurya Vir HUF through Rakesh Himatsingka as its Karta. The HUF of Rakesh Kumar Shaurya Vir consists of Rakesh Himatsingka as is Karta and his wife Anita Himatsingka, Miss Sonal Himatsingka elder daughter of Rekesh Himatsingka, Miss Maalika Himatsingka, younger daughter of Rakesh and Shaurya Vir Himatsingka being the minor son of Rakesh Himatsingka. The possession of each share had fraudulently been obtained by accd No.1 & 3 and in pursuance through criminal conspiracy, and criminal intention they misappropriated the share and caused a criminal breach of trust, theft and forgery. For the accd. No.1 along with his wife, Sonal Himatsingka and No.4 and accd. the minor received and had retained the said shares knowing or having reason to believe that the said shares are stolen property and they wrongfully retained. On perusing the document sent by the society along with the letter dated 30.12.97 it appears that the said fraudulent transfer took place in Nov. 1996 on the basis of a deed of transfer which has been alleged signed by late B. P. Himatsingka, my grand father, the constituted attorney of my parents on 22.11.96 which was much after the date of the deed of revocation of the power of attorney.''

''On perusal of a xerox copy of the alleged transfer deed that was sent by the said society it transpires the accd No.1 Rakes Himatsingka has signed as father and natural guardian of Shaurya Vir Himatsingka a minor as transferee and the alleged transfer deed is said to be executed an 22.11.96 at Calcutta and as Karta of Rakesh Kumar Shauryavir HUF as transferee and the said transfer deed alleged to have been executed on 22.11.96 at Calcutta. It further transpires that the signature of my late grand father had been forged on the alleged transfer deed with manufactured rubber stamp for Depak Himatsingka for Donee and for Rohini Himatsingka for Donee with the intention for wrongful loss to my parents and for causing wrongful gain. The signature of my grand father was forged on the alleged transfer deed inasmuch as my grand father was not present at Calcutta on 22.11.96 which is alleged date of execution of the transfer deed and hence the accd. No.2 could not be witness on the same date at Calcutta. Further no consideration for the said alleged transfer has been paid by the accd persons to my presents, the accd persons also knew or has reason to believe that my parents had executed no document suggesting the transfer to any person or persons. The accd persons dishonestly misappropriated and converted to their own use the original share certificates from the depository and the original share were dishonestly transferred in violation of the laws of the court. The accd persons in collusion and conspiracy with each other had committed the offences and along with the servants and agents of the said society had committed a criminal breach of trust, forgery, theft and other criminal acts with the intention of causing loss to my parents by transferring the shares held by my parents in the society on the basis of alleged transfer deed illegally in the names of accd. No.1 & 3 and their family members on 19th Sept. 1997.''

P. W. 6 is Dipak Himatsingha. His evidence is as follows:-

''My wife and I held five shares of Shree Co-operative Housing Society having its office at 52/2 Ballygunge Circular Road, Kol-19. Out of those five shares my wife held three shares. During the cause of action the total market value of those five shares were around three crores fifty lakhs. My wife''s shares certificates numbers are 25, 28 and 41. My share certificate numbers are 36 and 45. Since I was residing at Bombay we gave general unregistered power of attorney in favour of my father Bhagwati Prasad Himatsingka on 8th August, 1994 for looking after our estate and business.''

''We also entrusted him custody of those five shares. Subsequently my father expressed desire that power of attorney be revoked as he was suffering from high blood pressure and renal failure and also diabetic.''

''Exhibit 14 and 15 are those deeds of revocation. Exhibit 14 and 25 bear the signature of myself and my wife. We did not revoke the power of attorney beyond the knowledge of the accused persons. On 9th April, 1997 my father passed away. After demise of my father I requested accd No.1 and 3 to hand over the documents share certificates etc which were lying in the depository located as 3rd floor at 6, Old Post Office Street, Temple Chambers. After death of my father the depository came in control of accd No.1 and 3. But they did not hand over those documents shares etc. on 19th Sept. 1997 my son Gaurav saw accd No.1 and 3 along with accd No.2 and their men agents and others were removing valuable securities, papers, share certificates from depository (with objection). My son lodged a written complaint with Hare Street P.S. on that date, subsequently over phone my son reported the incident to me.''

''Thereafter vide letter dated 4.10.97 my wife and I wrote to Shree Co-operative Housing Society for not to transfer share certificates if they were lodged for transfer as we had misplaced/lost the same. I did not receive any reply. Society wrote back to me on 30th Dec. 1997 informing us that the shares in question had been transferred to the name of Shauiyavir Himatsingka minor son of accd No.1 and Rakesh Kr. Shauryavir (HUF).''

''Co-operative society operates from the residence of the solicitor of accd No.1. Two shares standing in my name have been transferred to Shaurayvir Himatsingka minor through father and natural guardian Rakesh Himatsingka and other three shares standing in the name of my wife have been transferred to Rakesh Kumar, Shauryavir (I-IUF) through Rakesh Himatsingka as Karta. HUF consists of Rakesh Himatsingka, his wife Anita, his daughters Sonal and Maalika and minor son Shauryavir. Possession of shares were obtained fraudulently and dishonestly and those shares were criminally misappropriated by way of theft, forgery and criminal breach of trust committed by accused No.1 along with the other accused.''

''Exhibit 17 and 17/1 were sent by Sree Co-operative housing society enclosing the purported transfer deeds by which shares were transferred. Exhibit 17 and 17/1 were sent to me and my wife.''

''On perusal of the transfer deeds I find that Mr. Kakesh Himatsingka (got the shares transferred) as father and natural guardian of Shauryavir minor and as Karta of HUF as transferee. In transfer I find the signatures of my father which have been forged by some one.''

''I know the signature and handwriting of my father. Signature of my father bears rubber stamps which are fabricated. Transfer deeds were dated 22.11.1996. On 21.11.1996 I was present in Kolkata. On 21.11.1996 my father and accused No.1 travelled to Bombay from Calcutta. From Bombay he went to America by flight for my father''s medical examination.''

''On 22.11.1996 my father was not present in Calcutta so he could not have signed the transfer deed. Accused No.2 could not have witnessed the execution on 22.11.1996. My father''s signatures were not with the society. There was no power of attorney executed by me and my wife in favour of father on the date of transfer. My and my wife''s signature were available with the society but we have not sent the power of attorney to the society. There was no consideration paid by the accused to me or my wife. We had revoked the power of attorney on 24.5.1996 much earlier to the date of alleged transfer. The society had no means to compare the signature of my father. We never transferred those shares.''

P.W. 7, Daya Nidhi produced and proved a loan guarantee document containing admitted signature of P.W. 6 Bhagawati Prasad Himatsingka.

P.W.8, Samir Mukherjee, an officer of S.B.I. produced xerox copy of specimen signature of Bhagawati Prasad Himatsingka and Rakesh Himatsingka.

P.W. 9, Raghabendra Saran, an officer of State Bank of Patiala produced the xerox certified copy of specimen signature of Bhagatvati Prasad Himatsingka maintained in the branch. P.W. 10, Veenet Agarwal produced documents marked exhibit 4 to 11.

The documentary evidence which were tendered by the complainant before the learned trial Court are as follows:

Travel Certificate from Indian Airlines Limited, Exhibit 2, Letter from Hare Street Police Station, Exhibit 2, Authority Letter from Shree Co-operative Housing Society Limited, Exhibit 3, Letter written by Rohini Himatsingka to Shree Co-operative on 4th October 1997 stating that her shares were lost/misplaced, Exhibit 4, Letter written by Rohini Himatsingka to Shree Cooperative on 4th October 1997 stating that her shares were lost/misplaced (receipted copy), Exhibit 4/1, Letter written by Dipak Himatsingka to Shree Co-operative on 9th October, 1997 stating that his shares were lost/misplaced, Exhibit 5, Letter written by Dipak Himatsingka to Shree Co-operative on 9th October 1997 stating that his shares were lost/misplaced (receipted copy), Exhibit 5/1, Letter written by Rohini Himatsingka to Shree Co-operative on 22nd November 1997 asking for details of property etc., Exhibit G, Letter written by Rohini Himatsingka to Shree Co-operative on 22nd November 1997 asking for details of property etc. (receipted copy), Exhibit 6/1, Letter written by Dipak Himatsingka to Shree Co-operative on 22nd November 1997 asking for details of property etc., Exhibit 7, Letter written by Dipak Himatsingka to Shree Co-operative on 22nd November 1997 asking for details of property etc. (receipted copy), Letter dated 22nd November 1996 written by Rakesh Himatsingka to Shree Cooperative enclosing 2 shares of Dipak Himatsingka alongwith Deed of Transfer and the Power of Attorney for transfer of shares, Exhibit 8, Letter dated 30th November 1996 written by Shree Cooperative to Rakesh Himatsingka enclosing 2 Nos. shares in favour of Shaurya Vir Himatsingka (minor) after transfer, Exhibit 9, Letter dated 22nd November 1996 written by Rakesh Himatsingka to Shree Cooperative enclosing 3 shares of Rohini Himatsingka alongwith Deed of Transfer and Power of Attorney for transfer of shares, Exhibit 10, Letter dated 30th November, 1906 written by Shree Co-operative to Rakesh Himatsingka enclosing 3 Nos. of shares in favour of Rakesh Kumar Shaurya Vir HUF after transfer, Exhibit 11, petition of complaint, Exhibit12, Authority Letter in favour of Gaurav Himatsingka granted by Dipak and Rohini Himatsingka to file the petition of complaint, Exhibit 13, Deed of Revocation dated 29th May 1996 of the Power of Attorney of Dipak Himatsingka accepted by Bhagwati Prasad Himatsingka, Exhibit 14, Deed of Revocation dated 29th May, 1996 of the Power of Attorney of Rohini Himatsingka accepted by Bhagwati Prasad Himatsingka, Exhibit 15, Letter of Complaint to the Hare Street Police Station on 19th September 1997 written by Gaurav Himatsingka duly acknowledged,Exhibit 16, Letter written by Shree Co-operative to Dipak Himatsingka enclosing copies of letter written by Rakesh of 22nd November, 1996 for transfer of shares with enclosures and letter written by Shree Co-operative returning the shares to Rakesh after transfer, Exhibit 17, Letter written by Shree Co-operative to Rohini Himatsingka enclosing copies of letter written by Rakesh of 22nd November, 1996 for transfer of shares with enclosures and letters written by Shree Co-operative returning the shares to Rakesh after transfer, Exhibit 17/1, Letter dated 5th January 2005 from State Bank of India enclosing signature of Bhagwati Himatsingka on loan guarantee document, Exhibit 18, Loan guarantee document containing admitted signature of Bhagwati Prasad Himatsingka received from State Bank of India, Exhibit 19, Letter dated 4th January, 2006 from State Bank of India enclosing signature card of Bhagwati Himatsingka for India Carbon Account, Exhibit 20, Signature Card containing admitted signature of Bhagwati Prasad Himatsingka received from State Bank of India for India Carbon Account, Exhibit 21, Signature Card containing admitted signature of Bhagwati Prasad Himatsingka received from State Bank of Patiala for India Carbon Account, Exhibit 22, Authority Letter from Shree Co-operative Housing Society Limited, Exhibit 23, Signature Card containing admitted signature of Bhagawati Prasad Himatsingka received from Citibank, Exhibit 24, Handwriting Expert Opinion (No.DXB - 45/2006) received from Government Examiner of Questioned Documents, Directorate of Forensic Sciences, Government of India stating that the signature on the two Transfer Deeds and the Bill dated 18th November, 1996 being Exhibit B differ from the admitted signature of Bhagwati Himatsingka, Exhibit 25.

The defence produced certain documentary evidence which are these:

Signature on document dated 18th November, 1996 being the bill for sale of 5 shares by Bhagwati Himatsingka to Gulmohar Trading Company Limited for Rs.10,000/-, Exhibit A, Document dated 18th November, 1996 being the bill for sale of 5 shares by Bhagwati Himatsingka to Gulmohor Trading Company Limited for Rs. 10,000/-, Exhibit B.

Having thus placed the sum total of evidence, both oral and documentary, adduced before charge let us see whether there are prima facie materials so far as the two petitioners are concerned on the basis of which they could be charged with. To begin with, the petition of complaint contained allegations centering round Rakesh and Anita, more particularly Rakesh and his employee Dhirendra. Dipak and Kohini held five shares of the Co-operative Society. They executed a general power of attorney in favour of their father Bhagawati Prasad Himatsingka on 8th August, 1994 which was revoked on 29th May, 1996. Bhagawati Prasad subsequently died and on his death Rakesh, his employee Dhirendra and Anita removed the share certificates, documents etc. from the said depository which was located at 6, Old Post Office Street, Kolkata - 700001. The premises No.6, Old Post Office Street, Kolkata - 700 001 is the place wherefrom the documents were allegedly removed by Rakesh, his employee and Anita. The two girls who are the petitioners herein, according to the learned advocate for the petitioners, were in their teens and in study in school and college. It is the allegation in the petition of complaint that it was Rakesh at whose instance and on whose prayer transfers of the shares were effected in favour of his minor son Shaurya in respect of the two shares of Dipak, and in favour of Rakesh himself as Karta of HUF in respect of three shares of Dipak''s wife Rohini. It was Rakesh who allegedly created forgery in respect of the deed of transfer showing transfer of the shares of Dipak and Rakesh in his name as Karta of HUF and in the name of his minor son Shaurya. Significantly, transfers were not effected in favour of either Sonal or Maalika. The petition of complaint mentions the names of Sonal and Maalika just to show that they constituted members of HUF. It is fair to say that there is no whisper of any allegation that they participated in the commission of forgery, or of transfer of shares. It is only alleged in paragraph 13 of the petition of complaint that the accused persons were party to criminal conspiracy and in pursuance of the conspiracy the criminal acts were committed. The complaint lodged with Hare Street Police Station was referred to in the petition of complaint and that complaint to the O.C., Hare Street Police Station does not bring any allegation against Sonal and Maalika. Even their names are distinctly absent there. Allegations in the complaint with the O.C., Hare Street Police Station were made against Rakesh, his wife Anita and certain other persons whose names are not to be found in the petition of complaint. Evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 7, P.W. 8, P.W. 9 and P.W.10 have totally excluded Sonal and Maalika.

When we concentrate ourselves to the evidence of P.W. 5 and P.W. 6 Gourav and Dipak respectively we do not find any material whatsoever against the two girls. We have reproduced evidence of the two witnesses who are the mouth pieces of the prosecution case and we do not find anything to hold that these two accused persons have committed any covert or overt act, far less commission of forgery, removal of shares, documents etc. that might constitute offences as alleged. Evidence of P.W. 5 particularizes Rakesh and Anita and to some extent Dhirendra, and it is his specific evidence in express terms that the possession of shares was fraudulently obtained by Rakesh and Anita and they committed misappropriation of the same and caused criminal breach of trust, theft and forgery. There is one line in evidence of P.W. 5 that Rakesh, his wife Anita, Sonal and the minor received and retained the shares knowing the same to be stolen. Even, Maalika''s name does nowhere find any berth in evidence of P.W. 5. In the concluding part of his evidence P.W. 5 has said that the accused persons colluded with each other in the commission of the offence. Similarly, evidence of P. W. 6, Dipak Himatsingka is directed against Rakesh, his wife Anita and employee Dhirendra. It is significant to note that P.W. 6, Dipak Himatsingka does not at all speak of criminal conspiracy in his examination-in- chief. He speaks of criminal breach of trust, theft and forgery by Rakesh "along with the other accused".

The series of documentary evidence as we have seen are not at all related to and do not speak at the least against any of the two daughters of Rakesh.

The question, therefore, is whether in the context of the oral and documentary evidence tendered by the complainant before charge it can be said that Sonal and Maalika could be proceeded against. Mr.Pradip Ghosh, learned senior advocate, appearing for the two petitioners in the two revisional applications submitted that P.W. 5 and P.W. 6 attempted to entangle the two young daughters of Rakesh on the premises that they were the members of HUF and since Rakesh got three shares of Rohini transferred to his name as a Karta of HUF the presumption must be that as members of the HUF Sonal and Maalika might be associated with the offences alleged, but the mere fact that Sonal and Maalika were at the material point of time members of the HUF no presumption can be drawn about commission of forgery by conspiracy by any of them since there is absolutely no material whatsoever either oral or documentary that they committed forgery or criminal breach of trust. Mr. Ghosh submitted that the mere allegation in the complaint or in evidence that the accused persons committed criminal conspiracy it does not by such allegation tend to show any criminal conspiracy. It is argued that the petitioners'' being members of a HUF does not by itself give rise to premise to hold prima facie that the two petitioners were party to the conspiracy. Mr. Ghosh referred to certain decisions of the Supreme Court i.e. Niranjan Singh Karan Singh v. Jitendra Bhimraj, Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, State of Karnataka Vs. L. Muniswamy and Others, S.W. Palanitkar and others Vs. State of Bihar and another, Madhu Limaye Vs. The State of Maharashtra, , A.K. Khosla and Others Vs. T.S. Venkatesan and Others, Velji Raghavji Patel Vs. State of Maharashtra,

Mr. Sekhar Kumar Basu, learned senior advocate, appearing on behalf of the opposite party/complainant submitted that the charge of criminal conspiracy should not be missed against the two petitioners even if they or any of them did not actually commit the offence of theft or forgery or of fraudulent transfer of shares or of retention of share certificates. Mr. Basu argued that meeting of minds which is one of the essential ingredients of criminal conspiracy may not be readily found out but they are to be inferred from the circumstances of the case, and the fact that the accused persons (except Dhirendra) live in the same house and together as members of HUF is a circumstance that speaks in favour of criminal conspiracy. It is submitted by Mr. Basu that as members of the HUF the two daughters of Rakesh can be said to have retained the share certificates which is a criminal act. It is argued that the two daughters of Rakesh can be or said to be conscious of possession of the share documents in the family. It is argued that the two petitioners cannot challenge evidence of the complainant and his witnesses rendered in support of the prosecution case and if there is evidence against the parents then it has to be said that the same is the evidence against the children. It has been argued in the same vein that the two petitioners are members of the same Hindu Family, reside under the same roof and are closely related to each other in the daily life and they are the recipients of the benefits arising out of the forged certificates. Mr. Basu referred to section 8 of the Evidence Act to submit that Clause I of section 8 is relevant for the purpose of framing charge because the evidence of conduct is admissible under that section. Participation of the two petitioners in the act of receiving the share certificates is a conduct. At the stage of framing charge it is strong suspicion that will count and evidence on record should not be read to find out whether conviction is possible or not but to see whether ''strong suspicion'' emanates from the evidence on record. The evidence is also indicative of inferential act of conspiracy by the two petitioners and the act of conspiracy is reinforced by the fact that they are daughters of the principal offender i.e. Rakesh Himatsingka. Though the petitioners were described as minors in the revisional application and also in oral argument evidence does not support such contention and nevertheless minority beyond the age of seven years in respect of the offences is only a consideration for fixation of forum of trial. Quashing of proceeding after framing charge can only be made when the Court records a finding that no offence has been committed. Receipt of the share certificates by the two petitioners would bring them within the mischief of section 411 of the IPC. In the circumstances, it is argued further that section 10 of the Evidence Act dealing with conspiracy is relevant and the provision of section 10 can be used against the two petitioners because there is hardly any possibility of them not being a party to the conspiracy. The entire evidence on record both oral and documentary make out a ''strong suspicion'' with regard to the involvement of the two petitioners in the commission of the offence and as charges have been framed the Court must not look into the evidence between the lines and interfere with framing of charge. In support of his submission Mr. Basu referred to the following decisions:

Ratilal Bhanji Mithani v. The State of Maharashtra, AIR 1979 SC 94 R.S. Nayak Vs. A.R. Antulay and Another, , Mahant Abhey Dass Vs. S. Gurdial Singh and Others, , State of Maharashtra v. Som Nath Thapa, 1996 SCC (Cri) 820, State of Delhi v. Gyan Devi, 2000 SCC (Cri) 1486, State v. S. Bangarappa, 2001 SCC (Cri) 152, State v. Dr. Krishna Chandra Saksena, 1997 SCC (Cri) 35, Nitai Chandra Jana and Others Vs. Emperor, , Bhagwandas Keshwari v. State of Rajasthan, Bhagwandas Keshwani and Another Vs. State of Rajasthan, , Suresh Chandra Bahri v. State of Bihar, Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, 1980, Kehar Singh v. The State, Kehar Singh and Others Vs. State (Delhi Administration), , Sardul Singh Caveeshar Vs. The State of Bombay,

Before entering into the merit of the case it is worthwhile to deal with the submission of Mr. Sekhar Kumar Basu, learned senior advocate appearing for the opposite party questioning entertainibility of the revisional applications u/s 482 of the Cr PC in relation to order of framing charges by the Magistrate. A good number of decisions of the Hon''ble Supreme Court have been cited in support of the submission of Mr. Basu that when upon recording of evidence before charge the learned trial Court in its wisdom found out a prima facie a case against the petitioners along with others and framed charges the High Court in its ''Jurisdiction u/s 482 of the Cr PC must not nip the prosecution in the bud but must allow the prosecution to proceed to its destination. The decision in Ratilal Bhanji Mithani v. The State of Maharashtra (supra) is not related to the fact situation of our case. It was a case where charge was framed by the Magistrate and after framing of charge an order was passed of discharge which the Hon''ble Supreme Court held to be illegal because once a charge is framed the Magistrate has no power u/s 227 of the Cr PC to cancel the charge. The decision in R.S. Nayak v. A.R. Antulay (supra) is interpretation of sections 227, 239 and 245(1) of the Cr PC. There has been a comparison between the provision of sections 227, 239 and 245 of the Cr PC and it has been held that the question of framing charge u/s 245(1) is a preliminary one and the test of prima facie case has to be applied. The same is the principle reiterated in the decision in Mahany Abhey Dass v. S. Gurdial Singh (supra). Antulay''s case was referred to in State of Maharashtra v. Som Nath Thapa (supra) in connection with the principle to be applied for framing charge. It was held that a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. In State of Delhi v. Gyan Devi (supra) it has been held that it is well settled that when a petition is Filed u/s 482 of the Cr PC by an accused seeking for quashing of charge the Court should not interfere with the order unless there is strong reason to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. In State v. S. Bangarappa (supra) there is a reminder by the Hon''ble Supreme Court that at the stage of framing a charge the Court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. The decision in State v. Dr. Krishna Chandra Saksena (supra) is based on a trap case. Evidence was adduced against the accused and it was held that the question whether the complainant will ultimately support the prosecution case at the stage of trial or not is not a relevant circumstance for deciding whether the proceeding could be quashed u/s 482 of the Cr PC.

What the Hon''ble Supreme Court enunciated in the series of the aforesaid decisions can be put in the following way:

a) There must not be a roving enquiry to ascertain whether the evidence adduced by the prosecution would ultimately lead to conviction or not.

b) Charge can be framed when there is ground for presuming that the accused has committed offence.

c) Provision of Section 482 of the Cr PC should not be invoked for quashing a charge unless there are strong reasons to hold in the interest of justice and to avoid the abuse of the process of the Court.

d) Evidence should not be evaluated to decide the credibility of a witness.

Bearing in mind the principles laid down by the Hon''ble Supreme Court as above we must approach the case, and while approaching, Mr. Pradip Kumar Ghosh, learned senior advocate has reminded the Court with regard to the decision in State of Karnataka v. L. Muniswami (supra) where the Hon''ble Supreme Court held that the High Court can exercise the inherent power to quash proceeding on the ground of insufficiency of evidence. This decision is consistent with the decision in State of Delhi v. Gyan Devi (supra). Citing the decision in Madhu Limaya (supra) it has been argued by Mr. Ghosh that in case the impugned order clearly brings out a situation indicative of abuse of the process of the Court then definitely inherent power of the Court must be exercised. Mr. Ghosh has placed reliance on Niranjan Singh Karan Singh (supra) to argue that if the learned trial Court fails to discharge his duty by applying its mind to the materials on record so as to find out whether prima facie materials are there or not to proceed against the accused then failure of such duty should be corrected by the Court and in the instant case, according to Mr. Ghosh, in spite of having absolutely no evidence whatsoever the learned Magistrate framed charges against all the accused persons.

The question, therefore, is whether there are materials to frame charge. As has been indicated above the petition of complaint uses the expression at paragraph 13 ''criminal conspiracy'' but so far as the two petitioners are concerned there has not been given any amount of material or at least circumstance as to how the two petitioners who according to Mr. Ghosh were of tender age and were in school and college came to be a part of criminal conspiracy. The complaint lodged on 19th September, 1997 with the O.C. Hare Street Police Station alleges surreptitious removal and transfer of share, deed of transfer, share certificates and other valuable documents by Rakesh Himatsingka, Anita Himatsingka, Hemanta Kumar Chatterjee, Atunu Chatterjee, Sushil Sharma, Rajat Jalan and Sujit Kumar Poddar from the depository of safe custody at 6 Old Post Office Street, Kolkata - 700 001. This complaint with the O.C. Hare Street Police Station does not implicate the two girls at all. If we look at the evidence of P.W.1 Gourav Himatsingka we find that the allegations have been made in the evidence against Rakesh, Anita and Rakesh''s employee Dhirendra with respect to removal of share transfer certificates and other documents and transfer of shares of Dipak Himatsingka by Rakesh in favour of Rakesh''s minor son Shaurya and in the name of Rakesh himself as Karta of of HUF. So far as the two petitioners are concerned they have been implicated as they constituted at the material time members of the HUF and there is an allegation that they retained the share certificates. Evidence of P.W.6 Dipak Himatsingka totally absolves the two petitioners of the charges. There is specific evidence, as it was the specific evidence of P.W.5 that Rakesh, his employee Dhirendra and Anita removed valuable securities. Even P.W. 6 does not speak of criminal conspiracy. When this is so, can it be said that there is a ground for presuming that the accused has committed the offence. Presumption has to be upon ''probable evidence'' - the expression used by their Lordships in Som Nath Thapa''s case. Neither in the petition of complaint nor in evidence of P.W. 5 and P. W. 6 do we find any material whatever against the two petitioners. The share certificates and other documents were kept in safe custody in the office at 6 Old Post Office Street. There is no evidence that on the material date the two petitioners came to the office at 6, Old Post Office Street, Kolkata - 700 001. There is no evidence that they removed the documents or participated in the removal of the documents. So far as transfer of share is concerned, it is not the evidence that the two petitioners effected such transfer or such transfer was effected in favour of the two petitioners. Transfer was made by Rakesh in favour of his minor son and in his name as Karta of HUF. Save and except a stray statement of P.W.5 that the accused persons (without naming individually) received the share transfers certificates in general terms, there is practically no evidence at all that it is the two petitioners who have been the repository of the share transfer certificates. In fact, as documentary evidence disclosed, with the transfer of share certificates in favour of Rakesh and Rakesh''s son they remained in the possession of the Rakesh and there could not be any occasion prima facie for the two petitioners who are daughters of Rakesh to be the custodians of the share certificates. It is not the allegation in the petition of complaint or evidence at all that the two petitioners became the custodians of the share certificates. Mr. Basu, learned advocate for the opposite party takes recourse to section 8 of the Evidence Act. It could not be understood how so far are as the two petitioners are concerned the said section can be invoked against them. In order to impute conduct against the two petitioners it has to be alleged prima facie at least that they did some acts covert or overt so that conduct of the two petitioners can be said to be relevant for framing charges against them. Sardul Singh''s case (supra) speaks of admissibility of evidence of conduct but if there is no evidence of conduct, if there is no circumstance leading to inference of existence of conduct in the matter of commission of offence or participation with others in the commission of offence section 8 does not have any manner of application. Mr. Basu harps repeatedly on ''strong suspicion''. ''Strong suspicion'' must presuppose existence of some material, but if there is no material, direct, indirect or circumstantial no presumption is permissible that they committed offence. It is not to suggest that evidence should be read to find out whether conviction is possible or not though in Madhav Rao Scindia (supra) it was held that when a prosecution at the initial stage is asked to be quashed u/s 482 of the Cr PC the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie established the offence. Mr. Basu submitted that the two petitioners were recipients of the share certificates from the office of the Cooperative Society. This is absolutely without any evidence. A general allegation against all the accused persons by P.W. 5 that the accused persons retained the share certificates and that there was criminal conspiracy cannot be said to be the prima facie material against the two petitioners. It is the repeated evidence of P.W. 5 and P.W. 6 and it is the specific allegation in the petition of complaint that it is Rakesh, his wife Anita and employee Dhirendra who committed these entire criminal acts. Rakesh and these people allegedly committed these criminal offences and it was Rakesh who made over the share certificates to the society with a transfer deed indicating transfer of share certificates by him in his name as also in the name of his minor son. In the face of this piece of evidence it is not understood how can it be said that the two petitioners are the recipients of the share certificates.

Mr. Basu in course of his argument attempted to support the framing of charge with reference to criminal conspiracy. The question therefore is whether the two petitioners can be said to be party to the alleged conspiracy. In support of existence of conspiracy Mr. Basu referred to the Special Bench decision of this Court in Netai Chandra Jana (supra) to argue that to prove conspiracy there need not be evidence of direct concert nor even of any meeting together of the conspirators. The agreement can be inferred from collateral acts but these acts must show a common plan so as to exclude a reasonable possibility of the acts of the conspirators having done separately and connected only by coincidence. Following this decision it has to be analyzed whether the two petitioners can be said to be the part of conspiracy. Conspiracy entails an agreement and in absence of any direct concert or of any meeting the agreement has to be inferred from collateral acts. Thus, the two petitioners must be found at least prima facie to have done certain collateral acts from which it can be said that they thereby came to be party to the agreement and thus to conspiracy. But there is absolutely no evidence of any act, collateral act, conduct, agreement, meeting of mind against the two petitioners. Mr. Basu referred to the decision in Bhagwandas Keshwari v. State of Rajasthan (supra) where their Lordships of the Supreme Court held that in cases of conspiracy better evidence than acts and statements of the co-conspirators in pursuance of the conspiracy is hardly ever available. This decision does not help Mr. Basu. There were in the case some amount of evidence against the co-conspirators. But here we find no iota of evidence at all. Mr. Basu referred to State of Kerala v. Anamini (supra) in support of the invocation of the doctrine of conspiracy against the two petitioners, but this decision is of no help to the client of Mr. Basu. Mere use of the expression ''conspiracy'' does not amount to bring prima facie material of conspiracy. Conspiracy cannot be imported out of nihility. In Ammini''s case the Kerala High Court held that the offence of criminal conspiracy can be proved largely from inference drawn from acts committed by the conspirators in pursuance of a common desire. We hardly find any acts committed by the two petitioners out of which inference can be drawn to the existence of criminal conspiracy against them. The decision in S.C. Bahri (supra) held that conspiracy can be proved by circumstantial evidence. Circumstantial evidence includes surrounding circumstances and antecedent and subsequent conduct. So far as the two petitioners are concerned there is neither any antecedent or subsequent conduct nor any surrounding circumstances. The decision in Shivnarayan (supra) reveals that in that case conspiracy was proved and accordingly act of one conspirator can be used against the act of the other. Here in our case no act has been alleged specifically as against any of the two petitioners which can lead to conspiracy. There could not be any correlation between the acts of Rakesh, his employee and Anita with no-act of the two petitioners. Kehar Singh''s case reiterated the same principle and there was in that case reference to Sardar Sardul Singh''s case. Evidence against Rakesh, his wife and employee can be used against the two petitioners only when it is proved that the petitioners were party to the conspiracy; and this is the analysis of section 10 as we find from Kehar Singh''s case. Bhagwan Swarup''s case has been decided following Sardar Sardul, and two other decisions. This decision is not relevant for us so far as facts are concerned of that reported case. Thus, there cannot be any invocation of Section 120B of the IPC.

The submission of Mr. Basu that the receipt of the share certificates by the two petitioners would bring them within the mischief of section 411 cannot be accepted because there is no evidence that after removal of the share certificates by the principal accused the two petitioners have been the recipients of the share certificates.

The names of the two petitioners have been included in the category of the accused persons on the ground as we find in paragraph 11 of the petition of complaint that these two petitioners along with the three others constituted HUF. The theory of conspiracy is sought to be built upon on two premises i.e. (a) since the two petitioners are members of the HUF element of conspiracy as against these two petitioners cannot be ruled out and (b) since they are the members of the HUF they are also the beneficiaries and the recipients of the share certificates since transferred in favour of HUF. Exactly, this is the submission of Mr. Basu that the two petitioners are the recipients of the benefit arising out of the forged certificates and there is evidence to show that those share certificates were received by them through the office of the Co-operative Society. It is the argument that with the involvement of the two daughters of Rakesh, Rakesh committed forgery and as such there is no reason to exclude the two daughters of the principal accused from the category of the accused persons. Mr. Pradip Ghosh, learned advocate appearing for the two petitioners strongly contradicted the submission submitting that the submission of Mr. Basu is beyond the record and secondly the two daughters cannot be the recipients of the alleged benefits of transfer of share certificates.

Having heard the submissions of the learned Advocates for the parties it appears to me that there is no iota of evidence that after removal of the share certificates by Rakesh, Anita and Dhirendra from their office at 6, Old Post Office Street they were handed over to the two petitioners. There is absolutely no prima facie evidence to that effect. None of the witnesses has ever said that the two petitioners retained with them the share certificates. It is on the contrary to the evidence of P.W. 5 and P.W. 6 that the principal accused submitted to the society the share certificates with the document of transfer of such shares in the name of Shaurya and his name as Karta on HUF. So far as the two share certificates of Deepak is concerned, they stood transferred in the name of Shaurya, while in respect of three share certificates they were transferred by Rakesh in his name but as Karta of HUF. Unquestionably, share certificates were not transferred in the name of the two petitioners. The argument of Mr. Basu that the fact that the two petitioners are members of the same Hindu Family and reside under the same roof and related to the other accused persons in the daily life raises a strong suspicion about involvement of the two petitioners is a strange logic. Equally it is a strange logic that simply because of the fact that two petitioners are members of the HUF they might be party to the conspiracy. Mere being members of the HUF cannot be the premise of presumption of participation in the alleged removal of the share certificates or of transfer of share certificates. Secondly, it can hardly be said that the two petitioners could be recipients of the benefits of transfer of the share certificates because the position of Hindu Law is not in favour of the petitioners. It has been submitted by Mr. Ghosh, learned senior advocate appearing for the petitioners that the family of the accused persons is governed by Mitaksara School of Hindu law and the family is a HUF but the two petitioners cannot be said to be the recipients or beneficiaries of the share certificates.

The argument appears to have force in it. The two petitioners may be members of the joint Hindu Family. A joint Hindu Family normally consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters but possession of joint family property is not a necessary requisite for the constitution of a joint Hindu Family. Joint family property is only an adjunct of the joint family. Under the Mitaksara School of Hindu Law on the twin principles of a right vested by birth in the male issue only and of unobstructed heritage, the conception of Mitaksara coparcenary is a common male ancestor with his lineal descendants in the male line; and the female members of the family who have no vested right by birth and who can come only as heirs to obstructed heritage cannot be coparceners with the male members of the undivided family. Therefore, the law precluded the two petitioners, the daughters of the principal accused from enjoying the benefit arising out of the alleged forged share certificates as coparceners. The principal accused did not make transfer of shares in favour of his daughters. Therefore, the argument of Mr. Basu that the petitioners are recipients of the benefit arising out of the forged certificates does not stand the test of law. It was only by an amendment of Hindu Succession Act (Act No. XXXIX) of 2005 which came into effect only in September, 2005 that section 6 of the Principal Act was amended to include the daughter of a coparcener to be a coparcener by birth in her own right in the same manner as the son. The alleged transfer of shares took place sometime in September, 1997. Therefore, it cannot be said that the two petitioners came to be the beneficiaries of the property and because of being beneficiaries they became party to the conspiracy. Mr. Ghosh submitted that when the occurrence allegedly took place, the two petitioners were students, and by now they have been given in marriage and no longer they are members of the HUF.

Having regard to all these facts and circumstances of the case as well as materials on record. I am of the opinion that there was in fact no prima facie material whatsoever to frame charges against the two petitioners.

Accordingly, the revisional application is allowed.

The order of the learned Sessions Judge, dated 3rd January, 2007 in Criminal Revision No. 176 of 2006 and the order of the learned Additional Sessions Judge, 4th Fast Track Court, Bichar Bhavan, Calcutta dated 26th April, 2007 in Criminal Revision No. 217 of 2006 are set aside.

The order of the learned Magistrate dated 12th September, 2006 to the extent of framing charges against the two petitioners is set aside. They stand discharged from bail bonds, if any.

A copy of this judgment along with the L.C.R. may be sent to the learned Metropolitan Magistrate, 11th Court, Calcutta for information and necessary action with reference to the case No. C2069 of 1998.